Respondeat superior vs.

Bonus pater familias

G.R. Nos. 118441-42           January 18, 2000

ARMANDO JOSE y PAZ and MANILA CENTRAL BUS LINES (MCL), represented by its General Manager MR. DANILO T.
DE DIOS, petitioners,
vs.
COURT OF APPEALS, ROMMEL ABRAHAM, represented by his father FELIXBERTO ABRAHAM, JOSE MACARUBO and
MERCEDES MACARUBO, respondents.

 Manila Central Bus Lines Corporation (MCL), Petitioner, is the operator-lessee of a public utility bus 203
(hereafter referred to as Bus 203) with plate number NVR-III-TB-PIL and body number 203. Bus 203 which is
owned by the Metro Manila Transit Corporation and is insured with the Government Service Insurance
System.

FACTS:

 Rommel Abraham and John Macarubo were at a party during the night. They were drunk and haven’t sleep
yet.

 While on their way home, car, a red ford escort, driven by Macarubo, had mechanical problem, It’s cross
joint was defective (detached), and they had to repair it, it was only after 5 am that they were able to make it
run.

 Because they wanted to go home quickly, it prompted maracubo to overtake the MCL bus, driven by Armando
Jose which was in its proper lane.

 As a result, the bus collided with the red ford escort.

=. The defect of a cross-joint is not minor and repair thereof would as testified to by Rommel lasted up to early
dawn and the car started to run only after five o'clock in the morning. With lack of sleep, the strains of a party
still on their bodies, and the attention to the repair coupled with the wait until the car was ready to run, are
potentials in a driver for possible accident. The accident happened at 6:15 a.m. when the physical and mental
condition of the driver John Macarubo was as expected not too fit for the driving as he could not anymore
control the car. The desire to be home quick for the much needed sleep could have prompted him to overtake
the preceding vehicle.

 Indeed the pictures taken of the two vehicles (Exh. 1, 2 and 3) will clearly show that the MCL bus was at its
proper lane and not in an overtaking position while the car driven by John Macarubo was positioned in a
diagonal manner and crossed the line of the MCL, which is an indication of an overtaking act. If it were the bus
that was overtaking at the time, the car would have been thrown farther away from the point of the impact.

 The court is convinced of the close supervision and control of MCL over their drivers, and its exercise of due
diligence in seeing to it that no recklessness is committed by its employees, drivers especially, from the
unrebutted testimonies of Cesar Cainglet.

 The Court noted the respective damages of the two vehicles especially the point of the impact. From these
damages as shown by the picture, it can be clearly deduced which vehicle did the bumping. It was the car driven
by John Macarubo that hit the MCL which was on its right and correct lane.

 On February 22, 1985, at around six o'clock in the morning, Bus 203, then driven by petitioner Armando Jose,
collided with a red Ford Escort driven by John Macarubo on MacArthur Highway, in Marulas, Valenzuela, Metro
Manila. Bus 203 was bound for Muntinlupa, Rizal, while the Ford Escort was headed towards Malanday,
Valenzuela on the opposite lane.

 As a result of the collision, the left side of the Ford Escort's hood was severely damaged while its driver, John
Macarubo, and its lone passenger, private respondent Rommel Abraham, were seriously injured. The driver
and conductress of Bus 203 rushed Macarubo and Abraham to the nearby Fatima Hospital where Macarubo
lapsed into a coma.

 Despite surgery, Macarubo failed to recover and died five days later. Abraham survived, but he became blind
on the left eye which had to be removed. In addition, he sustained a fracture on the forehead and multiple
lacerations on the face, which caused him to be hospitalized for a week.
  On March 26, 1985, Rommel Abraham, represented by his father, Felixberto, instituted Civil Case No. 2206-V-85
filed a case for damages against petitioners MCL and Armando Jose in the Regional Trial Court, Branch 172,
Valenzuela. Claiming that it was the Bus 203 that invaded their lane

 On July 17, 1986, the spouses Jose and Mercedes Macarubo, parents of the deceased John Macarubo, filed
their a case for damages in the same trial court, , against MCL alone.

 On the other hand, MCL filed a third-party complaint against Juanita Macarubo, registered owner of the Ford
Escort – it claimed that John Macarubo was negligent and that he was the "authorized driver" of Juanita
Macarubo. The latter, in turn, filed a counterclaim for damages against MCL for the damage to her car. Civil Case
No. 2206-V-85 and Civil Case No. 2428-V-86 were consolidated and later tried jointly.

TC: dismissing both civil cases against MCL and ruling favorably on its third-party complaint against Juanita
Macarubo, ordering the latter to pay MCL P54,232.12 as actual damages, P24,000.00 for lost income, and P10,000.00 as
attorney's fees.

CA: a decision reversing the decision of the trial court. It held (1) that the trial court erred in disregarding Rommel
Abraham's uncontroverted testimony that the collision was due to the fault of the driver of Bus 203; (2) that the trial
court erred in relying on photographs (Exhs. 1-3) which had been taken an hour after the collision as within that span of
time, the positions of the vehicles could have been changed; (3) that the photographs do not show that the Ford Escort
was overtaking another vehicle when the accident happened and that John Macarubo, its driver, was negligent; and
(4) that MCL failed to make a satisfactory showing that it exercised due diligence in the selection and supervision of
its driver Armando Jose. The dispositive portion of the decision reads:

ISSUE: whether it was the driver of Bus 203 or that of the Ford Escort who was at fault for the collision of the two
vehicles.--- Macarubo who was at fault

EVIDENCE: Photographs

The trial court was justified in relying on the photographs rather than on Rommel Abraham's testimony which was
obviously biased and unsupported by any other evidence. Physical evidence is a mute but an eloquent manifestation of
truth, and it ranks high in our hierarchy of trustworthy evidence.5 In criminal cases such as murder or rape where the
accused stands to lose his liberty if found guilty, this Court has, in many occasions, relied principally upon physical
evidence in ascertaining the truth. In People v. Vasquez,6 where the physical evidence on record ran counter to the
testimonial evidence of the prosecution witnesses, we ruled that the physical evidence should prevail.7

RULING:

 In this case, the positions of the two vehicles, as shown in the photographs (Exhs. 1 to 3) taken by MCL line
inspector Jesus Custodio about an hour and fifteen minutes after the collision, disputes Abraham's self-serving
testimony that the two vehicles collided because Bus 203 invaded the lane of the Ford Escort and clearly shows
that the case is exactly the opposite of what he claimed happened. Contrary to Abraham's testimony, the
photographs show quite clearly that the Bus 203 was in its proper lane and that it was the Ford Escort which
invaded the opposite lane. The three photographs show the Ford Escort positioned diagonally on the highway,
with its two front wheels occupying Bus 203's lane. As shown by the photograph marked Exhibit 3, the portion
of MacArthur Highway where the collision took place is marked by a groove which serves as the center line
separating the right from the left lanes. The photograph shows that the left side of Bus 203 is about a few feet
from the center line and that the bus is positioned parallel thereto. This negates the claim that Bus 203 was
overtaking another vehicle and, in so doing, encroached on the opposite lane occupied by the Ford Escort.

Indeed, Bus 203 could not have been overtaking another vehicle when the collision happened. It was filled with
passengers,8 and it was considerably heavier and larger than the Ford Escort. If it was overtaking another vehicle, it
necessarily had to accelerate. The acceleration of its speed and its heavy load would have greatly increased its
momentum so that the impact of the collision would have thrown the smaller and lighter Ford Escort to a
considerable distance from the point of impact. Exhibit 1, however, shows that the Ford Escort's smashed hood was
only about one or two meters from Bus 203's damaged left front. If there had been a great impact, such as would be
the case if Bus 203 had been running at a high speed, the two vehicles should have ended up far from each other.

In discrediting the physical evidence, the appellate court made following observations:

We cannot believe that it the car which overtook another vehicle and proceeded to the lane occupied by the
bus. There was a traffic jam on the "bus lane" while traffic was light on the "car lane." Indeed, we find it
inconceivable that the car, occupying the lane without any traffic, would overtake and traverse a heavy traffic
lane.9 (Emphasis supplied.)

This is correct. However, the fact remains that when the Ford Escort finally came to a stop, it encroached on the
opposite lane occupied by Bus 203.
Significantly, Rommel Abraham testified that on February 21, 1985, the night before the accident, he and John
Macarubo went to a friend's house in La Loma where they stayed until 11 p.m.10 Abraham's explanation as to why they
did not reach Valenzuela until six o'clock in the morning of the next day when the accident happened indicates that the
Ford Escort careened and slammed against Bus 203 because of a mechanical defect. Abraham told the court.11

 Thus, as Rommel Abraham himself admitted, the Ford Escort's rear cross-joint was cut/detached. This
mechanism which controls the movement of the rear tires. Since trouble in the cross-joint affects a car's
maneuverability, the matter should have been treated as a serious mechanical problem. In this case, when
asked if they were able to repair the cross-joint, Abraham said "Ginawaan ng paraan, ma'am," by simply welding
them just so they could reach home. His testimony indicates that the rear cross-joint was hastily repaired and
that, at most, the kind of repairs made thereon were merely temporary; just enough to enable Abraham and
Macarubo to reach home. Given such fact, the likelihood is that while the Ford Escort might not have been
overtaking another vehicle, it actually strayed into the bus' lane because of the defective cross-joint, which
caused its driver to lose control of the vehicle. Considering that it was repaired , just enough for them to reach
home

RE: bus could have been moved--- NO

The appellate court refused to give credence to the physical evidence on the ground that the photographs were taken
an hour after the collision and that within such span of time the bus could have been moved because there was no
showing that the driver left the scene of the accident. This is not correct.

Constancia Gerolada, Bus 203's conductress, testified that, immediately after the collision, she and bus driver,
petitioner Armando Jose, took the injured driver and passenger of the Ford Escort to the Fatima Hospital.12 This fact is
not disputed by private respondents.

Rommel Abraham mentioned in his appellant's brief in the appellate court a sketch of the scene of the accident allegedly
prepared by one Patrolman Kalale, which shows Bus 203 to be occupying the Ford Escort's lane. However, the records of
this case do not show that such a sketch was ever presented in evidence in the trial court or that Patrolman Kalale was
ever presented as a witness to testify on the sketch allegedly prepared by him. Under Rule 132, §3 of the Rules on
Evidence, courts cannot consider any evidence unless formally offered by a party.]

RE: MCL IS NOT LIABLE---

Finally, the appellate court also ruled that MCL failed to make a satisfactory showing that it exercised the diligence of a
good father of a family in the selection and supervision of its bus driver, Armando Jose.13 Under the circumstances of this
case, we hold that proof of due diligence in the selection and supervision of employees is not required.

The Civil Code provides in pertinent parts:

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.

Art. 2180 The obligation imposed in Art. 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.

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.

Thus, the responsibility of employers is premised upon the presumption of negligence of their employees. As held
in Poblete v.  Fabros:14

[I]t is such a firmly established principle, as to have virtually formed part of the law itself, that the negligence of
the employee gives rise to the presumption of negligence on the part of the employer. This is the presumed
negligence in the selection and supervision of the employee. The theory of presumed negligence, in contrast
with the American doctrine of respondent superior, where the negligence of the employee is conclusively
presumed to be the negligence of the employer, is clearly deducible from the last paragraph of Article 2180 of
the Civil Code which provides that the responsibility therein mentioned shall cease if the employers prove that
they observed all the diligence of a good father of a family to prevent damages (12 Manresa, 657; Balica vs.
 Litonjua and Leynes, 30 Phil. 624; Cangco vs. Manila Railroad Co., 30 Phil. 768), as observed in the same cases
just cited.

Therefore, before the presumption of the employer's negligence in the selection and supervision of its employees can
arise, the negligence of the employee must first be established. While the allegations of negligence against the
employee and that of an employer-employee relation in the complaint are enough to make out a case of quasi-delict
under Art. 2180 of the Civil Code, the failure to prove the employee's negligence during the trial is fatal to proving the
employer's vicarious liability. In this case, private respondents failed to prove the negligence of driver Armando Jose
who, in fact, was acquitted in the case for criminal negligence arising from the same incident.

 RE: MAIN: WON PRIVATE RESPONDENT JUANITA MACARUBO, OWNER OF FORD ESCORT, IS LIABLE TO
PETITIONERS.-- NO

Art. 2180 of the Civil Code makes the persons specified therein responsible for the quasi-delicts of others. The burden
is upon MCL failed to prove that Juanita Macarubo is one of those specified persons who are vicariously liable for the
negligence of the deceased John Macarubo under Article 2180 of the Civil Code

In its third-party complaint, MCL alleged that Juanita Macarubo was the registered owner of the Ford Escort car and that
John Macarubo was the "authorized driver" of the car. There was no allegation that John Macarubo was the son,
ward, employee or pupil of private respondent Juanita Macarubo so as to make the latter vicariously liable for the
negligence of John Macarubo. The allegation that John Macarubo was "the authorized driver" of the Ford Escort does
not mean that he was an employee of Juanita Macarubo. That John Macarubo was the "authorized driver" of the car it
simply means that he drove the Ford Escort with the permission of Juanita Macarubo.

No evidence that Juanita Macarubo was the employer of John Macarubo or that she is in any way liable for John
Macarubo's negligence under Art. 2180 of the Civil Code. For failure to discharge its burden, MCL's third-party complaint
should be dismissed.

WHEREFORE, the decision of the Court of Appeals is REVERSED and the complaints filed in Civil Cases Nos. 2206-V-85
and 24428-V-86 against Manila Central Bus Lines and Armando Jose, as well as the third-party complaint filed in Civil
Case No. 2206-V-85 against Juanita Macarubo, are hereby DISMISSED.

Parents
Arts. 221 and 236 Family Code; Art. 101 Revised Penal Code

Art. 219 Family Code

G.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.

FACTS:

 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,
 THEY WERE ASSIGNED by their teacher to weed the grass in their school premises.
 While thus engaged Maria Teresa Monfort found a plastic headband Jokingly she said found an earthworm and
wanted to scare to frighten the Cuadra girl, she threw the headband at her.
 Cuadra turned around, it hit her right eye. Smarting from the pain, she rubbed the injured part and treated it
with some powder.
 The next day, July 10,her eye swelled , so she told her parents about the incident, who thereupon took her to a
doctor for treatment. She underwent surgical operation twice, however, her right eye became blind 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.
 Parents of Cuadra filed for damages against the father of Monfort.
 TC: 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.

ISSUE: WoN a parent is liable for an act of his minor child which causes damage to another –

RULING:

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 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.

APPLICATION:

In this case, father of Monfort(defendant) could have not prevented the damage through exercise of due diligence, He
was also not negligent in the exercise of his parental authority in failing to foresee damage cause to the girl Cuadra by
the act of his daughter, or the act which caused it.

On the contrary, his child was at school, where it was his duty to send her, and wherein he expects her to be under
the care and supervision of her teacher and where she was, as he had the right to expect her to be, under the care and
supervision of the teacher.

Furthermore, And as far as the act of the child which caused the injury was concerned, it was an innocent prank not
unusual among children who are playing wherein there was no parent present, 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. No indication that it had something to do with the character or upbringing of the child which can be
blamed to the 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

G.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.

FACTS:
  On 20 October 1982, Adelberto Bundoc, then a minor of 10 yrs old, shot Jennifer Tamargo with an air rifle ,
Jennifer died. causing injuries which resulted in her death.

 Jennifer's adopting and biological parents filed a complaint for damages was filed by petitioner Macario
Tamargo, , and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against respondent
spouses Victor and Clara Bundoc, Adelberto's 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 granted 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 of Adelberto, namely the spouses
Sabas and Felisa Rapisura, were indispensable parties to the action since parental authority had shifted to the
adopting parents of Adelberto, Sps Rapisura from the moment of filing the petition for adoption was filed,
before the incident happened..
 Petitioners argued 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.

TC: dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto indeed were not
indispensable parties to the action.

The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal.

ISSUES:

1. WoN respondent spouses Bundoc, natural parents of the minor, are are liable for damages caused by the acts of
their minor child.--- YES

(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 with the biological parents.

RULING:

LEGAL BASIS: 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. 
 BASIS:

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 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.

APPLICATION:

 In this case, the shooting of Jennifer by Adelberto with an air rifle took place when parental authority was still
with the, natural parents of adelberto, respondent Bundoc spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural parents who had then they had actual custody of the minor
Adelberto, therefore, they are the indispensable parties to the action for damages.

RE: dissolution of parental responsibility due to the decree of adoption: NOT DISSOLVE

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.

APPLICATION:

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
company and under their parental authority subject to the appropriate defenses provided by law.
(Emphasis supplied)

RE: RETROACTIVE EFFECT

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 not be given 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 retroactive effect
is essential to permit the accrual of some to give benefit or advantage in favor of the adopted child.

APPLICATION:

to hold that parental authority had been retroactively lodged in the is with the adopting parents Rapisura spouses so
is unfair. Considering that it will burden them with liability for a tortious act which they could have not foreseen and
which they could not have nor prevented (since they were at the time in the United States and had no physical
custody over the child Adelberto, who is not subject to their control at the time of the shooting) 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.

RE: TRIAL PERIOD- provisionally vested parental authority

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.

APPLICATION:

In the instant case, the trial custody had not yet begun or had 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.

Other file isang case—

(iii.) Schools
Arts. 218 and 219 Family Code

G.R. No. 179337             April 30, 2008

JOSEPH SALUDAGA, petitioner,
vs.
FAR EASTERN UNIVERSITY and EDILBERTO C. DE JESUS in his capacity as President of FEU, respondents.

FACTS:

 Petitioner Joseph Saludaga was a sophomore law student of FEU when

 he was shot by Alejandro Rosete (Rosete), one of the security guards on duty at the school at the time of the
incident on August 18, 1996.

 Petitioner was rushed to FEU-Dr. Nicanor Reyes Medical Foundation (FEU-NRMF) due to the wound he
sustained.6 Meanwhile, Rosete was brought to the police station where he claimed that the shooting was an
accident. accidental. He was eventually released considering that no formal complaint was filed against him.

 Saludaga filed a complaint for damages against respondents FEU and its president on the ground that they
breached their obligation to provide keep the students safe and secured. with a safe and secure environment
and an atmosphere conducive to learning.

 FEU, filed a Third-Party Complaint 7 against Galaxy Development and Management Corporation (Galaxy), the
agency of Rosete contracted by respondent FEU to provide security services within its premises and Mariano D.
Imperial (Imperial), Galaxy's President, to indemnify them for whatever would be adjudged in favor of
petitioner, if any; and to pay attorney's fees and cost of the suit. On the other hand, Galaxy and Imperial filed a
Fourth-Party Complaint against AFP General Insurance.8

 Claiming that the shooting incident was a fortuitous event because they could not have foreseen nor avoided
the incident caused by Rosete because he was not their employee

TC: rendered a decision in favor of petitioner, the dispositive portion of which reads:

WHEREFORE, from the foregoing, judgment is hereby rendered ordering: FEU and Edilberto de Jesus, in his
capacity as president of FEU to pay jointly and severally Joseph Saludaga Galaxy Management and Development
Corp. and its president, Col. Mariano Imperial to indemnify jointly and severally 3rd party plaintiffs

Court of Appeals reversed trial court decision

ISSUE: WoN respondents are liable for damages--- YES

 RULING: Article 1170 of the Civil Code provides that those who are negligent in the performance of their
obligations are liable for damages. Accordingly, for breach of contract due to negligence in providing a safe
learning environment, respondent FEU is liable for damages.

 respondents failed to exercise due diligence in providing a safe learning environment for their students.

RE: BREACH OF CONTRACTUAL OBLIGATION

Petitioner is suing respondents for damages based on the alleged breach of student-school contract for a safe learning
environment. The pertinent portions of petitioner's Complaint read:

6.0. At the time of plaintiff's confinement, the defendants or any of their representative did not bother to visit
and inquire about his condition. This abject indifference on the part of the defendants continued even after
plaintiff was discharged from the hospital when not even a word of consolation was heard from them. Plaintiff
waited for more than one (1) year for the defendants to perform their moral obligation but the wait was
 fruitless. This indifference and total lack of concern of defendants served to exacerbate plaintiff's miserable
condition.

xxxx

11.0. Defendants are responsible for ensuring the safety of its students while the latter are within the
University premises. And that should anything untoward happens to any of its students while they are within
the University's premises shall be the responsibility of the defendants. In this case, defendants, despite being
legally and morally bound, miserably failed to protect plaintiff from injury and thereafter, to mitigate and
compensate plaintiff for said injury;

12.0. When plaintiff enrolled with defendant FEU, a contract was entered into between them. Under this
contract, defendants are supposed to ensure that adequate steps are taken to provide an atmosphere
conducive to study and ensure the safety of the plaintiff while inside defendant FEU's premises. In the instant
case, the latter breached this contract when defendant allowed harm to befall upon the plaintiff when he was
shot at by, of all people, their security guard who was tasked to maintain peace inside the campus.12

In Philippine School of Business Administration v. Court of Appeals,13 we held that:

 When an academic institution accepts students enrolled in a school, there is established a contract
entered into between them, resulting in bilateral obligations which both 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 the school has a "built-in" /implied 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 peace and order within the campus premises and to prevent the breakdown thereof.14

APPLICATION:

 It is undisputed that petitioner was enrolled as a sophomore law student in respondent FEU. As such, there was
created a contractual obligation between the two parties. On petitioner's part, he was obliged to comply with
the rules and regulations of the school. On the other hand, respondent FEU, as a learning institution is
mandated to impart knowledge and equip its students with the and necessary skills to pursue higher education
or a profession. At the same time, it is also obliged to maintain peace and order within the campus.

 It is settled that in culpa contractual, the mere proof of the existence of the contract and the failure of its
compliance justify, prima facie, a corresponding right of relief.15 In the instant case, we find that, when Saludaga
was shot inside the campus by no less the security guard, hired to maintain peace and security the premises,
there is a prima facie shows that respondents failed to comply with its obligation to provide a safe and secure
environment to its students.

RE: DUE DILIGENCE- hindi din

In order to avoid liability, however, respondents aver that the shooting incident was a fortuitous event because they
could not have reasonably foreseen nor avoided the accident caused by Rosete as he was not their employee;16 and that
they complied with their obligation to ensure a safe learning environment for their students by having exercised due
diligence in selecting the security services of Galaxy.

 After a thorough review of the records, we find that respondents failed to exercise due diligence in providing a
safe learning environment for their students.

 No evidence that the guards assigned in the campus met the requirements stipulated in the Security Service
Agreement. Indeed, certain documents about Galaxy were presented during trial; however, no evidence
presented as to the qualifications of Rosete as a security guard for the university

 Respondents were negligent because they failed to ascertain and confirm that the security guards assigned to
them were qualified as required in the Security Service Agreement. It was not proven that they examined the
clearances, psychiatric test results, 201 files, and other vital documents enumerated in its contract with
Galaxy. Total reliance on the security agency about these matters or failure to check the papers stating the
qualifications of the guards is negligence on the part of respondents.
  A learning institution should not be allowed to completely relinquish or abdicate security matters in its
premises to the security agency it hired. To do so would result to contracting away its inherent obligation to
ensure a safe learning environment for its students.

RE: VICARIOUS LIABILITY-- NOPE

Incidentally, although the main cause of action in the instant case is the breach of the school-student contract,
petitioner, in the alternative, also holds respondents vicariously liable under Article 2180 of the Civil Code, which
provides:

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.

xxxx

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.

xxxx

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.

We agree with the findings of the Court of Appeals that respondents cannot be held liable for damages under Art. 2180
of the Civil Code because respondents are not the employers of Rosete. The latter was employed by Galaxy. The
instructions issued by respondents' Security Consultant to Galaxy and its security guards are ordinarily no more than
requests common in contract for services entered into by a principal and a security agency. They cannot be construed
as the element of control as to treat respondents as the employers of Rosete.28

As held in Mercury Drug Corporation v. Libunao:29

In Soliman, Jr. v. Tuazon,30 we held that where the security agency recruits, hires and assigns the works of its
watchmen or security guards to a client, the employer of such guards or watchmen is such agency, and not the
client, since the latter has no hand in selecting the security guards. Thus, the duty to observe the diligence of a
good father of a family cannot be demanded from the said client:

… [I]t is settled in our jurisdiction 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.
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. 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.

xxxx

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.31

RE: GALAXY’s LIABILITY—yes liable

We now come to respondents' Third Party Claim against Galaxy. In Firestone Tire and Rubber Company of the Philippines
v. Tempengko,32 we held that:

The third-party complaint is, therefore, a procedural device whereby a 'third party' who is neither a party nor
privy to the act or deed complained of by the plaintiff, may be brought into the case with leave of court, by the
defendant, who acts as third-party plaintiff to enforce against such third-party defendant a right for
contribution, indemnity, subrogation or any other relief, in respect of the plaintiff's claim. The third-party
complaint is actually independent of and separate and distinct from the plaintiff's complaint. Were it not for this
provision of the Rules of Court, it would have to be filed independently and separately from the original
complaint by the defendant against the third-party. But the Rules permit defendant to bring in a third-party
defendant or so to speak, to litigate his separate cause of action in respect of plaintiff's claim against a third-
party in the original and principal case with the object of avoiding circuitry of action and unnecessary
proliferation of law suits and of disposing expeditiously in one litigation the entire subject matter arising from
one particular set of facts.33
Galaxy is negligent in the selection and supervision of its employees.

- Indeed, no administrative sanction was imposed against Rosete despite the shooting incident;

- moreover, he was even allowed to go on leave of absence and then he disappeared which led eventually to his
disappearance.34 

- Galaxy also failed to monitor petitioner's condition or extend the necessary assistance, other than the P5,000.00
initially given to petitioner.

- Galaxy and Imperial failed to make good their pledge to reimburse petitioner's medical expenses.

For these acts of negligence and for having supplied an unqualified security guard to respondent FEU which resulted
to the FEU’s breach of obligation to petitioner, it is proper to hold Galaxy liable to respondent FEU for such damages
equivalent to the above-mentioned amounts awarded to petitioner.

Unlike respondent De Jesus, we deem Imperial- pres of galaxy--to be solidarily liable with Galaxy for being grossly
negligent in directing the affairs of the security agency. It was Imperial who assured petitioner that his medical
expenses will be shouldered by Galaxy but said representations were not fulfilled because they presumed that petitioner
and his family were no longer interested in filing a formal complaint against them.35

RE: FORCE MAJEUR---NOPE

Consequently, respondents' defense of force majeure must fail. In order for force majeure to be considered,
respondents must show that no negligence or misconduct was committed that may have occasioned the loss. An act
of God cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse
consequences of such a loss. One's negligence may have concurred with an act of God in producing damage and injury
to another; nonetheless, showing that the immediate or proximate cause of the damage or injury was a fortuitous event
would not exempt one from liability. When the effect is found to be partly the result of a person's participation -
whether by active intervention, neglect or failure to act - the whole occurrence is humanized and removed from the
rules applicable to acts of God.17

Article 1170 of the Civil Code provides that those who are negligent in the performance of their obligations are liable
for damages. Accordingly, for breach of contract due to negligence in providing a safe learning environment,
respondent FEU is liable to petitioner for damages.

RE: DAMAGES:

It is essential in the award of damages that the claimant must have satisfactorily proven during the trial the existence of
the factual basis of the damages and its causal connection to defendant's acts.18

In the instant case, it was established that petitioner spent P35,298.25 for his hospitalization and other medical
expenses.19 While the trial court correctly imposed interest on said amount, however, the case at bar involves an
obligation arising from a contract and not a loan or forbearance of money. As such, the proper rate of legal interest is
six percent (6%) per annum of the amount demanded. Such interest shall continue to run from the filing of the
complaint until the finality of this Decision.20 After this Decision becomes final and executory, the applicable rate shall
be twelve percent (12%) per annum until its satisfaction.

The other expenses being claimed by petitioner, such as transportation expenses and those incurred in hiring a personal
assistant while recuperating were however not duly supported by receipts.21 In the absence thereof, no actual damages
may be awarded. Nonetheless, temperate damages under Art. 2224 of the Civil Code may be recovered where it has
been shown that the claimant suffered some pecuniary loss but the amount thereof cannot be proved with certainty.
Hence, the amount of P20,000.00 as temperate damages is awarded to petitioner.

As regards the award of moral damages,-- yes there is no hard and fast rule in the determination of what would be a
fair amount of moral damages since each case must be governed by its own peculiar circumstances.22 The testimony of
petitioner about his physical suffering, mental anguish, fright, serious anxiety, and moral shock resulting from the
shooting incident23 justify the award of moral damages. However, moral damages are in the category of an award
designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. The
award is not meant to enrich the complainant at the expense of the defendant, but to enable the injured party to obtain
means, diversion, or amusements that will serve to obviate the moral suffering he has undergone. It is aimed at the
restoration, within the limits of the possible, of the spiritual status quo ante, and should be proportionate to the
suffering inflicted. Trial courts must then guard against the award of exorbitant damages; they should exercise balanced
restrained and measured objectivity to avoid suspicion that it was due to passion, prejudice, or corruption on the part of
the trial court.24 We deem it just and reasonable under the circumstances to award petitioner moral damages in the
amount of P100,000.00.
Likewise, attorney's fees and litigation expenses in the amount of P50,000.00 as part of damages is reasonable in view
of Article 2208 of the Civil Code.25 However, the award of exemplary damages is deleted considering the absence of
proof that respondents acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.

RE: PRESIDENT OF FEU’s LIABILITY—not liable

We note that the trial court held respondent De Jesus solidarily liable with respondent FEU. In Powton Conglomerate,
Inc. v. Agcolicol,26 we held that:

[A] corporation is invested by law with a personality separate and distinct from those of the persons composing
it, such that, save for certain exceptions, corporate officers who entered into contracts in behalf of the
corporation cannot be held personally liable for the liabilities of the latter.

Personal liability of a corporate director, trustee or officer along (although not necessarily) with the
corporation may so validly attach, as a rule, only when –

(1) he assents to a patently unlawful act of the corporation, or when he is guilty of bad faith or gross
negligence in directing its affairs, or when there is a conflict of interest resulting in damages to the corporation,
its stockholders or other persons;

(2) he consents to the issuance of watered down stocks or who, having knowledge thereof, does not forthwith
file with the corporate secretary his written objection thereto;

(3) he agrees to hold himself personally and solidarily liable with the corporation; or

(4) he is made by a specific provision of law personally answerable for his corporate action. 27

None of the foregoing exceptions was established in the instant case; hence, respondent De Jesus should not be held
solidarily liable with respondent FEU.

WHEREFORE, the petition is GRANTED. The June 29, 2007 Decision of the Court of Appeals in CA-G.R. CV No. 87050
nullifying the Decision of the trial court and dismissing the complaint as well as the August 23, 2007 Resolution denying
the Motion for Reconsideration are REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Manila, Branch
2, in Civil Case No. 98-89483 finding respondent FEU liable for damages for breach of its obligation to provide students
with a safe and secure learning atmosphere, is AFFIRMED with the following MODIFICATIONS:

a. respondent Far Eastern University (FEU) is ORDERED to pay petitioner actual damages in the amount of P35,298.25,
plus 6% interest per annum from the filing of the complaint until the finality of this Decision. After this decision becomes
final and executory, the applicable rate shall be twelve percent (12%) per annum until its satisfaction;

b. respondent FEU is also ORDERED to pay petitioner temperate damages in the amount of P20,000.00; moral damages
in the amount of P100,000.00; and attorney's fees and litigation expenses in the amount of P50,000.00;

c. the award of exemplary damages is DELETED.

The Complaint against respondent Edilberto C. De Jesus is DISMISSED. The counterclaims of respondents are
likewise DISMISSED.

Galaxy Development and Management Corporation (Galaxy) and its president, Mariano D. Imperial are ORDERED to
jointly and severally pay respondent FEU damages equivalent to the above-mentioned amounts awarded to petitioner.

Employers
Arts. 102 and 103 Revised Penal Code

G.R. No. 75112 August 17, 1992

FILAMER CHRISTIAN INSTITUTE, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial
Court, Branch XIV, Roxas City and POTENCIANO KAPUNAN, SR., respondents.

FACTS:

 Funtecha was a working student, being a part-time janitor and a scholar of petitioner Filamer. He was, in
relation to the school, an employee even if he was assigned to clean the school premises for only two (2) hours
in the morning of each school day.
  Having a student driver's license, Funtecha requested the driver, Allan Masa, and was allowed, to take over the
vehicle while the latter was on his way home one late afternoon. It is significant to note that the place where
Allan lives is also the house of his father, the school president, Agustin Masa. Moreover, it is also the house
where Funtecha was allowed free board while he was a student of Filamer Christian Institute.
 While Allan Masa, the driver of school jeep/security guard, and Funtecha, are on their way home. Allan
allowed Funtecha to take over the driving, since he has student driver’s license.
 Allan Masa turned over the vehicle to Funtecha only after driving down a road, negotiating a sharp dangerous
curb, and viewing that the road was clear. (TSN, April 4, 1983, pp. 78-79)
 There was a fast moving truck that almost hit them so that they had to swerve to the right to avoid a collision.
 Upon swerving, they heard a sound as if something had bumped against their vehicle, but they did not stop to
check.
 Actually, the Pinoy jeep swerved towards the pedestrian, it hit Potenciano Kapunan who was walking in his
lane in the direction against vehicular traffic, and hit him.
 Allan affirmed that Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of the incident
(6:30 P.M.) in Roxas City, the jeep had only one functioning headlight.

Allan testified that he was the driver and at the same time a security guard of the petitioner-school. He further said that
there was no specific time for him to be off-duty and that after driving the students home at 5:00 in the afternoon, he
still had to go back to school and then drive home using the same vehicle.

Driving the vehicle to and from the house of the school president where both Allan and Funtecha reside is an act in
furtherance of the interest of the petitioner-school. Allan's job demands that he drive home the school jeep so he can
use it to fetch students in the morning of the next school day.

It is indubitable under the circumstances that the school president had knowledge that the jeep was routinely driven
home for the said purpose. Moreover, it is not improbable that the school president also had knowledge of Funtecha's
possession of a student driver's license and his desire to undergo driving lessons during the time that he was not in his
classrooms.

In learning how to drive while taking the vehicle home in the direction of Allan's house, Funtecha definitely was not
having a joy ride. Funtecha was not driving for the purpose of his enjoyment or for a "frolic of his own" but ultimately,
for the service for which the jeep was intended by the petitioner school. (See L. Battistoni v. Thomas, Can SC 144, 1
D.L.R. 577, 80 ALR 722 [1932]; See also Association of Baptists for World Evangelism, Inc. v. Fieldmen's Insurance Co.,
Inc. 124 SCRA 618 [1983]). Therefore, the Court is constrained to conclude that the act of Funtecha in taking over the
steering wheel was one done for and in behalf of his employer for which act the petitioner-school cannot deny any
responsibility by arguing that it was done beyond the scope of his janitorial duties. The clause "within the scope of their
assigned tasks" for purposes of raising the presumption of liability of an employer, includes any act done by an
employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction
of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the employee driving the
vehicle derived some benefit from the act, the existence of a presumptive liability of the employer is determined by
answering the question of whether or not the servant was at the time of the accident performing any act in furtherance
of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])

Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors its defense, was
promulgated by the Secretary of Labor and Employment only for the purpose of administering and enforcing the
provisions of the Labor Code on conditions of employment. Particularly, Rule X of Book III provides guidelines on the
manner by which the powers of the Labor Secretary shall be exercised; on what records should be kept; maintained and
preserved; on payroll; and on the exclusion of working scholars from, and inclusion of resident physicians in the
employment coverage as far as compliance with the substantive labor provisions on working conditions, rest periods,
and wages, is concerned.

In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, makes the
distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive law in a civil suit for damages
instituted by an injured person during a vehicular accident against a working student of a school and against the school
itself.

The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an
alleged employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a
person, against both doer-employee and his employer. Hence, the reliance on the implementing rule on labor to
disregard the primary liability of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on
labor cannot be used by an employer as a shield to avoid liability under the substantive provisions of the Civil Code.

There is evidence to show that there exists in the present case an extra-contractual obligation arising from the
negligence or reckless imprudence of a person "whose acts or omissions are imputable, by a legal fiction, to other(s)
who are in a position to exercise an absolute or limited control over (him)." (Bahia v. Litonjua and Leynes, 30 Phil. 624
[1915])

Funtecha is an employee of petitioner Filamer. He need not have an official appointment for a driver's position in order
that the petitioner may be held responsible for his grossly negligent act, it being sufficient that the act of driving at the
time of the incident was for the benefit of the petitioner. Hence, the fact that Funtecha was not the school driver or was
not acting within the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the
presumption  juris tantum that there was negligence on its part either in the selection of a servant or employee, or in the
supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good
father of a family over its employees Funtecha and Allan.

The Court reiterates that supervision includes the formulation of suitable rules and regulations for the guidance of its
employees and the issuance of proper instructions intended for the protection of the public and persons with whom the
employer has relations through his employees. (Bahia v. Litonjua and Leynes, supra,  at p. 628; Phoenix Construction, v.
Intermediate Appellate Court, 148 SCRA 353 [1987])

An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act
indispensable to the business and beneficial to their employer.

In the present case, the petitioner has not shown that it has set forth such rules and guidelines as would prohibit any
one of its employees from taking control over its vehicles if one is not the official driver or prohibiting the driver and son
of the Filamer president from authorizing another employee to drive the school vehicle. Furthermore, the petitioner has
failed to prove that it had imposed sanctions or warned its employees against the use of its vehicles by persons other
than the driver.

The petitioner, thus, has an obligation to pay damages for injury arising from the unskilled manner by which Funtecha
drove the vehicle. (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 [1918]). In the absence of evidence that the
petitioner had exercised the diligence of a good father of a family in the supervision of its employees, the law imposes
upon it the vicarious liability for acts or omissions of its employees. (Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v.
Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate Appellate
Court, 178 SCRA 331 [1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The liability of the employer
is, under Article 2180, primary and solidary. However, the employer shall have recourse against the negligent employee
for whatever damages are paid to the heirs of the plaintiff.

It is an admitted fact that the actual driver of the school jeep, Allan Masa, was not made a party defendant in the civil
case for damages. This is quite understandable considering that as far as the injured pedestrian, plaintiff Potenciano
Kapunan, was concerned, it was Funtecha who was the one driving the vehicle and presumably was one authorized by
the school to drive. The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the
petitioner for the consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while.
For the purpose of recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private
respondent heirs were able to establish the existence of employer-employee relationship between Funtecha and
petitioner Filamer and the fact that Funtecha was engaged in an act not for an independent purpose of his own but in
furtherance of the business of his employer. A position of responsibility on the part of the petitioner has thus been
satisfactorily demonstrated.

Ruling: The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of the decision rendered by
this Court on October 16, 1990 (Filamer Christian Institute v. Court of Appeals, 190 SCRA 477) reviewing the appellate
court's conclusion that there exists an employer-employee relationship between the petitioner and its co-defendant
Funtecha. The Court ruled that the petitioner is not liable for the injuries caused by Funtecha on the grounds that the
latter was not an authorized driver for whose acts the petitioner shall be directly and primarily answerable, and that
Funtecha was merely a working scholar who, under Section 14, Rule X, Book III of the Rules and Regulations
Implementing the Labor Code is not considered an employee of the petitioner.

The private respondents assert that the circumstances obtaining in the present case call for the application of Article
2180 of the Civil Code since Funtecha is no doubt an employee of the petitioner. The private respondents maintain that
under Article 2180 an injured party shall have recourse against the servant as well as the petitioner for whom, at the
time of the incident, the servant was performing an act in furtherance of the interest and for the benefit of the
petitioner. Funtecha allegedly did not steal the school jeep nor use it for a joy ride without the knowledge of the school
authorities.

After a re-examination of the laws relevant to the facts found by the trial court and the appellate court, the Court
reconsiders its decision. We reinstate the Court of Appeals' decision penned by the late Justice Desiderio Jurado and
concurred in by Justices Jose C. Campos, Jr. and Serafin E. Camilon. Applying Civil Code provisions, the appellate court
affirmed the trial court decision which ordered the payment of the P20,000.00 liability in the Zenith Insurance
Corporation policy, P10,000.00 moral damages, P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.

WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is hereby GRANTED. The decision of
the respondent appellate court affirming the trial court decision is REINSTATED.

G.R. No. 132266 December 21, 1999

CASTILEX INDUSTRIAL CORPORATION, petitioner,
vs.
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS' HOSPITAL, INC., respondents.

ISSUE: whether an employer may be held vicariously liable for the death resulting from the negligent operation by a
managerial employee of a company-issued vehicle.

FACTS:

 2:00 in the morning, Romeo So Vasquez, WITH STUDENT driving license, was driving a Honda motorcycle
around Fuente Osmeña Rotunda. He was traveling counter-clockwise, (the normal flow of traffic in a rotunda)
but without any protective helmet or goggles. He was also only carrying a Student's Permit to Drive at the
time.

 Upon the other hand, Benjamin Abad, manager of Appellant Castilex Industrial Corporation, registered
owner [of] a Toyota Hi-Lux Pick-up with plate no. GBW-794.

 who was on his way home from overtime work drove the company car, Toyota hilux out of a parking lot
but instead of going around the Osmeña rotunda he made a short cut to avoid the traffic going to his route
against [the] flow of the traffic in proceeding to his route to General Maxilom St. or to Belvic St.

 Romeo Vasquez, driving a Honda motorcycle w/o helmet, who holds a student’s driver license and the
pick-up of Abad collided with each other.

 Vasquez died. Abad stopped his vehicle and brought Vasquez to the Southern Islands Hospital and later to
the Cebu Doctor's Hospital.

On September 5, 1988, Vasquez died at the Cebu Doctor's Hospital. It was there that

 At the hospital, Abad signed an acknowledgment of Responsible Party (Exhibit K) wherein he agreed to pay
whatever hospital bills, professional fees and other incidental charges Vasquez may incur.

After the police authorities had conducted the investigation of the accident, a Criminal Case was filed against Abad
but which was subsequently dismissed for failure to prosecute.

So, the present action for damages was commenced by Vicente Vasquez, Jr. and Luisa So Vasquez, parents of the
deceased filed an action for damages against Benjamin Abad and Castilex Industrial Corporation. In the same
action, Cebu Doctor's Hospital intervened to collect unpaid balance for the medical expense given to Romeo So
Vasquez.1

TC: ordered Jose Benjamin Abad (hereafter ABAD) and petitioner Castilex to pay jointly and solidarily (1) Spouses
Vasquez, the amounts of P8,000.00 for burial expenses; P50,000.00 as moral damages; P10,000.00 as attorney's fees;
and P778,752.00 for loss of earning capacity; and (2) Cebu Doctor's Hospital, the sum of P50,927.83 for unpaid medical
and hospital bills at 3% monthly interest from 27 July 1989 until fully paid, plus the costs of litigation.2

CA: affirmed the ruling of the trial court holding ABAD and CASTILEX liable but held that the liability of the latter is
"only vicarious and not solidary" with the former. It reduced the award of damages representing loss of earning
capacity from P778,752.00 to P214,156.80; and the interest on the hospital and medical bills, from 3% per month to
12%  per annum from 5 September 1988 until fully paid.Upon CASTILEX's motion for reconsideration, the Court of
Appeals modified its decision by (1) reducing the award of moral damages from P50,000 to P30,000 in view of the
deceased's contributory negligence; (b) deleting the award of attorney's fees for lack of evidence; and (c) reducing the
interest on hospital and medical bills to 6%  per annum from 5 September 1988 until fully paid.4

Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1) applying to the case the fifth
paragraph of Article 2180 of the Civil Code, instead of the fourth paragraph thereof; (2) that as a managerial employee,
ABAD was deemed to have been always acting within the scope of his assigned task even outside office hours because
he was using a vehicle issued to him by petitioner; and (3) ruling that petitioner had the burden to prove that the
employee was not acting within the scope of his assigned task.

 Respondents argued that petitioner is VICARIOUSLY liable for the death of their son on the basis of the
fifth paragraph of Article 2180.
 On the other hand, Castilex contends that the fifth paragraph of Article 2180 applies to instances where the
employer is not engaged in business or industry. Therefore, it is not covered by provision because they are
engage in business. Instead, the fourth paragraph should apply.
 Even if the fourth paragraph of Article 2180 were applied, petitioner cannot escape liability therefor. They
moreover argue that the Court of Appeals erred in reducing the amount of compensatory damages when the
award made by the trial court was borne both by evidence adduced during the trial regarding deceased's
wages and by jurisprudence on life expectancy. Moreover, they point out that the petition is procedurally not
 acceptable on the following grounds: (1) lack of an explanation for serving the petition upon the Court of
Appeals by registered mail, as required under Section 11, Rule 13 of the Rules of Civil Procedure; and (2) lack
of a statement of the dates of the expiration of the original reglementary period and of the filing of the
motion for extension of time to file a petition for review.
 Cebu Doctor's Hospital maintains that petitioner CASTILEX is indeed vicariously liable for the injuries and
subsequent death of Romeo Vasquez caused by ABAD, who was on his way home from taking snacks after
doing overtime work for petitioner Although the incident occurred when ABAD was not working anymore
"the inescapable fact remains that said employee would not have been situated at such time and place had
he not been required by petitioner to do overtime work." Moreover, since petitioner adopted the evidence
adduced by ABAD, it cannot, as the latter's employer, inveigle itself from the ambit of liability, and is thus
estopped by the records of the case, which it failed to refute.

ISSUE: WoN Petitioner CASTILEX is vicariously liable for the injuries and subsequent death caused by its employee
ABAD.--- YES

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.

Petitioner's interpretation of the fifth paragraph is not accurate. The phrase "even though the former are not engaged in
any business or industry" found in the fifth paragraph should be interpreted to mean that it is not necessary for the
employer to be engaged in any business or industry to be liable for the negligence of his employee who is acting
within the scope of his assigned task.5

the fourth paragraph- The owners and managers of an FIFTH Paragraph- Employers shall be liable for the
establishment or enterprise are likewise responsible for damages caused by their employees and household
damages caused by their employees in the service of the helpers acting within the scope of their assigned tasks,
branches in which the latter are employed or on the even though the former are not engaged in any business
occasion of their functions. or industry.

-to owners and managers of an establishment or -employers in general, whether or not engaged in any
enterprise business or industry

-covers negligent acts of employees committed either in negligent acts of employees acting within the scope of
the service of the branches or on the occasion of their their assigned task- an expansion of the 4th par in both
functions, employer coverage and acts included

Negligent acts of employees, whether or not the employer is engaged in a business or industry, are covered so long
as they were acting within the scope of their assigned task, even though committed neither in the service of the
branches nor on the occasion of their functions. For, admittedly, employees oftentimes wear different hats. They
perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call
of duty.

This court has applied the fifth paragraph to cases where the employer was engaged in a business or industry such as
truck operators6 and banks.7 The Court of Appeals cannot, therefore, be faulted in applying the said paragraph of Article
2180 of the Civil Code to this case.

Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an employer is liable for
the torts committed by employees within the scope of his assigned tasks. But it is necessary to establish the employer-
employee relationship; once this is done, the plaintiff must show, to hold the employer liable, that the employee was
acting within the scope of his assigned task when the tort complained of was committed. It is only then that the
employer may find it necessary to interpose the defense of due diligence in the selection and supervision of the
employee.8

It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of the tort occurrence. As to
whether he was acting within the scope of his assigned task is a question of fact, which the court a quo  and the Court of
Appeals resolved in the affirmative.

Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of Appeals are entitled to great
respect, and even finality at times. This rule is, however, subject to exceptions such as when the conclusion is grounded
on speculations, surmises, or conjectures.9 Such exception obtain in the present case to warrant review by this Court of
the finding of the Court of Appeals that since ABAD was driving petitioner's vehicle he was acting within the scope of his
duties as a manager.

Before we pass upon the issue of whether ABAD was performing acts within the range of his employment, we shall first
take up the other reason invoked by the Court of Appeals in holding petitioner CASTILEX vicariously liable for ABAD's
negligence, i.e., that the petitioner did not present evidence that ABAD was not acting within the scope of his assigned
tasks at the time of the motor vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not incumbent upon
the petitioner to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was acting within the scope
of his duties; petitioner was not under obligation to prove this negative averment. Ei incumbit probatio qui dicit, non qui
negat (He who asserts, not he who denies, must prove). The Court has consistently applied the ancient rule that if the
plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner facts which
he bases his claim, the defendant is under no obligation to prove his exception or defense. 10

Now on the issue of whether the private respondents have sufficiently established that ABAD was acting within the
scope of his assigned tasks.

ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was driving a company-
issued vehicle, registered under the name of petitioner. He was then leaving the restaurant where he had some snacks
and had a chat with his friends after having done overtime work for the petitioner.

No absolutely hard and fast rule can be stated which will furnish the complete answer to the problem of whether at a
given moment, an employee is engaged in his employer's business in the operation of a motor vehicle, so as to fix
liability upon the employer because of the employee's action or inaction; but rather, the result varies with each state of
facts. 11

In Filamer Christian Institute v.  Intermediate Appellant Court, 12 this Court had the occasion to hold that acts done within
the scope of the employee's assigned tasks includes "any act done by an employee in furtherance of the interests of the
employer or for the account of the employer at the time of the infliction of the injury or damages."

The court a quo and the Court of Appeals were one in holding that the driving by a manager of a company-issued vehicle
is within the scope of his assigned tasks regardless of the time and circumstances.

We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself
sufficient to charge petitioner with liability for the negligent operation of said vehicle unless it appears that he was
operating the vehicle within the course or scope of his employment.

The following are principles in American Jurisprudence on the employer's liability for the injuries inflicted by the
negligence of an employee in the use of an employer's motor vehicle:

I. Operation of Employer's Motor Vehicle in Going to

or from Meals

It has been held that an employee who uses his employer's vehicle in going from his work to a place where he intends to
eat or in returning to work from a meal is not ordinarily acting within the scope of his employment in the absence of
evidence of some special business benefit to the employer. Evidence that by using the employer's vehicle to go to and
from meals, an employee is enabled to reduce his time-off and so devote more time to the performance of his duties
supports the finding that an employee is acting within the scope of his employment while so driving the vehicle. 13

II. Operation of Employer's Vehicle in Going to

or from Work

In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee,
and not a part of his services to his employer. Hence, in the absence of some special benefit to the employer other than
the mere performance of the services available at the place where he is needed, the employee is not acting within the
scope of his employment even though he uses his employer's motor vehicle. 14

The employer may, however, be liable where he derives some special benefit from having the employee drive home in
the employer's vehicle as when the employer benefits from having the employee at work earlier and, presumably,
spending more time at his actual duties. Where the employee's duties require him to circulate in a general area with no
fixed place or hours of work, or to go to and from his home to various outside places of work, and his employer furnishes
him with a vehicle to use in his work, the courts have frequently applied what has been called the "special errand" or
"roving commission" rule, under which it can be found that the employee continues in the service of his employer until
he actually reaches home. However, even if the employee be deemed to be acting within the scope of his employment
in going to or from work in his employer's vehicle, the employer is not liable for his negligence where at the time of the
accident, the employee has left the direct route to his work or back home and is pursuing a personal errand of his own.

III. Use of Employer's Vehicle Outside Regular Working Hours

An employer who loans his motor vehicle to an employee for the latter's personal use outside of regular working hours
is generally not liable for the employee's negligent operation of the vehicle during the period of permissive use, even
where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as
well as business purposes and there is some incidental benefit to the employer. Even where the employee's personal
purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed his employment, and the employer is not liable for the
employee's negligent operation of the vehicle during the return trip. 15

The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondent
superior, not on the principle of bonus pater familias  as in ours. Whether the fault or negligence of the employee is
conclusive on his employer as in American law or jurisprudence, or merely gives rise to the presumption  juris tantum of
negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employer's
business or within the scope of his assigned task. 16

In the case at bar, it is undisputed that ABAD did some overtime work at the petitioner's office, which was located in
Cabangcalan, Mandaue City. Thereafter, he went to Goldie's Restaurant in Fuente Osmeña, Cebu City, which is about
seven kilometers away from petitioner's place of business. 17 A witness for the private respondents, a sidewalk vendor,
testified that Fuente Osmeña is a "lively place" even at dawn because Goldie's Restaurant and Back Street were still
open and people were drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place. 18

At the Goldie's Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD was leaving the
restaurant that the incident in question occurred. That same witness for the private respondents testified that at the
time of the vehicular accident, ABAD was with a woman in his car, who then shouted: "Daddy, Daddy!" 19 This woman
could not have been ABAD's daughter, for ABAD was only 29 years old at the time.

To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal purpose not in line with
his duties at the time he figured in a vehicular accident. It was then about 2:00 a.m. of 28 August 1988, way beyond the
normal working hours. ABAD's working day had ended; his overtime work had already been completed. His being at a
place which, as petitioner put it, was known as a "haven for prostitutes, pimps, and drug pushers and addicts," had no
connection to petitioner's business; neither had it any relation to his duties as a manager. Rather, using his service
vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his position.

Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to him, petitioner
CASTILEX had no duty to show that it exercised the diligence of a good father of a family in providing ABAD with a
service vehicle. Thus, justice and equity require that petitioner be relieved of vicarious liability for the consequences of
the negligence of ABAD in driving its vehicle. 20

WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the Court of Appeals is AFFIRMED
with the modification that petitioner Castilex Industrial Corporation be absolved of any liability for the damages caused
by its employee, Jose Benjamin Abad.

HERMANA R. CEREZO, petitioner,
vs.
DAVID TUAZON, respondent.

This is a petition for review on certiorari1 to annul the Resolution2 dated 21 October 1999 of the Court of Appeals in CA-
G.R. SP No. 53572, as well as its Resolution dated 20 January 2000 denying the motion for reconsideration. The Court of
Appeals denied the petition for annulment of the Decision3 dated 30 May 1995 rendered by the Regional Trial Court of
Angeles City, Branch 56 ("trial court"), in Civil Case No. 7415. The trial court ordered petitioner Hermana R. Cerezo
("Mrs. Cerezo") to pay respondent David Tuazon ("Tuazon") actual damages, loss of earnings, moral damages, and costs
of suit.

Antecedent Facts

Around noontime of 26 June 1993, a Country Bus Lines passenger bus with plate number NYA 241 collided with a tricycle
bearing plate number TC RV 126 along Captain M. Palo Street, Sta. Ines, Mabalacat, Pampanga. On 1 October 1993,
tricycle driver Tuazon filed a complaint for damages against Mrs. Cerezo, as owner of the bus line, her husband Attorney
Juan Cerezo ("Atty. Cerezo"), and bus driver Danilo A. Foronda ("Foronda"). The complaint alleged that:

7. At the time of the incident, plaintiff [Tuazon] was in his proper lane when the second-named defendant
[Foronda], being then the driver and person in charge of the Country Bus with plate number NYA 241, did then
and there willfully, unlawfully, and feloniously operate the said motor vehicle in a negligent, careless, and
imprudent manner without due regard to traffic rules and regulations, there being a "Slow Down" sign near the
scene of the incident, and without taking the necessary precaution to prevent loss of lives or injuries, his
negligence, carelessness and imprudence resulted to severe damage to the tricycle and serious physical injuries
to plaintiff thus making him unable to walk and becoming disabled, with his thumb and middle finger on the left
hand being cut[.]4

On 1 October 1993, Tuazon filed a motion to litigate as a pauper. Subsequently, the trial court issued summons against
Atty. Cerezo and Mrs. Cerezo ("the Cerezo spouses") at the Makati address stated in the complaint. However, the
summons was returned unserved on 10 November 1993 as the Cerezo spouses no longer held office nor resided in
Makati. On 18 April 1994, the trial court issued alias summons against the Cerezo spouses at their address in Barangay
Sta. Maria, Camiling, Tarlac. The alias summons and a copy of the complaint were finally served on 20 April 1994 at the
office of Atty. Cerezo, who was then working as Tarlac Provincial Prosecutor. Atty. Cerezo reacted angrily on learning of
the service of summons upon his person. Atty. Cerezo allegedly told Sheriff William Canlas: "Punyeta, ano ang gusto
mong mangyari? Gusto mong hindi ka makalabas ng buhay dito? Teritoryo ko ito. Wala ka sa teritoryo mo."5

The records show that the Cerezo spouses participated in the proceedings before the trial court. The Cerezo spouses
filed a comment with motion for bill of particulars dated 29 April 1994 and a reply to opposition to comment with
motion dated 13 June 1994.6 On 1 August 1994, the trial court issued an order directing the Cerezo spouses to file a
comment to the opposition to the bill of particulars. Atty. Elpidio B. Valera ("Atty. Valera") of Valera and Valera Law
Offices appeared on behalf of the Cerezo spouses. On 29 August 1994, Atty. Valera filed an urgent ex-parte motion
praying for the resolution of Tuazon’s motion to litigate as a pauper and for the issuance of new summons on the Cerezo
spouses to satisfy proper service in accordance with the Rules of Court.7

On 30 August 1994, the trial court issued an order resolving Tuazon’s motion to litigate as a pauper and the Cerezo
spouses’ urgent ex-parte motion. The order reads:

At the hearing on August 30, 1994, the plaintiff [Tuazon] testified that he is presently jobless; that at the time of
the filing of this case, his son who is working in Malaysia helps him and sends him once in a while P300.00 a
month, and that he does not have any real property. Attached to the Motion to Litigate as Pauper are his
Affidavit that he is unemployed; a Certification by the Barangay Captain of his poblacion that his income is not
enough for his family’s subsistence; and a Certification by the Office of the Municipal Assessor that he has no
landholding in the Municipality of Mabalacat, Province of Pampanga.

The Court is satisfied from the unrebutted testimony of the plaintiff that he is entitled to prosecute his
complaint in this case as a pauper under existing rules.

On the other hand, the Court denies the prayer in the Appearance and Urgent Ex-Parte Motion requiring new
summons to be served to the defendants. The Court is of the opinion that any infirmity in the service of the
summons to the defendant before plaintiff was allowed to prosecute his complaint in this case as a pauper has
been cured by this Order.

If within 15 days from receipt of this Order, the defendants do not question on appeal this Order of this Court,
the Court shall proceed to resolve the Motion for Bill of Particulars.8

On 27 September 1994, the Cerezo spouses filed an urgent ex-parte motion for reconsideration. The trial court denied
the motion for reconsideration.

On 14 November 1994, the trial court issued an order directing the Cerezo spouses to file their answer within fifteen
days from receipt of the order. The Cerezo spouses did not file an answer. On 27 January 1995, Tuazon filed a motion to
declare the Cerezo spouses in default. On 6 February 1995, the trial court issued an order declaring the Cerezo spouses
in default and authorizing Tuazon to present his evidence. 9

On 30 May 1995, after considering Tuazon’s testimonial and documentary evidence, the trial court ruled in Tuazon’s
favor. The trial court made no pronouncement on Foronda’s liability because there was no service of summons on him.
The trial court did not hold Atty. Cerezo liable as Tuazon failed to show that Mrs. Cerezo’s business benefited the family,
pursuant to Article 121(3) of the Family Code. The trial court held Mrs. Cerezo solely liable for the damages sustained by
Tuazon arising from the negligence of Mrs. Cerezo’s employee, pursuant to Article 2180 of the Civil Code. The dispositive
portion of the trial court’s decision reads:

WHEREFORE, judgment is hereby rendered ordering the defendant Hermana Cerezo to pay the plaintiff:

a) For Actual Damages - P69,485.35

1) Expenses for operation and medical Treatment
2) Cost of repair of the tricycle
b) For loss of earnings - 39,921.00
c) For moral damages - 43,300.00
d) And to pay the cost of the suit. - 20,000.00

The docket fees and other expenses in the filing of this suit shall be lien on whatever judgment may be rendered
in favor of the plaintiff.

SO ORDERED.10

Mrs. Cerezo received a copy of the decision on 25 June 1995. On 10 July 1995, Mrs. Cerezo filed before the trial court a
petition for relief from judgment on the grounds of "fraud, mistake or excusable negligence." Testifying before the trial
court, both Mrs. Cerezo and Atty. Valera denied receipt of notices of hearings and of orders of the court. Atty. Valera
added that he received no notice before or during the 8 May 1995 elections, "when he was a senatorial candidate for
the KBL Party, and very busy, using his office and residence as Party National Headquarters." Atty. Valera claimed that he
was able to read the decision of the trial court only after Mrs. Cerezo sent him a copy.11

Tuazon did not testify but presented documentary evidence to prove the participation of the Cerezo spouses in the case.
Tuazon presented the following exhibits:

Exhibit 1 - Sheriff’s return and summons;

Exhibit 1-A - Alias summons dated April 20, 1994;
Exhibit 2 - Comment with Motion;
Exhibit 3 - Minutes of the hearing held on August 1, 1994;
Exhibit 3-A - Signature of defendant’s counsel;
Exhibit 4 - Minutes of the hearing held on August 30, 1994;
Exhibit 4-A - Signature of the defendant’s counsel;
Exhibit 5 - Appearance and Urgent Ex-Parte Motion;
Exhibit 6 - Order dated November 14, 1994;
Exhibit 6-A - Postal certification dated January 13, 1995;
Exhibit 7 - Order dated February [illegible];
Exhibit 7-A - Court’s return slip addressed to Atty. Elpidio Valera;
Exhibit 7-B - Court’s return slip addressed to Spouses Juan and Hermana Cerezo;
Exhibit 8 - Decision dated May [30], 1995
Exhibit 8-A - Court’s return slip addressed to defendant Hermana Cerezo;
Exhibit 8-B - Court’s return slip addressed to defendant’s counsel, Atty. Elpidio Valera;
Exhibit 9 - Order dated September 21, 1995;
Exhibit 9-A - Second Page of Exhibit 9;
Exhibit 9-B - Third page of Exhibit 9;
Exhibit 9-C - Fourth page of Exhibit 9;
Exhibit 9-D - Court’s return slip addressed to Atty. Elpidio Valera;
and
Exhibit 9-E - Court’s return slip addressed to plaintiff’s counsel, Atty. Norman Dick de
Guzman.12

On 4 March 1998, the trial court issued an order13 denying the petition for relief from judgment. The trial court stated
that having received the decision on 25 June 1995, the Cerezo spouses should have filed a notice of appeal instead of
resorting to a petition for relief from judgment. The trial court refused to grant relief from judgment because the Cerezo
spouses could have availed of the remedy of appeal. Moreover, the Cerezo spouses not only failed to prove fraud,
accident, mistake or excusable negligence by conclusive evidence, they also failed to prove that they had a good and
substantial defense. The trial court noted that the Cerezo spouses failed to appeal because they relied on an expected
settlement of the case.

The Cerezo spouses subsequently filed before the Court of Appeals a petition for certiorari under Section 1 of Rule 65.
The petition was docketed as CA-G.R. SP No. 48132.14 The petition questioned whether the trial court acquired
jurisdiction over the case considering there was no service of summons on Foronda, whom the Cerezo spouses claimed
was an indispensable party. In a resolution15 dated 21 January 1999, the Court of Appeals denied the petition
for certiorari and affirmed the trial court’s order denying the petition for relief from judgment. The Court of Appeals
declared that the Cerezo spouses’ failure to file an answer was due to their own negligence, considering that they
continued to participate in the proceedings without filing an answer. There was also nothing in the records to show that
the Cerezo spouses actually offered a reasonable settlement to Tuazon. The Court of Appeals also denied Cerezo
spouses’ motion for reconsideration for lack of merit.

The Cerezo spouses filed before this Court a petition for review on certiorari under Rule 45. Atty. Cerezo himself signed
the petition, docketed as G.R. No. 137593. On 13 April 1999, this Court rendered a resolution denying the petition for
review on certiorari for failure to attach an affidavit of service of copies of the petition to the Court of Appeals and to the
adverse parties. Even if the petition complied with this requirement, the Court would still have denied the petition as
the Cerezo spouses failed to show that the Court of Appeals committed a reversible error. The Court’s resolution was
entered in the Book of Entries and Judgments when it became final and executory on 28 June 1999.16

Undaunted, the Cerezo spouses filed before the Court of Appeals on 6 July 1999 a petition for annulment of judgment
under Rule 47 with prayer for restraining order. Atty. Valera and Atty. Dionisio S. Daga ("Atty. Daga") represented Mrs.
Cerezo in the petition, docketed as CA-G.R. SP No. 53572.17 The petition prayed for the annulment of the 30 May 1995
decision of the trial court and for the issuance of a writ of preliminary injunction enjoining execution of the trial court’s
decision pending resolution of the petition.

The Court of Appeals denied the petition for annulment of judgment in a resolution dated 21 October 1999. The
resolution reads in part:
 In this case, records show that the petitioner previously filed with the lower court a Petition for Relief from
Judgment on the ground that they were wrongfully declared in default while waiting for an amicable settlement
of the complaint for damages. The court a quo correctly ruled that such petition is without merit. The defendant
spouses admit that during the initial hearing they appeared before the court and even mentioned the need for
an amicable settlement. Thus, the lower court acquired jurisdiction over the defendant spouses.

Therefore, petitioner having availed of a petition for relief, the remedy of an annulment of judgment is no longer
available. The proper action for the petitioner is to appeal the order of the lower court denying the petition for
relief.

Wherefore, the instant petition could not be given due course and should accordingly be dismissed.

SO ORDERED.18

On 20 January 2000, the Court of Appeals denied the Cerezo spouses’ motion for reconsideration.19 The Court of Appeals
stated:

A distinction should be made between a court’s jurisdiction over a person and its jurisdiction over the subject
matter of a case. The former is acquired by the proper service of summons or by the parties’ voluntary
appearance; while the latter is conferred by law.

Resolving the matter of jurisdiction over the subject matter, Section 19(1) of B[atas] P[ambansa] 129 provides
that Regional Trial Courts shall exercise exclusive original jurisdiction in all civil actions in which the subject of
the litigation is incapable of pecuniary estimation. Thus it was proper for the lower court to decide the instant
case for damages.

Unlike jurisdiction over the subject matter of a case which is absolute and conferred by law; any defects [sic] in
the acquisition of jurisdiction over a person (i.e., improper filing of civil complaint or improper service of
summons) may be waived by the voluntary appearance of parties.

The lower court admits the fact that no summons was served on defendant Foronda. Thus, jurisdiction over the
person of defendant Foronda was not acquired, for which reason he was not held liable in this case. However, it
has been proven that jurisdiction over the other defendants was validly acquired by the court a quo.

The defendant spouses admit to having appeared in the initial hearings and in the hearing for plaintiff’s motion
to litigate as a pauper. They even mentioned conferences where attempts were made to reach an amicable
settlement with plaintiff. However, the possibility of amicable settlement is not a good and substantial defense
which will warrant the granting of said petition.

xxx

Assuming arguendo that private respondent failed to reserve his right to institute a separate action for damages
in the criminal action, the petitioner cannot now raise such issue and question the lower court’s jurisdiction
because petitioner and her husband have waived such right by voluntarily appearing in the civil case for
damages. Therefore, the findings and the decision of the lower court may bind them.

Records show that the petitioner previously filed with the lower court a Petition for Relief from Judgment on the
ground that they were wrongfully declared in default while waiting for an amicable settlement of the complaint
for damages. The court a quo correctly ruled that such petition is without merit, jurisdiction having been
acquired by the voluntary appearance of defendant spouses.

Once again, it bears stressing that having availed of a petition for relief, the remedy of annulment of judgment is
no longer available.

Based on the foregoing, the motion for reconsideration could not be given due course and is hereby DENIED.

SO ORDERED.20

The Issues

On 7 February 2000, Mrs. Cerezo, this time with Atty. Daga alone representing her, filed the present petition for review
on certiorari before this Court. Mrs. Cerezo claims that:

1. In dismissing the Petition for Annulment of Judgment, the Court of Appeals assumes that the issues raised in
the petition for annulment is based on extrinsic fraud related to the denied petition for relief notwithstanding
that the grounds relied upon involves questions of lack of jurisdiction.
 2. In dismissing the Petition for Annulment, the Court of Appeals disregarded the allegation that the lower
court[’s] findings of negligence against defendant-driver Danilo Foronda [whom] the lower court did not
summon is null and void for want of due process and consequently, such findings of negligence which is [sic] null
and void cannot become the basis of the lower court to adjudge petitioner-employer liable for civil damages.

3. In dismissing the Petition for Annulment, the Court of Appeals ignored the allegation that defendant-driver
Danilo A. Foronda whose negligence is the main issue is an indispensable party whose presence is compulsory
but [whom] the lower court did not summon.

4. In dismissing the Petition for Annulment, the Court of Appeals ruled that assuming arguendo that private
respondent failed to reserve his right to institute a separate action for damages in the criminal action, the
petitioner cannot now raise such issue and question the lower court’s jurisdiction because petitioner [has]
waived such right by voluntarily appearing in the civil case for damages notwithstanding that lack of jurisdiction
cannot be waived.21

The Court’s Ruling

The petition has no merit. As the issues are interrelated, we shall discuss them jointly.

Remedies Available to a Party Declared in Default

An examination of the records of the entire proceedings shows that three lawyers filed and signed pleadings on behalf
of Mrs. Cerezo, namely, Atty. Daga, Atty. Valera, and Atty. Cerezo. Despite their number, Mrs. Cerezo’s counsels failed to
avail of the proper remedies. It is either by sheer ignorance or by malicious manipulation of legal technicalities that they
have managed to delay the disposition of the present case, to the detriment of pauper litigant Tuazon.

Mrs. Cerezo claims she did not receive any copy of the order declaring the Cerezo spouses in default. Mrs. Cerezo asserts
that she only came to know of the default order on 25 June 1995, when she received a copy of the decision. On 10 July
1995, Mrs. Cerezo filed before the trial court a petition for relief from judgment under Rule 38, alleging "fraud, mistake,
or excusable negligence" as grounds. On 4 March 1998, the trial court denied Mrs. Cerezo’s petition for relief from
judgment. The trial court stated that Mrs. Cerezo could have availed of appeal as a remedy and that she failed to prove
that the judgment was entered through fraud, accident, mistake, or excusable negligence. Mrs. Cerezo then filed before
the Court of Appeals a petition for certiorari under Section 1 of Rule 65 assailing the denial of the petition for relief from
judgment. On 21 January 1999, the Court of Appeals dismissed Mrs. Cerezo’s petition. On 24 February 1999, the
appellate court denied Mrs. Cerezo’s motion for reconsideration. On 11 March 1999, Mrs. Cerezo filed before this Court
a petition for review on certiorari under Rule 45, questioning the denial of the petition for relief from judgment. We
denied the petition and our resolution became final and executory on 28 June 1999.

On 6 July 1999, a mere eight days after our resolution became final and executory, Mrs. Cerezo filed before the Court of
Appeals a petition for annulment of the judgment of the trial court under Rule 47. Meanwhile, on 25 August 1999, the
trial court issued over the objection of Mrs. Cerezo an order of execution of the judgment in Civil Case No. 7415. On 21
October 1999, the Court of Appeals dismissed the petition for annulment of judgment. On 20 January 2000, the Court of
Appeals denied Mrs. Cerezo’s motion for reconsideration. On 7 February 2000, Mrs. Cerezo filed the present petition for
review on certiorari under Rule 45 challenging the dismissal of her petition for annulment of judgment.

Lina v. Court of Appeals22 enumerates the remedies available to a party declared in default:

a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion under
oath to set aside the order of default on the ground that his failure to answer was due to fraud, accident,
mistake or excusable negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);

b) If the judgment has already been rendered when the defendant discovered the default, but before the same
has become final and executory, he may file a motion for new trial under Section 1 (a) of Rule 37;

c) If the defendant discovered the default after the judgment has become final and executory, he may file
a petition for relief under Section 2 [now Section 1] of Rule 38; and

d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if
no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41). (Emphasis added)

Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the trial court
improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of
discretion attended such declaration.23

Mrs. Cerezo admitted that she received a copy of the trial court’s decision on 25 June 1995. Based on this admission,
Mrs. Cerezo had at least three remedies at her disposal: an appeal, a motion for new trial, or a petition for certiorari.
Mrs. Cerezo could have appealed under Rule 4124 from the default judgment within 15 days from notice of the judgment.
She could have availed of the power of the Court of Appeals to try cases and conduct hearings, receive evidence, and
perform all acts necessary to resolve factual issues raised in cases falling within its appellate jurisdiction.25

Mrs. Cerezo also had the option to file under Rule 3726 a motion for new trial within the period for taking an appeal. If
the trial court grants a new trial, the original judgment is vacated, and the action will stand for trial de novo. The
recorded evidence taken in the former trial, as far as the same is material and competent to establish the issues, shall be
used at the new trial without retaking the same.27

Mrs. Cerezo also had the alternative of filing under Rule 6528 a petition for certiorari assailing the order of default within
60 days from notice of the judgment. An order of default is interlocutory, and an aggrieved party may file an appropriate
special civil action under Rule 65.29 In a petition for certiorari, the appellate court may declare void both the order of
default and the judgment of default.

Clearly, Mrs. Cerezo had every opportunity to avail of these remedies within the reglementary periods provided under
the Rules of Court. However, Mrs. Cerezo opted to file a petition for relief from judgment, which is available only in
exceptional cases. A petition for relief from judgment should be filed within the reglementary period of 60 days from
knowledge of judgment and six months from entry of judgment, pursuant to

Rule 38 of the Rules of Civil Procedure.30 Tuason v. Court of Appeals31 explained the nature of a petition for relief from
judgment:

When a party has another remedy available to him, which may either be a motion for new trial or appeal from
an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable
negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief
will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to
appeal which has been lost thru inexcusable negligence.

Evidently, there was no fraud, accident, mistake, or excusable negligence that prevented Mrs. Cerezo from filing an
appeal, a motion for new trial or a petition for certiorari. It was error for her to avail of a petition for relief from
judgment.

After our resolution denying Mrs. Cerezo’s petition for relief became final and executory, Mrs. Cerezo, in her last ditch
attempt to evade liability, filed before the Court of Appeals a petition for annulment of the judgment of the trial court.
Annulment is available only on the grounds of extrinsic fraud and lack of jurisdiction. If based on extrinsic fraud, a party
must file the petition within four years from its discovery, and if based on lack of jurisdiction, before laches or estoppel
bars the petition. Extrinsic fraud is not a valid ground if such fraud was used as a ground, or could have been used as a
ground, in a motion for new trial or petition for relief from judgment.32

Mrs. Cerezo insists that lack of jurisdiction, not extrinsic fraud, was her ground for filing the petition for annulment of
judgment. However, a party may avail of the remedy of annulment of judgment under Rule 47 only if the ordinary
remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available
through no fault of the party.33 Mrs. Cerezo could have availed of a new trial or appeal but through her own fault she
erroneously availed of the remedy of a petition for relief, which was denied with finality. Thus, Mrs. Cerezo may no
longer avail of the remedy of annulment.

In any event, the trial court clearly acquired jurisdiction over Mrs. Cerezo’s person. Mrs. Cerezo actively participated in
the proceedings before the trial court, submitting herself to the jurisdiction of the trial court. The defense of lack of
jurisdiction fails in light of her active participation in the trial court proceedings. Estoppel or laches may also bar lack of
jurisdiction as a ground for nullity especially if raised for the first time on appeal by a party who participated in the
proceedings before the trial court, as what happened in this case.34

For these reasons, the present petition should be dismissed for utter lack of merit. The extraordinary action to annul a
final judgment is restricted to the grounds specified in the rules. The reason for the restriction is to prevent this
extraordinary action from being used by a losing party to make a complete farce of a duly promulgated decision that has
long become final and executory. There would be no end to litigation if parties who have unsuccessfully availed of any of
the appropriate remedies or lost them through their fault could still bring an action for annulment of
judgment.35 Nevertheless, we shall discuss the issues raised in the present petition to clear any doubt about the
correctness of the decision of the trial court.

Mrs. Cerezo’s Liability and the Trial Court’s Acquisition of Jurisdiction

Mrs. Cerezo contends that the basis of the present petition for annulment is lack of jurisdiction. Mrs. Cerezo asserts that
the trial court could not validly render judgment since it failed to acquire jurisdiction over Foronda. Mrs. Cerezo points
out that there was no service of summons on Foronda. Moreover, Tuazon failed to reserve his right to institute a
separate civil action for damages in the criminal action. Such contention betrays a faulty foundation. Mrs. Cerezo’s
contention proceeds from the point of view of criminal law and not of civil law, while the basis of the present action of
Tuazon is quasi-delict under the Civil Code, not delict under the Revised Penal Code.
The same negligent act may produce civil liability arising from a delict under Article 103 of the Revised Penal Code, or
may give rise to an action for a quasi-delict under Article 2180 of the Civil Code. An aggrieved party may choose between
the two remedies. An action based on a quasi-delict may proceed independently from the criminal action.36 There is,
however, a distinction between civil liability arising from a delict and civil liability arising from a quasi-delict. The choice
of remedy, whether to sue for a delict or a quasi-delict, affects the procedural and jurisdictional issues of the action.37

Tuazon chose to file an action for damages based on a quasi-delict. In his complaint, Tuazon alleged that Mrs. Cerezo,
"without exercising due care and diligence in the supervision and management of her employees and buses," hired
Foronda as her driver. Tuazon became disabled because of Foronda’s "recklessness, gross negligence and imprudence,"
aggravated by Mrs. Cerezo’s "lack of due care and diligence in the selection and supervision of her employees,
particularly Foronda."38

The trial court thus found Mrs. Cerezo liable under Article 2180 of the Civil Code. Article 2180 states in part:

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.

Contrary to Mrs. Cerezo’s assertion, Foronda is not an indispensable party to the case. An indispensable party is one
whose interest is affected by the court’s action in the litigation, and without whom no final resolution of the case is
possible.39 However, Mrs. Cerezo’s liability as an employer in an action for a quasi-delict is not only solidary, it is also
primary and direct. Foronda is not an indispensable party to the final resolution of Tuazon’s action for damages against
Mrs. Cerezo.

The responsibility of two or more persons who are liable for a quasi-delict is solidary.40 Where there is a solidary
obligation on the part of debtors, as in this case, each debtor is liable for the entire obligation. Hence, each debtor is
liable to pay for the entire obligation in full. There is no merger or renunciation of rights, but only mutual
representation.41 Where the obligation of the parties is solidary, either of the parties is indispensable, and the other is
not even a necessary party because complete relief is available from either.42 Therefore, jurisdiction over Foronda is not
even necessary as Tuazon may collect damages from Mrs. Cerezo alone.

Moreover, an employer’s liability based on a quasi-delict is primary and direct, while the employer’s liability based on a
delict is merely subsidiary.43 The words "primary and direct," as contrasted with "subsidiary," refer to the remedy
provided by law for enforcing the obligation rather than to the character and limits of the obligation.44 Although liability
under Article 2180 originates from the negligent act of the employee, the aggrieved party may sue the employer
directly. When an employee causes damage, the law presumes that the employer has himself committed an act of
negligence in not preventing or avoiding the damage. This is the fault that the law condemns. While the employer is
civilly liable in a subsidiary capacity for the employee’s criminal negligence, the employer is also civilly liable directly and
separately for his own civil negligence in failing to exercise due diligence in selecting and supervising his employee. The
idea that the employer’s liability is solely subsidiary is wrong.45

The action can be brought directly against the person responsible (for another), without including the author of
the act. The action against the principal is accessory in the sense that it implies the existence of a prejudicial act
committed by the employee, but it is not subsidiary in the sense that it can not be instituted till after the
judgment against the author of the act or at least, that it is subsidiary to the principal action; the action for
responsibility (of the employer) is in itself a principal action.46

Thus, there is no need in this case for the trial court to acquire jurisdiction over Foronda. The trial court’s acquisition of
jurisdiction over Mrs. Cerezo is sufficient to dispose of the present case on the merits.

In contrast, an action based on a delict seeks to enforce the subsidiary liability of the employer for the criminal
negligence of the employee as provided in Article 103 of the Revised Penal Code. To hold the employer liable in a
subsidiary capacity under a delict, the aggrieved party must initiate a criminal action where the employee’s delict and
corresponding primary liability are established.47 If the present action proceeds from a delict, then the trial court’s
jurisdiction over Foronda is necessary. However, the present action is clearly for the quasi-delict of Mrs. Cerezo and not
for the delict of Foronda.

The Cerezo spouses’ contention that summons be served anew on them is untenable in light of their participation in the
trial court proceedings. To uphold the Cerezo spouses’ contention would make a fetish of a technicality.48 Moreover, any
irregularity in the service of summons that might have vitiated the trial court’s jurisdiction over the persons of the
Cerezo spouses was deemed waived when the Cerezo spouses filed a petition for relief from judgment.49

We hold that the trial court had jurisdiction and was competent to decide the case in favor of Tuazon and against Mrs.
Cerezo even in the absence of Foronda. Contrary to Mrs. Cerezo’s contention, Foronda is not an indispensable party to
the present case. It is not even necessary for Tuazon to reserve the filing of a separate civil action because he opted to
file a civil action for damages against Mrs. Cerezo who is primarily and directly liable for her own civil negligence. The
words of Justice Jorge Bocobo in Barredo v. Garcia still hold true today as much as it did in 1942:

x x x [T]o hold that there is only one way to make defendant’s liability effective, and that is, to sue the driver and
exhaust his (the latter’s) property first, would be tantamount to compelling the plaintiff to follow a devious and
 cumbersome method of obtaining relief. True, there is such a remedy under our laws, but there is also a more
expeditious way, which is based on the primary and direct responsibility of the defendant under article [2180] of
the Civil Code. Our view of the law is more likely to facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay, it being a matter of common knowledge that
professional drivers of taxis and other similar public conveyances do not have sufficient means with which to pay
damages. Why, then, should the plaintiff be required in all cases to go through this roundabout, unnecessary,
and probably useless procedure? In construing the laws, courts have endeavored to shorten and facilitate the
pathways of right and justice.50

Interest at the rate of 6% per annum is due on the amount of damages adjudged by the trial court.51 The 6% per
annum interest shall commence from 30 May 1995, the date of the decision of the trial court. Upon finality of this
decision, interest at 12% per annum, in lieu of 6% per annum, is due on the amount of damages adjudged by the trial
court until full payment.

WHEREFORE, we DENY the instant petition for review. The Resolution dated 21 October 1999 of the Court of Appeals in
CA-G.R. SP No. 53572, as well as its Resolution dated 20 January 2000 denying the motion for reconsideration,
is AFFIRMED with the MODIFICATION that the amount due shall earn legal interest at 6% per annum computed from 30
May 1995, the date of the trial court’s decision. Upon finality of this decision, the amount due shall earn interest at
12% per annum, in lieu of 6% per annum, until full payment.

G.R. No. 163609             November 27, 2008

SPS. BUENAVENTURA JAYME AND ROSARIO JAYME, petitioners,

vs.
RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO SIMBULAN, MAYOR FERNANDO Q. MIGUEL, MUNICIPALITY OF
KORONADAL (NOW CITY OF KORONADAL), PROVINCE OF SOUTH COTABATO, represented by the MUNICIPAL
TREASURER and/or MUNICIPAL MAYOR FERNANDO Q. MIGUEL, and THE FIRST INTEGRATED BONDING AND
INSURANCE COMPANY, INC., respondents.

MAY a municipal mayor be held solidarily liable for the negligent acts of the driver assigned to him, which resulted in the
death of a minor pedestrian?

Challenged in this petition for review on certiorari is the Decision1 of the Court of Appeals (CA) which reversed and set
aside the decision of the Regional Trial Court (RTC), Polomolok, Cotabato City, Branch 39, insofar as defendant Mayor
Fernando Q. Miguel is concerned. The CA absolved Mayor Miguel from any liability since it was not he, but the
Municipality of Koronadal, that was the employer of the negligent driver.

The Facts

On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on board the Isuzu pick-up truck driven by Fidel
Lozano, an employee of the Municipality of Koronadal.2 The pick-up truck was registered under the name of Rodrigo
Apostol, but it was then in the possession of Ernesto Simbulan.3 Lozano borrowed the pick-up truck from Simbulan to
bring Miguel to Buayan Airport at General Santos City to catch his Manila flight.4

The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then crossing the National Highway in Poblacion,
Polomolok, South Cotabato.5 The intensity of the collision sent Marvin some fifty (50) meters away from the point of
impact, a clear indication that Lozano was driving at a very high speed at the time of the accident.6

Marvin sustained severe head injuries with subdural hematoma and diffused cerebral contusion.7 He was initially treated
at the Howard Hubbard Memorial Hospital.8 Due to the seriousness of his injuries, he was airlifted to the Ricardo Limso
Medical Center in Davao City for more intensive treatment.9 Despite medical attention, Marvin expired six (6) days after
the accident.10

Petitioners spouses Buenaventura and Rosario Jayme, the parents of Marvin, filed a complaint for damages with the RTC
against respondents.11 In their complaint, they prayed that all respondents be held solidarily liable for their loss. They
pointed out that that proximate cause of Marvin's death was Lozano's negligent and reckless operation of the vehicle.
They prayed for actual, moral, and exemplary damages, attorney's fees, and litigation expenses.

In their respective Answers, all respondents denied liability for Marvin's death. Apostol and Simbulan averred that
Lozano took the pick-up truck without their consent. Likewise, Miguel and Lozano pointed out that Marvin's sudden
sprint across the highway made it impossible to avoid the accident. Yet, Miguel denied being on board the vehicle when
it hit Marvin. The Municipality of Koronadal adopted the answer of Lozano and Miguel. As for First Integrated Bonding
and Insurance Company, Inc., the vehicle insurer, it insisted that its liability is contributory and is only conditioned on the
right of the insured. Since the insured did not file a claim within the prescribed period, any cause of action against it had
prescribed.

RTC Disposition

On January 25, 1999, the RTC rendered judgment in favor of spouses Jayme, the dispositive portion of which reads:
 WHEREFORE, in view of the foregoing, the defendant Municipality of Koronadal cannot be held liable for the
damages incurred by other defendant (sic) being an agency of the State performing a (sic) governmental
functions. The same with defendant Hermogenes Simbulan, not being the owner of the subject vehicle, he is
absolved of any liability. The complaint against defendant First Integrated Bonding Insurance Company, Inc. is
hereby ordered dismissed there being no cause of action against said insurance company.

However, defendants Fidel Lozano, Rodrigo Apostol, and Mayor Fernando Miguel of Koronadal, South Cotabato,
are hereby ordered jointly and severally to pay the plaintiff (sic) the following sums:

1. One Hundred Seventy Three Thousand One Hundred One and Forty Centavos (P173,101.40) Pesos as
actual damages with legal interest of 12% per annum computed from February 11, 1989 until fully paid;

2. Fifty Thousand (P50,000.00) Pesos as moral damages;

3. Twenty Thousand (P20,000.00) Pesos as exemplary damages;

4. Twenty Thousand (P20,000.00) Pesos as Attorney's fees;

5. Fifty Thousand (P50,000.00) Pesos for the death of Marvin Jayme;

6. Three Thousand (P3,000.00) as litigation expenses; and

7. To pay the cost of this suit.

SO ORDERED.12

Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the CA.

CA Disposition

In his appeal, Mayor Miguel contended that the RTC erred in ruling that he was Lozano's employer and, hence, solidarily
liable for the latter's negligent act. Records showed that the Municipality of Koronadal was the driver's true and lawful
employer. Mayor Miguel also denied that he did not exercise due care and diligence in the supervision of Lozano. The
incident, although unfortunate, was unexpected and cannot be attributed to him.

On October 22, 2003, the CA granted the appeal, disposing as follows:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE, insofar as defendant-appellant Mayor
Fernando Q. Miguel is concerned, and the complaint against him is DISMISSED.

IT IS SO ORDERED.13

The CA held that Mayor Miguel should not be held liable for damages for the death of Marvin Jayme. Said the appellate
court:

Moreover, plaintiffs-appellees admitted that Mayor Miguel was not the employer of Lozano. Thus, paragraph 9
of the complaint alleged that the Municipality of Koronadal was the employer of both Mayor Miguel and
Lozano. Not being the employer of Lozano, Mayor Miguel could not thus be held liable for the damages caused
by the former. Mayor Miguel was a mere passenger in the Isuzu pick-up at the time of the
accident.14 (Emphasis supplied)

The CA also reiterated the settled rule that it is the registered owner of a vehicle who is jointly and severally liable with
the driver for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the
operation of the vehicle.

Issues

The spouses Jayme have resorted to the present recourse and assign to the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT MAYOR FERNANDO MIGUEL CANNOT BE HELD
LIABLE FOR THE DEATH OF MARVIN JAYME WHICH CONCLUSION IS CONTRARY TO LAW AND THE SETTLED
PRONOUNCEMENTS OF THIS HONORABLE TRIBUNAL;

II.
 THE FINDINGS OF FACTS OF THE HONORABLE COURT OF APPEALS ARE CONTRARY TO THE FINDINGS OF THE
TRIAL COURT AND ARE CONTRADICTED BY THE EVIDENCE ON RECORD; MOREOVER, THE CONCLUSIONS DRAWN
BY THE HONORABLE COURT OF APPEALS ARE ALL BASED ON CONJECTURES AND SURMISES AND AGAINST
ACCEPTED COURSE OF JUDICIAL PROCEEDINGS WHICH URGENTLY CALL FOR AN EXERCISE OF THIS HONORABLE
COURT'S SUPERVISION.15

Our Ruling

The doctrine of vicarious liability or imputed liability finds no application in the present case.

Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor Miguel. He was not a mere passenger, but
instead one who had direct control and supervision over Lozano during the time of the accident. According to
petitioners, the element of direct control is not negated by the fact that Lozano's employer was the Municipality of
Koronadal. Mayor Miguel, being Lozano's superior, still had control over the manner the vehicle was operated.

Article 218016 of the Civil Code provides that a person is not only liable for one's own quasi-delictual acts, but also for
those persons for whom one is responsible for. This liability is popularly known as vicarious or imputed liability. To
sustain claims against employers for the acts of their employees, the following requisites must be established: (1) That
the employee was chosen by the employer personally or through another; (2) That the service to be rendered in
accordance with orders which the employer has the authority to give at all times; and (3) That the illicit act of the
employee was on the occasion or by reason of the functions entrusted to him.17

Significantly, to make the employee liable under paragraphs 5 and 6 of Article 2180, it must be established that the
injurious or tortuous act was committed at the time the employee was performing his functions.18

Furthermore, the employer-employee relationship cannot be assumed. It is incumbent upon the plaintiff to prove the
relationship by preponderant evidence. In Belen v. Belen,19 this Court ruled that it was enough for defendant to deny an
alleged employment relationship. The defendant is under no obligation to prove the negative averment. This Court said:

It is an old and well-settled rule of the courts that the burden of proving the action is upon the plaintiff, and that
if he fails satisfactorily to show the facts upon which he bases his claim, the defendant is under no obligation to
prove his exceptions. This rue is in harmony with the provisions of Section 297 of the Code of Civil Procedure
holding that each party must prove his own affirmative allegations, etc.20

In resolving the present controversy, it is imperative to find out if Mayor Miguel is, indeed, the employer of Lozano and
therefore liable for the negligent acts of the latter. To determine the existence of an employment relationship, We rely
on the four-fold test. This involves: (1) the employer's power of selection; (2) payment of wages or other remuneration;
(3) the employer's right to control the method of doing the work; and (4) the employer's right of suspension or
dismissal.21

Applying the foregoing test, the CA correctly held that it was the Municipality of Koronadal which was the lawful
employer of Lozano at the time of the accident. It is uncontested that Lozano was employed as a driver by the
municipality. That he was subsequently assigned to Mayor Miguel during the time of the accident is of no moment. This
Court has, on several occasions, held that an employer-employee relationship still exists even if the employee was
loaned by the employer to another person or entity because control over the employee subsists.22 In the case under
review, the Municipality of Koronadal remains to be Lozano's employer notwithstanding Lozano's assignment to Mayor
Miguel.

Spouses Jayme argued that Mayor Miguel had at least supervision and control over Lozano and how the latter operated
or drove the Isuzu pick-up during the time of the accident. They, however, failed to buttress this claim.

Even assuming arguendo that Mayor Miguel had authority to give instructions or directions to Lozano, he still can not be
held liable. In Benson v. Sorrell,23 the New England Supreme Court ruled that mere giving of directions to the driver does
not establish that the passenger has control over the vehicle. Neither does it render one the employer of the driver. This
Court, in Soliman, Jr. v. Tuazon,24 ruled in a similar vein, to wit:

x x x 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 and omissions. Those instructions or directions are ordinarily no more than requests commonly
envisaged in the contract for services entered into with the security agency. x x x25 (Emphasis supplied)

Significantly, no negligence may be imputed against a fellow employee although the person may have the right to
control the manner of the vehicle's operation.26 In the absence of an employer-employee relationship establishing
vicarious liability, the driver's negligence should not be attributed to a fellow employee who only happens to be an
occupant of the vehicle.27 Whatever right of control the occupant may have over the driver is not sufficient by itself to
justify an application of the doctrine of vicarious liability. Handley v. Lombardi28 is instructive on this exception to the
rule on vicarious liability:
 Plaintiff was not the master or principal of the driver of the truck, but only an intermediate and superior
employee or agent. This being so, the doctrine of respondeat superior or qui facit per alium is not properly
applicable to him.  His power to direct and control the driver was not as master, but only by virtue of the fact
that they were both employed by Kruse, and the further fact that as Kruse's agent he was delegated Kruse's
authority over the driver. x x x

In the case of actionable negligence, the rule is well settled both in this state and elsewhere that the negligence
of a subordinate employee or subagent is not to be imputed to a superior employee or agent, but only to the
master or principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297, 269 Pac. 425; Guild v. Brown, 115 Cal. App. 374
[1 Pac. (2d) 528; Ellis v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N. S.) 378, 52 S. E. 228; Thurman v. Pittsburg &
M. Copper Co., 41 Mont. 141 [108 Pac. 588]; 2 Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R. 277, and
particularly that part commencing at p. 290.) We can see no logical reason for drawing any distinction in this
regard between actionable negligence and contributory negligence. x x x29

The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30 and again in Sichterman v. Hollingshead Co. 31

In Swanson v. McQuown,32 a case involving a military officer who happened to be riding in a car driven by a subordinate
later involved in an accident, the Colorado Supreme Court adhered to the general rule that a public official is not liable
for the wrongful acts of his subordinates on a vicarious basis since the relationship is not a true master-servant
situation.33 The court went on to rule that the only exception is when they cooperate in the act complained of, or direct
or encourage it.34

In the case at bar, Mayor Miguel was neither Lozano's employer nor the vehicle's registered owner. There existed no
causal relationship between him and Lozano or the vehicle used that will make him accountable for Marvin's death.
Mayor Miguel was a mere passenger at the time of the accident.

Parenthetically, it has been held that the failure of a passenger to assist the driver, by providing him warnings or by
serving as lookout does not make the passenger liable for the latter's negligent acts.35 The driver's duty is not one that
may be delegated to others.36

As correctly held by the trial court, the true and lawful employer of Lozano is the Municipality of Koronadal.
Unfortunately for Spouses Jayme, the municipality may not be sued because it is an agency of the State engaged in
governmental functions and, hence, immune from suit. This immunity is illustrated in Municipality of San Fernando, La
Union v. Firme,37 where this Court held:

It has already been remarked that municipal corporations are suable because their charters grant them the
competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the
discharge of governmental functions and can only be held answerable only if it can be shown that they were
acting in proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the
right to show that the defendant was not acting in governmental capacity when the injury was committed or
that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover.38

Verily, liability attaches to the registered owner, the negligent driver and his direct employer. The CA observation along
this line are worth restating:

Settled is the rule that the registered owner of a vehicle is jointly and severally liable with the driver for damages
incurred by passengers and third persons as a consequence of injuries or death sustained in the operation of
said vehicles. Regardless of who the actual owner of the vehicle is, the operator of record continues to be the
operator of the vehicle as regards the public and third persons, and as such is directly and primarily responsible
for the consequences incident (sic) to its operation x x x.39

The accidental death of Marvin Jayme is a tragic loss for his parents. However, justice demands that only those liable
under our laws be held accountable for Marvin's demise. Justice can not sway in favor of petitioners simply to assuage
their pain and loss. The law on the matter is clear: only the negligent driver, the driver's employer, and the registered
owner of the vehicle are liable for the death of a third person resulting from the negligent operation of the vehicle.

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.