SABIDO vs. CUSTODIOG.R. No. L-21512 August 31, 1966Prospero Sabido and Aser Lagunda seek the review bycertiorariof a decision of the Court of Appeals, affirming that of the Court of First Instance of Laguna, sentencing the Laguna-Tayabas Bus Co., Nicasio Mudales, and herein petitioners. Prospero Sabido and Aser Lagunda, to jointly and severally indemnify Belen Makabuhay Custodio and her son, Agripino Custodio Jr., in the sum of P6,000 and to pay the costs of the suit.The facts are set forth in the decision of the Court of Appeals from which we quote:Upon a careful study and judicious examining of the evidence on record, we are inclined to concur in the findings made by the trial court. Here is how the Courta quoanalyzed the facts of this case:"In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one driven by Nicasio Mudales and belonging to Laguna-Tayabas Bus Company, and the other driven by Aser Lagunda and owned by Prospero Sabido, going in opposite directions met each other in a road curve. Agripino Custodia a passenger of LTB bus, who was hanging on the left side as truck was full of passengers was sideswiped by the track driven by Aser Lagunda. As a result, Agripino Custodio was injured and died (Exhibit A)."It appears clear from the evidence that Agripino Custodio was hanging on the left side of the LTB bus. Otherwise, were he sitting inside the truck, he could not have been struck by the six by six truck driven by Aser Lagunda. This fact alone, of allowing Agripino Custodio to hang on the side of the truck, makes the defendant Laguna Tayabas Bus Company liable for damages. For certainly its employees, who are the driver and conductor were negligent. They should not have allowed Agripino Custodio to ride their truck in that manner."To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on Nicasio Mudales. From the testimony, however, of Belen Makabuhay, Agripino Custodio's widow, we can deduce that Aser Lagunda was equally negligent as Nicasio Mudales. Belen testified that the 6 x 6 truck was running fast when it met the LTB Bus. And Aser Lagunda had time and opportunity to avoid the mishap if he had been sufficiently careful and cautious because the two trucks never collided with each other. By simply swerving to the right side of the road, the 6 x 6 truck could have avoided hitting Agripino Custodio. It is incredible that the LTB was running on the middle of the road when passing a curve. He knows it is dangerous to do so. We are rather of the belief that both trucks did not keep close to the right side of the road so they sideswiped each other and thus Agripino Custodio was injured and died. In other words, both drivers must have drive in their trucks not in the proper lane and are, therefore, both reckless and negligent."We might state by way of additional observations that the sideswiping of the deceased and his two fellow passengers took place on broad daylight at about 9:30 in the morning of June 9, 1955 when the LTB bus with full load to passengers was negotiating a sharp curve of a bumpy and sliding downward a slope, whereas the six by six truck was climbing up with no cargoes or passengers on board but for three helpers, owner Sabido and driver Lagunda (tsn. 308-309, Mendoza). Under the above-stated condition, there exists strong persuasion to accept what Belen Makabuhay and Sofia Mesina, LTB passengers, had testified to the effect that the 6 x 6 cargo truck was running at a fast rate of speed (tsn. 15, 74, 175 Mendoza). From the lips of no less than driver Lagunda himself come the testimonial admission that the presence of three hanging passengers located at the left side of the bus was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet despite the existence of a shallow canal on the right side of the road which he could pass over with ease, Lagunda did not care to exercise prudence to avert the accident simply because to use his own language the canal "is not a passage of trucks."Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals concluded that the Laguna-Tayabas Bus Co. hereinafter referred to as the carrier and its driver Nicasio Mudales (none of whom has appealed), had violated the contract of carriage with Agripino Custodio, whereas petitioners Sabido and Lagunda were guilty of aquasi delict, by reason of which all of them were held solidarity liable in the manner above indicated.Petitioners now maintain: (1) that the death of Agripino Custodio was due exclusively to the negligence of the carrier and its driver; (2) that petitioners were not guilty of negligence in connection with the matter under consideration; (3) that petitioners cannot be held solidarily liable with the carrier and its driver; and (4) that the complaint against petitioners herein should be dismissed.With respect to the first two (2) points, which are interrelated, it is urged that the carrier and its driver were clearly guilty of negligence for having allowed Agripino Custodio to ride on the running board of the bus, in violation of Section 42 of Act No. 3992, and that this negligence was the proximate cause of Agripino's death. It should be noted, however, that the lower court had, likewise, found the petitioners guilty of contributory negligence, which was as much a proximate cause of the accident as the carrier's negligence, for petitioners' truck was running at a considerable speed, despite the fact that it was negotiating a sharp curve, and, instead of being close to its right side of the road, said truck was driven on its middle portion and so near the passenger bus coming from the opposite direction as to sideswipe a passenger riding on its running board.1wph1.tThe views of the Court of Appeals on the speed of the truck and its location at the time of the accident are in the nature of findings of fact, which we cannot disturb in a petition for review bycertiorari, such as the one at bar. At any rate, the correctness of said findings is borne out by the very testimony of petitioner Lagunda to the effect that he saw the passengers riding on the running board of the bus while the same was still five (5) or seven (7) meters away from the truck driven by him. Indeed, the distance between the two (2) vehicles was such that he could have avoided sideswiping said passengers if his truck were not running at a great speed.Although the negligence of the carrier and its driver is independent, in its execution, of the negligence of the truck driver and its owner, both acts of negligence are the proximate cause of the death of Agripino Custodio. In fact, the negligence of the first two (2) would not have produced this result without the negligence of petitioners' herein. What is more, petitioners' negligence was thelast, in point of time, for Custodio was on the running board of the carrier's bus sometimebeforepetitioners' truck came from the opposite direction, so that, in this sense, petitioners' truck had the last clear chance.Petitioners contend that they should not be held solidarily liable with the carrier and its driver, because the latter's liability arises from a breach of contract, whereas that of the former springs from aquasi delict. The rule is, however, thatAccording to the great weight of authority, where the concurrent or successive negligent acts or omission of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the acts of the other tort-feasor ... . (38 Am. Jur. 946, 947.Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioners herein. It is so ordered.CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.Alex Y. Tan, for Petitioners.Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.SYLLABUS1.CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. The parents are and should be held primarily liable for the civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. However, under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

D E C I S I O NREGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those whose lives they have touched. While we cannot expect to award complete assuagement to their families through seemingly prosaic legal verbiage, this disposition should at least terminate the acrimony and rancor of an extended judicial contest resulting from the unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are now before us seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No. 69060 with the following decretal portion:jgc:chanrobles.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiffs complaint is hereby reversed; and instead, judgment is hereby rendered sentencing defendants, jointly and solidarily, to pay to plaintiffs the following amounts:chanrobles.com : virtual law library

1.Moral damages, P30,000.000;

2.Exemplary damages, P10,000.00;

3.Attorneys fees, P20,000.00, and costs.

However, denial of defendants-appellees counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable incident which took place and from which she died on January 14, 1979, was an 18-year old first year commerce student of the University of San Carlos, Cebu City; while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of age living with his aforesaid parents, and who also died in the same event on the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978 when Julie Ann broke up her relationship with Wendell after she supposedly found him to be sadistic and irresponsible. During the first and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation but the latter persisted in her refusal, prompting the former to resort to threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmea Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a Smith and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the crime inside the residence of private respondents at the corner of General Maxilom and D. Jakosalem streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents, who are the contending parties herein, posited their respective theories drawn from their interpretation of circumstantial evidence, available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise distressed over the death of their son, rejected the imputation and contended that an unknown third party, whom Wendell may have displeased or antagonized by reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused Wendells death and then shot Julie Ann to eliminate any witness and thereby avoid identification.chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First Instance of Cebu against the parents of Wendell to recover damages arising from the latters vicarious liability under Article 2180 of the Civil Code. After trial, the court below rendered judgment on October 20, 1980 as follows:jgc:chanrobles.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs complaint for insufficiency of the evidence. Defendants counterclaim is likewise denied for lack of sufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants was set aside and another judgment was rendered against defendants-appellees who, as petitioners in the present appeal by certiorari, now submit for resolution the following issues in this case:chanrob1es virtual 1aw library

1.Whether or not respondent court correctly reversed the trial court in accordance with established decisional laws; and

2.Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings and opinions on some postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act. However, undue emphasis was placed by the lower court on the absence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only circumstance to be taken into account in the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the entrance wound. However, as pointed out by private respondents, the body of deceased Wendell Libi must have been washed at the funeral parlor, considering the hasty interment thereof a little after eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not categorically state that the body of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder residue on Wendells hands was forever lost when Wendell was hastily buried.cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arrived at the Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy table and in the stage of rigor mortis; and that said body was not washed, but it was dried. 4 However, on redirect examination, he admitted that during the 8-hour interval, he never saw the body nor did he see whether said body was wiped or washed in the area of the wound on the head which he examined because the deceased was inside the morgue. 5 In fact, on cross-examination, he had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are concerned, it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no burning or singeing of the hair or extensive laceration on the gunshot wound of entrance which are general characteristics of contact or near-contact fire. On direct examination, Dr. Cerna nonetheless made these clarification:jgc:chanrobles.com.ph

"QIs it not a fact that there are certain guns which are so made that there would be no black residue or tattooing that could result from these guns because they are what we call clean?

AYes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ:chanrob1es virtual 1aw library

QYes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not rule out the possibility that the gun was closer than 24 inches, is that correct?

AIf the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

QAt any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in your own sketch, is it not a fact that the gun could have been fired by the person himself, the victim himself, Wendell Libi, because it shows a point of entry a little above the right ear and point of exit a little above that, to be very fair and on your oath?

AAs far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as the angle or the manner of fire is concerned, it could have been fired by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the National Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna states:chanrob1es virtual 1aw library

x x x

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus, directed slightly forward, upward and to the left, involving skin and soft tissues, making a punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating extensively along its course the brain tissues, fracturing parietal bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms. behind and 12.9 cms. above left external auditory meatus.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

x x x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the skin from the underlying tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus:jgc:chanrobles.com.ph

"QNow, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory of the bullet and the exit of the wound, and measuring yourself 24 inches, will you please indicate to the Honorable Court how would it have been possible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS:chanrob1es virtual 1aw library

AActually, sir, the 24 inches is approximately one arms length.

ATTY. SENINING:chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his right arm almost straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies of defendants witnesses Lydia Ang and James Enrique Tan, the first being a resident of an apartment across the street from the Gotiongs and the second, a resident of the house adjacent to the Gotiong residence, who declared having seen a "shadow" of a person at the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the second apartment; that from her window she can see directly the gate of the Gotiongs and, that there is a firewall between her apartment and the gas station. 12 After seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines were busy. Later on, she talked with James Enrique Tan and told him that she saw a man leap from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied having talked with anyone regarding what he saw. He explained that he lives in a duplex house with a garden in front of it; that his house is next to Felipe Gotiongs house; and he further gave the following answers to these questions:chanrobles.com : virtual law library

"ATTY. ORTIZ: (TO WITNESS).

QWhat is the height of the wall of the Gotiongs in relation to your house?

WITNESS:chanrob1es virtual 1aw library

AIt is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

QAnd where were you looking from?

WITNESS:chanrob1es virtual 1aw library

AFrom upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

QFrom Your living room window, is that correct?

WITNESS:chanrob1es virtual 1aw library

AYes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the reliability and accuracy of the witnesses observations, since the visual perceptions of both were obstructed by high walls in their respective houses in relation to the house of herein private respondents. On the other hand, witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her scream; that when Manolo climbed the fence to see what was going on inside the Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he went down from the fence and drove to the police station to report the incident. 15 Manolos direct and candid testimony establishes and explains the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners effete and unsubstantiated pretension that it was another man who shot Wendell and Julie Ann. It is significant that the Libi family did not even point to or present any suspect in the crime nor did they file any case against any alleged "John Doe." Nor can we sustain the trial courts dubious theory that Wendell Libi did not die by his own hand because of the overwhelming evidence testimonial, documentary and pictorial the confluence of which point to Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of his persistent pleas for a reconciliation.chanrobles.com:cralaw:red

Petitioners defense that they had exercised the due diligence of a good father of a family, hence they should not be civilly liable for the crime committed by their minor son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and Amelitas key is always in her bag, all of which facts were known to Wendell. They have never seen their son Wendell taking or using the gun. She admitted, however, that on that fateful night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but entertain serious doubts that petitioner spouses had really been exercising the diligence of a good father of a family by safely locking the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to the safety deposit box was negligently left lying around or he had free access to the bag of his mother where the other key was.

The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the instruction and supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently supervising the activities of their son, despite his minority and immaturity, so much so that it was only at the time of Wendells death that they allegedly discovered that he was a CANU agent and that Cresencios gun was missing from the safety deposit box. Both parents were sadly wanting in their duty and responsibility in monitoring and knowing the activities of their children who, for all they know, may be engaged in dangerous work such as being drug informers, 17 or even drug users. Neither was a plausible explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back thereof, 18 holding upright what clearly appears as a revolver and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this opinion, respondent court waved aside the protestations of diligence on the part of petitioners and had this to say:jgc:chanrobles.com.ph

". . . It is still the duty of parents to know the activity of their children who may be engaged in this dangerous activity involving the menace of drugs. Had the defendants-appellees been diligent in supervising the activities of their son, Wendell, and in keeping said gun from his reach, they could have prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which provides:chanrob1es virtual 1aw library

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

"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly kept in a safety deposit box, defendants-appellees are subsidiarily liable for the natural consequence of the criminal act of said minor who was living in their company. This vicarious liability of herein defendants-appellees has been reiterated by the Supreme Court in many cases, prominent of which is the case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:chanrob1es virtual 1aw library

The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses.

The subsidiary liability of parents arising from the criminal acts of their minor children who acted with discernment is determined under the provisions of Article 2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold that the former 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 damages caused by his or her son, no liability would attach if the damage is caused with criminal intent. (3 SCRA 361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the key to the drawer where said gun was kept under lock without defendant-spouses ever knowing that said gun had been missing from that safety box since 1978 when Wendell Libi had) a picture taken wherein he proudly displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then, Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed role of a CANU agent . . ." chanrobles lawlibrary : rednad

x x x

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct in dismissing herein plaintiffs-appellants complaint because as preponderantly shown by evidence, defendants-appellees utterly failed to exercise all the diligence of a good father of the family in preventing their minor son from committing this crime by means of the gun of defendants-appellees which was freely accessible to Wendell Libi for they have not regularly checked whether said gun was still under lock, but learned that it was missing from the safety deposit box only after the crime had been committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability based on what appears from all indications was a crime committed by their minor son. We take this opportunity, however, to digress and discuss its ratiocination therefor on jurisprudential dicta which we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses," followed by an extended quotation ostensibly from the same case explaining why under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should assume subsidiary liability for damages caused by their minor children. The quoted passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion hereunder.chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability as being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on the matter which warrant comparative analyses. Our concern stems from our readings that if the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a good father of a family to prevent damages. On the other hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in case of his death of incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of Article 2180 provides that" (t)he 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 damages."cralaw virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal Code provides:jgc:chanrobles.com.ph

"ARTICLE 101.Rules regarding civil liability in certain cases.

x x x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents for crimes committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or negligence on their part, that is, the exercise of the diligence of a good father of a family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding provisions in both codes that the minor transgressor shall be answerable or shall respond with his own property only in the absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents or guardian, the minor . . . shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed." For civil liability ex delicto of minors, an equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to wit:jgc:chanrobles.com.ph

"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if such person be insolvent, said . . . minor shall respond with (his) own property, excepting property exempt from execution, in accordance with civil law."cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a number of cases adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the civil liability of parents for crimes committed by their minor children over 9 but under 15 years of age, who acted with discernment, and also of minors 15 years of aye or over, since these situations are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental civil liability should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well expressed in Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply only to quasi-delicts and not to criminal offenses would result in the absurdity that in an act involving mere negligence the parents would be liable but not where the damage is caused with criminal intent. In said cases, however, there are unfortunate variances resulting in a regrettable inconsistency in the Courts determination of whether the liability of the parents, in cases involving either crimes or quasi-delicts of their minor children, is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil action arising from the crime the minor and his father were held jointly and severally liable for failure of the latter to prove the diligence of a good father of a family. The same liability in solidum and, therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their 14-year old son who was found guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code providing for solidary responsibility of two or more persons who are liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present case, as already explained, the petitioners herein were also held liable but supposedly in line with Fuellas which purportedly declared the parents subsidiarily liable for the civil liability for serious physical injuries committed by their 13-year old son. On the other hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for damages arising from his conviction for homicide by the application of Article 2180 of the Civil Code since this is likewise not covered by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to "lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary liability for damages, since the son, "although married, was living with his father and getting subsistence from him at the time of the occurrence," but "is now of age, as a matter of equity" the father was only held subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons causing damages under the compulsion of irresistible force or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of establishments; 28 employers, teachers, persons and corporations engaged in industry; 29 and principals, accomplices and accessories for the unpaid civil liability of their co-accused in the other classes. 30

Also, coming back to respondent courts reliance on Fuellas in its decision in the present case, it is not exactly accurate to say that Fuellas provided for subsidiary liability of the parents therein. A careful scrutiny shows that what respondent court quoted verbatim in its decision now on appeal in the present case, and which it attributed to Fuellas, was the syllabus on the law report of said case which spoke of "subsidiary" liability. However, such categorization does not specifically appear in the text of the decision in Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and the discussions in said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this Court concluded its decision in this wise:jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein by both parties, independent of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the present action was instituted, is entirely separate and distinct from the civil liability arising from fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minors criminal responsibility is of no moment."cralaw virtua1aw library

Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for the civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. 32 However, under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. 33 For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by Wendell Libi, respondent court did not err in holding petitioners liable for damages arising therefrom. Subject to the preceding modifications of the premises relied upon by it therefor and on the bases of the legal imperatives herein explained, we conjoin in its findings that said petitioners failed to duly exercise the requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby AFFIRMED, with costs against petitioners.SO ORDERED.

[G.R. No. 30112. September 9, 1929.]

THE MABALACAT SUGAR COMPANY, Plaintiff-Appellant, v. JOSE V. RAMIREZ ET AL., Defendants-Appellants.Alfonso Ponce Enrile, for Plaintiff-Appellant.Marcaida & Ocampo and Jose Ma. Cavanna, for Defendants-Appellants.

SYLLABUS

1. WHEN LANDLORD MAY ENTER. Where it appears that the plaintiff with their permission constructed a railway track over the land of the defendants, of which it had been in the use and possession for about seven years, and that its lease had expired and the plaintiff was a tenant at will or sufferance, the defendants upon notice to the plaintiff had the legal right to terminate the lease and remove plaintiffs track, without the doing of any unnecessary damage to the materials of which the railway was constructed.

2. PLAINTIFFS RIGHTS. In such a case, the plaintiff is entitled to recover the amount of any unreasonable or unnecessary damage which it sustained in the removal of its track.

3. WHERE JUDGMENT SHOULD BE AGAINST GUARDIAN IN PERSON. Where it appears that minors were the owner of the land over which the track was laid, and that it was their guardian who caused the track to be removed, the judgment for the damages for such removal should be rendered against the guardian in person.

STATEMENT

Plaintiff alleges that it is a domestic corporation and for more than seven years has been in the quiet and peaceful possession of a strip of land 2,664 meters long and 5 meters wide across the land of the minor defendants in the barrio of Dolores, municipality of Mabalacat, Province of Pampanga, which is specifically described in the complaint.

That it built a railway and made permanent improvements on the land in the nature of embankments, bridges, sewers and telephone lines for the proper transportation of sugar cane from the Hacienda Concepcion to its sugar central in the municipality of Mabalacat, and that it has been in the peaceful use, possession and enjoyment of the railway for about seven years. That on the 4th and 5th of September, 1927, the defendants jointly and mutually, with the aid of more than one hundred other persons acting for and with them, raised and destroyed the rails of plaintiffs railway, a large portion of which were twisted, and destroyed the bolts and ties, and left the railway a wreck as a means of transportation for the plaintiff. That by reason of such wrongful acts plaintiff was damaged in the sum of P32,000.

It is then alleged that the defendants by means of violence threatened to, and will, dispossess plaintiff of the strip of the land in question, and it prays that pending the action, the court issue a writ of preliminary injunction against the defendants prohibiting them from in any manner disturbing plaintiffs possession of the strip of land, and that upon final hearing, plaintiff have judgment against the defendants jointly and severally for P32,000, and that the injunction be made permanent.

For answer the defendants made a general and specific denial, and as a counterclaim alleged that by reason of the injunction, which was granted by the court on motion of the plaintiff, the defendants were damaged in the sum of P2,000, for which they pray for a corresponding judgment against the plaintiff.

Upon such issues the lower court rendered judgment against the defendants Manuel Lazatin and Tomasa C. Viuda de Pamintuan, as guardian of her sons, to jointly and severally pay the plaintiff P2,083.99 and costs, and absolved Jose V. Ramirez from the complaint.

From this judgment both parties appealed, and the plaintiff assigns the following errors:jgc:chanrobles.com.ph

"I. The lower court erred in not adjudging to the plaintiff damages caused by the necessary delay in its milling operations due to the destruction of its railway by the defendants in the sum of P20,760.

"II. The lower court erred in not adjudging to the plaintiff the sum of P6,739.53 as damages sustained by it due to the forcible removal and destruction of its railway by the defendants."cralaw virtua1aw library

The defendants, as appellants, assign the following errors:jgc:chanrobles.com.ph

"I. The trial court erred in not dismissing the complaint for damages upon the dismissal of the principal action of injunction.

"II. The trial court erred in condemning the defendants-appellants, Manuel Lazatin and Tomasa Vda. de Pamintuan, as guardian of the minor children Pamintuan to pay jointly and severally the plaintiff company the sum of P2,083.99 as damages, and in not absolving the same defendants-appellants to the payment thereof.

"III. The trial court erred in not adjudicating to the defendants-appellants their counterclaim for P2,000 by way of damages and in not condemning the plaintiff company to pay thereof.

"IV. The trial court erred in admitting Exhibits C and C-1 against the objection of defendants and without their proper identification by the plaintiff.

"V. The trial court erred in overruling defendants demurrer to the plaintiffs complaint and in not sustaining the same."

D E C I S I O N

JOHNS, J.:

It must be conceded that any lease, right, title or interest which the plaintiff ever had to the use or possession of the strip of land in question had expired, and that the plaintiff was nothing more than a tenant at will or sufferance. That is to say, at the time of the alleged acts of which plaintiff complains, it had no legal right to the use or possession of the land, and that any right which it ever did have had expired with the contract for the lease of the land by the defendants to Dizon and Tiglao. In this situation, the defendants had the legal right to remove plaintiffs railway from their land, and plaintiff cannot recover damages from the defendants for the doing of that which they had a legal right to do. It is true that after the lease had expired by the terms there were negotiations between the parties for a renewal or extension of the lease. It is also true that such negotiations fell through, and that the lease was never renewed or extended. Hence, it follows that the defendants are not liable for any damages which the plaintiff may have sustained growing out of the failure to renew the lease, and for such reasons plaintiffs first assignment of error is not well taken.

Be that as it may, the railway track in question has lawfully been on the defendants land and in the use and possession of the plaintiff for about seven years, and while it is true that after the expiration of the lease, the defendant, upon notice to the plaintiff, had the legal right to terminate the lease and remove the track, yet they had no right to do so in the manner in which it was done. In its removal it was the duty of the defendants to remove the track without any unnecessary damage to the plaintiff. That is to say, in such removal the defendants had no legal right to bend or twist the rails or to destroy the railway ties, fishplates, bolts and nuts and spikes, and that such removal should have been made without any serious injury or damage to the materials of which the railway was constructed. For such wrongful acts, the lower court awarded damages to the plaintiff in the sum of P2,083.99.

In the opinion of the writer the amount of such damages is about P4,000. Be that as it may, my associates are all of the opinion that the amount awarded by the lower court is reasonable, and that its judgment in that respect should also be affirmed.

From what has been said, it follows that there is no merit in the defendants appeal. If the defendants had torn up and removed the track in a peaceful and orderly manner and without any unnecessary destruction to plaintiffs property, they would not then be liable for any damages. But the proof is conclusive that it was done with a large body of men and in a hasty manner, and with force and violence, and that the whole track was torn up and removed in about two days time and without any regard to plaintiffs rights.

The evidence is conclusive that the track was removed at the instance and request of Tomasa C. Vda. de Pamintuan, the guardian of the minor defendants, and the lower court rendered judgment against her as such guardian. That was error. The judgment for the amount of damages awarded to plaintiff should be against Tomasa C. Vda. de Pamintuan personally and in person, and not as guardian, for the simple reason that the minors are not legally liable for a tort committed by their guardian. That is to say, the judgment of the lower court for damages against Tomasa C. Vda. de Pamintuan, as guardian of the minors, is reversed, and in lieu thereof a corresponding judgment will be entered against Tomasa C. Vda. de Pamintuan personally and in person, and that in all other things and respects, the judgment of the lower court is affirmed, with costs against the plaintiff. So ordered.