Persons Liable Cases

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EN BANC G.R. No. L-5932 February 27, 1912 DEAN C. WORCESTER, plaintiff-appellee, vs. MARTIN OCAMPO, TEODORO M. KALAW, LOPE K. SANTOS, FIDEL A. REYES, FAUSTINO AGUILAR, ET AL.,defendants- appellants. Felipe Agoncillo for appellants. W. A. Kincaid and Thos. L. Hartigan for appellee. JOHNSON, J.: On the 23rd day of January, 1909, the plaintiff commenced an action against the defendants in the Court of First Instance of the city of Manila, for the purpose of recovering damages resulting from an alleged libelous publication. The complaint was in the following language: COMPLAINT. I. That the plaintiff as well as the defendants are residents of the city of Manila, Philippine Islands. II. That for a long time before the 30th of October, 1908, the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, Faustino Aguilar, Leoncio G. Liquete , Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the owners, directors, writers (redactores), editors (editores) and administrators of a certain daily newspaper known as "El Renacimiento" and "Muling Pagsilang," which newspaper during all the time mentioned in this complaint was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands. III. That for a long time the defendants have been maliciously persecuting and attacking the plaintiff in said newspaper, until at last on the 30th of October, 1908, with the malicious intention of injuring the plaintiff, who on said date was, and still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the honesty and reviled the fame of the plaintiff, not only as a private person but also as an official of the Government of the Philippine Islands, and with the object of exposing him to the odium, contempt, and ridicule of the public, printed, wrote (redactaron), and published in said newspaper in its ordinary number of the 30th of October, 1908, a malicious defamation and false libel which was injurious (injurioso) to the plaintiff, said libel reading as follows: "EDITORIAL. "BIRDS OF PREY. "On the surface of the globe some were born to eat and devour, others to be eaten and devoured. "Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in the majority of cases they did not obtain but a change of name or plumage.

Transcript of Persons Liable Cases

Page 1: Persons Liable Cases

EN BANCG.R. No. L-5932             February 27, 1912

DEAN C. WORCESTER, plaintiff-appellee, vs.

MARTIN OCAMPO, TEODORO M. KALAW, LOPE K. SANTOS, FIDEL A. REYES, FAUSTINO AGUILAR, ET AL.,defendants-

appellants.

Felipe Agoncillo for appellants. W. A. Kincaid and Thos. L. Hartigan for appellee.

JOHNSON, J.:

On the 23rd day of January, 1909, the plaintiff commenced an action against the defendants in the Court of First Instance of the city of Manila, for the purpose of recovering damages resulting from an alleged libelous publication. The complaint was in the following language:

COMPLAINT.

I.

That the plaintiff as well as the defendants are residents of the city of Manila, Philippine Islands.

II.

That for a long time before the 30th of October, 1908, the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, Faustino Aguilar, Leoncio G. Liquete , Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the owners, directors, writers (redactores), editors (editores) and administrators of a certain daily newspaper known as "El Renacimiento" and "Muling Pagsilang," which newspaper during all the time mentioned in this complaint was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands.

III.

That for a long time the defendants have been maliciously persecuting and attacking the plaintiff in said newspaper, until at last on the 30th of October, 1908, with the malicious intention of injuring the plaintiff, who on said date was, and still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the honesty

and reviled the fame of the plaintiff, not only as a private person but also as an official of the Government of the Philippine Islands, and with the object of exposing him to the odium, contempt, and ridicule of the public, printed, wrote (redactaron), and published in said newspaper in its ordinary number of the 30th of October, 1908, a malicious defamation and false libel which was injurious (injurioso) to the plaintiff, said libel reading as follows:

"EDITORIAL.

"BIRDS OF PREY.

"On the surface of the globe some were born to eat and devour, others to be eaten and devoured.

"Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in the majority of cases they did not obtain but a change of name or plumage.

"The situation is the same in all the spheres of creation: the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creatures' expense.

"Among men it is very easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever can be.

"The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering of their fellow-men.

"There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire.

"Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and

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civilize them and to espy in his flight, with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amidst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit.

"Authorizing, despite laws and ordinances, an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position.

"Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined o dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and less savory, so as to make it worth the while replacing them with species coming from other climes.

"Giving an admirable impulse to the discovery of wealthy lodes in Mindoro, in Mindanao, and in other virgin regions of the Archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under he names of others.

"Promoting, through secret agents and partners, the sale to the city of worthless land at fabulous prices which the city fathers dare not refuse, from fear of displeasing the one who is behind the motion, and which they do not refuse for their own good.

"Patronizing concessions for hotels on filled-in-land, with the prospects of enormous profits, at the expense of the blood of the people.

"Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulent omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless.

"It is these birds of prey who triumph. Their flight and their aim are never thwarted.

"Who will detain them?

"Some share in the booty and the plunder. Others are too weak to raise a voice of protest. And others die in the disconsolating destruction of their own energies and interests.

"And then there appears, terrifying, the immortal legend:

"MANE, TECEL, PHARES."

IV.

That the plaintiff was, on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to public in general, personally as well as a member of the Civil Commission of the Philippines and as Secretary of the Interior, and the defamation and libel, and the words, terms and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that should be understood, as in effect they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff, by reason of the publicly known fact that said plaintiff in compliance with his duties in his position as such member of the Civil Commission of the Philippines and as such Secretary of the Interior of the Philippine Islands, ascended on a previous occasion the mountains of the Province of Benguet to study the native tribe known as Igorot, residing in said region; by reason of the publicly known fact that in the said mountains of Benguet there exist large deposits of gold, and for the reason that, as member of the Civil Commission of the Philippines, which is the legislative body of the Philippine Islands, the plaintiff takes part in the enactment and repealing of laws in said Islands; by reason furthermore of the fact, publicly known, that the plaintiff, as such Secretary of the Interior of the Philippine Islands, has had under his direction and control the enforcement of the laws of the Philippine Islands and the ordinances of the city of Manila relating to the slaughtering of cattle; by reason furthermore of the fact, publicly known that said plaintiff, as such Secretary of the Interior of the Philippine Islands, had under his direction and control the Bureau of Science of the Government of

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the Philippine Islands, and he is generally known as a man devoted to the study of science; by reason furthermore of the publicly known fact that the said plaintiff, as such Secretary of the Interior of the Philippine Islands, at a previous time, caused the importation into the Philippine Islands of fish eggs for the purpose of supplying the mountain streams of the Philippine Islands with fish-hatcheries; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, has journeyed to and explored the Islands of Mindoro, Mindanao, and other regions of the Philippine Archipelago; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, at one time investigated and prepared a report for the Civil Commission of the Philippines in regard to a certain proposition for the purchase of a parcel of land for the city of Manila; by reason furthermore of the publicly known fact that said plaintiff, as member of said Civil Commission of the Philippines together with the other members of said legislative body, once opened negotiations with a certain firm engaged in the hotel business in regard to the location of a prospective hotel on one of the filled-in lands of the city of Manila.

That said defendants charged said plaintiff with the prostitution of his office as member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare; with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combinations for the purpose of robbing the people; with the object of gain for himself and for others; and lastly with being "a bird of prey;" and that said defamation should be understood, as in effect it was understood, by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatsoever.

That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort made by said defendants to see that said

defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same.

V.

Besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing the said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as member of the Civil Commission of the Philippines and Secretary of the Interior.

In fact said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments.

VI.

And for all these reasons the plaintiff alleges: That he has been damaged and is entitled to an indemnity for the additional work to which he has been put, by the said defendants, in the compliance of his duties, both in the past and the future, as well as for the injuries to his reputation and feelings, in the sum of fifty thousand pesos (P50,000) Philippine currency, and besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos (P50,000) Philippine currency, in the way of punitive damages, as a warning to the defendants.

Wherefore the plaintiff files this complaint, praying the court:

(1) That the defendants be summoned according to law.

(2) That judgment be rendered ordering the defendants to pay the damages as above stated, and the costs of the action.

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On the 23d of February, 1909, the defendants presented the following demurrer to the said complaint:

DEMURRER.

Now come the defendants, through their undersigned attorney, and demur to the complaint filed herein, upon the following grounds:

First, That the complaint is vague and unintelligible.

Second. That the facts alleged in the complaint do not constitute a cause or right of action.

Third. That there is another action pending between the plaintiff and several of the defendants for the same cause; and

Fourth. That some of the defendants have been erroneously included therein.

Therefore, they respectfully ask the court to dismiss the complaint, with costs against the plaintiff.

On the 27th of February, 1909, the Honorable Charles S. Lobingier, judge, overruled said demurrer in the following decision, to which the defendants duly excepted:

ORDER.

The defendant demur upon several grounds:

(1) The first ground is that the complaint is vague and unintelligible and this is directed principally to paragraph 2, in which it is alleged that the defendants were "dueños, directores, redactores", etc., but it is not alleged that they were such simultaneously. If this were the sole averment of the defendants' connection with the alleged libel, the objection might be well taken, but paragraph 3 of the complaint alleges that the defendants "imprimieron, redactaron y publicaron", etc., the article complained of. Under section 2 of Act 277 "every person" who "publishes or procures to be published any belief is made responsible. (Cf. U.S. vs.Ortiz, 8 Phil. Rep., 752.) We think, therefore, that the connection of the defendants with the publication complained of is sufficiently charged.

(2) It is also claimed that the facts alleged are not sufficient to state a cause of action and it is urged in support of this that the article complained of and which is copied in the complaint, fails to mention the plaintiff or to show on its face that it refers to him. It is, however, specifically alleged in paragraph 4 that the article was intended to refer to the plaintiff and was so understood by

the public, and this allegation is admitted by the demurrer. Under the rule announced in Causin vs. Jakosalem (5 Phil. Rep., 155), where the words complained of do refer to the plaintiff "an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name."

(3) It is further argued that there is another action pending between the parties for the same cause. This, it is true, is made a ground for demurrer by the Code of Civil Procedure, sec. 91 (3), but like all grounds therein mentioned, it must "appear upon the face" of the pleading objected to, and where it does not so appear "the objection can only be taken by answer." (Code C. P., sec. 92.) There is no averment in the complaint which indicates that there is no another action pending.

The fourth ground of the demurrer is not one recognized by law (Code C. P., sec. 91) nor do we find anything in Sanidad vs. Cabotaje (5 Phil. Rep., 204) which would necessitate any change in the views already expressed.

The demurrer is, therefore, overruled and defendants are given the usual five days to answer.

On the 15th day of November, 1909, the defendants presented their amended answer, which was as follows:

ANSWER.

The defendants in the above-entitled cause, through their undersigned attorney, by their answer to the complaint, state:

That the defendants deny generally the allegation of the complaint.

As a special defense, the defendants allege:

First. That the plaintiff has no legal capacity to institute this action, as it clearly appears from the allegations of the complaint and which the defendants hereby deny.

Second. That the facts are set out as constituting cause of action in the complaint, are insufficient to constitute such cause of action in favor of the plaintiff and against the defendants.

Third. That the said complaint is manifestly improper, for the reason that there is now pending in the Court of First Instance of this city a criminal cause, No. 4295, for the crime of libel against the defendants herein, Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, both

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actions, criminal and civil, being based upon the same facts which the plaintiffs herein, who is also a party to the said criminal action, now alleges as the basis of his action.

Fourth. That the civil action in the above-entitled cause has been extinguished for the reason that plaintiff did not expressly reserve the right to enforce the same in the aforesaid cause 4295, for the crime of libel, after the said criminal cause had been finally disposed of.

Fifth. That the defendants, Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were erroneously included in the complaint for the simple reason that the first two were acquitted in said criminal cause No. 4295, for libel, the third was used as a witness for the prosecution in the said criminal cause, and the others have no interest, either directly or indirectly, in the newspaper "El Renacimiento" in which it is alleged by the plaintiff the editorial, which is the basis of the complaint, and which it is claimed to be libelous, was published.

Wherefore the defendants pray that they be acquitted of the complaint, with the costs against the plaintiff.

After hearing the evidence adduced during the trial of the cause, the arguments if the respective attorneys, the Honorable James C. Jenkins, judge, on the 14th of January, 1910, rendered the following decision:

DECISION.

This is a civil action sounding in damages to the amount of P100,000 for an alleged libel of the plaintiff by the defendants.

The plaintiff is the Honorable Dean C. Worcester, a member of the Civil Commission of the Philippine Islands, and Secretary of the Interior of Insular Government. The defendants are twelve persons designated by name in the complaint and alleged therein to be the owners, directors, writers (redactores), editors (editores), and administrators of a certain daily newspaper known as "El Renacimiento" and "Muling Pagsilang," which defendants, as well as the plaintiff, are residents of the city of Manila, Philippine Islands.

It is further alleged in the complaint that for a long time prior to the 30th of October, 1908, the defendants were the owners, directors, writers, editors, and administrators

of said daily newspaper, and that said newspaper, during all the time mentioned in the complaint, was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands.

It is also alleged that for a long time the defendants had been maliciously persecuting and attacking the plaintiff in said newspaper, until at last, on said date, with the malicious intention of injuring the plaintiff who then was still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the integrity and reviled the reputation of the plaintiff, not only as a private citizen, but also as an official of the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in said newspaper in its ordinary number of the said 30th of October, 1908, a malicious defamation and false libel, which was injurious to the plaintiff, said libel, as translated from the Spanish, reading as follows:

"EDITORIAL.

"BIRDS OF PREY.

"On the surface of the globe some were born to eat and devour, others to be eaten and devoured.

"Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in a majority of cases they do not obtain anything but a change of name or plumage.

"The situation is the same in all spheres of creation; the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creature's expense.

"Among men it is easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the

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nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever will be.

"The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering if their fellow-men.

"There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire.

"Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them, and to espy in his flight with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amongst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit.

"Authorizing, despite laws and ordinances an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position.

"Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined to dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and savory, so as to make it worth the while replacing them with species coming from other climes.

"Giving an admirable impulse to the discovery of wealthy lodes in Mindanao, in Mindoro, and in other virgin regions of the archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under the names of others.

"Promoting through secret agents and partners, the sale of the city worthless land at fabulous prices

which the city fathers dare not refuse from fear of displeasing the one who is behind the motion, and which they do not refuse to their own good.

"Patronizing concessions for hotels on filled-in lands, with the prospects of enormous profits, at the expense of the blood of the people.

"Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulant omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless.

"It is these birds of prey who triumph. Their flight and aim are never thwarted.

"Who will detain them?

"Some share in the body and plunder, Others are too weak to raise a voice to protest. And others die in the disconsolating destruction of their own energies and interests.

"And then there appears, terrifying, the immortal legend:

"MANE, TECEL, PHARES."

It is alleged, among other things, in paragraph four of the complaint, that the plaintiff was on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to the public generally, personally as well as a member of the Civil Commission of the Philippines and as a Secretary of the Interior; and the defamation and libel, and the words, terms, and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that they should be understood, as in fact they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff. (Here follow the reasons for saying the editorial referred to plaintiff and why the public understood it as referring to him.)

The said defendants charged plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the

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purpose of promoting his personal welfare; and with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combination of the purpose of robbing the people, with the object of gain for himself and for others; and lastly, with being a bird of prey, and that said defamation should be understood, as in effect it was understood by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatever. That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort was made by said defendant to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same.

In paragraph five of the complaint it is further alleged that, besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose of his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior. In fact, said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff, and to in incite the people to place obstacles in his way in the performance of his official duties, in consequence of which said plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments.

And the allegations end with paragraph six, in which the plaintiff states that for all these reasons has been damaged and is entitled to an indemnity for the additional work to which he has been put by said defendants in compliance with his duties, both in the past and in the

future, as well as for the injuries to his reputation and feelings, in the sum, of P50,000, and that besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos in the way of punitive damages, as a warning to the defendants.

The complaint concludes with a prayer, among other things, that judgment be rendered ordering the defendants to pay the damages as above stated and the costs of the action; and is dated and signed, Manila, P.I., January 23, 1909, Hartigan and Rohde, Kincaid and Hurd, attorneys for plaintiff.

A demurrer to this complaint was filed by the defendants, through their attorney, Sr. Felipe Agoncillo, which demurrer was heretofore heard and overruled by the Court, and the defendants required to answer. Accordingly, the defendants within the prescribed time, filed their answer; and on November 16, 1909, through their attorney, filed and amended answer, which is as follows (after stating the case):

The defendants in the above-entitled action, through their undersigned attorney, answering the complaint, state: That they make a general denial of the allegations in the complaint, and as a special defense allege:

"(1) That the plaintiff lacks the necessary personality to institute the complaint in question, as evidently appears from the allegations in the same, and which the defendants deny;

"(2) That the facts set forth as a cause of action in the complaint are insufficient to constitute a cause of action in favor of the plaintiff and against the defendants;

"(3) That the said complaint is in every sense contrary to law, criminal case No. 4295, for libel, against the defendants Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, in the Court of First Instance of this city, being still pending, inasmuch as both causes, criminal and civil, are based upon the same facts which the plaintiff, who is also interested in said criminal cause, considers a cause of action;

"(4) That the civil action in the above-entitled cause has been destroyed as a consequence of the fact that the plaintiff did not expressly reserve his right to the same in

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the said mentioned cause No. 4295 for libel, in order to exercise it after the termination of said criminal cause:

"(5) That the defendants Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit have been erroneously included in the complaint, for the simple reason that the first two were acquitted in said cause No. 4295 for libel, the third was used as a witness by the prosecution in the same cause, and the latter ones have no interest, directly or indirectly, in the newspaper "El Renacimiento," in which the plaintiff presumes, was published the editorial which forms the basis of the complaint, and which is said to be libelous; and concluding with a prayer to the court to dismiss the case, with cost against the plaintiff."

The second paragraph of this "special defense" is nothing other than a general demurrer to the complaint, which has been overruled, as already stated.

The first paragraph is not clearly stated, but the court construes it as meaning a simple denial that the plaintiff is the person referred to in the alleged libelous article "Birds of Prey," which issue is sufficiently raised by the general denial of the allegations in the complaint.

The third paragraph is not a valid defense in law, for the simple reason that section 11 of Act 277 of the Philippine Commission, under which this suit is brought, especially provides for a separate civil action for damages, as well as for a criminal prosecution. (See Mr. Justice Johnson's recent decision.) This third paragraph is therefore without merit; and the same may be said of the fourth paragraph thereof. As to paragraph five, it contains no material averment which could not have been set up and insisted upon under the general issue.

One part if this so-called special defense is therefore a demurrer already and adjudicated, another part is covered by the general issue, and the residue is without merit as a legal defense, and might have been stricken out. The defense is therefore tantamount to the general issue only, there being no special plea that these charges are true, nor any plea of justification.

The trial of this case on its merits began November 16, and ended December 10, 1909, and the proceedings and evidence introduced are to be found in the exhibits and stenographic notes taken by the court's official reporter. At

the trial Judge Kincaid said Major Hartigan appeared for the plaintiff and Señores Agoncillo, Cruz Herrera, and Ferrer for the defendants.

After hearing the testimony and arguments of counsel and a due consideration of the case, the court finds the following facts established by the admissions and a decided preponderance of the evidence:

That the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, seven in number, are the proprietors and owners of the said daily newspaper known as "El Renacimiento" and "Muling Pagsilang," and that "El Renacimiento" and "Muling Pagsilang," are one and the same newspaper, owned, managed, printed and published by the same persons; that Teodoro M. Kalaw and Lope K. Santos were the editors in chief of directors of this paper on the 30th of October, 1908, and that said nine defendants named were the owners, editors, proprietors, managers and publishers of said newspaper on said 30th of October, 1908, for a long time prior thereto, and during all the time mentioned in the complaint.

As to the defendants, Reyes, Aguilar, and Liquete, they appear from the evidence to have been editors of said paper, but in subordinate position to the chief editors or directors, Kalaw and Santos, and to have acted under the direction of their latter two defendants.

The court further finds that every essential or material allegation of the complaint is true substantially as therein stated, with the exception noted to Fidel A. Reyes, Faustino Aguilar, and Leoncio G. Liquete, and as may be hereinafter indicated. The case is therefore dismissed as to these three defendants.

The only serious contention of the defense is (1) that the editorial "Birds of Prey" does not refer to a determinate person; and (2) that, conceding that it does refer to the plaintiff, none of the defendants, except Teodoro M. Kalaw, is responsible for the writing, printing, or publication of the alleged libelous article of the damages to the plaintiff resulting therefrom.

In the opinion of the court this article so indubitably refers to the plaintiff, and was so easily and well understood by the readers of said paper as indicating the plaintiff, that it would be an act of superrogation to elaborately discuss the evidence adduced in support of or against the proposition.

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It is as clear to the court from the evidence adduced as the noonday sun, that the plaintiff is the identical and only person meant and referred to in said article "Birds and Prey;" and it requires no argument to prove that it does mean and refer to him and was so intended by the writer, and therefore by said nine defendants, and could not have been otherwise understood by any intelligent reader or subscriber of said paper, in view of the reasons assigned in the complaint, which reasons are clearly disclosed and fully established by the evidence. And it may be added that much valuable time was needlessly consumed by the defense at trial in an effort to establish the contrary.

It seems to the court a reflection upon the intelligence of the subscribers and readers of "El Renacimiento" to contend that this editorial was not well understood by them as referring to the plaintiff, and as fully as if his name had been mentioned in every paragraph thereof. And assuredly the omission of his name from the editorial has made the libel less hurtful and disastrous in its results to the reputation and feelings of the plaintiff.

Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of "El Renacimiento" and "Muling Pagsilang," but that six of them had originally contributed their money as a partriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustees for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo and Lichauco had agreed to contribute to the same ends, but had not done so.

This proposition in the light of evidence is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901 for their own personal benefit and profit is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof, and were such on said 30th of October, 1908.

Arcadio Arellano testified positively that Galo Lichauco was one of the seven founders, and that Lichauco contributed P1,000. Martin Ocampo testified that Galo Lichauco promised to contribute an amount which he (the witness) did not remember but that Lichauco did not keep his promise. (See pp. 107, 108, and 231 of the evidence.)

The other evidence and circumstances strongly corroborate Arcadio Arellano, and the court is constrained to believe that Arellano told the truth and Ocampo did not. See Exhibit B-J, a copy of "El Renacimiento" containing the article "Infamy Among Comrades," page 87 of the evidence, in which there was published that these seven persons named are the shareholders of the paper.

Furthermore, Galo Lichauco failed to appear and testify, so as to enlighten the court as to which witness, Arellano or Ocampo, told the truth, or whether chief editor Kalaw had his authority to publish in said paper, as he did in November 22, 1907, that he, Galo Lichauco, was one of the shareholders. The presumptions are therefore against Galo Lichauco. See S.S. Co. vs. Brancroft-Whitney Co. (36 C. C. A., 136 and 153).

It also appears from the evidence that Teodoro M. Kalaw was the chief editor or director of the Spanish section of said paper, and that Lope K. Santos was the chief editor or director of the Tagalog section on said 30th of October, 1908, and that the Spanish and Tagalog sections are, and then were, one and the same newspaper, but printed and published in different languages.

It is alleged that said newspaper has a large circulation throughout the Philippine Islands, and was published and circulated daily in the Spanish and Tagalog languages in the city of Manila. Not only are these allegations true, but it is also true that said newspaper has a daily circulation and subscribers in other parts of the world, notably in the United States and Spain; and it has subscribers numbering in toto not less than 5,200, and a daily issue of 6,000 copies.

It is also true as alleged, and the court so finds that since the year 1906 to said 30th of October, 1908, these nine defendants had been maliciously persecuting and attacking the plaintiff in their said newspapers, until at last, on said 30th of October, 1908 with the malicious intention of injuring the plaintiff, who on said date was and still is a member of the Civil Commission and Secretary of

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the Interior in the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in their said newspaper, in its ordinary number of said 30th of October, 1908, the malicious defamation and false libel of and concerning the plaintiff, entitled and herein alluded to as the editorial "Birds of Prey," which libel was and is highly injurious to the plaintiff and from which the plaintiff has sustained serious damage.

This editorial, when properly interpreted and read between the lines, means, besides other things, and was intended by the writer to mean and be understood by the readers thereof as meaning substantially the following:

That the plaintiff, Dean C. Worcester, was born on the surface of the globe to eat and devour, like a bird of prey, and that others, born to be eaten and devoured, are the prey and the food of the insatiable voracity of the plaintiff; that the plaintiff had a desire to copy and imitate the most rapacious bird, the eagle, in order to triumph in plundering his fellowman; that the plaintiff besides being an eagle, has the characteristics of thevulture, the owl, and the vampire.

That the plaintiff ascended the mountains of Benguet to classify and measure the skulls of the Igorots, and study and civilize them and to espy in his flight with the eye of the bird of prey the large deposits of gold-the prey concealed amidst the mountains-and to appropriate them to himself afterwards, and that to this end the plaintiff had the legal facilities, made and unmade at his own will, and that this is always done for his own benefit.

That the plaintiff authorized, inspite of laws and ordinances, the illegal slaughtering is diseased cattle in order to derive benefit from the infected and putrid meant which he himself was obliged to condemn by virtue of his official position; that while the plaintiff presents himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, his whole scientific labor is confined to dissecting insects and importing fish eggs.

That although the plaintiff gave an admirable impulse to the discovery of wealthy lodes in Mindanao and Mindoro, and in other virgin regions of the Archipelago, with the money of the people, under the pretext of the public good, as a strict matter of truth his object was to possess all the

data and the key to the national wealth for his essentially personal benefit, and that this is shown by his acquisition of immense properties registered under the names of others.

That the plaintiff promoted, through secret agents and partners, the sale to the city of Manila of worthless land at fabulous prices, which the city fathers dared not refuse from fear of displeasing the plaintiff, who was behind the project, and which they did not refuse for their own good; that the plaintiff favored concessions for hotels in Manila on filled-in land; with the prospect of enormous profits, at the expense of the blood of the people.

That such are the characteristics of the plaintiff, who is at the same time an eagle that surprises and devours, a vulture that gorges his self on deed and rotten meats, an owl that affects a petulant omniscience, and a vampire that sucks the blood of the victim until he leaves it bloodless. And this libelous article concludes with the asseveration in substance that the plaintiff has been "weighed in the balance and found wanting" — "Mane, Tecel, Phares."

That this editorial is malicious and injurious goes without saying. Almost every line thereof teems with malevolence, ill will, and wanton and reckless disregard of the rights and feelings of the plaintiff; and from the very nature and the number of the charges therein contained the editorial is necessarily very damaging to the plaintiff.

That this editorial, published as it was by the nine defendants, tends to impeach the honesty and reputation of the plaintiff and publishes his alleged defects, and thereby exposes him to public hatred, contempt, and ridicule is clearly seen by a bare reading of the editorial.

It suffices to say that not a line is to be found in all the evidence in support of these malicious, defamatory and injurious charges against the plaintiff; and there was at the trial no pretense whatever by the defendants that any of them are true, nor the slightest evidence introduced to show the truth of a solitary charge; nor is there any plea of justification or that the charges are true, much less evidence to sustain a plea.

In the opinion of the court "Birds of Prey," when read and considered in its relation to and connection with the other articles libelous and defamatory in nature, published of and concerning the plaintiff by these nine defendants

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anterior and subsequent to the publication of this article, and having reference to the same subject matter as shown by the evidence, is one of the worst libels of record. It is safe to say that in all the court reports to the Philippine Islands, or of Spain, or the United States, there is not to be found a libel case in which there is a more striking exemplification of the spirit of hatred, bad faith, evil motive, mischievous intent, actual malice, nefarious purpose, base malignity, or gross malevolence.

It is proper to observe also that since the beginning of this attack on the plaintiff in the year 1906 down almost to the present time, so far from there being any apology, retraction, or effort to repair the injury already done as far as lay in the power of the defendants, the persecution, wrong, and tortious injury to the plaintiff had been steadily kept up and persisted in, without the slightest abatement of the malevolent spirit.

There has been neither retraction, apology, nor reparation; per contra, the libel has been repeated, reiterated, and accentuated, and widely and extensively propagated by these nine defendants through the columns of their said paper and otherwise; and it appears from the evidence that especial effort has been made by these same defendants to give as much publicity as possible to the libelous and defamatory words used of and concerning the plaintiff in said editorial.

Through their instrumentality and persistency in asserting and reasserting its truth, this diabolical libel has been spread broadcast over the Philippine Islands and to other parts of the world. In said criminal case No. 4295 some of these nine defendants pleaded the truth of the charges; and in Exhibit A-Q is to be found this language: "The defense will adduce its evidence demonstrating the truth of every one of the facts published."

In their said paper of the 11th of January, 1909, there is published statement:

"The brief period of time allowed us by the court, at the request of the counsel, to gather evidence which we are to adduce in our effort to demonstrate the truth of the accusation that we have formulated in the article which is the subject of the agitation against us, having expired, the trial of the case against our director had been resumed." (See pp. 63 and 67 of the evidence.)

And about the same time they also declared in their said paper that "there is more graft than fish in the rivers of Benguet." And this in the year of our Lord 1909! the persecution having begun in 1905; thus indicating that there is to be no "let-up" or cessation of the hostile attitude toward the plaintiff or the vilification of his name and assaults upon his character, much less a retraction or an apology, unless drastic means and measures are made use of to the end that there may be no further propagation of the libel, or asseveration, or reiteration of its truth.

This article "Birds of Prey" charges the plaintiff with malfeasance in office and criminal acts, and is therefore libelous per se. It in substance charges the plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippine Islands and Secretary of the Interior of said Islands for personal ends. It is charged also substantially that plaintiff in his official capacity wasted the public funds for the purpose of promoting his own personal welfare, and that he violated the laws of the Philippine Islands and the ordinances of the city of Manila.

In its essence he is charged with taking part in illegal combinations for the purpose of robbing the people with the object of gain for himself and for others; with being a bird of prey, a vulture (buzzard), an owl, and a vampire that sucks the blood of the victim (meaning the people) until he leaves it bloodless, that is to say, robs the people, until he leaves them wretched and poverty-stricken, deprived of all worldly possessions; and lastly, that he, the plaintiff, like Belshazzar, has been weighed in the balance and found wanting as a high Government functionary; all of which charges are false and malicious and without and foundation whatever in fact, as the evidence fully demonstrates.

It is also a matter of fact, and the court so finds, that said defamation was written and published that it might be understood, and it was understood, by the public officials of the Government and the people of the Philippine Islands in general, and wherever else said newspaper may have circulated and been read, as charging the plaintiff with the tortious and criminal acts and conduct charged in said editorial as hereinbefore specified and interpreted.

The court finds it also true that, besides assailing the integrity and reviling the reputation of the plaintiff, said nine defendants, in publishing said libel, did so with the

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malicious intention of inciting the Filipino people to believe that the plaintiff was despotic and corrupt and unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior.

It is also true that the said nine defendants, by means of said libel, and other like false statements in their said newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with many difficulties which have greatly increased his labors as a public official.

It further appears from the evidence that not only has an effort been made by these nine defendants to give as much publicity as possible to the charges, but in order that said defamation should attract the attention of the public, they published the same under a heading in large, bold and showy type, so that it might be easily seen and read by all the subscribers and readers of said paper.

In full view of all the evidence, therefore, it is clearly seen that every essential allegation of the complaint is true substantially as therein claimed, and that the whole of the said editorial relating to the misconduct and bad character of the plaintiff is false and without the slightest foundation in fact. Not a scintilla of evidence was introduced in support of any injurious charge made therein against the plaintiff, to say nothing of the plaintiff's evidence that each and every charge of malfeasance therein contained is false, and without reference to whether a failure to plead the truth admits the falsity of the charge.

The evidence shows no "special" or "actual pecuniary damage," and none is alleged in the complaint. Two other kinds of damages, however are claimed, to wit, general damages for injuries to the feelings and reputation of the plaintiff and additional work to which he has been put by the conduct of the defendants, which are laid in the sum of P50,000, and "punitive," exemplary, or vindictive damages, "as a warning to the defendants," or as

expressed in Act 277 of the Philippine Commission, as a just punishment to the libelers and an example to others," which are laid in the same sum of P50,000.

The nine defendants being liable to the plaintiff for damages, the next question to be decided is what amount of damages should be awarded the plaintiff for the injury to his reputation and feelings and his being a proper case for punitive damages, the further question is, what sum shall be awarded as a just punishment to these nine libelers and as an example to others. In neither of these cases is there any precise measure of damages.

In determining the amount to be awarded in the first instance it is proper to consider the previous character, influence, reputation, standing, official position, hope of advancement, prospect of promotion, and social status of the plaintiff and his family, and all the circumstances connected with the case.

The plaintiff is a man in the prime of life, holding, as he has held for the last ten years an important, responsible, lucrative, high and exalted position of trust and honor in the service of the Government of the United States, in the Philippine Islands, without a blotch on his family escutcheon, so far as the evidence shows, and with an untarnished reputation as a man, as a citizen, and as a Government official.

He is a man of honesty, integrity, and high social position; a man of learning, famous as a scientist, and scientific achievements and scholarly attainments, a man of industrious habits, genuine worth, and intellectual force. He has read, studied, traveled and learned much, and is an author of merit and distinction. He was for a long while a professor in one of the largest and most renowned institutions of learning in the world; he is a man of vast experience, broad and liberal views, and an extensive acquaintanceship, not only in the Philippine Islands, but in the United States and other countries of the world. He was well and favorably received by the people wherever he journeyed previous to this atrocious libel upon his integrity and reputation.

He has discharged the duties of his lofty official position in a manner that reflects credit upon himself as well as the Government which he represents, and apparently with entire satisfaction to all of his superiors in office and the people generally; and but for this pernicious, outrageous,

Page 13: Persons Liable Cases

and highly reprehensible assault upon his good name, fame and reputation, there were prospects of promotion to higher honors. And so far as his personal and private record is concerned it was without a blemish anterior to the time when these unfounded and dastardly aspersions were cast upon it by these nine defendants.

Indeed, it is only necessary to advert to the testimony of the defense itself to ascertain that the plaintiff is an honorable man, and without a stain upon his character, officially or otherwise. It would be interesting to note here in parallel columns and compare the charges made in "Birds of Prey" and the testimony of one of the witnesses for the defendants.

Felipe Buencamino, an intelligent witness for the defense, in his testimony (p. 240) when asked the question, Do you know Mr. Worcester?" he answers, "Yes, sir: I know him as an honorable man. I also know him as an honest, honorable public official." In answer to another question he says, "As I have said, I know Mr. Worcester as a private citizen and as a public official, and my opinion of him is that of honorable man and an upright official." And no other witness testified anything to the contrary.

"A good name is rather to be chosen than great riches and loving favor rather than silver of gold."

"Who steals my purse steals trash;

x x x             x x x             x x x

But he that filches from me my good name, Robs me of that which not enriches him And makes me poor indeed."

The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of human civilization.

"The respect and esteem of his fellows are among the highest rewards of a well-spent life vouchsafed to man in this existence. The hope of it is the inspiration of youth, and their possession the solace of later years. A man of affairs, a business man, who has been seen and known of his fellowmen in the active pursuits of life for many years, and who

has developed a great character and an unblemished reputation, has secured a possession more useful, and more valuable than lands, or houses, or silver, or gold . . .

"The law recognizes the value of such a reputation, and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words, or libelous publication, a liability to make full compensation for the damage to the reputation, for the shame and obloquy, and for the injury to the feelings of the owner, which are caused by the publication of the slander or the libel.

"It goes further. If the words are spoken, or the publication is made, with the intent to injure the victim, or with the criminal indifference to civil obligation, it imposes such damages as a jury (in this case the judge), in view of all the circumstances of the particular case adjudge that the wrongdoer ought to pay as an example to the public, to deter others from committing like offenses, and as a punishment for the infliction of the injury.

"In the ordinary acceptance of the term, malice signifies ill will, evil intent, or hatred, while it is legal signification is defined to be "a wrongful act done intentionally, without legal justification." (36 C. C. A., 475.)

Surely in the case at bar there was a wrongful or tortious act done intentionally and without the semblance of justification or excuse, or proof that the libelous charges against the plaintiff were "published and good motives and justifiable ends."

But the Legislature and the highest judicial authority of these Islands have spoken in no uncertain words with regard to the rights of the plaintiff in this case; and we need not necessarily turn to the law of libel elsewhere, or the decision of the courts in other jurisdictions to ascertain or determine his rights.

In sections 1, 2, 3, 4, 6, and 11 of the Libel Law (Act 277, Philippine Commission) is to be found the law of these Islands especially applicable to this case. Section 1 thereof defines libel. Section 2 provides that every person who willfully and with a malicious intent to injure another publishes, or procures to be published, any libel shall be

Page 14: Persons Liable Cases

punished as therein provided. Section 3 provides that an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Section 4 provides, among other things, that in all criminal prosecutions the truth may be given in evidence; but to establish this defense, not only must the truth of the matter charged as libelous be proven, but also that it was published with good motives and for justifiable ends; and the presumptions, rules of evidence, and special defenses are equally applicable in civil and criminal actions, according to section 11 of said Act.

Section 6 is as follows:

"Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of such book or number of each newspaper or serial as fully as if he were the author of the same."

And section 11 provides as follows:

"In addition to such criminal action, any person libeled as hereinbefore set forth shall have a right to a civil action against the person libeling him for damages sustained by reason of such libel, and the person so libeled shall be entitled to recover in such civil action not only the actual pecuniary damages sustained by him, but also damages for injury to his feelings and reputation, and in addition such punitive damages as the court may think will be a just punishment to the libeler and an example to others. Suit may be brought in any Court of First Instance having jurisdiction of the parties. The presumptions, rules or evidence and special defenses provided for in this chapter for criminal prosecutions shall be equally applicable in civil actions under this section."

"The proprietor of a printing plant is responsible for publishing a libel. According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same." (Mr. Justice Torres, in U.S. vs. Ortiz, 8 Phil. Rep., 757.) But said section 6 plainly fixes the liability of editors and proprietors of newspapers, and is clear enough for all the purposes of this case.

Mr. Justice Carson (5 Phil. Rep. 1551), speaking for our Supreme Court, says:

"When there is an averment in the complaint that the defamatory words used refer to the plaintiff, and it is proven that the words do in fact refer to him and are capable of bearing such special application, an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name."

And Mr. Justice Willard (12 Phil. Rep., 4282), for the same high authority, says:

"In an action for libel damages for injury to feelings and reputation may be recovered though no actual pecuniary damages are proven.

"Punitive damages cannot be recovered unless the tort is aggravated by evil motive, actual malice, deliberate violence or oppression."

That is to say, if there is evil motive, or actual malice or deliberate violence, or oppression then punitive damages, or "smart money," may be recovered.

And Justice Carson (U.S. vs. Sedano, 14 Phil., Rep., 338), also says:

"Actual or express malice of an alleged libelous publication may be inferred from the style and tone of the publication.

"The publication of falsehood and calumny against public officers and candidates for public office is specially reprehensible and is an offense most dangerous to the people and to the public welfare.

"The interest of society require that immunity should be granted to the discussion of public affairs, and that all acts and matters of a public nature may be freely published with fitting comments and strictures; but they do not require that the right to criticise public officers shall embrace the right to base such criticism under false statements of fact, or attack the private character of the officer, or to falsely impute to him malfeasance or misconduct in office."

And there are almost numberless English and American authorities in perfect harmony with these decisions of our Supreme Court too numerous indeed to be cited here; and it is not necessary.

Page 15: Persons Liable Cases

Among the leading cases, however, in the United States, is that of Scott vs. Donald (165 U.S., 58) and cases therein cited. In this case the court says: "Damages have been defined to be the compensation which law will allow for an injury done, and are said to be exemplary and allowable in excess of the actual loss when the tort is aggravated by evil motive, actual malice, deliberate violence or oppression," which is in entire harmony with Justice Willard's decision hereinbefore cited.

And quoting from the decision in Day vs. Woodworth (13 Howard, 371) the same high court says:

"In actions of trespass, where the injury has been wanton and malicious, or gross or outrageous, courts permit juries (here the court) to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called "smart money." "

It thus clearly appears that the facts established in the case at bar are more than sufficient to bring it within the rule of law here laid down by the highest judicial authority.

Section 11 of the Libel Law expressly allows general damages; and Mr. Justice Willard, in Macleod vs. Philippine Publishing Company,3 says:

"The general damages which are allowed in actions of libel are not for mental suffering alone, but they are allowed for injury to the standing and reputation of the person libeled, and the common law of England and America presumed that such damages existed without proof thereof from the mere fact of publication of the libel."

In Day vs. Woodworth, the Supreme Court of the United States recognized the power of a jury in certain actions in tort to assess against the tort feasor punitive damages. Where the injury has been inflicted maliciously or wantonly, and with circumstances of contumely, or indignity, the judge or jury, as the case may be, is not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person.

"The public position of the plaintiff, as an officer of the Government, and the evil example of libels, are considerations with the jury (here the judge) for increasing damages." (Tillotson vs. Cheetham, 3 Johns, 56.)

"The character, condition and influence of the plaintiff are relevant on the matter of the extent of damages." (Littlejohn vs. Greely, 22 How. Prac., 345; 13 Abb. Prac., 41, 311.)

"Where the publication is libelous, the law presumes that it was made with malice — technical, legal malice, but not malice in fact — and the amount of damages depends in a large degree upon the motives which actuated the defendants in its publication; and in such cases the law leaves it to the jury (here the judge) to find a return such damages as they think right and just, by a sound, temperate, deliberate, and reasonable exercise of their functions as jurymen." (Erber vs. Dun. (C. C.) 12 Fed., 526.)

"Actions of libel, so far as they involve questions of exemplary damages, and the law of principal and agent, are controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary damages exists wherever a tortious injury has been inflicted recklessly or wantonly, and it is not limited to cases where the injury resulted from personal malice or recklessness of the defendant. It follows that the owner of a newspaper is as responsible for all the acts of omission and commission of those he employs to edit it and manage its affairs, as he would be if personally managing the same.' (Malloy vs. Bennett, (C. C.) 15 Fed., 371.)

"The fact that a publication, libelous per se, was made without any attempt to ascertain its correctness is sufficient to justify a finding that defendant committed libel client with a wanton indifference, and with actual malice sufficient to sustain exemplary damages." (Van Ingen vs. Star Co., 1 App. Div., 429, 37 N.Y., 114.)

"The court is not authorized to set aside a verdict for $45,000 in an action for libel, where it appears that plaintiff was persistently persecuted in the

Page 16: Persons Liable Cases

columns of defendant's newspaper, and that he and his family were held up to public contempt and ridicule, and defendants withdraw from the case after failing to establish a plea of justification." (Smith vs. Times Co., (Com. p. 1) 4 Pa. Dist. Rep., 399.)

"In considering the amount with the defendant shall pay, on this account (exemplary damages) the turpitude of his conduct and his financial ability are only considered; and such consideration is not in view of the injury or distress of the plaintiff, but in behalf of the public; the wrongful act is regarded as an indication of the actor's vicious mind — an overt deed of vindictive or wanton wrong, offensive and dangerous to the public good. This is the view of those damages which generally prevails." (Sutherland on Damages, vol. 2, p. 1092. title Exemplary Damages.)

"Punitive damages are recoverable not to compensate the plaintiff, but solely to punish the defendant. This legal motive would suffer defeat if punitive damages could not be given for a malicious attack on a reputation too well established to receive substantial injury at the hands of a libeler." (Judge Bond in Ferguson vs. Pub. Co., 72 Mo. App., 462.)

It may be suggested that the reputation of the plaintiff in this case is too well established to be seriously affected by the defamatory words used of and concerning him in "Birds of Prey," but it would not be proper to gravely consider this suggestion.

The conditions in these Islands are peculiar. The minds, thoughts, and opinions of the people are easily molded, and the public is credulous and perhaps frequently too ready to believe anything that may be said in derogation of an American official, especially when it is published and vouched for by the editorial and business management and proprietors if a newspaper of the prominence, pretensions, circulation and influence if "El Renacimiento," which paper is everlastingly proclaiming in its columns that it is being conducted and published solely in the interests of the Filipino people — pro bono publico. There is stronger disposition to give credence to what is said in a newspaper here in the Islands the elsewhere, and when abuse,

vilification, and defamation are persistently practiced for a period of several years, without modification or retraction, but with renewed emphasis, the people naturally come to believe in its verity and authenticity.

It is apparent from the evidence that as an effect of the persecution of the plaintiff by "El Renacimiento" and the libel published in its columns, the minds of the major part of the Filipino people have been poisoned and prejudiced against the plaintiff to such an extent that he is regarded by these people as odious, dishonest, unscrupulous and tyrannical.

It may be that his reputation has not suffered so severely with those of his own race, but when it is considered that his vocation has tenfold more to do with the Filipinos than with his own people, that his official duties place him in constant contact with them, and that his success in his chosen career is largely dependent upon their good will and support, it is manifest that the damage to his reputation has been very great and that a large sum of money should be awarded to indemnify him, as far as money can indemnify, for the loss of his good name with the Filipino people.

The plaintiff came to the Philippine Islands when a young man, full of hope and ambition. Since his arrival he has devoted himself incessantly and indefatigably to the uplifting of the inhabitants of the Archipelago and to the faithful performance, as far as he was able, of the pledges and promises of the Government to the Filipino people. The duties of his particular office were such as brought him in more immediate and constant contract with the people than any other official of the same category in these Islands.

It is clearly shown that the plaintiff faithfully endeavored to perform, and did efficiently perform, all of these duties, doing everything that he could in an unselfish and disinterested manner of the welfare and development of the country and its people, knowing full well that his career, as well as his advancement, depended largely upon the good will of these people, and that by incurring their censure or displeasure he would have little hope of success in his chosen work.

Imagine, therefore, the chagrin, disappointment, mortification, mental suffering, and distress, and perturbation of spirit that would necessarily be occasioned

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him when he discovered that through the nefarious, studied, and practiced persecution of the paper in question, these high hopes were blasted, and that, instead of having gained the respect and gratitude of the people for the assiduous labors devoted to their uplifting, they had been made to believe that, instead of being a benefactor, he was a vampire that was sucking their life blood, a corrupt politician who was squandering the money wrung from the people by means of taxation, in schemes for his own personal aggrandizement and enrichment.

That instead of developing the mineral wealth of the Islands he was taking up all the rich veins and appropriating them in the names of subservient tools, to his own personal use, benefit and profit. That instead of protecting the people from disease, he was, by means of infected meat and for his own personal gain, spreading contagion among them.

That he united in his person all the bad qualities of the vulture, the eagle, and the vampire; that, in short, he was a "bird of prey," with all that is implied in that term in its worst acceptation; that he was a corrupt tyrant, who never lost an opportunity to do the people hurt; that instead of wishing them well and seeking their advancement, he was their enemy, who never lost an opportunity to degrade and humiliate them; that instead of preferring them for office and positions of official trust, he treated them with all sorts of contempt and indifference.

It is difficult to appreciate the feelings of a refined soul in its contemplation of a result so disastrous, so unjust, and so unmerited.

It is furthermore shown that when the plaintiff came to these Islands a young scientist he had already won fame in his own country; that he is a fellow of the important scientific associations in the world. His election as a fellow or member of these scientific bodies shows that his labors in the Philippines were the object of solicitude by the prominent scientific and learned men not only of his own race, but in many other civilized countries of the world. Important results were evidently expected of him by them, and it can not be doubted that they expected of him of life honestly devoted to the conscientious discharge of his duties as a trusted public functionary of the American Government in the Philippine Islands.

And yet he is falsely denounced in the columns of said newspaper to his fellows of these societies as a man who is so absolutely corrupt, so inordinately selfish and avaricious that he has not considered for a moment the duties incumbent upon him; that he has been oblivious to every obligation of trust and confidence, and that he is unworthy of the respect of honest men.

One witness testified that he read this libel in the public library of the city of Boston. It is furthermore shown that copies of this paper went to Spain, England, and to different parts of the United States; and inasmuch as the plaintiff is a man of prominence in the scientific world, it is to be inferred that his fellows became more or less aware of these heinous charges.

Thus we find that the plaintiff is here confronted with disappointed ambition and frustrated hopes, and placed in the humiliating attitude of having to explain to his fellows that the charges are untrue, of adducing evidence to clear himself, perhaps never with complete success, of the stain that has been cast upon his reputation by the libelous and defamatory declarations contained in "Birds of Prey."

In view of the foregoing findings of fact and circumstances of the case and the law applicable thereto,

It is the opinion of the court, and the court so finds, that the plaintiff has sustained damages on account of wounded feelings and mental suffering and injuries to his standing and reputation in the sum of thirty-five thousand (P35,000) pesos, and that he is entitled to recover this sum of the nine defendants named, as being responsible for having written, printed, and published said libel; and that the plaintiff is entitled to recover of them the further sum of twenty-five thousand (P25,000) pesos, as punitive damages, which the court thinks will be a just punishment to these nine libelers and an example to others.

Wherefore, it is so ordered and adjudged that the plaintiff, Dean C. Worcester, have and recover of the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, the sum of sixty thousand (P60,000) pesos, and the costs of suit, for which execution may issue.

It is ordered. At Manila, P.I., this 14th day of January , 1910.

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From said decision the defendants appealed and made the following assignments of error in this court:

I.

The court erred in overruling our motions for suspension of this case, in its present state, until final judgment should be rendered in criminal case No. 4295 of the Court of First Instance of Manila, pending appeal in the Honorable Supreme Court, for libel based also on the editorial, "Birds of Prey."

II.

The court erred in admitting as evidence mere opinion adduced by counsel for the plaintiff with the intention of demonstrating to whom the editorial, alleged to the libelous, refers.

III.

The court erred in giving greater preponderance to the opinions of the witnesses for the plaintiff than to the expert testimony of the defense.

IV.

The court erred in declaring the editorial on which the complaint is based to be libelous per se and to refer necessarily to the plaintiff, Dean C. Worcester.

V.

The court erred in declaring the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco to be owners of "El Renacimiento."

VI.

The court erred in not admitting Exhibits 1 and 3 presented by counsel for the defendants.

VII.

The court erred in rendering judgment against the defendants.

VIII.

The court erred in sentencing the defendants jointly "and severally" to pay to the plaintiff, Dean C. Worcester, the sum of P60,000.

IX.

The court erred in not ordering that execution of the judgment to be confined to the business known as "El

Renacimiento" and to the defendant Teodoro M. Kalaw, without extending to property of the alleged owners of said newspaper which was not invested therein by them at its establishment.

X.

The court erred in granting damages to the plaintiff by virtue of the judgment rendered against the defendants.

XI.

The court, finally, erred in granting to the plaintiff punitive damages against the alleged owners of "El Renacimiento," admitting the hypothesis that said editorial is libelous per se and refers to the Honorable Dean C. Worcester.

The theory of the defendants, under the first assignment of error, is that the civil action could not proceed until the termination of the criminal action, relying upon the provisions of the Penal Code in support of such theory. This court, however, has decided in the case of Ocampo et al. vs. Jenkins (14 Phil. Rep., 681) that a judgment in a criminal prosecution for libel, under the provisions of Act 277 of the Civil commission, constitutes no bar or estoppel in a civil action based upon the same acts or transactions. The reason most often given for this doctrine is that the two proceedings are not between the same parties. Different rule as to the competency of witnesses and the weight of evidence necessary to the findings in the two proceedings always exist. As between civil and criminal actions under said Act (No. 277) a judgment in one is no bar or estoppel to the prosecution of the other. A judgment in a criminal cause, under said Act, can not be pleaded as res adjudicata in a civil action. (Stone vs.U.S., 167 U.S., 178; Boyd vs. U.S., 616 U. S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480; U.S. vs. Jaedicke, 73 Fed. Rep., 100; U.S. vs. Schneider, 35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed. Rep., 420; Steel vs.Cazeaux, 8 Martin (La.), 318, 13 American Decisions, 288; Betts vs. New Hartford, 25 Conn., 185.)

In a criminal action for libel the State must prove its case by evidence which shows the guilt of the defendant, beyond a reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by a preponderance of evidence only. (Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 27 American decisions, 708; Cooley on Torts, sec. 208; Greenleaf on Evidence, 426; Wigmore on Evidence, secs. 2497, 2498.)

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With reference to the second assignment of error above noted, we find that this court has already decided the question raised thereby, in the case of U. S. vs. Ocampo et al. (18 Phil. Rep., 1).

During the trial of the cause the plaintiff called several witnesses for the purpose of showing that the statements made in said alleged libelous editorial were intended to apply to the Honorable Dean C. Worcester, Secretary of the Interior. The defendants duly objected to these questions and excepted to the ruling of the court admitting them.

In the case of Russell vs. Kelley (44 Cal., 641, 642) the same question was raised and the court, in its decision, said:

The rule laid down in 2 Stockey on Slander (p. 51) is that the application of the slanderous words to the plaintiff and the extrinsic matters alleged in the declaration may be shown by the testimony of witnesses who knew the parties and circumstances and who can state their judgment and opinion upon the application and meaning of the terms used by the defendant. It is said that where the words are ambiguous on the face of the libel, to whom it was intended to be applied, the judgment and opinion of witnesses, who from their knowledge of the parties and circumstances are able to form a conclusion as to the defendant's intention and application of the libel is evidence for the information of the jury.

Mr. Odgers, in his work on Libel and Slander (p. 567), says:

The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that, in reading the libel, they at once concluded it was aimed at the plaintiff. It is not necessary that all the world should understand the libel. It is sufficient if those who know the plaintiff can make out that he is the person meant. (See also Falkard's Stockey on Libel and Slander, 4th English edition, 589.)

The correctness of this rule is not only established by the weight of authority but is supported by every consideration of justice and sound policy. The lower court committed no error in admitting the opinion of witnesses offered during the trial of the cause. One's reputation is the sum or composite of the impressions spontaneously made by him from time to time, and in one way or another, upon his neighbors and acquaintances. The effect of a libelous publication upon the understanding of such persons, involving necessarily the identity of the person libeled is of the very essence of the wrong. The issue in a libel case concerns not only the sense of the publication, but, in a measure its effect upon

a reader acquainted with the person referred to. The correctness of the opinion of the witnesses as to the identity of the person meant in the libelous publication may always be tested by cross-examination. (Enquirer Co. vs. Johnston, 72 Fed. Rep., 443; 2nd Greenleaf on Evidence, 417; Nelson vs.Barchenius, 52 Ill., 236; Smith vs. Miles, 15 Vt., 245; Miller vs. Butler, 6 Cushing (Mass.), 71.)

It is true that some of the courts have established a different rule. We think, however, that a large preponderance of the decisions of the supreme courts of the different States is in favor of the doctrine which we have announced here.

We are of the opinion that assignments of error Nos. 3, 4, and 7 may fairly be considered together, the question being whether or not the evidence adduced during the trial of the cause in the lower court shows, by a preponderance of the evidence, that the said editorial was libelous in its character. Here again we find that this question has been passed upon by this court in the case of U. S. vs. Ocampo et al. (18 Phil. Rep., 1), and we deem it unnecessary to discuss this question again, for the reason that the evidence adduced in the present cause was practically the same, or at least to the same effect, as the evidence adduced in the cause of U.S. vs.Ocampo et al. It is sufficient here to say that the evidence adduced during the trial of the present cause shows, by a large preponderance of the evidence, that said editorial was one of the most pernicious and malicious libels upon a just, upright and honorable official, which the courts have ever been called upon to consider. There is not a scintilla of evidence in the entire record, notwithstanding the fact that the defendants from time to time attempted to make a show of proving the truthfulness of the statements made in said editorial, which in any way reflects upon the character and high ideals of Mr. Dean C. Worcester, in the administration of his department of the Government.

With reference to the fifth assignment of error, to wit: That the court erred in holding that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco, were the proprietors of "El Renacimiento," the lower court said:

Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of "El Renacimiento" and "Muling Pagsilang," but that six of them had originally contributed their money as a patriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as

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trustee for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo Lichauco had agreed to contribute to the same ends but had not done so.

"This proposition," said the lower court, "in the light of the evidence, is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901, for their own personal benefit and profit, is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof and were such on the said 30th of October, 1908."

Examining the evidence adduced during the cause in the lower court, we find, sometime before the commencement of the present action and before any question was raised with reference to who were the owners of the said newspaper, that the defendant, Arcadio Arellano, in the case of United States vs. Jose Sedano (14 Phil. Rep., 338), testified upon that question as follows:

Q.       Who are the proprietors of "El Renacimiento"?

A.       I, Martin Ocampo, Gregorio Mariano (Cansipit), Mr. Barretto, and Galo Lichauco.

Q.       Who else?

A.       No one else.

Q.       And Rafael Palma — is not so?

A.       No, sir; Manuel Palma, the brother of Rafael Palma.

During the trial of the present cause, Arcadio Arellano testified that his declarations in other cause were true.

It also appears from the record (Exhibit B-J) that in the month of November, 1907, long before the commencement of the present action, "El Renacimiento," in reply to an article which was published in "El Comercio," published the following statement:

They (it) say (s) that this enterprise" (evidently meaning the publication of "El Renacimiento") "is sustained by Federal money; that we are inspired by Federal personages. We declare that this, besides being false, is calumnious. The shareholders of this company are persons

well known by the public, and never at any moment of their lives have they acted with masks on--those masks for which "El Comercio" seems to have so great an affection. They are, as the public knows: Señores Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit.

Arcadio Arellano also testified during the trial of the present cause that he contributed P750 to the establishment of "El Renacimiento;" that Martin Ocampo contributed the sum of P500; that Mariano Cansipit, Felipe Barretto and Angel Jose contributed the sum of P250 or P500 each; that Galo Lichauco contributed the sum of P1,000 and that Manuel Palma contributed P3,000.

During the trial of the present cause Arcadio Arellano, Martin Ocampo, and Angel Jose testified as witnesses, relating to the ownership of the newspaper called "El Renacimiento." They testified that whatever money they gave for the purpose of establishing said newspaper, was given as a donation, and that they were neither the owners nor coowners of said periodical. The defendants, Manuel Palma, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, did not testify as witnesses during the trial of the cause in the lower court. No reason is given for their failure to appear and give testimony in their own behalf. The record does not disclose whether or not the declarations of Arcadio Arellano, in the case of U. S. vs. Sedano (14 Phil. Rep., 338) at the time they were made, were called to the attention of Manuel Palma, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, as well as the reply to "El Comercio," above noted. Proof of said declarations and publication was adduced during the trial of the cause in the present case, and the attorney of these particular defendants well knew the purpose and effect of such evidence, if not disputed; but, notwithstanding the fact that said declarations and publication were presented in evidence, and notwithstanding the fact that the attorney for the defendants knew of the purpose of such proof, the defendants, Palma, Lichauco, Barretto, and Cansipit, were not called as witnesses for the purpose of rebutting the same. It is a well settled rule of evidence, that when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all the facts as they existed and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting would support the inferences against him, and the court is justified in acting upon that conclusion. (Railway Company vs. Ellis, C. C. A. Reports, vol. 4, p. 454; Commonwealth vs. Webster, 5 Cush. (Mass.), 295; People vs. McWhorter 4 Barb. (N. Y.), 438.)

Page 21: Persons Liable Cases

Lord Mansfield, in the case of Blatch vs. Archer (Cowper, 63, 65) said:

It is certainly a maxim that all the evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.

Mr. Starkey, in his valuable work on evidence (vol. 1, p. 64), lays down the rule that:

The conduct of a party in omitting to produce evidence in elucidation of the subject matter in dispute, which is within his power and which rests peculiarly within his own knowledge, frequently offers occasion for presumptions against him, since it raises the strong suspicion that such evidence, if adduced, would operate to his prejudice. (Pacific Coast et al. Co. vs. Bancroft-Whitney Co., 36 C. C. A. Reports, 136, 153.)

At the time of the said declarations of Arcadio Arellano in the case of Sedano and at the time of the said publication in reply to "El Comercio," there was no reason for stating anything except the truth: neither does there seem to have been any reason for publishing the fact that the defendants were the owners of "El Renacimiento" unless it was true.

At the time there seemed to be no reason to have it appear that they were donors and public benefactors only. They seemed to be proud of the fact that they were the owners. The editors, publishers, and managers of "El Renacimiento," at the time the reply to "El Comercio" was published, seemed to be anxious to announce to the public who its owners were. It ("El Renacimiento") had not then realized that it belonged to no one; that it had been born into the community without percentage; that it had been created a terrible machine for the purpose of destroying the good character and reputation of men without having any one to respond for its malicious damage occasioned to honorable men; that it was a cast-off, without a past or the hope of a future; that it was liable to be kicked and buffetted about the persecuted and destroyed without any one to protect it; that its former friends and creators had scattered hither and thither and had disappeared like feathers before a cyclone, declaring, under oath, that they did not know their offspring and were not willing to recognize it in public. It seems to have been a Moses found in the bulrushes, destined by its creators to be a great good among the Filipino people, in teaching them to respect the rights of persons and property; but, unlike its Biblical prototype, it became, by reason of its lack of parentage, an engine of destruction let loose

in the State, to enter the private abode of lawabiding citizens and to take from them their honor and reputation, which neither it nor the State could restore. To rob a man of his wealth is to rob him of trash, but to take from him his good name and reputation is to rob him of that which does not make the robber richer and leaves the person robbed poor indeed.

The appellants tried to make it appear that the money which they gave for the establishment of "El Renacimiento" was a pure donation. They claim that it was a donation to the Filipino people. They do not state, however, or attempt to show what particular persons were to manage, control, and direct the enterprise for which the donation was made. A donation must be made to definite persons or associations. A donation to an indefinite person or association is an anomaly in law, and we do not believe, in view of all of the facts, that it was in fact made. A donation must be made to some definite person or association and the donee must be some ascertained or ascertainable person or association.

A donation may be made for the benefit of the public, but it must be made, in the very nature of things, to some definite person or association. A donation made to no person or association could not be regarded as a donation in law. It could not be more than an abandonment of property. Of course where a donation is in fact made, without reservation to a particular person or association, the donor is no longer the owner of the thing donated nor responsible, in any way, for its use, provided that the object, for which the donation was made, was legal. A person does not become an owner or part owner of a church, for example, to the construction of which he has made a donation; neither is he responsible for the use to which said edifice may be applied. No one disputes the fact that donations may be made for the public use, but they must be made to definite persons or associations, to be administered in accordance with the purpose of the gift.

We can not believe, in the light of the whole record, that the defendants and appellants, at the time they presented the defense that they were donors simply and not owners, had a reasonable hope that their declarations as to said donation, given in the manner alleged, would be believed by the court.

After a careful examination of the evidence brought to this court and taking into consideration the failure of the other defendants to testify, we are of the opinion that a preponderance of such evidence shows that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the coowners of the

Page 22: Persons Liable Cases

newspaper known as "El Renacimiento," at the time of the publication of the said alleged libel.

With reference to the sixth assignment of error above noted, to wit: That the lower court committed an error in not admitting in evidence the judgment of acquittal of the defendant, Lope K. Santos, rendered in the criminal cause, we are of the opinion that the refusal to admit said evidence in the civil cause was not an error. The fact that the evidence in the criminal cause was insufficient to show that Lope K. Santos was guilty of the crime charged, in no way barred the right of the person injured by said alleged libel to maintain the present civil action against him. (Ocampo vs. Jenkins, 14 Phil. Rep., 681.) The criminal action had to be sustained by evidence showing the culpability of the defendant beyond a reasonable doubt, while in the civil action it is sufficient to show that the defendants injured the plaintiff by the alleged libelous publication, by a preponderance of the evidence only. (Greenleaf on Evidence, sec. 426; Cooley on Torts, 208; Reilley vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23 Am. Dec., 708.)

In the case of Steel vs. Cazeaux (8 Martin, La., 318; 13 American Decisions, 288), the supreme court of Louisiana said:

A judgment of conviction in a criminal prosecution can not be given in evidence in a civil action.

In the case of Betts et al. vs. New Hartford (25 Conn., 180) Mr. Justice Ellsworth said (in a case where a judgment in a criminal case was offered in evidence):

A conviction in a criminal case is not evidence of facts upon which the judgment was rendered, when those facts come up in a civil case, for this evidence would not be material; and so the law is perfectly well settled. (1 Greenleaf on Evidence, secs. 536, 524; 1 Phillips on Evidence, 231; Hutchinson vs. Bank of Wheeling, 41 Pa. St., 42; Beausoleil vs. Brown, 12 La. Ann., 543; McDonald vs. Stark, 176 Ill., 456, 468.)

While we believe that the lower court committed no error in refusing to admit the sentence acquitting Lope K. Santos in the criminal case, we are of the opinion, after a careful examination of the record brought to this court, that it is insufficient to show that Lope K. Santos was responsible, in any way, for the publication of the alleged libel, and without discussing the question whether or not the so-called Tagalog edition of "El Renacimiento" and "El Renacimiento" constituted one and the same newspaper, we find that the evidence is insufficient to show that Lope K. Santos is

responsible in damages, in any way, for the publication of the said alleged libel.

The appellants discussed the eight and ninth assignments of error together, and claim that the lower court committed an error in rendering a judgment jointly and severally against the defendants and in allowing an execution against the individual property of said owners, and cite provisions of the Civil and Commercial Codes in support of their contention. The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is a tort. They fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. The defendants might have been sued separately for the commission of the tort. They might have been sued jointly and severally, as they were. (Nicoll vs. Glennie, 1 M. & S. (English Common Law Reports), 558.) If several persons jointly commit a tort, the plaintiff or person injured, has his election to sue all or some of the parties jointly, or one of them separately, because the tort is in its nature a separate act of each individual. (1 Chiddey, Common Law Pleadings, 86.) It is not necessary that the cooperation should be a direct, corporeal act, for, to give an example, in a case of assault and battery committed by various persons, under the common law all are principals. So also is the person who counsels, aids or assists in any way he commission of a wrong. Under the common law, he who aided or assisted or counseled, in any way, the commission of a crime, was as much a principal as he who inflicted or committed the actual tort. (Page vs. Freeman, 19 Mo., 421.)

It may be stated as a general rule, that the joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. (Cooley on Torts, 133; Moir vs. Hopkins, 16 Ill., 313 (63 Am. Dec., 312 and note); Berry vs. Fletch, 1st Dill., 67; Smithwick vs. Ward, 7 Jones L. 64; Smith vs. Felt, 50 Barb. (N. Y.), 612; Shepard vs. McQuilkin, 2 W. Va., 90; Lewis vs. Johns, 34 Cal., 269.)

Joint tort feasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for the whole damage caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in

Page 23: Persons Liable Cases

the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. (Forebrother vs. Ansley, 1 Campbell (English Reports), 343; Pitcher vs. Bailey, 8 East, 171; Booth vs. Hodgson, 6 Term Reports, 405; Vose vs. Grant, 15 Mass., 505; Achesonvs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449; Murphy vs. Wilson, 44 Mo., 313; Bishop vs. Ealey, 9 Johnson (N. Y.), 294.)

Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They can no insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the full amount. (Pardrige vs. Brady, 7 Ill. App., 639; Carney vs. Read, 11 Ind., 417; Lee vs. Black, 27 Ark., 337; Bevins vs. McElroy, 52 Am. Dec., 258.)

A payment in full of the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but one satisfaction. The release of one of the joint tort feasors by agreement, generally operates to discharge all. (Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1 Johnson (N.Y.), 290; Brown vs. Marsh, 7 Vt., 327; Ayer vs. Ashmead, 31 Conn., 447; Eastman vs. Grant, 34 Vt., 387; Turnervs. Hitchcock, 20 Iowa, 310; Ellis vs. Esson, 50 Wis., 149.)

Of course the courts during the trial may find that some of the alleged joint tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally. (Lansing vs. Montgomery, 2 Johnson (N. Y.), 382; Drake vs. Barrymore, 14 Johnson, 166; Owens vs. Derby, 3 Ill., 126.)

This same principle is recognized by Act 277 of the Philippine Commission. Section 6 provides that:

Every author, editor or proprietor . . . is chargeable with the publication of any words in any part . . . or number of each newspaper, as fully as if he were the author of the same.

In our opinion the lower court committed no error in rendering a joint and several judgment against the defendants and allowing an execution against their individual property. The provisions of the Civil and Commercial Codes cited by the defendants and appellants have no application whatever to the question presented in the present case.

The tenth assignment of error above noted relates solely to the amount of damages suffered on account of wounded feelings, mental suffering and injury to the good name and reputation of Mr. Worcester, by reason of the alleged libelous publication. The lower court found that the damages thus suffered by Mr. Worcester amounted to P35,000. This assignment of error presents a most difficult question. The amount of damages resulting from a libelous publication to a man's good name and reputation is difficult of ascertainment. It is nor difficult to realize that the damage thus done is great and almost immeasurable. The specific amount the damages to be awarded must depend upon the facts in each case and the sound discretion of the court. No fixed or precise rules can be laid down governing the amount of damages in cases of libel. It is difficult to include all of the facts and conditions which enter into the measure of such damages. A man's good name and reputation are worth more to him than all the wealth which he can accumulate during a lifetime of industrious labor. To have them destroyed may be eminently of more damage to him personally than the destruction of his physical wealth. The loss is immeasurable. No amount of money can compensate him for his loss. Notwithstanding the great loss which he, from his standpoint, sustains, the courts must have some tangible basis upon which to estimate such damages.

In discussing the elements of damages in a case of libel, the Honorable James C. Jenkins, who tried the present case in the court below, correctly said that, "The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society, that underlie the whole scheme of human civilization. The respect and esteem of his fellows are among the highest rewards of a wellspent life vouchsafed to man in this existence. The hope of it is the inspiration of youth and its possession is a solace in later years. A man of affairs, a business man, who has been seen known by his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful and more valuable than lands or houses or silver or gold. The law recognizes the value of such a reputation and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words or libelous publications, the liability to make full compensation for the damage to the reputation, for the shame, obloquy and for the injury to the feelings of its owner, which are caused by the publication of the slander or libel. The law goes further. If the words are spoken or the publication is made with the intent to injure the victim or with criminal indifference to civil obligation, it

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imposes such damages as the jury, in view of all the circumstances of the particular case, adjudge that the wrongdoer ought to pay as an example to the public and to deter others from doing likewise, and for punishment for the infliction of the injury."

As was said above, the damages suffered by Mr. Worcester to his good name and reputation are most difficult of ascertainment. The attorney for the appellants, in his brief, lends the court but little assistance in reaching a conclusion upon this question. The appellants leaves the whole question to the discretion of the court, without any argument whatever.

After a careful examination, we are of the opinion that part of the judgment of the lower court relating to the damages suffered by the Honorable Dean C. Worcester, should be modified, and that a judgment should be rendered in favor of Mr. Dean C. Worcester and against the defendants, jointly and severally, for the sum of P15,000, with interest at 6 per cent from the 23d of January, 1909.

With reference to the eleventh assignment of error above noted, to wit: That the court erred in imposing punitive damages upon the defendants, we are of the opinion, after a careful examination of the evidence, and in view of all of the facts and circumstances and the malice connected with the publication of said editorial and the subsequent publications with relation to said editorial, that the lower court, by virtue of the provisions of Act No. 277 of the Philippine Commission, was justified in imposing punitive damages upon the defendants.

Section 11 of Act No. 277 allows the court, in an action for libel, to render a judgment for punitive damages, in an amount which the court may think will be a just punishment to the libeler and an example to others.

Exemplary damages in civil actions for libel may always be recovered if the defendant or defendants are actuated by malice. In the present case there was not the slightest effort on the part of the defendants to show the existence of probable cause or foundation whatever for the facts contained in said editorial. Malice, hatred, and ill will against the plaintiff are seen throughout the record. The said editorial not only attempted to paint the plaintiff as a villain, but upon every occasion, the defendants resorted to ridicule of the severest kind.

Here again we find difficulty in arriving at a conclusion relating to the damages which should be imposed upon the defendants for the purpose of punishment. Upon this question the courts must be governed in each case by the evidence, the circumstances and their sound discretion. Taking into consideration the fact that

some of the defendants have been prosecuted criminally and have been sentenced, and considering that fact as a part of the punitive damages, we have arrived at the conclusion that the judgment of the lower court should be modified, and that a judgment should be rendered against the defendants, jointly and severally, and in favor of the plaintiff, the Honorable Dean C. Worcester, in the sum of P10,000, as punitive damages, with interest at 6 per cent from the 23d day of January, 1909.

Therefore, after a full consideration of all the facts contained in the record and the errors assigned by the appellants in this court, we are of the opinion that the judgment of the lower court should be modified and that a judgment should be rendered in favor of Dean C. Worcester and against the defendants Martin Ocampo, Teodoro M. Kalaw, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, for the sum of P25,000 with interest at 6 per cent from the 23d of January, 1909, with costs, and that a judgment should be entered absolving Lope K. Santos from any liability under said complaint. So ordered.

Carson, Moreland and Trent, JJ., concur.

Separate Opinions

ARELLANO, C.J. and MAPA, J., concurring:

We concur, except with reference to the liability imposed upon Galo Lichauco based on the testimony of one of the defendants, Arcadio Arellano, and an article published in the newspaper itself, "El Renacimiento." In a case against Sedano, Arcadio Arellano said that Galo Lichauco was one of the owners of that newspaper and in the criminal case prosecuted for libel against some of the defendants herein that he was one of the founders. Also, it was asserted in an article in "El Renacimiento" that Galo Lichauco was one of its stockholders.

If these things could be taken as evidence of his right as a partner, coowner or participant in a business or company, it would follow that they could be evidence of an obligation or liability emanating from such business, but it quite impossible that they be regarded as evidence of such nature, that is, in his favor. Therefore, they can not be held to be sufficient proof against him to conclude that he has contracted an obligation or established a basis for liability, such as that of answering with all his property for the consequences of the act of another. Such person could not on this evidence claim a share of the earnings or profits of the

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Renacimiento company, because it is inconsistent with all the provisions and prohibitions of law bearing upon the validity and force of such pretended right of participation. He could not be held to be in the situation of the other so-called founders of "El Renacimiento," under article 117 of the Code of Commerce, according to which:

Articles of association, executed with the essential requisites of law, shall be valid and binding between the parties thereto, no matter what form, conditions, and combinations, legal and honest, are embraced therein, provided they are not expressly prohibited by this code.

There operates in favor of these other so-called founders of "El Renacimiento" the testimony of the real founder and manager thereof, Martin Ocampo, who at the trial admitted that they had subscribed and paid sums of money to aid him in the business he had projected.

But with reference to Galo Lichauco, Martin Ocampo explicitly stated that he offered to contribute, but did not carry out his offer and in fact paid nothing. It is incomprehensible how one could claim the right or title to share the earnings or profits of a company when he had put no capital into it, neither is it comprehensible how one could share in the losses thereof, and still less incur liability for damages on account of some act of the said company — an unrestricted liability to the extent of all his property, as though he were a regular general partner when he was not such.

If there could be one law for and another against, or, in other words, one for rights and another for obligations, emanating from the same source, as in a contract of partnership, then it might well happen that one could be a partner for assuming obligations, losses and liabilities, and not a partner in the sense of exercising rights and of participation in the earnings and profits of partnership. But the contrary is a legal axiom, and it is impossible to set aside the principle of reciprocity that pervades and regulates in equal manner rights and obligations. Hence it is impossible to reach as a conclusion derived from the evidence set forth that Galo Lichauco is a partner in the Renacimiento company and coowner of the newspaper of that name.

Judgment so rendered would not clothe Galo Lichauco, after he had been sentenced to pay damages for acts of "El Renacimiento," with any title, right, or reason for calling himself a coowner of said business and entitle him to claim a share of any earnings and profits which might be realized in the meantime or in the future. He would not be entitled to register in the

mercantile registry on such ground, nor would or could any court oblige the Renacimiento company or Martin Ocampo to regard Galo Lichauco as a partner or coowner.

From the testimony of a single witness, corroborated by a newspaper article, wherein it is asserted that a certain person is a partner or coowner of the Y. M. C. A., the witness believing for a certain amount and the newspaper merely saying that he was a stockholder in that association, offset by the assertion of its president that he was not such, no court is capable of rendering judgment declaring that such person is actually a partner or coowner of the Y. M. C. A. and must pay damages for a culpable action of said association and must in exchange be recognized and admitted as a partner and coowner of the Y. M. C. A. and a sharer in the earnings, profits and advantages thereof.

Neither could a person be recognized and held out to be the owner of one or more parcels of real estate on the testimony of one witness, the evidence of a newspaper article and the strength of a judgment based upon such testimony and newspaper article, in order that he might be required to pay the land tax and in exchange collect the rents from such property; it is no argument, either pro or con, to say that such person has neither impugned that testimony nor corrected or denied the article published. Should a newspaper publish a list of millionaires and include therein one who is not such, or if a millionaire should figure in a list of paupers, there is no law imposing upon the pauper or the millionaire the duty of denying or correcting the inaccurate report. Neither is there any law that creates the presumption that failure to make such correction implies the truth of what is so asserted. It is not a rational and acceptable rule to infer consequences from the failure to correct (whether proper or not) newspaper statements, and still less when in a judicial action such assertion is not substantiated, as has resulted in the case at bar.

Although Arcadio Arellano may say during a trial, as he has said, once, twice or a hundred times that Galo Lichauco is the proprietor or founder of "El Renacimiento;" although "El Renacimiento" may have asserted extrajudicially, in an article in reply to another newspaper, that Galo Lichauco is one of the stockholders of the business it conducts; yet when its editor on trial testifies that such report had been secured from mere hearsay among his associates in the newspaper office and not from the organizer, manager or administrator of the newspaper, Martin Ocampo, it can not in justice be concluded that Galo Lichauco is a partner in the business or coowner of the newspaper "El Renacimiento."

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TORRES, J., dissenting:

I concur in the foregoing decision of the majority in regard to the defendants Martin Ocampo and Teodoro Kalaw, but dissent from it with reference to the others — Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit — for they had neither direct nor indirect participation in the act that gave rise to the present suit for damages, nor were they owners or proprietors of the newspaper "El Renacimiento," its press or other equipment. Consequently they are not liable for the damages claimed and should be absolved from the complaint.

With the exception of Galo Lichauco, who did not pay up the sum he subscribed toward the founding of said newspaper, it is undeniable and clearly proven that the other five — Palma, Arellano, Jose, Barretto, and Cansipit — contributed different sums for the object stated. Martin Ocampo was placed at the head of the business and from the funds he took charge of purchased the press and other necessary equipment for printing and publishing said newspaper.

It is not conclusively shown in the record that a company was formed to found and publish "El Renacimiento," and divide the earnings and profits among the partners, through a contract entered into among them, nor that there was established a community of ownership over the said newspaper, its press and the other equipment indispensable for its publication.

From the fact that the said five individuals contributed, each turning over to Ocampo a certain sum for the purpose of founding, editing and issuing the said newspaper, it is improper to deduce that the contributors formed a company of either a civil or commercial nature, just as it is inadmissible to presume the existence of a company unless it appears that the formation thereof was agreed upon among the partners. Aside from the fact of the contribution, it is not shown in the record that said six contributors had anything to do with acquiring the press, type and other equipment indispensable for getting out the newspaper; that any contract, either verbal or written, as to how and in what manner the publication with its receipts and expenditures should be managed, and in what manner profits should be divided or deficit made up in case of loss; or that at any time meetings were held for discussing the business and dividing the profits, as though they were really in partnership. Up to the time when said newspaper ceased publication, its sole manager, Martin Ocampo, acted freely, just as if he were the absolute owner of the

publication, nor does it appear that he ever rendered any report of his acts to those who contributed their money to the founding of "El Renacimiento."

The six contributors mentioned believed in all good faith that it was necessary, expedient and useful for the rights and interests of the inhabitants of the Philippines to found a newspaper and that out of love and duty to their country they ought to contribute from their private fortunes toward the expenses indispensable thereto, and in so doing unconditionally and with liberality they made a genuine gift, each one freely turning over to Martin Ocampo the amount he could spare.

The case comes under article 618 of the Civil Code, which says:

A gift is an act of liberality by which a person disposes gratuitously of a thing in favor of another, who accepts it.

It is true that Martin Ocampo is not the real donee, but considering that such acts of liberality were executed by said six contributors for the common good of the Filipino people and that it was Martin Ocampo who voluntarily undertook to realize and carry out the perfectly legitimate purpose of the contributors, his acceptance of the sums donated, not having been actually repudiated or disapproved by the community, must be understood to have been made in their name, and thus is fulfilled the requirement of acceptance established by the article of the code cited.

According to this theory the donors, after they had freely and spontaneously parted with the sums donated, could not retain any right over the objects to which these sums were applied, because the donor by his gift voluntarily conveys to the donee his rights of ownership over the thing donated. Therefore the said donors can not in strict logic be regarded as the proprietors of the newspaper "El Renacimiento," its press and equipment, because after having turned over the money to Martin Ocampo, who accepted the commission of carrying out the wishes and purposes of the contributors, they retained no right over the newspaper or the press, fixtures and equipment thereof.

Persons who contribute to the erection of a church or a hospital, in spite of the fact that they freely and liberally give money to parties charged with collecting it, do not, therefore retain any right, nor can they be called coowners or coproprietors of the church or hospital constructed, and the receipt or acknowledgment of the sums paid to the parties at the head of the enterprise fulfills the requirement of the law, perfects and brings within the legal pale the donation voluntarily made from the motives of piety or benevolence.

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Such is the case of the said six contributors, who were animated by love of this country in which they were born. Five gave different sums to Martin Ocampo, and a sixth promised to give something, for the founding of "El Renacimiento," believing in good faith that by their acts they, were rendering a meritorious service to their country, but, notwithstanding the internal moral satisfaction they got, as in the case of the benefactors of a church or hospital, they can never be called coowners or coproprietors of said newspaper.

If, after the establishment of the newspaper, its staff, editor or manager made bad use of the publication and issued a libelous article, the donors who contributed to the funds, necessary for the founding of "El Renacimiento," from the very fact that they are not proprietors of the newspaper or of the press from which it is issued, are not liable for the publication of said article, because they did not participate therein either directly or indirectly, just as in the criminal case they were not indicted even on the ground that they are members of the company that is alleged to have been formed for the establishment of the said newspaper, "El Renacimiento." But this is a theory which, as we have already said, we do not admit, because proof is entirely lacking of the existence of that company wherefrom it is attempted to derive the character of owner attributed to the said donees and the consequent obligation to indemnify the plaintiff for the damages claimed.

After Martin Ocampo had accepted the various amounts proffered by the said Palma, Jose, Arellano, Barretto, and Cansipit, these letter ceased to be the owners of and surrendered all right to the money donated and to the objects that were acquired therewith for the purpose of establishing the newspaper "El Renacimiento," from which business said five individuals, as also Galo Lichauco, are entirely separated. Therefore they can not incur, jointly and severally with the director and manager of "El Renacimiento," the liability to indemnify the plaintiff for the publication therein of an article constituting libel.

Section 11 of Act No. 277, applicable to the case, prescribes:

In addition to the criminal action hereby prescribed, a right of civil action is also hereby given to any person libeled as hereinbefore set forth against the person libeling him for damages sustained by such libel, and the person so libeled shall be entitled to recover in such civil action not only the actual pecuniary damages sustained by him but also damages for injury to his feelings and reputation, and in addition to such punitive damages as the court may think

will be a just punishment to the libeler and an example to others. Suit may be brought in any Court of First Instance having jurisdiction of the parties. The presumptions, rules of evidence, and special defenses herein provided for criminal prosecutions shall be equally applicable in civil actions under this section.

It is certain that Lichauco, who merely promised a certain sum, and each of the other five mentioned, who gave the amounts they could spare, did not write, edit, or publish the libelous article that gave rise to this action, neither did they take part directly or indirectly in writing and publishing said article for the purpose of discrediting the plaintiff, and for this reason there does not in our opinion exist any just or legal ground for bringing against them the corresponding civil action for damages, since the mere fact of having contributed from their respective fortunes to the establishment of the newspaper "El Renacimiento," a contribution made in the nature of a gift, and not for the purpose of forming a company for the sake of dividing among themselves earnings and profits, can not in any way have given rise to or produced the obligation to indemnify the plaintiff and place them on a par with those who have injured him by means of a defamatory article, because in making the gifts of money which they did the said six contributing defendants did not acquire, nor do they retain, any right of property or of participation in the said newspaper, its press and equipment. As it does not appear from the record to have been ascertained or proven that they contributed with bad faith and criminal intention to the founding of a newspaper expressly intended to publish libelous articles, or in so doing that they executed acts prohibited by law or contrary to public morality, those who gave money nine years ago for its establishment are certainly not responsible for the bad use that those wrote and managed said newspaper made of it, especially when the penal action from which the obligation arises was committed many years later, unless it appears that said original donors had knowledge of or participation in the defamatory acts performed.

For these reasons it follows in our opinion that justice requires that the judgment appealed from with regard to the defendants Galo Lichauco, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, and Gregorio Cansipit should be reversed and that they should be absolved from the complaint entered against them for damages, with no special finding as to six-ninths of the costs in both instances. I concur in the decision of the majority with reference to the others — Kalaw, Ocampo, and the rest of the defendants.

Page 28: Persons Liable Cases

Footnotes1Causin vs. Jakosalem.2Macleod vs. Philippine Publishing Co.312 Phil. Rep., 428.

Page 29: Persons Liable Cases

EN BANCG.R. No. L-9010            March 28, 1914

J. H. CHAPMAN, plaintiff-appellant, vs.

JAMES M. UNDERWOOD, defendant-appellee.

Wolfson & Wolfson for appellant.Bruce, Lawrence, Ross & Block for appellee.

MORELAND, J.:

At the time the accident occurred, which is the basis of this action, there was a single-track street-car line running along Calle Herran, with occasional switches to allow cars to meet and pass each other. One of these switches was located at the scene of the accident.

The plaintiff had been visiting his friend, a man by the name of Creveling, in front of whose house the accident happened. He desired to board a certain "San Marcelino" car coming from Santa Ana and bound for Manila. Being told by Creveling that the car was approaching, he immediately, and somewhat hurriedly, passed from the gate into the street for the purpose of signaling and boarding the car. The car was a closed one, the entrance being from the front or the rear flatform. Plaintiff attempted to board the front platform but, seeing that he could not reached it without extra exertion, stopped beside the car, facing toward the rear platform, and waited for it to come abreast of him in order to board. While in this position he was struck from behind and run over by the defendant's automobile.

The defendant entered Calle Herran at Calle Peñafrancia in his automobile driven by his chauffeur, a competent driver. A street car bound from Manila to Santa Ana being immediately in front of him, he followed along behind it. Just before reaching the scene of the accident the street car which was following took the switch — that is, went off the main line to the left upon the switch lying alongside of the main track. Thereupon the defendant no longer followed that the street car nor went to the left, but either kept straight ahead on the main street-car track or a bit to the right. The car which the plaintiff intended to board was on the main line and bound in an opposite direction to that in which the defendant was going. When the front of the "San Marcelino" car, the one the plaintiff attempted to board, was almost in front of the defendant's automobile, defendant's driver suddenly went to the right and struck and ran over the plaintiff, as above described.

The judgment of the trial court was for defendant.

A careful examination of the record leads us to the conclusion that the defendant's driver was guilty of negligence in running upon and over the plaintiff. He was passing an oncoming car upon the wrong side. The plaintiff, in common out to board the car, was not obliged, for his own protection, to observe whether a car was coming upon him from his left hand. He had only to guard against those coming from the right. He knew that, according to the law of the road, no automobile or other vehicle coming from his left should pass upon his side of the car. He needed only to watch for cars coming from his right, as they were the only ones under the law permitted to pass upon that side of the street car.

The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs. David (5 Phil. Rep., 663), the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant would be responsible.

Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligent act of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up to Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the acts or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length a time that the owner, by his acquiescence, makes his driver's act his own.

In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give

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the defendant an opportunity to correct the act of his driver. Instead, it appears with fair clearness that the interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver.

Whether or not the owner of an automobile driven by a competent driver, would be responsible, whether present or not, for the negligent acts of his driver when the automobile was a part of a business enterprise, and was being driven at the time of the accident in furtherance of the owner's business, we do not now decide.

The judgment appealed from is affirmed, with costs against the appellant.

Arellano, C.J., Carson and Araullo, JJ., concur. Trent, J., concurs in the result.

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EN BANCG.R. No. L-20392      December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN CAEDO, ROSE ELAINE

CAEDO, suing through their father, MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants, 

vs.YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

Norberto J. Quisumbing for plaintiffs-appellants.De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants

MAKALINTAL, J.:

As a result of a vehicular accident in which plaintiff Marcial Caedo and several members of his family were injured they filed this suit for recovery of damages from the defendants. The judgment, rendered by the Court of First Instance of Rizal on February 26, 1960 (Q-2952), contains the following disposition:

IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and against the defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs Marcial Caedo, et al., the sum of P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00 for exemplary damages; and P5,000.00 for attorney's fees, with costs against the defendants. The counterclaim of the defendants against the plaintiffs is hereby ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in favor of the plaintiffs for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount of the plaintiffs' claim.

There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it was defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the first question the trial court found Rafael Bernardo negligent; and on the second, held his employer solidarily liable with him.

The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his

way from his home in Quezon City to the airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and three daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his Parañaque home to Wack Wack for his regular round of golf. The two cars were traveling at fairly moderate speeds, considering the condition of the road and the absence of traffic — the Mercury at 40 to 50 kilometers per hour, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a distance. Ahead of the Cadillac, going in the same direction, was a caretella owned by a certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical post on the right side and held at the other end by Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him, only eight meters away. This is the first clear indication of his negligence. The carretela was provided with two lights, one on each side, and they should have given him sufficient warning to take the necessary precautions. And even if he did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him from afar if he had been careful, as it must have been in the beam of his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of slowing down or stopping altogether behind the carretela until that lane was clear, veered to the left in order to pass. As he did so the curved end of his car's right rear bumper caught the forward rim of the rig's left wheel, wrenching it off and carrying it along as the car skidded obliquely to the other lane, where it collided with the oncoming vehicle. On his part Caedo had seen the Cadillac on its own lane; he slackened his speed, judged the distances in relation to the carretela and concluded that the Cadillac would wait behind. Bernardo, however, decided to take a gamble — beat the Mercury to the point where it would be in line with the carretela, or else squeeze in between them in any case. It was a risky maneuver either way, and the risk should have been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25 miles according to Yu Khe Thai) it was already too late to apply the brakes when Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to the left in spite of the presence of the oncoming car on the opposite lane. As it was, the clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the wheel of

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the carretela and wrenched it loose. Caedo, confronted with the unexpected situation, tried to avoid the collision at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the scene show that the right wheels of his car were on the unpaved shoulder of the road at the moment of impact.

There is no doubt at all that the collision was directly traceable to Rafael Bernardo's negligence and that he must be held liable for the damages suffered by the plaintiffs. The next question is whether or not Yu Khe Thai, as owner of the Cadillac, is solidarily liable with the driver. The applicable law is Article 2184 of the Civil Code, which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months.

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. The rule is not new, although formulated as law for the first time in the new Civil Code. It was expressed in Chapman vs. Underwood (1914), 27 Phil. 374, where this Court held:

... The same rule applies where the owner is present, unless the negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of the chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the

act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver act his own.

The basis of the master's liability in civil law is not respondent superior but rather the relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years. During that time he had no record of violation of traffic laws and regulations. No negligence for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. We do not see that such negligence may be imputed. The car, as has been stated, was not running at an unreasonable speed. The road was wide and open, and devoid of traffic that early morning. There was no reason for the car owner to be in any special state of alert. He had reason to rely on the skill and experience of his driver. He became aware of the presence of thecarretela when his car was only twelve meters behind it, but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel. And even when he did see it at that distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. The time element was such that there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law to prevent the misfortune.

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective. Car owners are not held to a uniform and inflexible standard of diligence as are

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professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly equipped.

The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The test of his intelligence, within the meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the accident. And as far as perception is concerned, absent a minimum level imposed by law, a maneuver that appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their very inadequacies, have real need of drivers' services, would be effectively proscribed.

We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The next question refers to the sums adjudged by the trial court as damages. The award of P48,000 by way of moral damages is itemized as follows:

1. Marcial Caedo P 20,000.00

2. Juana S. Caedo 15,000.00

3. Ephraim Caedo 3,000.00

4. Eileen Caedo 4,000.00

5. Rose Elaine Caedo

3,000.00

6. Merilyn Caedo 3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or compensatory damages, aggregating P225,000, for the injuries they sustained.

Defendants, on the other hand maintain that the amounts awarded as moral damages are excessive and should be reduced. We find no justification for either side. The amount of actual damages suffered by the individual plaintiffs by reason of their injuries, other than expenses for medical treatment, has not been shown by the evidence. Actual damages, to be compensable, must be proven. Pain and suffering are not capable of pecuniary estimation, and constitute a proper ground for granting moral, not actual, damages, as provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-plaural hematoma; Basal disc atelectasis, lung, right lower lobe, secondary;C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions, multiple:    (1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.B. Wound, lacerated, irregular, deep, frontal;C. Fracture, simple, 2nd rib posterior, left with displacement.D. Fracture, simple, base, proximal phalanx right, big toe.E. Fracture, simple, base, metatarsals III and V right.F. Concussion, cerebral.

EPHRAIM CAEDO:

A. Abrasions, multiple:    (1) left temporal area; (2) left frontal; (3) left supraorbital

EILEEN CAEDO:

A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.B. Abrasions, multiple:    (1) dorsum, proximal phalanx middle finger; (2) Knee, anterior, bilateral; (3) shin, lower 1/3.

ROSE ELAINE CAEDO:

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A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3) nasolabial region; (4) leg, lower third, anterior.

MARILYN CAEDO:

A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4, and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts of moral damages granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu Khe Thai free from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against the latter.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.Fernando, J., took no part.

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SECOND DIVISIONG.R. No. L-62988 February 28, 1985

FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and ROBERTO R. LUNA, JR., petitioners, 

vs.THE HON. INTERMEDIATE APPELLATE COURT, JOSE E. DELA

ROSA and LUIS DELA ROSA, respondents.

Ezequiel S. Consulta for petitioners.David M. Castro for respondents. ABAD SANTOS, J.:

This is a petition to review a decision of the defunct Court of Appeals. The petitioners are the heirs of Roberto R. Luna who was killed in a vehicular collision. The collision took place on January 18, 1970, at the go-kart practice area in Greenhills, San Juan, Metro Manila. Those involved were the go-kart driven by the deceased, a business executive, and a Toyota car driven by Luis dela Rosa, a minor of 13 years who had no driver's license.

In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela Rosa and his father Jose dela Rosa, the Court of First Instance of Manila in Civil Case No. 81078, rendered the following judgment:

WHEREFORE, judgment is hereby rendered sentencing the defendants Luis dela Rosa and Jose dela Rosa to pay, jointly and severally, to the plaintiffs the sum of P1,650,000.00 as unearned net earnings of Roberto Luna, P12,000.00 as compensatory damages, and P50,000.00 for the loss of his companionship, with legal interest from the date of this decision; plus attorney's fees in the sum of P50,000.00, and the costs of suit. (Record on Appeal, p. 35.)

The defendants appealed to the defunct Court of Appeals which in a decision dated May 22, 1979, affirmed in totothat of the trial court. (Rollo, p. 48.) However, upon a motion for reconsideration filed by the defendants-appellants, the Court of Appeals, in a resolution dated June 19, 1981, modified its judgment thus:

WHEREFORE, the decision rendered in this case is hereby modified insofar as the judgment ordering the defendants to pay, jointly and severally, the sum of P 1,650,000.00 to plaintiffs with legal interest from July 5, 1973, is concerned. In lieu

thereof, defendants are hereby ordered to pay plaintiffs, jointly and severally, the sum of Four Hundred Fifty Thousand Pesos (P450,000.00) as unearned net earnings of Roberto R. Luna, with legal interest thereon from the date of the filing of the complaint until the whole amount shall have been totally paid.

The rest of the other dispositions in the judgment a quo stand. (Rollo, pp. 33-34.)

Both parties filed separate petitions for review of the appellate court's decision.

In G.R. No. 57362, the petition for review of Jose and Luis dela Rosa was denied for lack of merit on October 5, 1981. Subsequently, they informed that the decision sought to be reviewed was not yet final because the Lunas had a pending motion for reconsideration. For prematurity, this Court set aside all previous resolutions. On February 16, 1983, acting upon the motion and manifestation of the petitioners, they were required to file an amended petition within thirty days from notice. On June 20, 1983, this Court resolved: "For failure of the petitioners to file an amended petition as required, this case is hereby DISMISSED and the dismissal is final."

The instant case — G.R. No. 62988 — is the separate appeal of the Lunas. Their petition contains the following prayer:

1. That the petition be given due course;

2. That after notice and hearing, judgment be rendered, setting aside or modifying the RESOLUTION of respondent Court of Appeals dated June 19, 1981, attached as Annex "A" to the petition, only insofar as it reduced the unearned net earnings to P450,000.00, s as to affirm the trial� court's finding as to the unearned net earnings of the deceased in the amount of P1,650,000.00;

3. Ordering that the award of attorney's fees shall also be with interest, at the legal rate. (Rollo, p. 27.)

On June 27, 1983, the petition was given due course. (Rollo, pp. 122-123.)

In the light of the foregoing, the resolution stated:

It thus appears that the questions in esse are with respect to the award for unearned net earnings — should the award be P450,000.00 only or should it be P1,650,000.00 as originally adjudged; and

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whether the award for attorney's fees shall also be with interest at the legal rate.

The Court takes notice that the wrongful death occurred as early as January 18, 1970, and that until now the process of litigation is not yet over. In the meantime the value of the Philippine peso has been seriously eroded so that the heirs of the deceased may ultimately have a greatly depreciated judgment. In the interest of justice, the private respondents are hereby ordered to PAY to the petitioners within thirty (30) days from notice the following amounts adjudged against them: P450,000.00 for unearned net earnings of the deceased; (P12,000.00 as compensatory damages; P50,000.00 for the loss of his companionship with legal interest from July 3, 1973; and P50,000.00 as attorney's fees.

Still to be resolved shall be the following: whether the award for unearned net earnings shall be increased to P1,650,000.00; and whether the award for attorney's fees shall also be with interest at the legal rate. The costs will be adjudged as a matter of course. (Rollo, p. 123.)

The private respondents failed to pay the amounts and when required to explain they said that they had no cash money. Accordingly, this Court directed the trial court to issue a writ of execution but the attempt of the special sheriff to enter the private respondent's premises so that he could make an inventory of personal properties was thwarted by guards and this Court had to direct the Chief of the Philippine Constabulary to assist in enforcing the writ of execution. The execution yielded only a nominal amount. In the meantime, Luis dela Rosa is now of age, married with two children, and living in Madrid, Spain with an uncle but only casually employed. It is said: "His compensation is hardly enough to support his family. He has no assets of his own as yet." (Rollo, p. 208.)

1. On the amount of the award.

The award of P1,650,000.00 was based on two factors, namely: (a) that the deceased Roberto R. Luna could have lived for 30 more years; and (b) that his annual net income was P55,000.00, computed at P75,000.00 annual gross income less P20,000.00 annual personal expenses.

This is what the trial court said on Luna's life expectancy:

According to the American Experience Table of Mortality, at age 33 the life expectancy of Roberto Luna was 33.4 years, and under the Commissioner Standard Ordinary, used by our domestic insurance companies since 1968 for policies above P5,000.00 his life expectancy was 38.51 years. Dr. Vicente Campa, medical director of San Miguel Corporation, testified that he was the regular physician of Roberto Luna since his marriage to Felina Rodriguez in 1957. He said that except for a slight anemia which he had ten years earlier, Roberto Luna was of good health. Allowing for this condition, he could reasonably expect to have a life expectancy of 30 years. (Record on Appeal, p. 33.)

The Court of Appeals in sustaining the trial court's conclusion said:

We have not been persuaded to disturb the conclusion that the deceased had a life expectancy of thirty years. At the time of Luna's death, he was only thirty-three years old and in the best of health. With his almost perfect physical condition and his sound mind, the expectation that he could have lived for another thirty years is reasonable, considering that with his educational attainment, his social and financial standing, he had the means of staying fit and preserving his health and well-being. That he could have lived at least until the age of sixty-three years is an assessment which is more on the conservative side in view of the testimony of Dr. Vicente Campa that the general life expectancy nowadays had gone up to seventy years. (Rollo, p. 45.)

The Court of Appeals likewise sustained the trial court in respect of Luna's annual income and expense. This is what the trial court said:

Roberto Luna was 33 years old when he died, and was survived by his wife Felina Rodriguez-Luna, and two children, Roberto Jr., 13 years, and Jose, 12 years. His wife was 35 years old at the time. He declared a gross income of P16,900.00 for 1967 (Exhibit I), P29,700,000 for 1968 (Exhibit H) and P45,117.69 for 1969 (Exhibit G). He had investments in various corporations amounting to P136,116.00 (Exhibits K, M, M-1, N, N-1 to N-3, O, O-1, P, Q and R) and was the president and general

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manager of Rodlum Inc.; general manager of Esso Greenhills Service Center; Assistant manager of Jose Rodriguez Lanuza Sons; director of Steadfast Investment Corporation; chairman and treasurer of Greenhills Industrial Corporation; vice-president of Oasis, Inc.; director of Nation Savings Association; director of Arlun Taxi; and treasurer of National Association of Retired Civil Employees.

... . His income tax returns show an increase in his income in the short period of three years. It is reasonable to expect that it would still go higher for the next fifteen years and reach a minimum of P75,000.00 a year. The potential increase in the earning capacity of a deceased person is recognized by the Supreme Court. ... the court believes that the expected gross earnings of Roberto Luna should be fixed in the sum of P75,000.00 a year for the period of his life expectancy of 30 years, but deducting his personal expenses which, because of his business and social standing the court in the amount of P20,000.00 a year, in accordance with the rulings of the Supreme Court. (Record on Appeal, pp. 32-34.)

Acting on a motion for reconsideration filed by the dela Rosas, the Court of Appeals took into account the fact "that the deceased Roberto R. Luna had been engaged in car racing as a sport, having participated in tournaments both here and abroad;" it said that Luna's habit and manner of life should be "one of the factors affecting the value of mortality table in actions for damages;" and, consequently, concluded that Luna could not have lived beyond 43 years. The result was that the 30-year life expectancy of Luna was reduced to 10 years only.

Further on the motion for reconsideration, the Court of Appeals ruled in respect of Luna's annual personal expenses:

... . Considering the escalating price of automobile gas which is a key expenditure in Roberto R. Luna's social standing, We should increase that amount to P30,000.00 as the would be personal expenses of the deceased per annum. (Rollo, p. 33.)

The Court of Appeals then determined the amount of the award thus: P75,000.00 annual gross income less P30,000.00 annual personal expenses leaves P45,000.00 multiplied by 10 years of life expectancy and the product is P450,000.00.

The petitioners contend that the Court of Appeals erred when by its resolution of June 19, 1981, it reduced Luna's life expectancy from 30 to 10 Years and increased his annual personal expenses from P20,000.00 to P30,000.00. We sustain the petitioners.

The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said that his habit and manner of life should be taken into account, i.e. that he had been engaged in car racing as a sport both here and abroad - a dangerous and risky activity tending to shorten his life expectancy. That Luna had engaged in car racing is not based on any evidence on record. That Luna was engaged in go-kart racing is the correct statement but then go-kart racing cannot be categorized as a dangerous sport for go-karts are extremely low slung, low powered vehicles, only slightly larger than foot-pedalled four wheeled conveyances. It was error on the part of the Court of Appeals to have disturbed the determination of the trial court which it had previously affirmed.

Similarly, it was error for the Court of Appeals to reduce the net annual income of the deceased by increasing his annual personal expenses but without at the same time increasing his annual gross income. It stands to reason that if his annual personal expenses should increase because of the "escalating price of gas which is a key expenditure in Roberto R. Luna's social standing" [a statement which lacks complete basis], it would not be unreasonable to suppose that his income would also increase considering the manifold sources thereof.

In short, the Court of Appeals erred in modifying its original decision.

2. Attorney's fees — with or without interest at the legal rate.

The trial court awarded attorney's fees to the petitioners in the sum of P50,000.00. This award was affirmed by the Court of Appeals in its decision of May 22, 1979. The resolution of June 19, 1981, reaffirmed the award. The two decisions as well as the resolution do not provide for interest at the legal rate to be tacked to the award.

The petitioners now pray that the award of attorney's fees be with interest at the legal rate from the date of the filing of the complaint. There is merit in this prayer. The attorney's fees were awarded in the concept of damages in a quasi-delict case and under the circumstances interest as part thereof may be adjudicated at the discretion of the court. (See Art. 2211, Civil Code.) As with the other damages awarded, the interest should accrue only from the date of the trial court's decision.

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The private respondents invoke Elcano vs. Hill, L-24803, May 26,1977; 77 SCRA 98, where it was held that Article 2180 of the Civil Code applied to Atty. Marvin Hill notwithstanding the emancipation by marriage of Reginald Hill, his son but since Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now married and of legal age and that as a matter of equity the liability of his father should be subsidiary only.

We are unwilling to apply equity instead of strict law in this case because to do so will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of Philippine courts. Moreover, he does not have any property either in the Philippines or elsewhere. In fact his earnings are insufficient to support his family.

WHEREFORE, the resolution of the Court of Appeals dated June 19, 1981, is hereby set aside; its decision dated May 22, 1979, is reinstated with the sole modification that the award for attorney's fees shall earn interest at the legal rate from July 5, 1973, the date of the trial court's decision. Costs against the private respondents.

SO ORDERED.

Aquino, Concepcion, Jr., Gutierrez, Jr. and De la Fuente, * JJ., concur.Makasiar (Chairman), J., I reserve my vote. Footnotes

* In lieu of Justice Escolin and Cuevas who did not take part. (S.O. No.318.)

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EN BANCG.R. No. L-14414             April 27, 1960

SEVERINO SALEN and ELENA SALBANERA, plaintiffs-appellants, 

vs.JOSE BALCE, defendant-appellee.

Marciano C. Dating, Jr. for appellants.Severino Balce for appellee.

BAUTISTA ANGELO, J.:

On February 5, 1957, plaintiffs brought this action against defendant before the Court of First Instance of Camarines Norte to recover the sum of P2,000.00, with legal interest thereon from July 18, 1952, plus attorney' fees and other incidental expenses.

Defendant, in his answer, set up the defense that the law upon which plaintiffs predicate their right to recover does not here apply for the reason that law refers to quasi-delicts and not to criminal cases.

After trial, the court sustained the theory of defendant and dismissed the complaint with costs. Hence the present appeal.

Plaintiffs are the legitimate parents of Carlos Salen who died single from wounds caused by Gumersindo Balce, a legitimate son of defendant. At the time, Gumersindo Balce was also Single, a minor below 18 years of age, and was living with defendant. As a result of Carlos Salen's death, Gumersindo Balce accused and convicted of homicide and was sentenced to imprisonment and to pay the heirs of the deceased an indemnity in the amount of P2,000.00. Upon petition of plaintiff, the only heirs of the deceased, a writ of execution was issued for the payment of the indemnity but it was returned unsatisfied because Gumersindo Balce was insolvent and had no property in his name. Thereupon, plaintiffs demanded upon defendant, father of Gumersindo, the payment of the indemnity the latter has failed to pay, but defendant refused, thus causing plaintiffs to institute the present action.

The question for determination is whether appellee can be held subsidiary liable to pay the indemnity of P2,000.00 which his son was sentenced to pay in the criminal case filed against him.

In holding that the civil liability of the son of appellee arises from his criminal liability and, therefore, the subsidiary liability of appellee must be determined under the provisions of the Revised Penal Code, and not under Article 2180 of the new Civil Code

which only applies to obligations which arise from quasi-delicts, the trial court made the following observation:

The law provides that a person criminally liable for a felony is also civilly liable (Art. 100 of the Revised Penal Code). But there is no law which holds the father either primarily or subsidiarily liable for the civiliability inccured by the son who is a minor of 8 years. Under Art. 101 of the Penal Code, the father is civilly liable for the acts committed by his son if the latter is an imbecile, or insane, or under 9 years of age or over 9 but under 15, who has acted without discernment. Under Art. 102, only in keepers and tavern-keepers are held subsidiarily liable and under Art. 103 of the same Penal Code, the subsidiary liability established in Art. 102 shall apply only 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." By the principle of exclusio unus exclusio ulterius, the defendant in this case cannot be held subsidiary liable for the civil liability of Gumersindo Balce who has been convicted of homicide for the killing of the plaintiff's son Carlos Salen.

Art. 2180 of the Civil Code, relied by the plaintiff's, is not applicable to the case at bar. It applies to obligations which arise from quasi-delicts and not obligations which arise from criminal offenses. Civil liability arising from criminal negligence or offenses is governed by the provisions of the Penal Code and civil liability arising from civil negligence is governed by the provision of the Civil Code. The obligation imposed by Art. 2176 of the New Civil Code expressly refers to obligations which arise from quasi-delicts. And obligations arising from quasi-delict (Commissioner's note). And according to Art. 2177, the 'responsibility for fault of negligence under Art. 2176 is entirely separate and distinct from the civil liabilty arising from negligence under the Penal Code. . . .

While we agree with the theory that, as a rule, the civil liability arising from a crime shall be governed by the provisions of the Revised Penal Code, we disagree with the contention that the subsidiary liability of persons for acts of those who are under their custody should likewise be governed by the same Code even in the absence of any provision governing the case, for that would leave the transgression of certain right without any punishment or sanction in the law. Such would be the case if we would uphold the theory of appellee as sustained by the trial court.

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It is true that under Article 101 of the Revised Penal Code, a father is made civilly liable for the acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, over 9 but under 15 years of age, who act without discernment, unless it appears that there is no fault or negligence on his part. This is because a son who commits the act under any of those conditions is by law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil liability to the person who has the deliquent minor under his legal authority or control. But a minor over 15 who acts with discernment is not exempt from criminal liability, for which reason the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that case, resort should be had to the general law which is our Civil Code.

The particular law that governs this case is Article 2180, the pertinent portion of which provides: "The father and, in case of his death or incapacity, the mother, are responsible for damages caused by the minor children who lived in their company." To hold that this provision does not apply to the instant case because it only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if the damage is caused with criminal intent. Verily, the void that apparently exists in the Revised Penal Code is subserved by this particular provision of our Civil Code, as may be gleaned from some recent decisions of this Court which cover equal or identical cases.

A case in point is Exconde vs. Capuno, 101 Phil., 843, the facts of which are as follows:

Dante Capuno, a minor of 15 years of age, lives in the company of his father, Delfin Capuno. He is a student of the Balintawak Elementary School in the City of San Pablo and a member of the Boy Scout Organization of his school. On Marcy 31, 1949, on the occasion of a certain parade in honor of Dr. Jose Rizal in the City of San Pablo, Dante Capuno was one of those instructed by the City School Supervisor to join the parade. From the school, Dante Capuno, together with other students, boarded a jeep. When the jeep started to run, Dante Capuno took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep turned turtle and two of its passengers, Amando Ticson and Isidro Caperina died as a consequence. The corresponding criminal action

for double homicide through reckless imprudence was instituted against Dante Capuno. During the trial, Sabina Exconde, as mother of the deceased Isidro Caperina, reserved her right to bring a separate civil action for damages against the accused. Dante Capuno was found guilty of the criminal offense charged against him. In line with said reservation of Sabina Exconde, the corresponding civil action for damages was filed against Delfin Capuno, Dante Capuno and others.

In holding Delfin Capuno jointly and severally liable with his minor son Dante Capuno arising from the criminal act committed by the latter, this Court made the following ruling:

The civil liability which the law imposes upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them in proportion to their means", while, on the other hand, gives them the "right to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only way by which they can relieved themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph, Spanish Civil Code.) This defendants failed to prove.

Another case in point is Araneta vs. Arreglado 104 Phil., 524; 55 Off. Gaz. [9] 1961. The facts of this case are as follows:

On March 7, 1951, while plaintiff Benjamin Araneta was talking with the other students of the Ateneo de Manila while seated atop a low ruined wall bordering the Ateneo grounds along Dakota Street, in the City of Manila, Dario Arreglado, a former student of the Ateneo, chanced to pass by. Those on the wall called Dario and conversed with him, and in the course of their talk, twitted him on his leaving the Ateneo and enrolling in the De La Salle College. Apparently, Arreglado resented the banter and suddenly pulling from his pocket a Japanese Luger pistol (licensed in the name of his father Juan Arreglado), fired the same at Araneta, hitting him in the lower jaw, causing him to drop backward, bleeding profusely. Helped by his friends, the injured lad was taken first to the school infirmary and later to the Singian Hospital, where he lay hovering between life

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and death for three days. The vigor of youth came to his rescue; he rallied and after sometime finally recovered, the gunshot would left him with a degenerative injury to the jawbone (mandible) and a scar in the lower portion of the face, where the bullet had plowed through. The behavior of Benjamin was likewise affected, he becoming inhibited and morose after leaving the hospital.

Dario Arreglado was indicted for frustrated homicide and pleaded guilty, but in view of his youth, he being only 14 years of age, the court suspended the proceedings as prescribed by Article 80 of the Revised Penal Code. Thereafter, an action was instituted by Araneta and his father against Juan Arreglado, his wife, and their son Dario, to recover material, moral and exemplary damages. The court of first instance, after trial, sentenced the Arreglados to pay P3,943.00 as damages and attorney's fees. From this decision, the Araneta appealed in view of the meager amount of indemnity awarded. This Court affirmed the decision but increased the indemnity to P18,000.00. This is a typical case of parental subsidiary liability arising from the criminal act of a minor son.

Wherefore, the decision appealed from is reversed. Judgement is hereby rendered ordering appellee to pay appellants the sum of P2,000.00, with legal interest thereon from the filing of the complaint, and the costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Endencia, Barrera and Gutierrez David, JJ.,concur.

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EN BANCG.R. No. L-14409            October 31, 1961

AGAPITO FUELLAS, petitioner, vs.

ELPIDIO CADANO, ET AL., respondents.

Ambrosio Padilla, Feliciano C. Tumale and Roberto R. Reverente for petitioner.Valerio V. Rovira for respondents.

PAREDES, J.:

For serious physical injuries sustained by Pepito Cadano, son of plaintiff-appellee Elpidio Cadano, two separate actions were instituted, Civil Case No. 583, filed on October 1, 1954, for damages against Agapito Fuellas, father of the minor Rico Fuellas, who caused the injuries, and Criminal Case No. 1765, against Rico Fuellas, filed on November 11, 1954, for serious physical injuries. They were tried jointly. On May 18, 1956, a judgment of conviction in the criminal case was rendered, finding Rico Fuellas guilty of the offense charged. No pronouncement as to his civil liability was made, the trial judge having ruled that the same "shall be determined in Civil Case No. 583 of this Court." On May 25, 1956, the same court, rendered judgment in the civil case making defendant therein, now appellant Agapito Fuellas, liable under Art. 2180 of the new Civil Code for the following damages: —

For medicine, etc.P1,000.00

For moral damages6,000.00

As exemplary damages2,000.00

As attorney's fees600.00

T o t a lP9,600.00

with 6% annual interest thereon until paid. The Court of Appeals modified the judgment by reducing the moral damages to P3,000.00. An appeal was taken to this tribunal solely on questions of law.

Pepito Cadano and Rico Fuellas, son of defendant-appellant Agapito Fuellas, were both 13 years old, on September 16, 1954. They were classmates at St. Mary's High School, Dansalan City. In

the afternoon of September 16, 1954, while Pepito was studying his lessons in the classroom, Rico took the pencil of one Ernesto Cabanok and surreptitiously placed it inside the pocket of Pepito. When Ernesto asked Rico to return the pencil, it was Pepito who returned the same, an act which angered Rico, who held the neck of Pepito and pushed him to the floor. Villamira, a teacher, separated Rico and Pepito and told them to go home. Rico went ahead, with Pepito following. When Pepito had just gone down of the schoolhouse, he was met by Rico, still in an angry mood. Angelito Aba, a classmate, told the two to shake hands. Pepito extended his hand to Rico. Instead of accepting the proffer to shake hands, Rico held Pepito by the neck and with his leg, placed Pepito out of balance and pushed him to the ground. Pepito fell on his right side with his right arm under his body, whereupon, Rico rode on his left side. While Rico was in such position, Pepito suddenly cried out "My arm is broken." Rico then got up and went away. Pepito was helped by others to go home. That same evening Pepito was brought to the Lanao General Hospital for treatment (Exh. 4). An X-Ray taken showed that there was a complete fracture of the radius and ulna of the right forearm which necessitated plaster casting (Exhs. A, B and D). On November 20, 1954, more than a month after Pepito's release from the hospital, the plaster cast was removed. And up to the last day of hearing of the case, the right forearm of Pepito was seen to be shorter than the left forearm, still in bandage and could not be fully used.

It is contended that in the decision of the Court of Appeals, the petitioner-appellant was ordered to pay damages for the deliberate injury caused by his son; that the said court held the petitioner liable pursuant to par. 2 of Art. 2180 of the Civil Code, in connection with Art. 2176 of the same Code; that according to the last article, the act of the minor must be one wherein "fault or negligence" is present; and that there being no fault or negligence on the part of petitioner-appellant's minor son, but deliberate intent, the above mentioned articles are not applicable, for the existence of deliberate intent in the commission of an act negatives the presence of fault or negligence in its commission. Appellant, therefore, submits that the appellate Court erred in holding him liable for damages for the deliberate criminal act of his minor son.

The above-mentioned provisions of the Civil Code states: —

Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties is called

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a quasi-delict and is governed by the provisions of this chapter. (Article 2176)

The obligations imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

xxx           xxx           xxx (Article 2180).

In the case of Araneta vs. Arreglado, G.R. No. L-11394, prom. September 9, 1958, Benjamin Araneta was talking with other students of the Ateneo de Manila, seated atop a low ruined wall. Dario Arreglado, a former student of the Ateneo, chanced to pass by. The boys twitted him on his leaving the Ateneo and enrolling in the De la Salle College. Arreglado, resenting the banter, pulled a Japanese luger pistol (licensed in the name of his father Juan Arreglado), fired the same at Araneta, hitting him in the lower jaw. Dario was indicted for frustrated homicide and pleaded guilty. But in view of his youth, he being only 14 years of age, the Court suspended the proceedings (Art. 80 of the Revised Penal Code). Thereafter, action was instituted by Araneta and his father against Juan Arreglado, his wife and their son Dario to recover material, moral and exemplary damages. The Court of First Instance sentenced the Arreglados to pay P3,943.00 as damages and attorney's fees. The Aranetas appealed in view of the meager amount of indemnity awarded. This tribunal affirmed the decision but increased the indemnity to P18,000.00. This decision was predicated upon the fact that Arreglado's father had acted negligently in allowing his son to have access to the pistol used to injure Benjamin. And this was the logical consequence of the case, considering the fact that the civil law liability under Article 2180 is not respondeat superior but the relationship ofpater familias which bases the liability of the father ultimately on his own negligence and not on that of his minor son (Cuison vs. Norton & Harrison, 55 Phil. 23), and that if an injury is caused by the fault or negligence of his minor son, the law presumes that there was negligence on the part of his father (Bahia vs. Litonjua y Leynes, 30 Phil., 625).

In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132, prom. June 29, 1957), holding the defendants jointly and severally liable with his minor son Dante for damages, arising from the criminal act committed by the latter, this tribunal gave the following reasons for the rule: —

The civil liability which the law imposes upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them in proportion to their means", while on the other hand, gives them the "right to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph, Spanish Civil Code). This, defendants failed to prove.

And a noted Spanish commentator said: —

Since children and wards do not yet have the capacity to govern themselves, the law imposes upon the parents and guardians the duty of exercising special vigilance over the acts of their children and wards in order that damages to third persons due to the ignorance, lack of foresight or discernment of such children and wards may be avoided. If the parents and guardians fail to comply with this duty, they should suffer the consequences of their abandonment or negligence by repairing the damage caused" (12 Manresa, 649-650). (See also Arts. 311 and 316, Civil Code).

It is further argued that the only way by which a father can be made responsible for the criminal act of his son committed with deliberate intent and with discernment, is an action based on the provisions of the Revised Penal Code on subsidiary liability of the parents; that the minor Fuellas having been convicted of serious physical injuries at the age of 13, the provisions of par. 3 of Art. 12, Revised Penal Code, could have been applied, but having acted with discernment, Art. 101 of the same Code can not include him. And as par. 2, of Art. 101, states that "the exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Art. 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First, in cases of subdivisions 1, 2 and 3 of Article 12, the civil liability for acts committed by an 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

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that there was no fault or negligence on their part," the appellant concluded that this provision covers only a situation where a minor under 15 but over 9 years old commits a criminal act "without discernment."

In the recent case of Salen and Salbanera vs. Jose Balce, G.R. No. L-14414, April 27, 1960; 57 Off. Gaz. No. 37, p. 6603, September 11, 1961, the defendant Balce was the father of a minor Gumersindo Balce, below 18 years of age who was living with him. Gumersindo was found guilty of homicide for having killed Carlos Salen, minor son of plaintiffs. The trial court rendered judgment dismissing the case, stating that the civil liability of the minor son of defendant arising from his criminal liability must be determined under the provisions of the Revised Penal Code and not under Art. 2180 of the new Civil Code. In reversing the decision, this tribunal held: —

It is true that under Art. 101 of the Revised Penal Code, a father is made civilly liable for the acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, or over 9 but under 15 years of age, who acts without discernment, unless it appears that there is no fault or negligence on his part. This is because a son who commits the act under any of those conditions is by law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil liability to the person who has the delinquent minor under his legal authority or control. But a minor over 15 who acts with discernment is not exempt from criminal liability, for which reason the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that case, resort should be had to the general law which is our Civil Code.

The particular law that governs this case is Article 2180, the pertinent portion of which provides: "The father and, in case of his death or incapacity, the mother, are responsible for damages caused by the minor children who live in their company." To hold that this provision does not apply to the instant case because it only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if the damage is caused with criminal intent. Verily, the void apparently exists in the Revised Penal Code is subserved by this particular provision of our Civil Code, as

may be gleaned from some recent decisions of this Court which cover equal or identical cases.

Moreover, the case at bar was decided by the Court of Appeals on the basis of the evidence submitted therein by both parties, independently of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the action in the present case was instituted, is entirely separate and distinct from the civil liability arising from fault of negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minor's criminal responsibility is of no moment.

IN VIEW HEREOF, the petition is dismissed, the decision appealed from is affirmed, with costs against the petitioner.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Dizon and De Leon, JJ., concur.Bautista and Barrera, JJ., took no part.

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EN BANCG.R. No. 34840           September 23, 1931

NARCISO GUTIERREZ, plaintiff-appellee, vs.

BONIFACIO GUTIERREZ, MARIA V. DE GUTIERREZ, MANUEL GUTIERREZ, ABELARDO VELASCO, and SATURNINO

CORTEZ, defendants-appellants.

L.D. Lockwood for appellants Velasco and Cortez.San Agustin and Roxas for other appellants.Ramon Diokno for appellee.

MALCOLM, J.:

This is an action brought by the plaintiff in the Court of First Instance of Manila against the five defendants, to recover damages in the amount of P10,000, for physical injuries suffered as a result of an automobile accident. On judgment being rendered as prayed for by the plaintiff, both sets of defendants appealed.

On February 2, 1930, a passenger truck and an automobile of private ownership collided while attempting to pass each other on the Talon bridge on the Manila South Road in the municipality of Las Piñas, Province of Rizal. The truck was driven by the chauffeur Abelardo Velasco, and was owned by Saturnino Cortez. The automobile was being operated by Bonifacio Gutierrez, a lad 18 years of age, and was owned by Bonifacio's father and mother, Mr. and Mrs. Manuel Gutierrez. At the time of the collision, the father was not in the car, but the mother, together will several other members of the Gutierrez family, seven in all, were accommodated therein. A passenger in the autobus, by the name of Narciso Gutierrez, was en route from San Pablo, Laguna, to Manila. The collision between the bus and the automobile resulted in Narciso Gutierrez suffering a fracture right leg which required medical attendance for a considerable period of time, and which even at the date of the trial appears not to have healed properly.

It is conceded that the collision was caused by negligence pure and simple. The difference between the parties is that, while the plaintiff blames both sets of defendants, the owner of the passenger truck blames the automobile, and the owner of the automobile, in turn, blames the truck. We have given close attention to these highly debatable points, and having done so, a majority of the court are of the opinion that the findings of the trial judge on all controversial questions of fact find sufficient support in the record, and so should be maintained. With this

general statement set down, we turn to consider the respective legal obligations of the defendants.

In amplification of so much of the above pronouncement as concerns the Gutierrez family, it may be explained that the youth Bonifacio was in incompetent chauffeur, that he was driving at an excessive rate of speed, and that, on approaching the bridge and the truck, he lost his head and so contributed by his negligence to the accident. The guaranty given by the father at the time the son was granted a license to operate motor vehicles made the father responsible for the acts of his son. Based on these facts, pursuant to the provisions of article 1903 of the Civil Code, the father alone and not the minor or the mother, would be liable for the damages caused by the minor.

We are dealing with the civil law liability of parties for obligations which arise from fault or negligence. At the same time, we believe that, as has been done in other cases, we can take cognizance of the common law rule on the same subject. In the United States, it is uniformly held that the head of a house, the owner of an automobile, who maintains it for the general use of his family is liable for its negligent operation by one of his children, whom he designates or permits to run it, where the car is occupied and being used at the time of the injury for the pleasure of other members of the owner's family than the child driving it. The theory of the law is that the running of the machine by a child to carry other members of the family is within the scope of the owner's business, so that he is liable for the negligence of the child because of the relationship of master and servant. (Huddy On Automobiles, 6th ed., sec. 660; Missell vs. Hayes [1914], 91 Atl., 322.) The liability of Saturnino Cortez, the owner of the truck, and of his chauffeur Abelardo Velasco rests on a different basis, namely, that of contract which, we think, has been sufficiently demonstrated by the allegations of the complaint, not controverted, and the evidence. The reason for this conclusion reaches to the findings of the trial court concerning the position of the truck on the bridge, the speed in operating the machine, and the lack of care employed by the chauffeur. While these facts are not as clearly evidenced as are those which convict the other defendant, we nevertheless hesitate to disregard the points emphasized by the trial judge. In its broader aspects, the case is one of two drivers approaching a narrow bridge from opposite directions, with neither being willing to slow up and give the right of way to the other, with the inevitable result of a collision and an accident.

The defendants Velasco and Cortez further contend that there existed contributory negligence on the part of the plaintiff,

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consisting principally of his keeping his foot outside the truck, which occasioned his injury. In this connection, it is sufficient to state that, aside from the fact that the defense of contributory negligence was not pleaded, the evidence bearing out this theory of the case is contradictory in the extreme and leads us far afield into speculative matters.

The last subject for consideration relates to the amount of the award. The appellee suggests that the amount could justly be raised to P16,517, but naturally is not serious in asking for this sum, since no appeal was taken by him from the judgment. The other parties unite in challenging the award of P10,000, as excessive. All facts considered, including actual expenditures and damages for the injury to the leg of the plaintiff, which may cause him permanent lameness, in connection with other adjudications of this court, lead us to conclude that a total sum for the plaintiff of P5,000 would be fair and reasonable. The difficulty in approximating the damages by monetary compensation is well elucidated by the divergence of opinion among the members of the court, three of whom have inclined to the view that P3,000 would be amply sufficient, while a fourth member has argued that P7,500 would be none too much.

In consonance with the foregoing rulings, the judgment appealed from will be modified, and the plaintiff will have judgment in his favor against the defendants Manuel Gutierrez, Abelardo Velasco, and Saturnino Cortez, jointly and severally, for the sum of P5,000, and the costs of both instances.

Avanceña, C.J., Johnson, Street, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

VILLA-REAL, J.:I vote for an indemnity of P7,500.

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THIRD DIVISIONG.R. No. 85044 June 3, 1992

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners, 

vs.HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO,

RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

 FELICIANO, J.:

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to this case for damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that he bad acted without discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption was grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and Felisa Rapisura, were indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the successful petition for adoption was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents, parental authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto indeed were not indispensable parties to the action.

Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on 14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration on 15 January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all parties concerned at least three (3) days before the hearing of said motion; and that said notice shall state the time and place of hearing — both motions were denied by the trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period ending 22 December 1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges on the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal, may still file the instant Petition; conversely, whether the Court may still take cognizance of the case even through petitioners' appeal had been filed out of time; and (2) whether or not the effects of adoption, insofar as parental authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological parents.

1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court held that the motions, not having contained a notice of time and place of

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hearing, had become useless pieces of paper which did not interrupt the reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the service of the motion on the opposing counsel indicating the time and place of hearing. 2

In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice may be served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted the reglementary period for appeal. As the Court held in Gregorio v. Court of Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure are used only to help secure not override, substantial justice. if d technical and rigid enforcement of the rules is made their aim would be defeated. 4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:

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

Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (Emphasis supplied)

This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and responsibilities of parents — their parental authority — which includes the instructing, controlling and disciplining of the child. 5 The basis for the doctrine of vicarious liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms:

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect — and our Legislature has so elected — to limit such liability to cases in which the person upon whom such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy. to extend that liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care in the selection and control of one's agent or servants, or in the control of persons who, by reasons of their status, occupy a position of dependency with respect to the person made liable for their conduct. 7 (Emphasis Supplied)

The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon the parental authority vested by the Civil Code upon

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such parents. The civil law assumes that when an unemancipated child living with its parents commits a tortious acts, the parents were negligent in the performance of their legal and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be overtuned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage.

In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the filing of the petition for adoption that is, before Adelberto had shot Jennifer which an air rifle. The Bundoc spouses contend that they were therefore free of any parental responsibility for Adelberto's allegedly tortious conduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows:

Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social Welfare or duly licensed child placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original petition was filed. The decree shall state the name by which the child is thenceforth to be known. (Emphasis supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code:

Art. 39. Effect of Adoption. — The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural parent;

xxx xxx xxx

(Emphasis supplied)

and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this rule:

Article 58 Torts — Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the civil Code. (Emphasis supplied)

Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing damage:

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their companyand under their parental authority subject to the appropriate defenses provided by law. (Emphasis supplied)

We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive effect may be giver to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to

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burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows:

Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and until the adopting parents are given by the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for the legal union. During the period of trial custody, parental authority shall be vested in the adopting parents. (Emphasis supplied)

Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period. In the instant case, the trial custody period either had not yet begun or bad already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable parties being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further proceedings consistent with this Decision. Costs against respondent Bundoc spouses. This Decision is immediately executory.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, concur. Footnotes

1 Pojas v. Hon. Gozo-Dalole, 192 SCRA 575 (1990).2 Fecundo v. Berjamen, 180 SCRA 235 (1989); Filipinas Fabricators and Sales, Inc. v. Magsino, 157 SCRA 469 (1988).3 72 SCRA 120 (1976).4 Id., at 126.5 See in this connection. Art. 311, 316. 357, Civil Code; Exconde v. Capuno, 101 Phil. 843 (1957).6 38 Phil. 768 (1918).7 Id., at 775-776.8 Presidential Decree No. 603, dated 10 December 1974.9 Executive Order No. 209, dated 6 July 1967.

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EN BANCG.R. No. L-24101 September 30, 1970

MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL., plaintiffs-appellees, 

vs.ALFONSO MONFORT, defendant-appellant.

Rodolfo J. Herman for plaintiffs-appellees.Luis G. Torres and Abraham E. Tionko for defendant-appellant. MAKALINTAL, J.:

This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably to the plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are not in issue.

Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School in Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in the school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object commonly worn by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next day, July 10, the eye became swollen and it was then that the girl related the incident to her parents, who thereupon took her to a doctor for treatment. She underwent surgical operation twice, first on July 20 and again on August 4, 1962, and stayed in the hospital for a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the medical efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye.

In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria Teresa Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages; and P2,000.00 as attorney's fees, plus the costs of the suit.

The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to another under the specific facts related above and the applicable provisions of

the Civil Code, particularly Articles 2176 and 2180 thereof, which read:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by provisions of this Chapter.

ART 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity are responsible for the damages caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom another is responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated therein, such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and logical inference that may be drawn from the last paragraph of Article 2180, which states "that the responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage."

Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. But what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act or omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously there can be no meticulously calibrated measure applicable; and when the law

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simply refers to "all the diligence of a good father of the family to prevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine whether or not by the exercise of such diligence the damage could have been prevented.

In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's character which would reflect unfavorably on her upbringing and for which the blame could be attributed to her parents.

The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is at all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral compulsion of good conscience.

The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs.

Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur.Concepcion, C.J., is on leave.Fernando, J., took no part.   Separate Opinions BARREDO, J., dissenting:

I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant's daughter does not constitute fault within the contemplation of our law or torts. She was 13 years and should have known that by jokingly saying "aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something would happen to her friend, as in fact, she was hurt.

As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his daughter to behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of the Civil Code. There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon plaintiff child.

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EN BANC

G.R. No. L-14342             May 30, 1960

CIRIACO L. MERCADO, petitioner, vs.

THE COURT OF APPEALS, MANUEL QUISUMBING, JR., ET AL., respondents.

Abad Santos and Pablo for petitioner.Sycip, Quisumbing, Salazar and Associates for respondents.

LABRADOR, J.:

This is a petition to review a decision of the Court of Appeals, which condemned petitioner to pay P2,000 as moral damages and P50 for medical expenses, for a physical injury caused by the son of petitioner, Augusto Mercado, on a classmate, Manuel Quisumbing, Jr., both pupils of the Lourdes Catholic School, Kanlaon, Quezon City. The case had originated in the Court of First Instance of Manila, Hon. Bienvenido A. Tan, presiding, which dismissed the complaint filed by Manuel Quisumbing, Jr. and his father against petitioner, father of the above-mentioned Mercado. The facts found by the Court of Appeals are as follows:

Plaintiff-appellant Manuel Quisumbing, Jr. is the son of his co-plaintiff-appellants Ana Pineda and Manuel L. Quisumbing, while Augusto Mercado is the son of defendant-appellee Ciriaco L. Mercado, Manuel Quisumbing, Jr. and Augusto Mercado were classmates in the Lourdes Catholic School on Kanlaon, Quezon City. A "pitogo", which figures prominently in this case, may be described as an empty nutshell used by children as a piggy bank. On February 22, 1956, Augusto Mercado and Manuel Quisumbing, Jr. quarrelled over a "pitogo". As a result, Augusto wounded Manuel, Jr. on the right cheek with a piece of razor.

x x x           x x x           x x x

The facts of record clearly show that it was Augusto Mercado who started the aggression. Undeniably, the "pitogo" belonged to Augusto Mercado but he lent it to Benedicto P. Lim and in turn Benedicto lent it to Renato Legaspi. Renato was not aware that the "pitogo" belonged to Augusto, because right after Benedicto gave it to him, Benedicto ran away to get a basket ball with which they could play. Manuel Quisumbing, Jr. was likewise unaware that the "pitogo" belonged to Augusto. He thought it was

the "pitogo" of Benedicto P. Lim, so that when Augusto attempted to get the "pitogo" from Renato, Manuel, Jr. told him not to do so because Renato was better at putting the chain into the holes of the "pitogo". However, Augusto resented Manuel, Jr.'s remark and he aggresively pushed the latter. The fight started then. After Augusto gave successive blows to Manuel, Jr., and the latter was clutching his stomach which bore the brunt of Augusto's anger, Augusto seeing that Manuel, Jr. was in a helpless position, cut him on the right check with a piece of razor.

x x x           x x x           x x x

Although the doctor who treated Manuel Quisumbing, Jr., Antonio B. Past, testified for plaintiffs-appellants, he did not declare as to the amount of fees he collected from plaintiff-appellants for the treatment of Manuel, Jr. the child was not even hospitalized for the wound. We believe that the sum of P50.00 is a fair approximation of the medical expenses incurred by plaintiffs-appellants.

x x x           x x x           x x x

The damages specified in paragraphs C and D of the aforequoted portion of plaintiffs-appellant's complaint come under the class of moral damages. The evidence of record shows that the child suffered moral damages by reason of the wound inflicted by Augusto Mercado. Though such kind of damages cannot be fully appreciated in terms of money, we believe that the sum of P2,000.00 would fully compensate the child.

As second cause of action, plaintiffs-appellants pray for P5,000.00 covering the moral damages they allegedly suffered due to their son's being wounded; and the sum of P3,000.00 as attorney's fees. The facts of record do not warrant the granting of moral damages to plaintiffs-appellants Manuel Quisumbing and Ana Pineda. "In law mental anguish is restricted, as a rule, to such mental pain or suffering as arises from an injury or wrong to the person himself, as distinguished from that form of mental suffering which is the accompaniment of sympathy or sorrow for another's suffering of which arises from a contemplation of wrong committed on the person of another. Pursuant to the rule stated, a husband or wife cannot recover for mental suffering caused by his or her sympathy for the other's suffering. Nor can a parent recover for mental distress and anxiety on account of physical injury sustained by a child or for anxiety for the

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safety of his child placed in peril by the negligence of another." (15 Am. Jur. 597). Plaintiffs-appellants are not entitled to attorney's fees, it not appearing that defendant-appellee had wantonly disregarded their claim for damages.

In the first, second and third assignments of error, counsel for petitioner argues that since the incident of the inflicting of the wound on respondent occurred in a Catholic School (during recess time), through no fault of the father, petitioner herein, the teacher or head of the school should be held responsible instead of the latter. This precise question was brought before this Court in Exconde vs. Capuno and Capuno, 101 Phil., 843, but we held, through Mr. Justice Bautista:

We find merit in this claim. It is true that under the law above-quoted, "teachers or directors of arts and trades are liable for any damage caused by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953 Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557)

The last paragraph of Article 2180 of the Civil Code, upon which petitioner rests his claim that the school where his son was studying should be made liable, is as follows:

ART. 2180. . . .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

It would be seem that the clause "so long as they remain in their custody," contemplates a situation where the pupil lives and boards with the teacher, such that the control, direction and influence on the pupil supersedes those of the parents. In these circumstances the control or influence over the conduct and actions of the pupil would pass from the father and mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does not appear in the case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after school is over. The situation contemplated in the last paragraph of Article 2180 does not apply, nor does paragraph 2 of said article, which makes father or mother responsible for the damages caused by their minor children. The claim of petitioner that responsibility should pass to the school must, therefore, be held to be without merit.

We next come to the claim of petitioner that the moral damages fixed at P2,000 are excessive. We note that the wound caused to respondent was inflicted in the course of an ordinary or common fight between boys in a grade school. The Court of Appeals fixed the medical expenses incurred in treating and curing the wound at P50. Said court stated that the wound did not even require hospitalization. Neither was Mercado found guilty of any offense nor the scar in Quisumbing's face pronounced to have caused a deformity, unlike the case of Araneta, et al. vs. Arreglado, et al., 104 Phil., 529; 55 Off. Gaz. (9) 1561. Petitioner's counsel argues that if death call for P3,000 to P6,000, certainly the incised wound could cause mental pain and suffering to the tune of P2,000.

In the decision of the Court of Appeals, said court pronounces that the child Quisumbing suffered moral damages "by reason of the wound inflicted by Augusto Mercado." While moral damages included physical suffering, which must have been caused to the wounded boy Quisumbing (Art. 2217, Civil Code), the decision of the court below does not declare that any of the cases specified in Article 2219 of the Civil Code in which moral damages may be recovered, has attended or occasioned the physical injury. The only possible circumstance in the case at bar in which moral damages are recoverable would be if a criminal offense or a quasi-delict has been committed.

It does not appear that a criminal action for physical injuries was ever presented. The offender, Augusto Mercado, was nine years old and it does not appear that he had acted with discernment when he inflicted the physical injuries on Manuel Quisumbing, Jr.

It is possible that the Court of Appeals may have considered Augusto Mercado responsible for or guilty, of a quasi-delict causing physical injuries, within the meaning of paragraph 2 of Article 2219. Even if we assume that said court considered Mercado guilty of a quasi-delict when it imposed the moral damages, yet the facts found by said court indicate that Augusto's resentment, which motivated the assault, was occasioned by the fact that Manuel, Jr. had tried to intervene in or interfere with the attempt of Mercado to get "his pitogo from Renato." This is, according to the decision appealed from, the reason why Mercado was incensed and pushed Quisumbing who, in turn, also pushed Mercado. It is, therefore, apparent that the proximate cause of the injury caused to Quisumbing was Quisumbing's own fault or negligence for having interfered with Mercado while trying to get the pitogo from another boy. (Art. 2179, Civil Code.)

After considering all the facts as found by the Court of Appeals, we find that none of the cases mentioned in Article 2219 of the

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Civil Code, which authorizes the grant of moral damages, was shown to have existed. Consequently, the grant of moral damages is not justified.

For the foregoing considerations, the decision appealed from is hereby reversed and the petitioner is declared exempt or free from the payment of moral damages. The award of P50 for medical expenses, however, is hereby affirmed. Without costs.

Paras, C.J., Bengzon, Montemayor, Barrera, and Gutierrez David, JJ., concur.Bautista Angelo and Concepcion, JJ., concur in the result.

Page 56: Persons Liable Cases

EN BANCG.R. No. L-29025 October 4, 1971

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants, 

vs.ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON,

owner and President, respectively, of a school of arts and trades, known under the name and style of "Manila

Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M. QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .Honorato S. Reyes for appellee Brillantes, et al. .Villareal, Almacen Navarra & Amores for appellee Daffon. . TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive mechanics at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action below for damages arising from the death on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L. Daffon, at the laboratory room of the said Institute. .

Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when the incident which gave rise to his action occurred was a member of the Board of Directors of the institute; 1 the defendant Teodosio Valenton, the president thereof; the defendant Santiago M. Quibulue, instructor of the class to which the deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the beginning the Manila Technical Institute was a single proprietorship, but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased Dominador Palisoc and the defendant Virgilio L. Daffon were classmates, and on the afternoon of March 10, 1966, between two and three o'clock, they, together with another classmate Desiderio Cruz were in the laboratory room located on the ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L. Daffon were working on a machine while Dominador Palisoc was merely looking on at them. Daffon made a remark to the effect that

Palisoc was acting like a foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation, gave Palisoc a strong flat blow on the face, which was followed by other fist blows on the stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon followed him and both exchanged blows until Palisoc stumbled on an engine block which caused him to fall face downward. Palisoc became pale and fainted. First aid was administered to him but he was not revived, so he was immediately taken to a hospital. He never regained consciousness; finally he died. The foregoing is the substance of the testimony of Desiderio Cruz, the lone witness to the incident."

The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness, Desiderio Cruz, a classmate of the protagonists, as that of a disinterested witness who "has no motive or reason to testify one way or another in favor of any party" and rejected the self-exculpatory version of defendant Daffon denying that he had inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the autopsy re "Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion of the pancreas and stomach with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the brain," and his testimony that these internal injuries of the deceased were caused "probably by strong fist blows," the trial court found defendant Daffon liable for the quasi delict under Article 2176 of the Civil Code. 3 It held that "(T)he act, therefore, of the accused Daffon in giving the deceased strong fistblows in the stomach which ruptured his internal organs and caused his death falls within the purview of this article of the Code." 4

The trial court, however, absolved from liability the three other defendants-officials of the Manila Technical Institute, in this wise:

... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:

Art. 2180. ... .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students and apprentices, so long as they remain in their custody.

In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this contemplates the situation where the control or

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influence of the teachers and heads of school establishments over the conduct and actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so long as they remain in their custody" contained in Article 2180 of the new civil code contemplated a situation where the pupil lives and boards with the teacher, such that the control or influence on the pupil supersedes those of the parents. In those circumstances the control or influence over the conduct and actions of the pupil as well as the responsibilities for their sort would pass from the father and mother to the teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of Appeals, Manuel Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30, 1960). 5

There is no evidence that the accused Daffon lived and boarded with his teacher or the other defendant officials of the school. These defendants cannot therefore be made responsible for the tort of the defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased Dominador Palisoc (a) P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power, considering that the deceased was only between sixteen and seventeen years, and in good health when he died, and (e) P2,000.00 for attorney's fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of merit.

Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court, which are now beyond review, the trial court erred in absolving the defendants-school officials instead of holding them jointly and severally liable as tortfeasors, with defendant Daffon, for the damages awarded them as a result

of their son's death. The Court finds the appeal, in the main, to be meritorious. .

1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil Code, which expressly hold "teachers or heads of establishments of arts and trades ... liable for damages caused by their pupils and students and apprentices, so long as they remain in their custody," are not applicable to to the case at bar, since "there is no evidence that the accused Daffon [who inflicted the fatal fistblows] 6 lived and boarded with his teacher or the other defendants-officials of the school. These defendants cannot therefore be made responsible for the tort of the defendant Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals, 7 that "(I)t would seem that the clause "so long as they remain in their custody," contemplates a situation where the pupil lives and boards with the teacher, such that the control, direction and influence on the pupil supersedes those of the parents. In these circumstances the control or influence over the conduct and actions of the pupil would pass from the father and mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does not appear in the case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after school is over." This dictum had been made in rejecting therein petitioner father's contention that his minor son's school, Lourdes Catholic School at Kanlaon, Quezon City [which was not a party to the case] should be held responsible, rather than him as father, for the moral damages of P2,000.00 adjudged against him for the physical injury inflicted by his son on a classmate. [A cut on the right cheek with a piece of razor which costs only P50.00 by way of medical expenses to treat and cure, since the wound left no scar.] The moral damages award was after all set aside by the Court on the ground that none of the specific cases provided in Article 2219, Civil Code, for awarding moral damages had been established, petitioner's son being only nine years old and not having been shown to have "acted with discernment" in inflicting the injuries on his classmate. .

The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno, 8 where the only issue involved as expressly stated in the decision, was whether the therein defendant-father could be civilly liable for damages resulting from a death caused in a motor vehicle accident driven unauthorizedly and negligently by his minor son, (which issue was resolved adversely against the father). Nevertheless, the dictum in such earlier case that "It is true that under the law

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abovequoted, teachers or directors of arts and trades are liable for any damage caused by their pupils or apprentices while they are under their custody, but this provision only applies to an institution of arts and trades and not to any academic educational institution" was expressly cited and quoted in Mercado. .

2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of teachers and heads of schools under Article 2180, Civil Code, for damages caused by their pupils and students against fellow students on the school premises. Here, the parents of the student at fault, defendant Daffon, are not involved, since Daffon was already of age at the time of the tragic incident. There is no question, either, that the school involved is a non-academic school,  9 the Manila Technical Institute being admittedly a technical vocational and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute (defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-appellants for the death of the latter's minor son at the hands of defendant Daffon at the school's laboratory room. No liability attaches to defendant Brillantes as a mere member of the school's board of directors. The school itself cannot be held similarly liable, since it has not been properly impleaded as party defendant. While plaintiffs sought to so implead it, by impleading improperly defendant Brillantes, its former single proprietor, the lower court found that it had been incorporated since August 2, 1962, and therefore the school itself, as thus incorporated, should have been brought in as party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in their reply to plaintiffs' request for admission had expressly manifested and made of record that "defendant Antonio C. Brillantes is not the registered owner/head of the "Manila Technical Institute" which is now a corporation and is not owned by any individual person." 10

3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco parentis and are called upon to "exercise reasonable supervision over the conduct of the child." 11 This is expressly provided for in Articles 349, 350 and 352 of the Civil Code. 12 In the law of torts, the governing principle is that the protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the

whole time that they are at attendance in the school, including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some student themselves may inflict willfully or through negligence on their fellow students. .

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the presumption of negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority" 13 and "where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction." The school itself, likewise, has to respond for the fault or negligence of its school head and teachers under the same cited article. 14

5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could be held liable under Article 2180, Civil Code, only if the student who inflicted the fatal fistblows on his classmate and victim "lived and boarded with his teacher or the other defendants officials of the school." As stated above, the phrase used in the cited article — "so long as (the students) remain in their custody" means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held jointly and severally liable for the quasi-delict of their co-defendant Daffon in the latter's having caused the death of his classmate, the deceased Dominador Palisoc. The unfortunate death resulting from the fight between the protagonists-students could have been avoided, had said defendants but complied with their duty of providing adequate supervision over the activities of the students in the school premises to protect their students from harm, whether at the hands of fellow students or other parties. At any rate, the law holds them liable unless they relieve themselves of such liability,

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in compliance with the last paragraph of Article 2180, Civil Code, by "(proving) that they observed all the diligence of a good father of a family to prevent damage." In the light of the factual findings of the lower court's decision, said defendants failed to prove such exemption from liability. .

7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be increased to P12,000.00 as set by the Court in People vs. Pantoja, 15 and observed in all death indemnity cases thereafter is well taken. The Court, in Pantoja, after noting the decline in the purchasing power of the Philippine peso, had expressed its "considered opinion that the amount of award of compensatory damages for death caused by a crime or quasi-delict should now be P12,000.00." The Court thereby adjusted the minimum amount of "compensatory damages for death caused by a crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have been mitigating circumstances" pursuant to the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and imposed legal interest on the total damages awarded, besides increasing the award of attorney's fees all concern matters that are left by law to the discretion of the trial court and the Court has not been shown any error or abuse in the exercise of such discretion on the part of the trial court. 16 Decisive here is the touchstone provision of Article 2231, Civil Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted withgross negligence." No gross negligence on the part of defendants was found by the trial court to warrant the imposition of exemplary damages, as well as of interest and increased attorney's fees, and the Court has not been shown in this appeal any compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue jointly and severally to pay plaintiffs as heirs of the deceased Dominador Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both instances; 2. absolving defendant Antonio C. Brillantes from the complaint; and 3. dismissing defendants' counterclaims. .

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .Dizon, J., took no part. .

REYES, J.B.L., J., concurring: .

I concur with the opinion of Mr. Justice Teehankee but would like to clarify that the argument of the dissenting opinion of the effect that the responsibility of teachers and school officers under Articles 2180 should be limited to pupils who are minors (below the age of majority) is not in accord with the plain text of the law. Article 2180 of the Civil Code of the Philippines is to the following effect: .

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. .

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. .

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. .

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. .

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. .

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observe all the diligence of a good father of a family to prevent damages.

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Examination of the article shows that where the responsibility prescribed therein is limited to illegal acts during minority, the article expressly so provides, as in the case of the parents and of the guardians. It is natural to expect that if the law had intended to similarly restrict the civil responsibility of the other categories of persons enumerated in the article, it would have expressly so stated. The fact that it has not done so indicates an intent that the liability be not restricted to the case of persons under age. Further, it is not without significance that the teachers and heads of scholarly establishments are not grouped with parents and guardians but ranged with owners and managers of enterprises, employers and the state, as to whom no reason is discernible to imply that they should answer only for minors. .

Giorgi, in his well-known "Teoria de las Obligaciones en el Derecho Moderno", Volume 5, page 404, No. 272 (Sp. Ed.), after noting the split among commentators on the point it issue, observes with considerable cogency that —

272. Ante esta variedad de opiniones, ninguna de las cuales se funds en argumentos merecedores de seria ponderacion, no es facil tomar un partido. Esto no obstante, debiendo manisfestar nuestra opinion, nos acercamos a la de los que no estiman necesaria la menor edad del discipulo o del aprendiz; porque si el aforismo ubi voluit dixit, ubi noluit tacuit, no es siempre argumento seguro para interpreter la ley, es infalible cuanto se refiere a una misma disposicion relative a varios casos. Y tal es el art. 1.153. Lo que haya establecido important poco si, elevandones a los principios de razon, puede dudarse de la oportunidad de semajante diferencia; porque la voluntad cierta del legislador prevalece in iure condito a cualquier otra consideracion. Por otra parte, si bien se considera, no puede parecer extrano o absurdo el suponer que un discipulo y un aprendiz, aunque mayores de edad, acepten voluntariamente la entera vigilancia de su preceptor mientras dura la educacion. Ni parece dudoso desde el momento que los artesanos y los preceptores deben, al par de los padres, responder civilmente de los daños comitidos por sus discipulos, aun cuando estos esten faltos de discernimiento.

Similarly, Planiol-Ripert, in their "Droit Civil Pratique," Volume VI, No. 635 (Spanish version), say that —

635. Personas de quien responde. — Si bien la responsibilidad del maestro es originalmente una estension de la de los padres (1), el art. 1384 no especifica

que los alumnos y aprendices han de ser menores de edad, por lo que la presuncion de culpa funcionara aun cuando sean mayores (2); pero, la vigilancia no tendra que ser ejercida en iguales terminos. Aun respecto a los menores variara segun la edad, extremo que tendra que ternese en ceunta a los fines de apreciar si el maestro ha podido impedir el acto nocivo o no. .

I submit, finally, that while in the case of parents and guardians, their authority and supervision over the children and wards end by law upon the latter reaching majority age, the authority and custodial supervision over pupils exist regardless of the age of the latter. A student over twenty-one, by enrolling and attending a school, places himself under the custodial supervision and disciplinary authority of the school authorities, which is the basis of the latter's correlative responsibility for his torts, committed while under such authority. Of course, the teachers' control is not as plenary as when the student is a minor; but that circumstance can only affect the decree of the responsibility but cannot negate the existence thereof. It is only a factor to be appreciated in determining whether or not the defendant has exercised due diligence in endeavoring to prevent the injury, as prescribed in the last paragraph of Article 2180. .

Barredo, J., concurs.  Separate OpinionsMAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine laid down by this Court inMercado v. Court of Appeals, 108 Phil. 414, where the clause "so long as they remain in their custody" used in Article 2180 of the Civil Code was construed as referring to a "situation where the pupil lives and boards with the teacher, such that the (latter's) control, direction and influence on the pupil supersedes those of the parents." I think it is highly unrealistic and conducive to unjust results, considering the size of the enrollment in many of our educational institutions, academic and non-academic, as well as the temper, attitudes and often destructive activism of the students, to hold their teachers and/or the administrative heads of the schools directly liable for torts committed by them. When even the school authorities find themselves besieged, beleaguered and attacked, and unable to impose the traditional disciplinary measures formerly recognized as available to them, such as suspension or outright expulsion of the offending students, it flies in the face of logic and reality to consider such students, merely from the fact

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of enrollment and class attendance, as "in the custody" of the teachers or school heads within the meaning of the statute, and to hold the latter liable unless they can prove that they have exercised "all the diligence of a good father of the family to prevent damage." Article 2180, if applied as appellants construe it, would be bad law. It would demand responsibility without commensurate authority, rendering teachers and school heads open to damage suits for causes beyond their power to control. Present conditions being what they are, I believe the restrictive interpretation of the aforesaid provision enunciated in Mercado should be maintained. .

With particular reference to the case at bar, one other factor constrains me to dissent. The opinion of the majority states: "Here, the parents of the student at fault, defendant Daffon, are not involved, since Daffon was already of age at the time of the tragic incident." This statement is of course in accordance with Article 2180, which says that "the father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company." Note that for parental responsibility to arise the children must be minors who live in their company. If, as stated also in the opinion of the majority, "the rationale of (the) liability of school heads and teachers for the tortious acts of their pupils and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco parentis and are called upon to exercise reasonable supervision over the conduct of the child," then it stands to reason that (1) the clause "so long as they remain in their custody" as used in reference to teachers and school heads should be equated with the phrase "who live in their company" as used in reference to parents; and (2) that just as parents are not responsible for damages caused by their children who are no longer minors, so should teachers and school heads be exempt from liability for the tortious acts of their students in the same age category. I find no justification, either in the law itself or in justice and equity, to make a substitute parent liable where the real parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

Footnotes1 Per allegations of the complaint and as indicated in the title of the case. Brillantes was made defendant as "registered owner/head under Act No. 3883" of the Manila Technical Institute. .2 Notes in parentheses supplied from other portions of autopsy report..

3 "ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.(1902a)."4 Per the decision also, defendant Daffon had been charged for homicide for the death in Criminal Case No. 82419 and was "acquitted on reasonable doubt."5 Reported in 108 Phil. 414. .6 Note in brackets supplied. .7 108 PhiI. 414 (May 1960). .8 101 Phil. 843 (June 29, 1957), a six-to-three decision. .9 The writer concurs with the views expressed in the dissenting opinion of Mr. Justice J.B.L. Reyes inExconde [concurred in by Justices Padilla and A. Reyes] that "(I) can see no sound reason for limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them in so far as concerns the proper supervision and vigilance over their pupils. It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of third persons, so long as they are in a position to exercise authority and supervision over the pupil." However, since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may properly be raised. .10 Rollo Page, 47. .11 Art. 350, Civil Code. .12 Art. 349, Civil Code enumerates: "(2) Teachers and professors" and "(4) directors of trade establishments, with regard to apprentices" among those who "shall exercise substitute parental authority." Art. 352, Civil Code provides that "The relation between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution. ..."

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13 Tolentino expresses a similar opinion: "Teachers: — In order to be within this provision, a teacher must not only be charged with teaching but also vigilance over their students or pupils. They include teachers in educational institutions of all kinds, whether for the intellect, the spirit, or the body; teachers who give instruction in classes or by individuals, even in their own homes; teachers in institutions for deficient or abandoned children, and those in correctional institutions."14 "ART. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. ..."Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. ."... ."15 25 SCRA, 468, (Oct. 11, 1968). .16 See Arts. 2231, 2211 and 2208, Civil Code.

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EN BANCG.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA,

JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA,

VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners 

vs.HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-

RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON

thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his

guardian, A. FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.Padilla Law Office for respondents. CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the defendants were completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the school at the time of the incident as the semester had already ended, that there was no clear identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his graduation; hence, he was then under the custody of the private respondents. The private respondents submit that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an earlier incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the principal or taking any further action . 6 As Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices so long as they remain in their custody.

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Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody requirement had not been proved as this "contemplates a situation where the student lives and boards with the teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even students already of age were covered by the provision since they were equally in the custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed by students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even establishments which are technically not schools of arts and trades, and, if so, when the offending student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of

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establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon ofreddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them insofar as concerns the proper supervision and vice over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent terms "preceptores y artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in someculpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed by their

students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts and trades liable for an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the non-academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing such vigilance where the school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to the head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the task of teaching his students, who usually even boarded with him and so came under his constant control, supervision and influence. By contrast, the head of the academic school was not as involved with his students and exercised only administrative duties over the teachers who were the persons directly dealing with the students.

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The head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and trades over the students. Is such responsibility co-extensive with the period when the student is actually undergoing studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student should be within the control and under the influence of the school authorities at the time of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes and ending upon the close thereof, and excluding the time before or after such period, such as the period of registration, and in the case of graduating students, the period before the commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During such periods, the student is still subject to the disciplinary authority of

the school and cannot consider himself released altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in practically the same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle ofrespondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of abonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180, which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove

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that they observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism among the students that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for the damage caused by his students as long as they are in the school premises and presumably under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas submission to the teacher's influence,

besides being coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so should be held to a greater accountability than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less tractable than the minor — then there should all the more be justification to require from the school authorities less accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their non-observance. His

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absence when the tragedy happened cannot be considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or has been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.Fernan, Padilla and Teehankee, C.J., JJ, took no part.

 

  Separate OpinionsMELENCIO-HERRERA, J., concurring and dissenting:

I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a teacher, which does not seem to be the intendment of the law.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody.

Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute parental authority:

Art. 349 The following persons shall exercise substitute parental authority:

xxx xxx xxx

2) Teachers and professors

xxx xxx xxx

4) Directors of trade establishments, with regard to apprentices;'

Article 352 of the Civil Code further provides:

Art. 362. The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution....

But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority.

The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus:

The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the

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whole time that they are at attendance in the school,including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis supplied)

Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good father of the family.

Art. 2180. x x x

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade establishments, with regard to their apprentices."

GUTIERREZ, JR., J., concurring:

I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice.

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops and factories and their relationship to the employer is covered by laws governing the employment relationship and not by laws governing the teacher—student relationship.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would other members of the so-called-establishment.

The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law should be amended or repealed.

 Footnotes

1 Rollo, pp. 63,157.2 lbid., p. 38.3 Id., p. 23.4 Id p. 31. Climaco, J., ponente, with Pascual and Agcaoili, JJ.5 Id., pp. 30-31,6 Id., pp. 23, 272.7 101 Phil, 843.8 108 Phil, 414,9 41 SCRA 548.10 Concepcion, C.J., Reyes, Barredo, Villamor, and Makasiar, JJ.11 Castro, Fernando, and Zaldivar, JJ.

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SECOND DIVISIONG.R. No. L-54357 April 25, 1988

REYNALDO PASCO, assisted by his father PEDRO PASCO, petitioner, 

vs.COURT OF FIRST INSTANCE OF BULACAN, BRANCH V, STA.

MARIA and ARANETA UNIVERSITY,respondents.

Ponciano G. Hernandez for petitioner.Marcelo C. Aniana for respondents. PARAS, J.:

The sole question of law raised by petitioner in this case is whether the provision of the penultimate paragraph of Article 2180 of the Civil Code which states:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

is equally applicable to academic institutions.

The facts of this case are as follows:

On August 24, 1979 at about 5:00 o'clock in the afternoon, petitioner, together with two companions, while walking inside the campus of the private respondent Araneta University, after attending classes in said university, was accosted and mauled by a group of Muslim students led by Abdul Karim Madidis alias "Teng." Said Muslim group were also students of the Araneta University. Petitioner was subsequently stabbed by Abdul and as a consequence he was hospitalized at the Manila Central University (MCU) Hospital where he underwent surgery to save his life.

On October 5, 1979, petitioner, assisted by his father Pedro Pasco, filed a complaint for damages against Abdul Karim Madidis and herein private respondent Gregorio Araneta University which was docketed as Civil Case No. SM-1027. Said school was impleaded as a party defendant based on the aforementioned provision of the Civil Code.

On October 26, 1979, respondent school filed a Motion to Dismiss on the following grounds:

a. The penultimate paragraph of Article 2180 of the New Civil Code under which it was sued applies only to vocational schools and not to academic institutions;

b. That every person criminally liable for a felony is also civilly liable under Article 100 of the Revised Penal Code. Hence, the civil liability in this case arises from a criminal action which the defendant university has not committed;

c. Since this is a civil case, a demand should have been made by the plaintiff, hence, it would be premature to bring an action for damages against defendant University. (Rollo, p. 96)

On May 12, 1980, respondent court issued an Order * granting said Motion to Dismiss. Petitioner moved to reconsider the Order of Dismissal but the motion was likewise denied on the ground that there is no sufficient justification to disturb its ruling. Hence, this instant Petition for certiorari under Republic Act No. 5440, praying that judgment be rendered setting aside the questioned order of May 12, 1980 dismissing the complaint as against respondent school and the order of July 17, 1980 denying the reconsideration of the questioned order of dismissal, with costs against respondent school.

We find no necessity of discussing the applicability of the Article to educational institutions (which are not schools of arts and trades) for the issue in this petition is actually whether or not, under the article, the school or the university itself (as distinguished from the teachers or heads) is liable. We find the answer in the negative, for surely the provision concerned speaks only of "teachers or heads."

WHEREFORE, this Petition is DISMISSED for lack of merit.

SO ORDERED.

Yap, C.J. and Padilla, JJ., concur.  

Separate Opinions 

SARMIENTO, J., dissenting:

I dissent. Paragraph 5 of Art. 2180 may be construed as the basis for the liability of the school as the employer for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents. Herrera, J. concurring (Amadora et al. vs. Court of Appeals, et al., G.R. No. L-47745, citing Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201).

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MELENCIO-HERRERA, J., dissenting:

I join Justice Sarmiento in his dissent.

As stated by him, my view is that while the educational institution is not directly liable, yet the school, as the employer, may be held liable for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents (Article 2180, Civil Code). The school, however, may exculpate itself from liability by proving that it had exercised the diligence of a good father of the family.

Melencio-Herrera, J., dissent.

Footnotes* Penned by Judge Jesus Elbinias (now Justice of the Court of Appeals).

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SECOND DIVISIONG.R. No. 70458 October 5, 1988

BENJAMIN SALVOSA and BAGUIO COLLEGES FOUNDATION, petitioners, 

vs.THE INTERMEDIATE APPELLATE COURT, EDUARDO B.

CASTRO, DIOMEDES B. CASTRO, VIRGINIA B. CASTRO and RODOLFO B. CASTRO., respondents.

Edilberto B. Tenefrancia for petitioners.Leonardo L. Cocjin Jr. for respondents. PADILLA, J.:

In this petition for review on certiorari, petitioners seek the reversal of thedecision 1 of respondent Intermediate Appellate Court, dated 7 December 1984, in AC-G.R. No. CV 69876, in so far as it affirmed the decision 2 of the Court of First Instance of Tarlac (hereinafter referred to as the Trial Court), which held, among others, petitioners solidarily hable with Jimmy B. Abon, under Art. 2180 of the Civil Code.

The relevant facts, as found by the Trial Court and adopted by reference by the respondent Court, are:

... Baguio Colleges Foundation (BCF, hereafter) is an academic institution ... [However], it is also an institution of arts and trade. It has so advertised itself, as its own evidence shows. Its brochure (Exh. 2) shows that BCF has a full-fledged technical-vocational department offer Communication, Broadcast and Teletype Technician courses as well as Electronics Serviceman and Automotive Mechanics courses... these courses divest BCF of the nature or character of being purely or exclusively an academic institution. 3

Within the premises of the BCF is an ROTC Unit, the Baguio Colleges Foundation Reserve Officers Training Corps (ROTC) Unit, which is under the fifth control of the Armed Forces of the Philippines. 4 The ROTC Unit, by way of accommodation to the Armed Forces of the Philippines (AFP), pursuant to Department Order No. 14, Series of 1975 of the Department of Education and Culture, 5 is provided by the BCF an office and an armory located at the basement of its main building. 6

The Baguio Colleges Foundation ROTC Unit had Jimmy B. Abon as its duly appointed armorer. 7 As armorer of the ROTC Unit, Jimmy B. Abon received his appointment from the AFP. Not being an

employee of the BCF, he also received his salary from the AFP, 8 as well as orders from Captain Roberto C. Ungos, the Commandant of the Baguio Colleges Foundation ROTC Unit, concurrent Commandant of other ROTC units in Baguio and an employee (officer) of the AFP. 9 Jimmy B. Abon was also a commerce student of the BCF. 10

On 3 March 1977, at around 8:00 p.m., in the parking space of BCF, Jimmy B. Abon shot Napoleon Castro a student of the University of Baguio with an unlicensed firearm which the former took from the armory of the ROTC Unit of the BCF. 11 As a result, Napoleon Castro died and Jimmy B. Abon was prosecuted for, and convicted of the crime of Homicide by Military Commission No. 30, AFP. 12

Subsequently, the heirs of Napoleon Castro sued for damages, impleading Jimmy B. Abon, Roberto C. Ungos (ROTC Commandant Benjamin Salvosa (President and Chairman of the Board of BCF), Jesus Salvosa (Executive Vice President of BCF), Libertad D. Quetolio (Dean of the College of Education and Executive Trustee of BCF) and the Baguio Colleges Foundation Inc. as party defendants. After hearing, the Trial Court rendered a decision, (1) sentencing defendants Jimmy B. Abon, Benjamin Salvosa and Baguio Colleges Foundation, Inc., jointly and severally, to pay private respondents, as heirs of Napoleon Castro: a) P12,000.00 for the death of Napoleon Castro, (b) P316,000.00 as indemnity for the loss of earning capacity of the deceased, (c) P5,000.00 as moral damages, (d) P6,000.00 as actual damages, and (e) P5,000.00 as attorney's fees, plus costs; (2) absolving the other defendants; and (3) dismissing the defendants' counterclaim for lack of merit. 13 On appeal by petitioners, the respondent Court affirmed with modification the decision of the Trial Court. The modification consisted in reducing the award for loss of earning capacity of the deceased from P316,000.00 to P30,000.00 by way of temperate damages, and increasing the indemnity for the death of Napoleon Castro from P12,000.00 to P30,000.00.

Hence, this petition.

The central issue in this case is whether or not petitioners can be held solidarity hable with Jimmy B. Abon for damages under Article 2180 of the Civil Code, as a consequence of the tortious act of Jimmy B. Abon.

Under the penultimate paragraph of Art. 2180 of the Civil Code, teachers or heads of establishments of arts and trades are hable for "damages caused by their pupils and students or apprentices, so long as they remain in their custody." The rationale of such liability is that so long as the student remains in the custody of a

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teacher, the latter "stands, to a certain extent, in loco parentis [as to the student] and [is] called upon to exercise reasonable supervision over the conduct of the [student]." 14 Likewise, "the phrase used in [Art. 2180 — 'so long as (the students) remain in their custody means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time." 15

In the case at bar, in holding that Jimmy B. Abon was stin in the protective and supervisory custody of the Baguio Colleges Foundation when he shot Napoleon Castro, the respondent Court ruled that:

it is true that Abon was not attending any class or school function at the time of the shooting incident, which was at about 8 o'clock in the evening; but considering that Abon was employed as an armorer and property custodian of the BCF ROTC unit, he must have been attending night classes and therefore that hour in the evening was just about dismissal time for him or soon thereafter. The time interval is safely within the "recess time" that the trial court spoke of and envisioned by the Palisoc case, supra. 16 (Emphasis supplied)

In line with the case of Palisoc, 17 a student not "at attendance in the school" cannot be in "recess" thereat. A "recess," as the concept is embraced in the phrase "at attendance in the school," contemplates a situation of temporary adjournment of school activities where the student still remains within call of his mentor and is not permitted to leave the school premises, or the area within which the school activity is conducted. Recess by its nature does not include dismissal. 18 Likewise, the mere fact of being enrolled or being in the premises of a school without more does not constitute "attending school" or being in the "protective and supervisory custody' of the school, as contemplated in the law.

Upon the foregoing considerations, we hold that Jimmy B. Abon cannot be considered to have been "at attendance in the school," or in the custody of BCF, when he shot Napoleon Castro. Logically, therefore, petitioners cannot under Art. 2180 of the Civil Code be held solidarity liable with Jimmy B. Abon for damages resulting from his acts.

Besides, the record shows that before the shooting incident, Roberto B. Ungos ROTC Unit Commandant, AFP, had instructed Jimmy B. Abon "not to leave the office and [to keep the armory] well guarded." 19 Apart from negating a finding that Jimmy B.

Abon was under the custody of the school when he committed the act for which the petitioners are sought to be held liable, this circumstance shows that Jimmy B. Abon was supposed to beworking in the armory with definite instructions from his superior, the ROTC Commandant, when he shot Napoleon Castro.

Petitioners also raise the issue that, under Art. 2180 of the Civil Code, a school which offers both academic and technical/vocational courses cannot be held liable for a tort committed by a student enrolled only in its academic program; however, considering that Jimmy B. Abon was not in the custody of BCF when he shot Napoleon Castro, the Court deems it unnecessary to pass upon such other issue. 20

WHEREFORE, the decision appealed from is hereby REVERSED in so far as it holds petitioners solidarily liable with Jimmy B. Abon for his tortious act in the killing of Napoleon Castro. No costs.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur. Footnotes

1 Penned by Justice Serafin E. Camilon and concurred in by Justices Crisolito Pascual and Desiderio P. Jurado.2 Penned by Judge Fernando S. Alcantara.3 Rollo, p. 18.4 Id., at 24; Record on Appeal, p. 41; As stated in the decision of the Trial Court and adopted by reference by the respondent Court.5 Exhibits p. 21.6 See note 4, supra.7 Ibid.8 Ibid.9 Ibid.10 Rollo, p. 24; Record on Appeal, p. 42; As stated in the decision of the Trial Court and adopted by reference by the respondent Court.11 Rello, p. 24; Record on Appeal, p. 40; As stated in the decision of the Trial Court and adopted by reference by the respondent Court.12 Ibid.13 Rollo, p. 24; Record on Appeal, p. 46.14 Palisoc v. Brillantes, 41 SCRA 548.15 Ibid.16 Rollo, p. 19.

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17 Palisoc vs. Brillantes, et al., L-29025, Oct. 4, 1971, 41 SCRA 548.18 Schedule of classes at BCF is from 7:30 a.m. to 8:00 p.m. TSN, 6 January 1981, p. 25.20 The writer, however, like the ponente in the case of Palisoc former Mr. Chief Justice Claudio Teehankee, also manifests his concurrence "with the views expressed in the dissenting opinion of Mr. Justice J.B.L. Reyes in Exconde [concurred in by Justices S. Padilla and A. Reyes] that '(1) can see no sound reason for limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them in so far as concerns the proper supervision and vigilance over their pupils. It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of third persons, so long as they are in a position to exercise authority and supervision over the pupil."'

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SECOND DIVISIONG.R. No. 82465 February 25, 1991

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA, BENJAMIN

ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners, 

vs.THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA CADIZ,respondents.

Jose C. Flores, Jr. for petitioners.Jovito E. Talabong for private respondents. PARAS, J.:p

This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:

WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St. Francis High School, represented by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from liability, and the case against them, together with their respective counterclaims, is hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the picnic, with the directive that he should go back home after doing so. However, because of

persuasion of the teachers, Ferdinand went on with them to the beach.

During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was apparently drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who drowned. His body was recovered but efforts to resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch LVIII of Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the proper diligence of a good father of the family in preventing their son's drowning, respondents prayed of actual, moral and exemplary damages, attorney's fees and expenses for litigation.

The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo reasoned:

Taking into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence required of them by law under the circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo)

xxx xxx xxx

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late,

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they were remiss in their duty to safeguard the students. (p. 30, Rollo)

The students, young as they were then (12 to 13 years old), were easily attracted to the sea without aforethought of the dangers it offers. Yet, the precautions and reminders allegedly performed by the defendants-teachers definitely fell short of the standard required by law under the circumstances. While the defendants-teachers admitted that some parts of the sea where the picnic was held are deep, the supposed lifeguards of the children did not even actually go to the water to test the depth of the particular area where the children would swim. And indeed the fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons during the picnic got drowned at the same time. Had the defendant teachers made an actual and physical observation of the water before they allowed the students to swim, they could have found out that the area where the children were swimming was indeed dangerous. And not only that, the male teachers who according to the female teachers were there to supervise the children to ensure their safety were not even at the area where the children were swimming. They were somewhere and as testified to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school sanctioned one. Similarly no evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna responsible for the death of Ferdinand Castillo together with the other defendant teachers. It has been sufficiently shown that Benjamin Illumin had himself not consented to the picnic and in fact he did not join it. On the other hand, defendant Aurora Cadorna had then her own class to supervise and in fact she was not amongst those allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal Benjamin Illumin as equally liable not only for its approved co-curricular activities but also for those which they unreasonably failed to exercise control and supervision like the holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon.

2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and solidarily liable with their co-defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death of Ferdinand Castillo in favor of plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)

The Court of Appeals ruled:

We find plaintiffs-appellants' submission well-taken.

Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be gainsaid that the same was held under the supervision of the teachers employed by the said school, particularly the teacher in charge of Class I-C to whom the victim belonged, and those whom she invited to help her in supervising the class during the picnic. Considering that the court a quo found negligence on the part of the six defendants-teachers who, as such, were charged with the supervision of the children during the picnic, the St. Francis High School and the school principal, Benjamin Illumin, are liable under Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They cannot escape liability on the mere excuse that the picnic was not an "extra-curricular activity of the St. Francis High School." We find from the evidence that, as claimed by plaintiffs-appellants, the school

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principal had knowledge of the picnic even from its planning stage and had even been invited to attend the affair; and yet he did not express any prohibition against undertaking the picnic, nor did he prescribe any precautionary measures to be adopted during the picnic. At the least, We must find that the school and the responsible school officials, particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the death of their son. It is the rule that in cases where the above-cited provisions find application, the negligence of the employees in causing the injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the establishment (in the present case, St. Francis High School and its principal); and while this presumption is not conclusive, it may be overthrown only by clear and convincing proof that the owner and/or manager exercised the care and diligence of a good father of a family in the selection and/or supervision of the employee or employees causing the injury or damage (in this case, the defendants-teachers). The record does not disclose such evidence as would serve to overcome the aforesaid presumption and absolve the St. Francis High School and its principal from liability under the above-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the plaintiffs for the tragedy that befell them in the untimely death of their son Ferdinand Castillo and understand their suffering as parents, especially the victim's mother who, according to appellants, suffered a nervous breakdown as a result of the tragedy, We find that the amounts fixed by the court a quo as actual damages and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which are sustained by the evidence and the law.

However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should be, as it is hereby, imposed in the present case by way of example of correction for the public good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)

On the other hand, petitioners-teachers assigned the following errors committed by the trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointly and severally liable for damages such finding not being supported by facts and evidence.

2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo, were not able to prove by their evidence that they did not give their son consent to join the picnic in question. However, We agree with the trial court in its finding that whether or not the victim's parents had given such permission to their son was immaterial to the determination of the existence of liability on the part of the defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their son. What is material to such a determination is whether or not there was negligence on the part of defendants vis-a-vis the supervision of the victim's group during the picnic; and, as correctly found by the trial court, an affirmative reply to this question has been satisfactorily established by the evidence, as already pointed out.

However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly Jaro and Nida Aragones, are concerned. As to them, the trial court found:

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already occurred, such fact does not and cannot excuse them from their liability. In fact, it

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could be said that by coming late, they were remiss in their duty to safeguard the students.

The evidence shows that these two defendants had satisfactorily explained why they were late in going to the picnic site, namely, that they had to attend to the entrance examination being conducted by the school which is part of their duty as teachers thereof. Since they were not at the picnic site during the occurrence in question, it cannot be said that they had any participation in the negligence attributable to the other defendants-teachers who failed to exercise diligence in the supervision of the children during the picnic and which failure resulted in the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the injury caused to the plaintiffs because of the death of their son resulting from his drowning at the picnic. Accordingly, they must be absolved from any liability.

As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the counterclaim must be dismissed for lack of merit. (pp. 59-60, Rollo)

Hence, this petition.

The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. (pp. 81-82, Rollo)

In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their respective memoranda.

The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under them. In

the instant case however, as will be shown hereunder, petitioners are neither guilty of their own negligence or guilty of the negligence of those under them.

Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages of any kind.

At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the excursion.

Testimony of Dr. Castillo on cross exam. by Atty. Flores

Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this?

A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where, he did not answer, sir.

Q And after giving the money, you did not tell him anything more?

A No more, sir.

Q And after that you just learned that your son join the picnic?

A Yes, sir.

Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that correct?

A Yes, sir.

Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the picnic?

A No, sir, I did not know.

Q Did you not look for your son during that time?

A I am too busy with my profession, that is why I was not able, sir.

Q You did not ask your wife?

A I did not, sir.

Q And neither did your wife tell you that your son join the picnic?

A Later on after 12:00, sir.

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Q And during that time you were too busy that you did not inquire whether your son have joined that picnic?

A Yes, sir.

(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)

The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examination?

A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she cooked adobo for him so he could join the excursion where her son died of drowning.

Q Why were you able to say she was feeling guilty because she was the one who personally cooked the adobo for her son?

A It was during the interview that I had gathered it from the patient herself. She was very sorry had she not allowed her son to join the excursion her son would have not drowned. I don't know if she actually permitted her son although she said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro — witness).

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school liable for the death of respondent's son.

Article 2180, par. 4 states that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even

though the former are not engaged in any business or industry.

Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused damage or prejudice must have occurred while an employee was in the performance of his assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happened not within the school premises, not on a school day and most importantly while the teachers and students were holding a purely private affair, a picnic. It is clear from the beginning that the incident happened while some members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular activity.

As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the students and their teachers does not in any way or in any manner show acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of respondent Court on this score, employers wig forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-spouses.

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence of a good father of a family to prevent any untoward incident or damages to all the students who joined the picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters who have knowledge in First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the defendants (petitioners herein) had life savers especially brought by the defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did all what is humanly possible to save the child.

Testimony of Luisito Vinas on cross examination,

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Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied first aid on him?

A Yes, sir.

Q And while you were applying the so called first aid, the children were covering you up or were surrounding you?

A Yes, sir.

Q You were rattled at that time, is it not?

A No, sir.

Q You mean you were in calm and peaceful condition?

A Yes, sir.

Q Despite the fact that the boy was no longer responding to your application of first aid?

A Yes, sir.

Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the body of Ferdinand Castillo?

A No, sir, because we were attending to the application of first aid that we were doing, sir.

Q After you have applied back to back pressure and which you claimed the boy did not respond, were you not disturb anyway?

A I was disturbed during that time, sir.

Q For how many minutes have you applied the back to back pressure?

A From 9 to 11 times, sir.

Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo?

A Yes, sir.

Q Will you please describe how you applied a single act of back to back pressure?

A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)

Testimony of Tirso de Chavez on direct examination

ATTY. FLORES:

Q Who actually applied the first aid or artificial respiration to the child?

A Myself, sir.

Q How did you apply the first aid to the guy?

A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and took notice of the condition of the child. We placed the feet in a higher position, that of the head of the child, sir.

Q After you have placed the boy in that particular position, where the feet were on a higher level than that of the head, what did you do next?

A The first thing that we did, particularly myself, was that after putting the child in that position, I applied the back to back pressure and started to massage from the waistline up, but I noticed that the boy was not responding, sir.

Q For how long did you apply this back to back pressure on the boy?

A About 10 seconds, sir.

Q What about Mr. Vinas?

A Almost the same a little longer, for 15 seconds, sir.

Q After you noticed that the boy was not responding, what did you do?

A When we noticed that the boy was not responding, we changed the position of the boy by placing the child facing upwards laying on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses. The case at bar does not fall under any of the grounds to grant moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral

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damages may be recovered if they are the proximate result of the defendant's wrongful act or omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the required diligence. Hence, the claim for moral or exemplary damages becomes baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their counterclaim, there being no merit, is hereby AFFIRMED.

SO ORDERED.

Sarmiento and Regalado, JJ., concur.

   

Separate Opinions 

PADILLA, J., dissenting:

I regret that I can not concur with the majority. I believe that the reversal of respondent appellate court's decision gives rise to a situation which was neither contemplated nor intended by the applicable laws. I refer more particularly to the fact that the ponencia has left private respondents-spouses with no one to hold liable for the untimely demise of their son. On the other hand, they have, to my mind, been wronged. and they should at least be recompensed for their sufferings. For this and other reasons stated hereunder. I dissent.

The issues, as adopted by the ponencia from the record, are as follows:

A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. 1

In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception of Aragones and Jaro. As to these two, respondent court absolved them from liability for their having satisfactorily demonstrated lack of participation in the negligence of their colleagues. I am in agreement with said conclusion. But I also agree with the respondent court in its finding that Tirso de Chavez, Luisito Viñas, Connie Arguio and Patria Cadiz failed to exercise DILIGENT SUPERVISION over the children during the ill-fated excursion.

I may concede, albeit with reservation, that the afore-mentioned petitioners may not have been negligent in finding ways and means to revive the young Castillo AFTER the drowning incident. Their application of first-aid measures may have failed to revive him but the petitioners had fully exhausted their efforts to save the deceased. This concession, however, is given with hesitation, for there is indication in the record that petitioner petitioners may have tarried too long in securing immediate medical attention for the deceased. I refer to the trial court's finding that "it still took the jeep which brought Ferdinand Castillo to the poblacion six (6) minutes before it finally moved to await the other teachers." 2

All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of diligence on the part of the petitioners-teachers BEFORE the unfortunate incident took place. Despite awareness that the waters in the area were deep, petitioners- teachers did not take concrete steps to make sure their wards did not stray too far and too deeply. Even if they were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first "tested the waters", so to speak, to ensure which parts thereof were safe for swimming purposes. However, this was not the case for as testified to by petitioner de Chavez, "they admitted that they did not even go to the water to check its depth although they were aware that some parts of it were deep." 3At best, it appears that only oral safety instructions were imparted to the young excursionists.

But, what I find most disturbing is the fact that at the time the trouble arose, Viñas and de Chavez, the male teachers who were supposed to ensure the children's safety, being physical

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education instructors, were nowhere within the immediate vicinity but were, in fact, as admitted by the latter, "at his house getting some foods (sic) and thinks." The Court a quo even went as far as to say that "they were somewhere and as testified to by plaintiffs' witness they were having a drinking spree!" 4

It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer to as DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps taken to revive the deceased may be considered adequate, despite my reservations, but the over-all lack of diligence on the part of petitioners-teachers suffices to put them within the standards set by this Court in determining the existence of negligence. As held in Hedy Gan y Yu vs. Court of Appeals, et al., the test in determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on the doer TO TAKE PRECAUTION against its mischievous results and the failure to do so constitutes negligence. 5

The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as represented by petitioners-spouses Fernando Nantes and Rosario Lacandula. The majority would like to emphasize the fact that the unfortunate incident having occurred during a purely private affair, the teachers involved therein were not in the actual performance of their assigned tasks. Consequently, any act or omission caused by them cannot bind their employer, petitioner St. Francis High School.

I take exception to this proposition. Although the excursion may not have been attended by the appropriate school authorities, the presence or stamp of authority of the school nevertheless pervaded by reason of the participationnot of one but of several teachers, the petitioners. As found by the court a quo, the excursion was an activity "organized by the teachers themselves, for the students and to which the student, NATURALLY, acceded." 6

Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion and had, in fact, been invited to attend. As the majority see it, such knowledge does not in any manner show acquiescence or consent to the holding of the excursion, a view which I do not accept. It seems to me that having known of the forthcoming activity, petitioner Illumin, as

school principal, should have taken appropriate measures to ensure the safety of his students. Having preferred to remain silent, and even indifferent, he now seeks excuse from such omission by invoking his alleged lack of consent to the excursion. But it is precisely his silence and negligence in performing his role as principal head of the school that must be construed as an implied consent to such activity.

As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of his principal (the school) or its representatives, the petitioners-spouses Nantes and Lacandula. Consequently, and as found by the respondent court. Article 2176 in conjunction with Article 2180, paragraphs (1) and (5) are applicable to the situation. In the application of these provisions, the negligence of the employee in causing injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the establishment. While this presumption is not conclusive, it may be overcome only by clear and convincing evidence that the owner and/or manager exercised the care and diligence of a good father of a family in the selection and/or supervision of the employees causing the injury or damage. I agree with the respondent court that no proof was presented to absolve the owner and/or manager, herein petitioners-spouses Nantes and Lacandula, and Illumin. Thus, as correctly held by the respondent court, they too must be accountable for the death of Ferdinand Castillo.

The majority view appears to be apprehensive that employers will be continuously held accountable for misdeeds of their employees committed even when the same are done not in the actual exercise of their duties. I fail to appreciate such apprehensions, which need not arise on the part of employers, so long as the latter have no knowledge of, or give consent to, such act or omission on the part of their employee.

Educational institutions have responsibilities which cannot be equated with those of the ordinary employer or business establishment. Such institutions, particularly the primary and secondary schools, hold the tremendous responsibility of exercising supervision over young children. Too often, such schools avoid liabilities, as in the instant cage, by invoking the absence of approval on their part for activities that may be held outside school premises or held on a day not a school day. It is about time that such schools realize that theirs is not a mere moneymaking entity or one impersonally established for the sole task of teaching the rudimentary skills of "reading, writing and 'rithmetic." They must consider that their students are children of

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tender years who are in need of adequate care, continuing attention and guidance.

Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only wish to point out the basis for moral damages which is found in Article 2219 of the Civil Code, to wit:

Moral damages may be recovered in the following and analogous cases:

1. . . . .

2. Quasi-delicts causing physical injuries;

xxx xxx xxx

It should be noted that the term "physical injuries" must not be construed in its penal sense alone but rather in its generic sense, in the spirit of this Court's rulings in Carandang vs. Santiago (51 O.G. 2878) and Madeja vs. Caro, et al., (G.R. No. 51183, 21 December 1983, 126 SCRA 293). Thus, the death of private respondents' son as a result of petitioners' negligence gives rise to an action for quasi-delict which, as provided, entitles the claimant to an award of moral damages.

In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the petitioners jointly and severally liable for the death of Ferdinand Castillo.

Melencio-Herrera, J., concur.

Footnotes* Penned by Associate Justice Lorna S. Lombos-De la Fuente and concurred in by Associate Justices Ricardo J. Francisco and Alfredo L. Benipayo.Padilla, J: dissenting opinion1 Rollo, pp. 81-82.2 Decision in Civil Case No. 8834, Rollo, p. 29.3 Ibid., p. 26.4 Ibid., p. 31.5 G.R. No. L-44264, 19 September 1988, 165 SCRA 378; emphasis supplied.6 Decision in Civil Case No. 8834, rollo, p. 24; emphasis supplied.

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SECOND DIVISIONG.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS,

COL. PEDRO SACRO and LT. M. SORIANO, petitioners, vs.

COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47, Regional

Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents.

Balgos and Perez for petitioners.Collantes, Ramirez & Associates for private respondents. PADILLA, J.:

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina Ordoñez-Benitez, for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year commerce course at the PSBA. It was established that his assailants were not members of the school's academic community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private respondents) sought to adjudge them liable for the victim's untimely demise due to their alleged negligence, recklessness and lack of security precautions, means and methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued under Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the subject is to the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987, denied their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which, in a decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law ofquasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code. The comments of Manresa and learned authorities on its meaning should give way to present day changes. The law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest value and significance of law as a rule of conduct in (sic) its flexibility to adopt to changing social conditions and its capacity to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be construed in its narrow concept as held in the old case of Exconde vs. Capuno 2 and Mercado vs. Court of Appeals; 3 hence, the ruling in the Palisoc 4 case that it should apply to all kinds of educational institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability pursuant to the last paragraph of Article 2180 by "proving that they observed all the diligence to prevent damage." This can only be done at a trial on the merits of the case. 5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and the complaint should be tried on the merits, we do not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza,

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Palisoc and, more recently, in Amadora vs.Court of Appeals. 6 In all such cases, it had been stressed that the law (Article 2180) plainly provides that the damage should have been caused or inflicted by pupils or students of he educational institution sought to be held liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which both parties are bound to comply with. 7 For its part, the school undertakes to provide the student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue higher education or a profession. On the other hand, the student covenants to abide by the school's academic requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied. However, this impression has not prevented this Court from determining the existence of a tort even when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's liability

as one arising from tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. InCangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual obligation, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes a breach of the contract would have constituted the source of an extra-contractual obligation had no contract existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good custom or public policy shall compensate the latter for the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-American, supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of

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the school would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. In other words, a contractual relation is a condition sine qua nonto the school's liability. The negligence of the school cannot exist independently of the contract, unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially true in the populous student communities of the so-called "university belt" in Manila where there have been reported several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the same may still fail against an individual or group determined to carry out a nefarious deed inside school premises and environs. Should this be the case, the school may still avoid liability by proving that the breach of its contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record is bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47) is hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

SO ORDERED.

Melencio-Herrera, Paras, Regalado and Nocon, JJ., concur. Footnotes

* Penned by Justice Jose C. Campos, Jr. and concurred in by Justices Ricardo J. Francisco and Alfredo L. Benipayo.1 Article 2176 provides:Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or

negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.Article 2180 provides:The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.xxx xxx xxxLastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.The responsibility treated of in this article shall cease when the person herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage."2 101 Phil. 8433 108 Phil. 4144 G.R. No. L-29025, 4 October 1971, 41 SCRA 548.5 Rollo, p. 75.6 G.R. No. L-47745, 15 April 1988, 160 SCRA 315.7 In Non vs. Dames II, G.R. No. 89317, 20 May 1990, 185 SCRA 535, it was held that the contract between school and student is one "imbued with public interest" but a contract nonetheless.8 Article 2176, Civil Code is re-quoted for stress:Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (emphasis supplied)9 Article 1173, Civil Code provides:The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.

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THIRD DIVISIONG.R. No. 66207 May 18, 1992

MAXIMINO SOLIMAN, JR., represented by his judicial guardian VIRGINIA C. SOLIMAN, petitioner, 

vs.HON. JUDGE RAMON TUAZON, Presiding Judge of Branch LXI, Regional Trial Court of Region III, Angeles City, and the REPUBLIC CENTRAL COLLEGES, represented by its

President, respondents.

Mariano Y. Navarro for Republic Central Colleges.

R E S O L U T I O NFELICIANO, J.:

On 22 March 1983, petitioner Soliman, Jr. filed a civil complaint for damages against private respondent Republic Central Colleges ("Colleges"), the R.L. Security Agency Inc. and one Jimmy B. Solomon, a security guard, as defendants. The complaint alleged that:

. . . on 13 August 1982, in the morning thereof, while the plaintiff was in the campus ground and premises of the defendant, REPUBLIC CENTRAL COLLEGES, as he was and is still a regular enrolled student of said school taking his morning classes, the defendant, JIMMY B. SOLOMON, who was on said date and hour in the premises of said school performing his duties and obligations as a duly appointed security guard under the employment, supervision and control of his employer-defendant R.L. SECURITY AGENCY, INC., headed by Mr. Benjamin Serrano, without any provocation, in a wanton, fraudulent, reckless, oppressive or malevolent manner, with intent to kill, attack, assault, strike and shoot the plaintiff on the abdomen with a .38 Caliber Revolver, a deadly weapon, which ordinarily such wound sustained would have caused plaintiff's death were it not for the timely medical assistance given to him. The plaintiff was treated and confined at Angeles Medical Center, Angeles City, and, as per doctor's opinion, the plaintiff may not be able to attend to his regular classes and will be incapacitated in the performance of his usual work for a duration of from three to four months before his wounds would be completely healed. 1

Private respondent Colleges filed a motion to dismiss, contending that the complaint stated no cause of action against it. Private respondent argued that it is free from any liability for the injuries

sustained by petitioner student for the reason that private respondent school was not the employer of the security guard charged, Jimmy Solomon, and hence was not responsible for any wrongful act of Solomon. Private respondent school further argued that Article 2180, 7th paragraph, of the Civil Code did not apply, since said paragraph holds teachers and heads of establishment of arts and trades liable for damages caused by their pupils and students or apprentices, while security guard Jimmy Solomon was not a pupil, student or apprentice of the school.

In an order dated 29 November 1983, respondent Judge granted private respondent school's motion to dismiss, holding that security guard Jimmy Solomon was not an employee of the school which accordingly could not be held liable for his acts or omissions. Petitioner moved for reconsideration, without success.

In this Petition for Certiorari and Prohibition, it is contended that respondent trial judge committed a grave abuse of discretion when he refused to apply the provisions of Article 2180, as well as those of Articles 349, 350 and 352, of the Civil Code and granted the school's motion to dismiss.

Under Article 2180 of the Civil Code, the obligation to respond for damage inflicted by one against another by fault or negligence exists not only for one's own act or omission, but also for acts or omissions of a person for whom one is by law responsible. Among the persons held vicariously responsible for acts or omissions of another person are the following:

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils, their students or apprentices, so long as they remain in their custody.

xxx xxx xxx

The first paragraph quoted above offers no basis for holding the Colleges liable for the alleged wrongful acts of security guard Jimmy B. Solomon inflicted upon petitioner Soliman, Jr. Private respondent school was not the employer of Jimmy Solomon. The employer of Jimmy Solomon was the R.L. Security Agency Inc.,

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while the school was the client or customer of the R.L. Security Agency Inc. It is settled that where the security agency, as here, recruits, hires and assigns the work of its watchmen or security guards, the agency is the employer of such guards or watchmen. 2 Liability for illegal or harmful acts committed by the security guards attaches to the employer agency, and not to the clients or customers of such agency. 3 As a general rule, a client or customer of a security agency has no hand in selecting who among the pool of security guards or watchmen employed by the agency shall be assigned to it; the duty to observe the diligence of a good father of a family in the selection of the guards cannot, in the ordinary course of events, be demanded from the client whose premises or property are protected by the security guards. The fact that a client company may give instructions or directions to the security guards assigned to it, does not, by itself, render the client responsible as an employer of the security guards concerned and liable for their wrongful acts or omissions. Those instructions or directions are ordinarily no more than requests commonly envisaged in the contract for services entered into with the security agency. There being no employer-employee relationship between the Colleges and Jimmy Solomon, petitioner student cannot impose vicarious liability upon the Colleges for the acts of security guard Solomon.

Since there is no question that Jimmy Solomon was not a pupil or student or an apprentice of the Colleges, he being in fact an employee of the R.L. Security Agency Inc., the other above-quoted paragraph of Article 2180 of the Civil Code is similarly not available for imposing liability upon the Republic Central Colleges for the acts or omissions of Jimmy Solomon.

The relevant portions of the other Articles of the Civil Code invoked by petitioner are as follows:

Art. 349. The following persons shall exercise substitute parental authority:

xxx xxx xxx

(2) Teachers and professors;

xxx xxx xxx

(4) Directors of trade establishments with regard to apprentices;

xxx xxx xxx

Art. 350. The persons named in the preceding article shall exercise reasonable supervision over the conduct of the child.

xxx xxx xxx

Art. 352. The relations between teacher and pupil, professor and student are fixed by government regulations and those of each school or institution. In no case shall corporal punishment be countenanced. The teacher or professor shall cultivate the best potentialities of the heart and mind of the pupil or student.

In Palisoc v. Brillantes, 4 invoked by petitioner, the Court held the owner and president of a school of arts and trades known as the "Manila Technical Institute," Quezon Blvd., Manila, responsible in damages for the death of Dominador Palisoc, a student of Institute, which resulted from fist blows delivered by Virgilio L. Daffon, another student of the Institute. It will be seen that the facts of Palisoc v. Brillantes brought it expressly within the 7th paragraph of Article 2180, quoted above; but those facts are entirely different from the facts existing in the instant case.

Persons exercising substitute parental authority are made responsible for damage inflicted upon a third person by the child or person subject to such substitute parental authority. In the instant case, as already noted, Jimmy Solomon who committed allegedly tortious acts resulting in injury to petitioner, was not a pupil, student or apprentice of the Republic Central Colleges; the school had no substitute parental authority over Solomon.

Clearly, within the confines of its limited logic, i.e., treating the petitioner's claim as one based wholly and exclusively on Article 2180 of the Civil Code, the order of the respondent trial judge was correct. Does it follow, however, that respondent Colleges could not be held liable upon any other basis in law, for or in respect of the injury sustained by petitioner, so as to entitle respondent school to dismissal of petitioner's complaint in respect of itself?

The very recent case of the Philippine School of Business Administration (PSBA) v. Court of Appeals, 5 requires us to give a negative answer to that question.

In PSBA, the Court held that Article 2180 of the Civil Code was not applicable where a student had been injured by one who was an outsider or by one over whom the school did not exercise any custody or control or supervision. At the same time, however, the Court stressed that an implied contract may be held to be established between a school which accepts students for enrollment, on the one hand, and the students who are enrolled, on the other hand, which contract results in obligations for both parties:

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When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which parties are bound to comply with. For its part, the school undertakes to provide the student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue higher education or a profession. On the other hand, the student covenants to abide by the school's academic requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof. 6

In that case, the Court was careful to point out that:

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. In other words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the school cannot exist independently of the contract, unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code.

The Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for conceptually a school, like a common carrier, cannot be an insurer of its students againstall risks. This is specially true in the populous student communities of the so-called "university belt" in Manila where there have been reported several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the same may still fail against an individual or group determined to carry out a nefarious deed inside school premises and environs. Should this be the case, the school may still avoid liability by proving that the breach of its contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission of that degree of diligence which is required by the nature of obligation and corresponding to the circumstances of person, time and place. 7

In the PSBA case, the trial court had denied the school's motion to dismiss the complaint against it, and both the Court of Appeals and this Court affirmed the trial court's order. In the case at bar, the court a quo granted the motion to dismiss filed by respondent Colleges, upon the assumption that petitioner's cause of action was based, and could have been based, only on Article 2180 of the Civil Code. As PSBA, however, states, acts which are tortious or allegedly tortious in character may at the same time constitute breach of a contractual, or other legal, obligation. Respondent trial judge was in serious error when he supposed that petitioner could have no cause of action other than one based on Article 2180 of the Civil Code. Respondent trial judge should not have granted the motion to dismiss but rather should have, in the interest of justice, allowed petitioner to prove acts constituting breach of an obligation ex contractu or ex lege on the part of respondent Colleges.

In line, therefore, with the most recent jurisprudence of this Court, and in order to avoid a possible substantial miscarriage of justice, and putting aside technical considerations, we consider that respondent trial judge committed serious error correctible by this Court in the instant case.

ACCORDINGLY, the Court Resolved to GRANT DUE COURSE to the Petition, to TREAT the comment of respondent Colleges as its

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answer, and to REVERSE and SET ASIDE the Order dated 29 November 1983. This case is REMANDED to the court a quo for further proceedings consistent with this Resolution.

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur. Footnotes

1 Complaint, p. 2; Rollo, p. 10.2 American President Lines v Clave, 114 SCRA 829 (1982).3 Social Security System v. Court of Appeals, 39 SCRA 629 (1971).4 41 SCRA 548 (1971).5 G.R. No. 84698, 4 February 1992.6 Id.7 Id.

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FIRST DIVISIONG.R. No. 143363 February 6, 2002

ST. MARYS ACADEMY,, Petitioner,v.

WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO

VILLANUEVA, Respondents.

D E C I S I O NPARDO, J.:

The Case

The case is an appeal via certiorari from the decision[1 of the Court of Appeals as well as the resolution denying reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student who had joined a campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts

The facts, as found by the Court of Appeals, are as follows:

Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos filed onJune 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Marys Academy before the Regional Trial Court of Dipolog City.

On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion of which reads as follows:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1. Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial and related expenses;

c. TEN THOUSAND PESOS (P10,000.00) for attorneys fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.

2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay herein plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Marys Academy of Dipolog City;

3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special parental authority of defendant St. Marys Academy, is ABSOLVED from paying the above-stated damages, same being adjudged against defendants St. Marys Academy, and subsidiarily, against his parents;

4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier discussed in this decision, is hereby DISMISSED.

IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp. 205-206).

From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Marys Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying. As a student of St. Marys Academy, Sherwin Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

Sherwin Carpitanos died as a result of the injuries he sustained from the accident.[2

In due time, petitioner St. Marys academy appealed the decision to the Court of Appeals.[3

On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but otherwise affirming the decision a quo, in toto.[4

On February 29, 2000, petitioner St. Marys Academy filed a motion for reconsideration of the decision. However, on May 22, 2000, the Court of Appeals denied the motion.[5

Hence, this appeal.[6

The Issues

1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin Carpitanos.

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2) Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner.

The Courts Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Marys Academy liable for the death of Sherwin Carpitanos under Articles 218[7 and 219[8 of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers.[9

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody.[10

However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident.[11

In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.[12

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the steering wheel guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the negligence of the school authorities, or the reckless driving of James Daniel II. Hence, the respondents reliance on Article 219 of the Family Code that those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor was unfounded.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minors parents primarily. The negligence of petitioner St. Marys Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened the negligence of the minors parents or the detachment of the steering wheel guide of the jeep.

The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.[13

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Marys Academy had no control, and which was the proximate

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cause of the accident, petitioner may not be held liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission.[14 In this case, the proximate cause of the accident was not attributable to petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorneys fees as part of damages is the exception rather than the rule.[15 The power of the court to award attorneys fees under Article 2208 of the Civil Code demands factual, legal and equitable justification.[16 Thus, the grant of attorneys fees against the petitioner is likewise deleted.

Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on the highways or streets.[17 Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals[18 and that of the trial court.[19 The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner St. Marys Academy,Dipolog City.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.Puno, J., in the result.

Endnotes:

[1 In CA-G.R. CV No. 56728, promulgated on February 29, 2000, Reyes, Jr., J., ponente, Martin, Jr. and Brawner, JJ., concurring.[2 Rollo, pp. 53-55.[3 Docketed as CA-G.R. CV No. 56728.[4 Petition, Annex A, Rollo, pp. 52-70.[5 Petition, Annex B, Rollo, pp. 72-73.[6 Petition filed on July 17, 2000, Rollo, pp. 9-48. On July 16, 2001, we gave due course to the petition, Rollo, pp. 202-203.[7 Article 218. The School, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution.[8 Article 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances.[9 Handbook On the Family Code Of the Philippines, Alicia V. Sempio-Diy (1997), p. 344.[10 The Family Code of the Philippines Annotated, Rufus B. Rodriguez (1990), p. 505.[11 Sanitary Steam Laundry, Inc. v. Court of Appeals, 360 Phil. 199, 208 [1998].[12 Cruz v. Court of Appeals, 346 Phil. 872, 886 [1997].[13 Ford Philippines v. Citibank, G.R. No. 128604, January 29, 2001; Bank of the Philippine Islands   v . Court of Appeals, 326 SCRA 641, 659 [2000]; Bataclan v. Medina, 102 Phil. 181, 186 [1957].[14 Article 2217 of the Civil Code.[15 Philtranco Service Enterprises, Inc. v. Court of Appeals, 340 Phil. 98, 111 [1997].[16 Morales v. Court of Appeals, 340 Phil. 397, 422 [1997].[17 Aguilar Sr.   v . Commercial Savings Bank, G.R. No. 128705, June 29, 2001; Erezo v. Jepte, 102 Phil. 103, 107 [1957].[18 CA-G.R. No. CV No. 56728.