T&D Cases

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G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, n !"#$ %a&a%!y a' A'%#ndan!' o( A)a&!o

E*%ano, d#%#a'#d,plaintifs-appellants,

vs.

REGINALD +ILL, no$, and MARIN +ILL, a' (a!"#$ and Na!$a* Ga$dan o( 'ad

no$, deendants-appellees.

Cruz & Avecilla for appellants.

Marvin R. Hill & Associates for appellees.

/ARREDO,J.:

Appeal rom the order o the Court o First Instance o Quezon City dated January 2, !"# in

Civil Case $o. Q-%!&2, 'edro (lcano et al. vs. )e*inald +ill et al. dismissin*, upon motion to

dismiss o deendants, the complaint o plaintifs or recovery o dama*es rom deendant

)e*inald +ill, a minor, married at the time o the occurrence, and his ather, the deendantarvin +ill, ith hom he as livin* and *ettin* susistence, or the /illin* y )e*inald o

the son o the plaintifs, named A*apito (lcano, o hich, hen criminally prosecuted, the

said accused as ac0uitted on the *round that his act as not criminal, ecause o 1lac/ o

intent to /ill, coupled ith mista/e.1

Actually, the motion to dismiss ased on the olloin* *rounds

!. 3he present action is not only a*ainst ut a violation o section !, )ule !&4,

hich is no )ule III, o the )evised )ules o Court5

2. 3he action is arred y a prior 6ud*ment hich is no 7nal and or in res-adjudicata5

8. 3he complaint had no cause o action a*ainst deendant arvin +ill,

ecause he as relieved as *uardian o the other deendant throu*h

emancipation y marria*e.

9'. 28, )ecord :p. ;, )ecord on Appeal.

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B@ @)()(.

Quezon City, 'hilippines, January 2, !"#. 9p. ;&, )ecord :p. 2!, )ecord on

Appeal.=

+ence, this appeal here plaintifs-appellants, the spouses (lcano, are presentin* or @ur

resolution the olloin* assi*nment o errors

3+( @?() C@D)3 ())( I$ IBIBBI$E 3+( CAB( G D'+@I$E 3+(

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II

3+( AC3I@$ IB A))( G A ')I@) JDE($3 ?+IC+ IB $@? FI$A @) )(B-

AJDIC3A5

III

3+( ')I$CI'(B @F QDABI-(IC3B, A)3IC(B 2!4" 3@ 2!; @F 3+( CIHI

C@(, A)( I$A''ICA( I$ 3+( I$B3A$3 CAB(5 and

IH

3+A3 3+( C@'AI$3 B3A3(B $@ CADB( @F AC3I@$ AEAI$B3 (F($A$3

A)HI$ +I (CADB( +( ?AB )(I(H( AB EDA)IA$ @F 3+( @3+()

(F($A$3 3+)@DE+ (A$CI'A3I@$ G A))IAE(. 9pa*e ;, )ecord.=

It appears that or the /illin* o the son, A*apito, o plaintifs-appellants, deendant- appellee

)e*inald +ill as prosecuted criminally in Criminal Case $o. #!&2 o the Court o First

Instance o Quezon City. Ater due trial, he as ac0uitted on the *round that his act as not

criminal ecause o 1lac/ o intent to /ill, coupled ith mista/e.1 'arenthetically, none o the

parties has avored Ds ith a copy o the decision o ac0uittal, presumaly ecause

appellants do not dispute that such indeed as the asis stated in the courts decision. And

so, hen appellants 7led their complaint a*ainst appellees )e*inald and his ather, Atty.arvin +ill, on account o the death o their son, the appellees 7led the motion to dismiss

aove-reerred to.

As ?e vie the ore*oin* ac/*round o this case, the to decisive issues presented or @ur

resolution are

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!. Is the present civil action or dama*es arred y the ac0uittal o )e*inald in the criminal

case herein the action or civil liaility, as not reversed

2. ay Article 2!%& 92nd and last para*raphs= o the Civil Code he applied a*ainst Atty. +ill,

notithstandin* the undisputed act that at the time o the occurrence complained o.

)e*inald, thou*h a minor, livin* ith and *ettin* susistenee rom his ather, as already

le*ally married

3he 7rst issue presents no more prolem than the need or a reiteration and urther

clari7cation o the dual character, criminal and civil, o ault or ne*li*ence as a source o

oli*ation hich as 7rmly estalished in this 6urisdiction in Barredo vs. Garcia, 48 'hil. "&4.

In that case, this Court postulated, on the asis o a scholarly dissertation y Justice ocoo

on the nature o culpa aquilianain relation to culpa criminalor delito and mereculpa or ault,

ith pertinent citation o decisions o the Bupreme Court o Bpain, the or/s o reco*nized

civilians, and earlier 6urisprudence o our on, that the same *iven act can result in civil

liaility not only under the 'enal Code ut also under the Civil Code. 3hus, the opinion holds

3he, aove case is pertinent ecause it shos that the same act machinist.come under oth the 'enal Code and the Civil Code. In that case, the action o

the a*ent /illeth un6usti7ed and raudulent and thereore could have een the

su6ect o a criminal action. And yet, it as held to e also a proper su6ect o

a civil action under article !&2 o the Civil Code. It is also to e noted that it

as the employer and not the employee ho as ein* sued. 9pp. "!#-"!",

48 'hil.=. 1

It ill e noticed that the deendant in the aove case could have een

prosecuted in a criminal case ecause his ne*li*ence causin* the death o the

child as punishale y the 'enal Code. +ere is thereore a clear instance o

the same act o ne*li*ence ein* a proper su6ect matter either o a criminalaction ith its conse0uent civil liaility arisin* rom a crime or o an entirely

separate and independent civil action or ault or ne*li*ence under article

!&2 o the Civil Code. 3hus, in this 6urisdiction, the separate individuality o

a cuasi-delito or culpa aquiliana, under the Civil Code has een ully and

clearly reco*nized, even ith re*ard to a ne*li*ent act or hich the

ron*doer could have een prosecuted and convicted in a criminal case and

or hich, ater such a conviction, he could have een sued or this civil

liaility arisin* rom his crime. 9p. "!4, 48 'hil.= 2

It is most si*ni7cant that in the case 6ust cited, this Court speci7cally applied

article !&2 o the Civil Code. It is thus that althou*h J. H. +ouse could have

een criminally prosecuted or rec/less or simple ne*li*ence and not only

punished ut also made civilly liale ecause o his criminal ne*li*ence,

nevertheless this Court aarded dama*es in an independent civil action or

ault or ne*li*ence under article !&2 o the Civil Code. 9p. "!%, 48 'hil.= 3

3he le*al provisions, authors, and cases already invo/ed should ordinarily e

suKcient to dispose o this case. ut inasmuch as e are announcin*

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doctrines that have een little understood, in the past, it mi*ht not he

inappropriate to indicate their oundations.

Firstly, the )evised 'enal Code in articles 8"# punishes not only rec/less ut

also simple ne*li*ence. I e ere to hold that articles !&2 to !!& o the

Civil Code reer only to ault or ne*li*ence not punished y la, accordin*ly to

the literal import o article !&8 o the Civil Code, the le*al institution o culpa

aquiliana ould have very little scope and application in actual lie. eath or

in6ury to persons and dama*e to property- throu*h any de*ree o ne*li*ence -

even the sli*htest - ould have to e Idemni7ed only throu*h the principle o

civil liaility arisin* rom a crime. In such a state o afairs, hat sphere ould

remain or cuasi-delitoor culpa aquiliana ?e are loath to impute to the

lama/er any intention to rin* aout a situation so asurd and anomalous.

$or are e, in the interpretation o the las, disposed to uphold the letter that

/illeth rather than the spirit that *iveth lie. ?e ill not use the literal meanin*

o the la to smother and render almost lieless a principle o such ancient

ori*in and such ull-*ron development as culpa aquilianaor cuasi-delito,

hich is conserved and made endurin* in articles !&2 to !!& o the BpanishCivil Code.

Becondary, to 7nd the accused *uilty in a criminal case, proo o *uilt eyond

reasonale dout is re0uired, hile in a civil case, preponderance o evidence

is suKcient to ma/e the deendant pay in dama*es. 3here are numerous

cases o criminal ne*li*ence hich can not e shon eyond reasonale

dout, ut can e proved y a preponderance o evidence. In such cases, the

deendant can and should e made responsile in a civil action under articles

!&2 to !!& o the Civil Code. @therise. there ould e many instances o

unvindicated civil ron*s. 1Ui jus !demni"ed remedium.1 9p. "2&,48 'hil.=

Fourthly, ecause o the road seep o the provisions o oth the 'enal Code

and the Civil Code on this su6ect, hich has *iven rise to the overlappin* or

concurrence o spheres already discussed, and or lac/ o understandin* o

the character and eKcacy o the action or culpa aquiliana, there has *ron

up a common practice to see/ dama*es only y virtue o the civil

responsiility arisin* rom a crime, or*ettin* that there is another remedy,

hich is y invo/in* articles !&2-!!& o the Civil Code. Althou*h this

haitual method is alloed y, our las, it has nevertheless rendered

practically useless and nu*atory the more e>peditious and efective remedy

ased on culpa aquiliana or culpa e#tra-contractual. In the present case, e

are as/ed to help perpetuate this usual course. ut e elieve it is hi*h time

e pointed out to the harms done y such practice and to restore the principleo responsiility or ault or ne*li*ence under articles !&2 et se0. o the Civil

Code to its ull ri*or. It is hi*h time e caused the stream o 0uasi-delict

or culpa aquilianato Lo on its on natural channel, so that its aters may

no lon*er e diverted into that o a crime under the 'enal Code. 3his ill, it is

elieved, ma/e or the etter sae*uardin* or private ri*hts ecause it realtor,

an ancient and additional remedy, and or the urther reason that an

independent civil action, not dependin* on the issues, limitations and results

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o a criminal prosecution, and entirely directed y the party ron*ed or his

counsel, is more li/ely to secure ade0uate and eKcacious redress. 9p. "2!, 48

'hil.=

Contrary to an immediate impression one mi*ht *et upon a readin* o the ore*oin*

e>cerpts rom the opinion in Earcia that the concurrence o the 'enal Code and the Civil

Code therein reerred to contemplate only acts o ne*li*ence and not intentional voluntary

acts - deeper reLection ould reveal that the thrust o the pronouncements therein is not so

limited, ut that in act it actually e>tends to ault or culpa. 3his can e seen in the reerence

made therein to the Bentence o the Bupreme Court o Bpain o Feruary !;, !!, supra,

hich involved a case o raud or estaa, not a ne*li*ent act. Indeed, Article !&8 o the Civil

Code o Bpain, in orce here at the time o Earcia, provided te>tually that oli*ations 1hich

are derived rom acts or omissions in hich ault or ne*li*ence, not punis$ale % la,

intervene shall e the su6ect o Chapter II, 3itle MH o this oo/ 9hich reers to 0uasi-

delicts.=1 And it is precisely the underline 0uali7cation, 1not punishale y la1, that Justice

ocoo emphasized could lead to an ultimo construction or interpretation o the letter o the

la that 1/illeth, rather than the spirit that *iveth lit- hence, the rulin* that 19?=e ill not

use the literal meanin* o the la to smother and render almost lieless a principle o suchancient ori*in and such ull-*ron development as culpa aquilianaorquasi-delito, hich is

conserved and made endurin* in articles !&2 to !!& o the Bpanish Civil Code.1 And so,

ecause Justice acoo as Chairman o the Code Commission that drated the ori*inal te>t

o the ne Civil Code, it is to e noted that the said Code, hich as enacted ater the

Earcia doctrine, no lon*er uses the term, !! not punishale y la,1 therey ma/in* it clear

that the concept o culpa aquiliana includes acts hich are criminal in character or in

violation o the penal la, hether voluntary or matter. 3hus, the correspondin* provisions

to said Article !&8 in the ne code, hich is Article !!"2, simply says, 1@li*ations derived

romquasi-delicto shall e *overned y the provisions o Chapter 2, 3itle MHII o this oo/,

9on quasi-delicts= and y special las.1 ore precisely, a ne provision, Article 2!44 o the

ne code provides

A)3. 2!44. )esponsiility or ault or ne*li*ence under the precedin* article is

entirely separate and distinct rom the civil liaility arisin* rom ne*li*ence

under the 'enal Code. ut the plaintif cannot recover dama*es tice or the

same act or omission o the deendant.

Accordin* to the Code Commission 13he ore*oin* provision 9Article 2!44= throu*h at 7rst

si*ht startlin*, is not so novel or e>traordinary hen e consider the e>act nature o

criminal and civil ne*li*ence. 3he ormer is a violation o the criminal la, hile the latter is

a 1culpa a0uiliana1 or 0uasi-delict, o ancient ori*in, havin* alays had its on oundation

and individuality, separate rom criminal ne*li*ence. Buch distinction eteen criminal

ne*li*ence and 1culpa e>tracontractual1 or 1cuasi-delito1 has een sustained y decision othe Bupreme Court o Bpain and maintained as clear, sound and perectly tenale y aura,

an outstandin* Bpanish 6urist. 3hereore, under the proposed Article 2!44, ac0uittal rom an

accusation o criminal ne*li*ence, hether on reasonale dout or not, shall not e a ar to

a suse0uent civil action, not or civil liaility arisin* rom criminal ne*li*ence, ut or

dama*es due to a 0uasi-delict or culpa a0uiliana. ut said article orestalls a doule

recovery.1, 9)eport o the Code= Commission, p. !"2.=

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Althou*h, a*ain, this Article 2!44 does seem to literally reer to only acts o ne*li*ence, the

same ar*ument o Justice acoo aout construction that upholds 1the spirit that *iveth lit-

rather than that hich is literal that /illeth the intent o the lama/er should e oserved in

applyin* the same. And considerin* that the preliminary chapter on human relations o the

ne Civil Code de7nitely estalishes the separaility and independence o liaility in a civil

action or acts criminal in character 9under Articles 2 to 82= rom the civil responsiility

arisin* rom crime 7>ed y Article !&& o the )evised 'enal Code, and, in a sense, the )ules

o Court, under Bections 2 and 8 9c=, )ule !!!, contemplate also the same separaility, it is

1more con*ruent ith the spirit o la, e0uity and 6ustice, and more in harmony ith modern

pro*ress1- to orro the elicitous relevant lan*ua*e in Ra'es vs. Atlantic. Gulf and (aci"c

Co., 4 'hil. 8#, to hold, as ?e do hold, that Article 2!4", here it reers to 1ault or

ne*li*encia covers not only acts 1not punishale y la1 ut also acts criminal in character,

hether intentional and voluntary or ne*li*ent. Conse0uently, a separate civil action lies

a*ainst the ofender in a criminal act, hether or not he is criminally prosecuted and ound

*uilty or ac0uitted, provided that the ofended party is not alloed, i he is actually char*ed

also criminally, to recover dama*es on oth scores, and ould e entitled in such

eventuality only to the i**er aard o the to, assumin* the aards made in the to cases

vary. In other ords, the e>tinction o civil liaility reerred to in 'ar. 9e= o Bection 8, )ule!!!, reers e>clusively to civil liaility ounded on Article !&& o the )evised 'enal Code,

hereas the civil liaility or the same act considered as a quasi-delictonly and not as a

crime is not estin*uished even y a declaration in the criminal case that the criminal act

char*ed has not happened or has not een committed y the accused. rieLy stated, ?e

here hold, in reiteration o Earcia, thatculpa aquiliana includes voluntary and ne*li*ent acts

hich may e punishale y la.4

It results, thereore, that the ac0uittal o )e*inal +ill in the criminal case has not

e>tin*uished his liaility or quasi-delict, hence that ac0uittal is not a ar to the instant

action a*ainst him.

Comin* no to the second issue aout the efect o )e*inalds emancipation y marria*e on

the possile civil liaility o Atty. +ill, his ather, it is also @ur considered opinion that the

conclusion o appellees that Atty. +ill is already ree rom responsiility cannot e upheld.

?hile it is true that parental authority is terminated upon emancipation o the child 9Article

824, Civil Code=, and under Article 84, emancipation ta/es place 1y the marria*e o the

minor 9child=1, it is, hoever, also clear that pursuant to Article 8, emancipation y

marria*e o the minor is not really ull or asolute. 3hus 19(=mancipation y marria*e or y

voluntary concession shall terminate parental authority over the childs person. It shall

enale the minor to administer his property as thou*h he ere o a*e, ut he cannot orro

money or alienate or encumer real property ithout the consent o his ather or mother, or

*uardian. +e can sue and e sued in court only ith the assistance o his ather, mother or*uardian.1

$o under Article 2!%&, 193=he oli*ation imposed y article 2!4" is demandale not only

or ones on acts or omissions, ut also or those o persons or hom one is responsile.

3he ather and, in case o his death or incapacity, the mother, are responsile. 3he ather

and, in case o his death or incapacity, the mother, are responsile or the dama*es caused

y the minor children ho live in their company.1 In the instant case, it is not controverted

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that )e*inald, althou*h married, as livin* ith his ather and *ettin* susistence rom him

at the time o the occurrence in 0uestion. Factually, thereore, )e*inald as still suservient

to and dependent on his ather, a situation hich is not unusual.

It must e orne in mind that, accordin* to anresa, the reason ehind the 6oint and solidary

liaility o presuncion ith their ofendin* child under Article 2!%& is that is the oli*ation o

the parent to supervise their minor children in order to prevent them rom causin* dama*e

to third persons. @n the other hand, the clear implication o Article 8, in providin* that a

minor emancipated y marria*e may not, nevertheless, sue or e sued ithout the

assistance o the parents, is that such emancipation does not carry ith it reedom to enter

into transactions or do any act that can *ive rise to 6udicial liti*ation. 9Bee anresa, Id., Hol.

II, pp. 4""-4"4, 44".= And surely, /illin* someone else invites 6udicial action. @therise

stated, the marria*e o a minor child does not relieve the parents o the duty to see to it that

the child, hile still a minor, does not *ive anserale or the orroin*s o money and

alienation or encumerin* o real property hich cannot e done y their minor married

child ithout their consent. 9Art. 85 anresa, supra.=

Accordin*ly, in @ur considered vie, Article 2!%& applies to Atty. +ill notithstandin* theemancipation y marria*e o )e*inald. +oever, inasmuch as it is evident that )e*inald is

no o a*e, as a matter o e0uity, the liaility o Atty. +ill has ecome millin*, susidiary to

that o his son.

?+()(F@)(, the order appealed rom is reversed and the trial court is ordered to proceed in

accordance ith the ore*oin* opinion. Costs a*ainst appellees.

)ernando *C$airman+, Antonio, and Martin, ., concur.

Concepcion r., , is on leave.

Martin, , as desinated to sit in t$e /econd 0ivision.

#&a$a!# O&non'

AINO,J, concurrin*

Article 2!4" o the Civil Code comprehends any culpale act, hich is lameorthy, hen

6ud*ed y accepted le*al standards. 13he Idea thus e>pressed is undoutedly oard enou*h

to include any rational conception o liaility or the tortious acts li/ely to e developed in

any society.1 9Btreet, J. in ayalt vs. Corporacion de ''. A*ustinos )ecoletos, 8 'hil. #%4,

"&&=. Bee article 8%, Civil Code and the rulin* that 1the inant torteasor is liale in a civil

action to the in6ured person in the same manner and to the same e>tent as an adult1 924

Am. Jur. %!2 cited y ocoo, J., in a*tiay vs. 3ian*co, 4; 'hil. #4", #4=.

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#&a$a!# O&non'

AINO,J, concurrin*

Article 2!4" o the Civil Code comprehends any culpale act, hich is lameorthy, hen

6ud*ed y accepted le*al standards. 13he Idea thus e>pressed is undoutedly oard enou*h

to include any rational conception o liaility or the tortious acts li/ely to e developed in

any society.1 9Btreet, J. in ayalt vs. Corporacion de ''. A*ustinos )ecoletos, 8 'hil. #%4,

"&&=. Bee article 8%, Civil Code and the rulin* that 1the inant torteasor is liale in a civil

action to the in6ured person in the same manner and to the same e>tent as an adult1 924

Am. Jur. %!2 cited y ocoo, J., in a*tiay vs. 3ian*co, 4; 'hil. #4", #4=.

G.R. No. 108017 A&$* 3, 199

MARIA /ENITA A. DLA, n "#$ o5n #"a*( and n #"a*( o( !"# no$ %"*d$#nRITEEN ELIA/ET+, /EERL MARIE and NAPOLEON II, a** '$na#d

DLA, petitioners,

vs.

T+E CORT O APPEAL, o$#$ E)"!" D:'on, +ON. TEODORO P. REGINO, n "'

%a&a%!y a' P$#'dn) ;d)# o( !"# R#)ona* T$a* Co$! Na!ona* Ca&!a* R#)on,

#

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@n ecemer 4, !%%, an altercation eteen eni*no 3orzuela and Atty. $apoleon ulay

occurred at the 1i* an* Ba Alaan*,1 Alaan* Hilla*e, untinlupa as a result o hich

eni*no 3orzuela, the security *uard on duty at the said carnival, shot and /illed Atty.

$apoleon ulay.

+erein petitioner aria enita A. ulay, ido o the deceased $apoleon ulay, in her on

ehal and in ehal o her minor children, 7led on Feruary %, !% an action or dama*es

a*ainst eni*no 3orzuela and herein private respondents Bae*uard Investi*ation and

Becurity Co., Inc., 91BAF(EDA)1= andNor Buper*uard Becurity Corp. 91BD'()EDA)1=,

alle*ed employers o deendant 3orzuela. 3he complaint, doc/eted as Civil Case $o. Q-%-

!4#! amon* others alle*es the olloin*

!. . . .

eendants BAF(EDA) I$H(B3IEA3I@$ A$ B(CD)I3G C@., I$C., 9eendant

Bae*uard= and BD'()EDA) B(CD)I3G C@)'@)A3I@$ 9eendant

Buper*uard= are corporations duly or*anized and e>istin* in accordance ith

'hilippine las, ith oKces at !&th Floor, anuacturers uildin*, Inc., 'lazaBanta Cruz, anila. 3hey are impleaded as alternative deendants or, hile

the ormer appears to e the employer o deendant ($IE$@ 3@)OD(A

9deendant 3@)OD(A=, the latter impliedly ac/noled*ed responsiility or

the acts o deendant 3@)OD(A y e>tendin* its sympathies to plaintifs.

eendant ($IE$@ 3@)OD(A is o le*al a*e, an employee o deendant

BAF(EDA) andNor deendant BD'()EDA) and, at the time o the incident

complained o, as under their control and supervision. . . .

8. @n ecemer 4, !%% at around %&& a.m., deendant 3@)OD(A, hile he

as on duty as security *uard at the 1i* an* sa Alaan*,1 Alaan* Hilla*e,untinlupa, etro anila shot and /illed $A'@(@$ H. DAG ith a .8%

calier revolver elon*in* to deendant BAF(EDA), andNor BD'()EDA)

9per 'olice )eport dated January 4, !%, copy attached as Anne> A=5

;. 3he incident resultin* in the death o $A'@(@$ H. DAG as due to the

concurrin* ne*li*ence o the deendants. eendant 3@)OD(AB anton and

rec/less dischar*e o the 7rearm issued to him y deendant BAF(EDA)

andNor BD'()EDA) as the immediate and pro>imate cause o the in6ury,

hile the ne*li*ence o deendant BAF(EDA) andNor BD'()EDA) consists

in its havin* ailed to e>ercise the dili*ence o a *ood ather o a amily in the

supervision and control o its employee to avoid the in6ury.

>>> >>> >>>

9Rollo, pp. !!4-!!%=

'etitioners prayed or actual, compensatory, moral and e>emplary dama*es, and attorneys

ees. 3he said Civil Case $o. Q-%-!4#! as raPed to ranch %; o the )e*ional 3rial Court

o Quezon City, presided y respondent Jud*e 3eodoro )e*ino.

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@n arch 2, !%, private respondent BD'()EDA) 7led a otion to ismiss on the *round

that the complaint does not state a valid cause o action. BD'()EDA) claimed that

3orzuelas act o shootin* ulay as eyond the scope o his duties, and that since the

alle*ed act o shootin* as committed ith delierate intent 9dolo=, the civil liaility thereor

is *overned y Article !&& o the )evised 'enal Code, hich states

Art. !&&. Civil liaility o a person *uilty o a elony. (very person criminally

liale or a elony is also civilly liale.

)espondent BD'()EDA) urther alle*ed that a complaint or dama*es ased on

ne*li*ence under Article 2!4" o the $e Civil Code, such as the one 7led y petitioners,

cannot lie, since the civil liaility under Article 2!4" applies only to 0uasi-ofenses under

Article 8"# o the )evised 'enal Code. In addition, the private respondent ar*ued that

petitioners 7lin* o the complaint is premature considerin* that the conviction o 3orzuela in

a criminal case is a condition sine qua non or the employers susidiary liaility 9Rollo, p.

##-#=.

)espondent BAF(EDA) also 7led a motion prayin* that it e e>cluded as deendant on the*round that deendant 3orzuela is not one o its employees 9Rollo, p. "=.

'etitioners opposed oth motions, statin* that their cause o action a*ainst the private

respondents is ased on their liaility under Article 2!%& o the $e Civil Code, hich

provides

Art. 2!%&. 3he oli*ation imposed y Article 2!4" is demandale not only or

ones on acts or omissions, ut also or those o persons or hom one is

responsile.

>>> >>> >>>

1mplo%ers s$all e liale for t$e damaes caused % t$eir emplo%ees and

$ouse$old $elpers actin it$in t$e scope of t$eir assined tas's, even

t$ou$ t$e former are not enaed in an% usiness or an industr%.

>>> >>> >>>

9(mphasis supplied=

'etitioners contended that a suit a*ainst alternative deendants is alloed under )ule 8,

Bection !8 o the )ules o Court. 3hereore, the inclusion o private respondents as

alternative deendants in the complaint is 6usti7ed y the olloin* the Initial Investi*ation

)eport prepared y 'at. ario 3uon shoin* that 3orzuela is an employee o BAF(EDA)5

and throu*h overt acts, BD'()EDA) e>tended its sympathies to petitioners 9Rollo, pp. ";

and %=.

eanhile, an Inormation dated arch 2!, !% char*in* eni*no 3orzuela ith homicide

as 7led eore the )e*ional 3rial Court o a/ati and as doc/eted as Criminal Case $o.

%-!%".

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@n April !8, !%, respondent Jud*e )e*ino issued an order *rantin* BD'()EDA)B motion

to dismiss and BAF(EDA)B motion or e>clusion as deendant. 3he respondent 6ud*e held

that the complaint did not state acts necessary or suKcient to constitute a 0uasi-delict

since it does not mention any ne*li*ence on the part o 3orzuela in shootin* $apoleon ulay

or that the same as done in the perormance o his duties. )espondent 6ud*e ruled that

mere alle*ations o the concurrin* ne*li*ence o the deendants 9private respondents

herein= ithout statin* the acts shoin* such ne*li*ence are mere conclusions o la

9Rollo, p. !&"=. )espondent 6ud*e also declared that the complaint as one or dama*es

ounded on crimes punishale under Articles !&& and !&8 o the )evised 'enal Code as

distin*uished rom those arisin* rom, 0uasi-delict. 3he dispositive portion o the order dated

April !8, !% states

?+()(F@)(, this Court holds that in vie o the material and ultimate acts

alle*ed in the veri7ed complaint and in accordance ith the applicale la on

the matter as ell as precedents laid don y the Bupreme Court, the

complaint a*ainst the alternative deendants Buper*uard Becurity Corporation

and Bae*uard Investi*ation and Becurity Co., Inc., must e and 9sic= it is

herey dismissed. 9Rollo, p. !!&=

3he aove order as aKrmed y the respondent court and petitioners motion or

reconsideration thereo as denied.

'etitioners ta/e e>ception to the assailed decision and insist that 0uasi-delicts are not

limited to acts o ne*li*ence ut also cover acts that are intentional and voluntary, citin*

Andamo v. IAC 9!! BC)A !# :!&

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)ule !!!. . . . .

Bec. 8. ?hen civil action may proceed independently In the cases provided

or in Articles 82, 88, 8; and 2!4" o the Civil Code o the 'hilippines, t$e

independent civil action $ic$ $as een reserved ma% e rou$t % t$e

o2ended part%, s$all proceed independentl% of t$e criminal action, and s$all

require onl% a preponderance of evidence. 9(mphasis supplied=

3he term 1physical in6uries1 under Article 88 has een held to include consummated,

rustrated and attempted homicide. 3hus, petitioners maintain that 3orzuelas prior

conviction is unnecessary since the civil action can proceed independently o the criminal

action. @n the other hand, it is the private respondents ar*ument that since the act as not

committed ith ne*li*ence, the petitioners have no cause o action under Articles 2!!" and

2!44 o the $e Civil Code. 3he civil action contemplated in Article 2!44 is not applicale to

acts committed ith delierate intent, ut only applies to 0uasi-ofenses under Article 8"# o

the )evised 'enal Code. 3orzuelas act o shootin* Atty. ulay to death, aside rom ein*

purely personal, as done ith delierate intent and could not have een part o his duties

as security *uard. And since Article 2!%& o the $e Civil Code covers only acts done ithinthe scope o the employees assi*ned tas/s, the private respondents cannot e held liale

or dama*es.

?e 7nd or petitioners.

It is undisputed that eni*no 3orzuela is ein* prosecuted or homicide or the atal shootin*

o $apoleon ulay. )ule !!! o the )ules on Criminal 'rocedure provides

Bec. !. Institution o criminal and civil actions. ?hen a criminal action is

instituted, the civil action or the recovery o civil liaility is impliedly

instituted ith the criminal action, unless t$e o2ended part% aives t$e civilaction , reserves $is ri$t to institute it separatel% or institutes t$e civil action

prior to t$e criminal action.

Buch civil action includes recovery o indemnity under the )evised 'enal Code,

and dama*es under Articles 82, 88, 8;, and 2!4" o the Civil Code o the

'hilippines arisin* rom the same act or omission o the accused. 9(mphasis

supplied=

It is ell-settled that the 7lin* o an independent civil action eore the prosecution in the

criminal action presents evidence is even ar etter than a compliance ith the re0uirement

o e>press reservation 9Ga/ult 'hilippines v. Court o Appeals, !& BC)A 8#4 :!&

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7lin* the action, made in his ar*ument or rie, ut rather y the complaint itsel, its

alle*ations and prayer or relie. 9e 3avera v. 'hilippine 3uerculosis Bociety, !!2 BC)A 2;8

:!%2amination o the complaint in the present case ould sho that the plaintifs,

petitioners herein, are invo/in* their ri*ht to recover dama*es a*ainst the private

respondents or their vicarious responsiility or the in6ury caused y eni*no 3orzuelas act

o shootin* and /illin* $apoleon ulay, as stated in para*raphs ! and 2 o the complaint.

Article 2!4" o the $e Civil Code provides

Art. 2!4". ?hoever y act or omission causes dama*e to another, there ein*

ault or ne*li*ence, is oli*ed to pay or the dama*e done. Buch ault or

ne*li*ence, i there is no pre-e>istin* contractual relation eteen the parties

is called a 0uasi-delict and is *overned y the provisions o this Chapter.

Contrary to the theory o private respondents, there is no 6usti7cation or limitin* the scope

o Article 2!4" o the Civil Code to acts or omissions resultin* rom ne*li*ence. ?ell-

entrenched is the doctrine that article 2!4" covers not only acts committed ith ne*li*ence,

ut also acts hich are voluntary and intentional. As ar ac/ as the de7nitive case o (lcanov. +ill 944 BC)A % :!44tinction o civil liaility reerred to in 'ar. 9e= o Bection 8, )ule!!!, reers e>clusively to civil liaility ounded on Article !&& o the )evised

'enal Code, hereas the civil liaility or the same act considered as 0uasi-

delict only and not as a crime is not e>tin*uished even y a declaration in the

criminal case that the criminal act char*ed has not happened or has not een

committed y the accused. rieLy stated, ?e here hold, in reiteration o

Earcia, that culpa aquiliana includes voluntar% and nelient acts $ic$ ma%

e punis$ale % la. 9(mphasis supplied=

3he same doctrine as echoed in the case oAndamo v. !ntermediate Appellate Court 9!!

BC)A !# :!&

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'rivate respondents sumit that the ord 1intentional1 in theAndamo case is inaccurate

oiter, and should e read as 1voluntary1 since intent cannot e coupled ith ne*li*ence as

de7ned y Article 8"# o the )evised 'enal Code. In the asence o more sustantial

reasons, this Court ill not distur the aove doctrine on the covera*e o Article 2!4".

'rivate respondents urther aver that Article 88 o the $e Civil Code applies only to in6uries

intentionally committed pursuant to the rulin* in arcia v. CA 9!2& BC)A !8 :!%8

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recovery o dama*es 9el ros +otel Corporation v. CA, 2!& BC)A 88 :!2

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AIR RANCE,petitioner,

vs.

RAAEL CARRACOO and !"# +ONORA/LE CORT O APPEAL,respondents.

:ic$auco, (icazo and Acaoili for petitioner.

Benzon ;illeas and emplary dama*es5

'88.2& representin* the diference in are eteen 7rst class and tourist class or the

portion o the trip an*/o/-)ome, these various amounts ith interest at the le*al rate, rom

the date o the 7lin* o the complaint until paid5 plus '8,&&&.&& or attorneys ees5 and the

costs o suit.

@n appeal,2the Court o Appeals sli*htly reduced the amount o reund on Carrascosos

plane tic/et rom '88.2& to '8%8.!&, and voted to aKrm the appealed decision 1in all other

respects1, ith costs a*ainst petitioner.

3he case is no eore us or revie on certiorari.

3he acts declared y the Court o Appeals as 1 ully supported y the evidence o record1,

are

'laintif, a civil en*ineer, as a memer o a *roup o ;% Filipino pil*rims that let

anila or ourdes on arch 8&, !#%.

@n arch 2%, !#%, the deendant, Air France, throu*h its authorized a*ent,

'hilippine Air ines, Inc., issued to plaintif a 17rst class1 round trip airplane tic/et

rom anila to )ome. From anila to an*/o/, plaintif travelled in 17rst class1, ut at

an*/o/, the ana*er o the deendant airline orced plaintif to vacate the 17rst

class1 seat that he as occupyin* ecause, in the ords o the itness (rnesto E.

Cuento, there as a 1hite man1, ho, the ana*er alle*ed, had a 1etter ri*ht1 to

the seat. ?hen as/ed to vacate his 17rst class1 seat, the plaintif, as as to e

e>pected, reused, and told deendants ana*er that his seat ould e ta/en over

his dead ody5 a commotion ensued, and, accordin* to said (rnesto E. Cuento,

1many o the Filipino passen*ers *ot nervous in the tourist class5 hen they ound

out that r. Carrascoso as havin* a hot discussion ith the hite man :mana*er

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complete 7ndin*s o act on all the issues properly laid eore it. ?e are as/ed to consider

acts avorale to petitioner, and then, to overturn the appellate courts decision.

Comin* into ocus is the constitutional mandate that 1$o decision shall e rendered y any

court o record ithout e>pressin* therein clearly and distinctly the acts and the la on

hich it is ased1.#3his is echoed in the statutory demand that a 6ud*ment determinin* the

merits o the case shall state 1clearly and distinctly the acts and the la on hich it is

ased15"and that 1(very decision o the Court o Appeals shall contain complete 7ndin*s o

act on all issues properly raised eore it1.4

A decision ith asolutely nothin* to support it is a nullity. It is open to direct attac/. %3he

la, hoever, solely insists that a decision state the 1essential ultimate acts1 upon hich

the courts conclusion is dran.A court o 6ustice is not hideound to rite in its decision

every it and piece o evidence !&presented y one party and the other upon the issues

raised. $either is it to e urdened ith the oli*ation 1to speciy in the sentence the

acts1$ic$ a part% 7considered as proved7. !!3his is ut a part o the mental process rom

hich the Court dras the essential ultimate acts. A decision is not to e so clo**ed ith

details such that proli>ity, i not conusion, may result. Bo lon* as the decision o the Courto Appeals contains the necessary acts to arrant its conclusions, it is no error or said court

to ithhold thererom 1any speci7c 7ndin* o acts ith respect to the evidence or the

deense1. ecause as this Court ell oserved, 13here is no la that so re0uires1. !2Indeed,

1the mere ailure to speciy 9in the decision= the contentions o the appellant and the

reasons or reusin* to elieve them is not suKcient to hold the same contrary to the

re0uirements o the provisions o la and the Constitution1. It is in this settin* that

in Manique, it as held that the mere act that the 7ndin*s 1ere ased entirely on the

evidence or the prosecution ithout ta/in* into consideration or even mentionin* the

appellants side in the controversy as shon y his on testimony1, ould not vitiate the

6ud*ment. !8I the court did not recite in the decision the testimony o each itness or, or

each item o evidence presented y, the deeated party, it does not mean that the court hasoverloo/ed such testimony or such item o evidence. !;At any rate, the le*al presumptions

are that oKcial duty has een re*ularly perormed, and that all the matters ithin an issue

in a case ere laid eore the court and passed upon y it. !#

Findin*s o act, hich the Court o Appeals is re0uired to ma/e, maye de7ned as 1the

ritten statement o the ultimate acts as ound y the court ... and essential to support the

decision and 6ud*ment rendered thereon1. !"3hey consist o the

courts 7conclusions7ith respect to t$e determinative facts in issue1. !4A 0uestion o la,

upon the other hand, has een declared as 1one hich does not call or an e>amination o

the proative value o the evidence presented y the parties.1 !%

2. y statute, 1only 0uestions o la may e raised1 in an appeal y certiorari rom a

6ud*ment o the Court o Appeals. !3hat 6ud*ment is conclusive as to the acts. It is not

appropriately the usiness o this Court to alter the acts or to revie the 0uestions o act. 2&

?ith these *uideposts, e no ace the prolem o hether the 7ndin*s o act o the Court

o Appeals support its 6ud*ment.

8. ?as Carrascoso entitled to the 7rst class seat he claims

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It is conceded in all 0uarters that on arch 2%, !#% he paid to and received rom petitioner

a 7rst class tic/et. ut petitioner asserts that said tic/et did not represent the true and

complete intent and a*reement o the parties5 that said respondent /ne that he did not

have con7rmed reservations or 7rst class on any speci7c Li*ht, althou*h he had tourist

class protection5 that, accordin*ly, the issuance o a 7rst class tic/et as no *uarantee that

he ould have a 7rst class ride, ut that such ould depend upon the availaility o 7rst

class seats.

3hese are matters hich petitioner has thorou*hly presented and discussed in its rie

eore the Court o Appeals under its third assi*nment o error, hich reads 13he trial court

erred in 7ndin* that plaintif had con7rmed reservations or, and a ri*ht to, 7rst class seats

on the 1de7nite1 se*ments o his 6ourney, particularly that rom Bai*on to eirut1. 2!

And, the Court o Appeals disposed o this contention thus

eendant seems to capitalize on the ar*ument that the issuance o a 7rst-class

tic/et as no *uarantee that the passen*er to hom the same had een issued,

ould e accommodated in the 7rst-class compartment, or as in the case o plaintifhe had yet to ma/e arran*ements upon arrival at every station or the necessary

7rst-class reservation. ?e are not impressed y such a reasonin*. ?e cannot

understand ho a reputale 7rm li/e deendant airplane company could have the

indiscretion to *ive out tic/ets it never meant to honor at all. It received the

correspondin* amount in payment o 7rst-class tic/ets and yet it alloed the

passen*er to e at the mercy o its employees. It is more in /eepin* ith the ordinary

course o usiness that the company should /no hether or riot the tic/ets it issues

are to e honored or not.22

$ot that the Court o Appeals is alone. 3he trial court similarly disposed o petitioners

contention, thus

@n the act that plaintif paid or, and as issued a 1First class1 tic/et, there can e no

0uestion. Apart rom his testimony, see plaintifs (>hiits 1A1, 1A-!1, 11, 1-!,1 1-21, 1C1

and 1C-!1, and deendants on itness, )aael Altona*a, con7rmed plaintifs testimony and

testi7ed as ollos

Q. In these tic/ets there are mar/s [email protected] From hat you /no, hat does this @R

mean

A. 3hat the space is con7rmed.

Q. Con7rmed or 7rst class

A. Ges, 17rst class1. 93ranscript, p. !"=

> > > > > > > > >

eendant tried to prove y the testimony o its itnesses uis Oaldaria*a and )aael

Altona*a that althou*h plaintif paid or, and as issued a 17rst class1 airplane tic/et, the

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tic/et as su6ect to con7rmation in +on*/on*. 3he court cannot *ive credit to the

testimony o said itnesses. @ral evidence cannot prevail over ritten evidence, and

plaintifs (>hiits 1A1, 1A-l1, 11, 1-l1, 1C1 and 1C-!1 elie the testimony o said itnesses,

and clearly sho that the plaintif as issued, and paid or, a 7rst class tic/et ithout any

reservation hatever.

Furthermore, as hereinaove shon, deendants on itness )aael Altona*a testi7ed that

the reservation or a 17rst class1 accommodation or the plaintif as con7rmed. 3he court

cannot elieve that ater such con7rmation deendant had a veral understandin* ith

plaintif that the 17rst class1 tic/et issued to him y deendant ould e su6ect to

con7rmation in +on*/on*. 28

?e have heretoore adverted to the act that e>cept or a sli*ht diference o a e pesos in

the amount reunded on Carrascosos tic/et, the decision o the Court o First Instance as

aKrmed y the Court o Appeals in all ot$er respects. ?e hold the vie that such a

6ud*ment o aKrmance has mer*ed the 6ud*ment o the loer court. 2;Implicit in that

aKrmance is a determination y the Court o Appeals that the proceedin* in the Court o

First Instance as ree rom pre6udicial error and 1all 0uestions raised y the assi*nments oerror and all 0uestions that mi*ht have een raised are to e re*arded as 7nally ad6udicated

a*ainst the appellant1. Bo also, the 6ud*ment aKrmed 1must e re*arded as ree rom all

error1. 2#?e reached this policy construction ecause nothin* in the decision o the Court o

Appeals on this point ould su**est that its 7ndin*s o act are in any ay at ar ith those

o the trial court. $or as said aKrmance y the Court o Appeals upon a *round or *rounds

diferent rom those hich ere made the asis o the conclusions o the trial court. 2"

I, as petitioner underscores, a 7rst-class-tic/et holder is not entitled to a 7rst class seat,

notithstandin* the act that seat availaility in speci7c Li*hts is therein con7rmed, then an

air passen*er is placed in the hollo o the hands o an airline. ?hat security then can a

passen*er have It ill alays e an easy matter or an airline aided y its employees, tostri/e out the very stipulations in the tic/et, and say that there as a veral a*reement to

the contrary. ?hat i the passen*er had a schedule to ul7ll ?e have lon* learned that, as a

rule, a ritten document spea/s a uniorm lan*ua*e5 that spo/en ord could e notoriously

unreliale. I only to achieve staility in the relations eteen passen*er and air carrier,

adherence to the tic/et so issued is desirale. Buch is the case here. 3he loer courts

reused to elieve the oral evidence intended to deeat the covenants in the tic/et.

3he ore*oin* are the considerations hich point to the conclusion that there are acts upon

hich the Court o Appeals predicated the 7ndin* that respondent Carrascoso had a 7rst

class tic/et and as entitled to a 7rst class seat at an*/o/, hich is a stopover in the

Bai*on to eirut le* o the Li*ht. 24?e perceive no 1elter o distortions y the Court o

Appeals o petitioners statement o its position1, as char*ed y petitioner. 2%$or do e

suscrie to petitioners accusation that respondent Carrascoso 1surreptitiously too/ a 7rst

class seat to provo/e an issue1. 2And this ecause, as petitioner states, Carrascoso ent to

see the ana*er at his oKce in an*/o/ 1to con7rm my seat and ecause rom Bai*on I as

told a*ain to see the ana*er1. 8&?hy, then, as he alloed to ta/e a 7rst class seat in the

plane at an*/o/, i he had no seat @r, i another had a etter ri*ht to the seat

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;. 'etitioner assails respondent courts aard o moral dama*es. 'etitioners trenchant claim

is that Carrascosos action is planted upon reach o contract5 that to authorize an aard or

moral dama*es there must e an averment o raud or ad aith5 8!and that the decision o

the Court o Appeals ails to ma/e a 7ndin* o ad aith. 3he pivotal alle*ations in the

complaint earin* on this issue are

8. 3hat ... plaintif entered into a contract o air carria*e ith the 'hilippine Air ines

or a valuale consideration, the latter actin* as *eneral a*ents or and in ehal o

the deendant, under hich said contract, plaintif as entitled to, as deendant

a*reed to urnish plaintif, First Class passa*e on deendants plane durin* the entire

duration o plaintifs tour o (urope ith +on*/on* as startin* point up to and until

plaintifs return trip to anila, ... .

;. 3hat, durin* the 7rst to le*s o the trip rom +on*/on* to Bai*on and rom Bai*on

to an*/o/, deendant urnished to the plaintif First Class accommodation ut only

ater protestations, ar*uments andNor insistence ere made y the plaintif ith

deendants employees.

#. 3hat 7nally, deendantfailed to provide First Class passa*e, ut instead urnished

plaintif only =ouristClass accommodations rom an*/o/ to 3eheran andNor

Casalanca, ... the plaintif has een compelledy deendants employees to leave

the First Class accommodation erths at an*/o/ after $e as alread% seated.

". 3hat conse0uently, the plaintif, desirin* no repetition o the inconvenience and

emarrassments rou*ht y deendants reach o contract as orced to ta/e a 'an

American ?orld Airays plane on his return trip rom adrid to anila.82

> > > > > > > > >

2. 3hat li/eise, as a result o deendants ailure to urnish First Class accommodations

aoresaid, plaintif sufered inconveniences, emarrassments, and humiliations, therey

causin* plaintif mental an*uish, serious an>iety, ounded eelin*s, social humiliation, and

the li/e in6ury, resultin* in moral dama*es in the amount o '8&,&&&.&&. 88

> > > > > > > > >

3he ore*oin*, in our opinion, sustantially aver )irst, 3hat there as a contract to urnish

plaintif a 7rst class passa*e coverin*, amon*st others, the an*/o/-3eheran le*5 /econd,

3hat said contract as reached hen petitioner ailed to urnish 7rst class transportation at

an*/o/5 and =$ird,that there as ad aith hen petitioners employee compelled

Carrascoso to leave his 7rst class accommodation erth 7after $e as alread%, seated7and

to ta/e a seat in the tourist class, y reason o hich he sufered inconvenience,

emarrassments and humiliations, therey causin* him mental an*uish, serious an>iety,

ounded eelin*s and social humiliation, resultin* in moral dama*es. It is true that there is

no speci7c mention o the term ad fait$in the complaint. ut, the inerence o ad aith is

there, it may e dran rom the acts and circumstances set orth therein. 8;3he contract

as averred to estalish the relation eteen the parties. ut the stress o the action is put

on ron*ul e>pulsion.

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Quite apart rom the ore*oin* is that 9a= ri*ht the start o the trial, respondents counsel

placed petitioner on *uard on hat Carrascoso intended to prove 3hat hile sittin* in the

plane in an*/o/, Carrascoso as oustedy petitioners mana*er ho *ave his seat to a

hite man5 8#and 9= evidence o ad aith in the ul7llment o the contract as presented

ithout o6ection on the part o the petitioner. It is, thereore, unnecessary to in0uire as to

hether or not there is suKcient averment in the complaint to 6ustiy an aard or moral

dama*es. e7ciency in the complaint, i any, as cured y the evidence. An amendment

thereo to conorm to the evidence is not even re0uired. 8"@n the 0uestion o ad aith, the

Court o Appeals declared

3hat the plaintif as orced out o his seat in the 7rst class compartment o the

plane elon*in* to the deendant Air France hile at an*/o/, and as transerred to

the tourist class not only ithout his consent ut a*ainst his ill, has een suKciently

estalished y plaintif in his testimony eore the court, corroorated y the

correspondin* entry made y the purser o the plane in his noteoo/ hich notation

reads as ollos

1First-class passen*er as orced to *o to the tourist class a*ainst his ill, andthat the captain reused to intervene1,

and y the testimony o an eye-itness, (rnesto E. Cuento, ho as a co-passen*er.

3he captain o the plane ho as as/ed y the mana*er o deendant company at

an*/o/ to intervene even reused to do so. It is noteorthy that no one on ehal o

deendant ever contradicted or denied this evidence or the plaintif. It could have

een easy or deendant to present its mana*er at an*/o/ to testiy at the trial o

the case, or yet to secure his disposition5 ut deendant did neither. 84

3he Court o appeals urther stated

$either is there evidence as to hether or not a prior reservation as made y the

hite man. +ence, i the employees o the deendant at an*/o/ sold a 7rst-class

tic/et to him hen all the seats had already een ta/en, surely the plaintif should

not have een pic/ed out as the one to sufer the conse0uences and to e su6ected

to the humiliation and indi*nity o ein* e6ected rom his seat in the presence o

others. Instead o e>plainin* to the hite man the improvidence committed y

deendants employees, the mana*er adopted the more drastic step o oustin* the

plaintif ho as then saely ensconsced in his ri*htul seat. ?e are stren*thened in

our elie that this proaly as hat happened there, y the testimony o

deendants itness )aael Altona*a ho, hen as/ed to e>plain the meanin* o the

letters [email protected] appearin* on the tic/ets o plaintif, said 1that the space is con7rmed

or 7rst class. i/eise, Oenaida Faustino, another itness or deendant, ho as the

chie o the )eservation @Kce o deendant, testi7ed as ollos

1Q +o does the person in the tic/et-issuin* oKce /no hat reservation the

passen*er has arran*ed ith you

A 3hey call us up y phone and as/ or the con7rmation.1 9t.s.n., p. 2;4, June

!, !#=

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In this connection, e 0uote ith approval hat the trial Jud*e has said on this point

?hy did the, usin* the ords o itness (rnesto E. Cuento, 1hite man1 have

a 1etter ri*ht1 to the seat occupied y r. Carrascoso 3he record is silent.

3he deendant airline did not prove 1any etter1, nay, any ri*ht on the part o

the 1hite man1 to the 1First class1 seat that the plaintif as occupyin* and

or hich he paid and as issued a correspondin* 17rst class1 tic/et.

I there as a 6usti7ed reason or the action o the deendants ana*er in

an*/o/, the deendant could have easily proven it y havin* ta/en the

testimony o the said ana*er y deposition, ut deendant did not do so5 the

presumption is that evidence illully suppressed ould e adverse i

produced :Bec. ", par 9e=, )ules o Courtpress 7ndin* o ad fait$ in

the 6ud*ment o the Court o First Instance, thus

3he evidence shos that the deendant violated its contract o transportation

ith plaintif in ad aith, ith the a**ravatin* circumstances that deendants

ana*er in an*/o/ ent to the e>tent o threatenin* the plaintif in the

presence o many passen*ers to have him thron out o the airplane to *ive

the 17rst class1 seat that he as occupyin* to, a*ain usin* the ords o the

itness (rnesto E. Cuento, a 1hite man1 hom he 9deendants ana*er=

ished to accommodate, and the deendant has not proven that this 1hite

man1 had any 1etter ri*ht1 to occupy the 17rst class1 seat that the plaintif

as occupyin*, duly paid or, and or hich the correspondin* 17rst class1

tic/et as issued y the deendant to him.;&

#. 3he responsiility o an employer or the tortious act o its employees need not e

essayed. It is ell settled in la. ;! For the illul malevolent act o petitioners mana*er,

petitioner, his employer, must anser. Article 2! o the Civil Code says

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A)3. 2!. Any person ho illully causes loss or in6ury to another in a manner that is

contrary to morals, *ood customs or pulic policy shall compensate the latter or the

dama*e.

In parallel circumstances, e applied the ore*oin* le*al precept5 and, e held that upon the

provisions o Article 22! 9!&=, Civil Code, moral dama*es are recoverale. ;2

". A contract to transport passen*ers is 0uite diferent in /ind and de*ree rom any other

contractual relation. ;8And this, ecause o the relation hich an air-carrier sustains ith the

pulic. Its usiness is mainly ith the travellin* pulic. It invites people to avail o the

comorts and advanta*es it ofers. 3he contract o air carria*e, thereore, *enerates a

relation attended ith a pulic duty. $e*lect or maleasance o the carriers employees,

naturally, could *ive *round or an action or dama*es.

'assen*ers do not contract merely or transportation. 3hey have a ri*ht to e treated y the

carriers employees ith /indness, respect, courtesy and due consideration. 3hey are

entitled to e protected a*ainst personal misconduct, in6urious lan*ua*e, indi*nities and

auses rom such employees. Bo it is, that any rule or discourteous conduct on the part oemployees toards a passen*er *ives the latter an action or dama*es a*ainst the carrier. ;;

3hus, 1?here a steamship company ;#had accepted a passen*ers chec/, it as a reach o

contract and a tort, *ivin* a ri*ht o action or its a*ent in the presence o third persons to

alsely notiy her that the chec/ as orthless and demand payment under threat o

e6ection, thou*h the lan*ua*e used as not insultin* and she as not e6ected.1 ;"And this,

ecause, althou*h the relation o passen*er and carrier is 1contractual oth in ori*in and

nature1 nevertheless 1the act that rea/s the contract may e also a tort1. ;4And in another

case, 1?here a passen*er on a railroad train, hen the conductor came to collect his are

tendered him the cash are to a point here the train as scheduled not to stop, and told

him that as soon as the train reached such point he ould pay the cash are rom that pointto destination, there as nothin* in the conduct o the passen*er hich 6usti7ed the

conductor in usin* insultin* lan*ua*e to him, as y callin* him a lunatic,1 ;%and the

Bupreme Court o Bouth Carolina there held the carrier liale or the mental suferin* o said

passen*er.4ap$>l.n?t

'etitioners contract ith Carrascoso is one attended ith pulic duty. 3he stress o

Carrascosos action as e have said, is placed upon his ron*ul e>pulsion. 3his is a

violation o pulic duty y the petitioner air carrier a case o quasi-delict. ama*es are

proper.

4. 'etitioner dras our attention to respondent Carrascosos testimony, thus

Q Gou mentioned aout an attendant. ?ho is that attendant and purser

A ?hen e let already that as already in the trip I could not help it. Bo one o

the Li*ht attendants approached me and re0uested rom me my tic/et and I said,

?hat or and she said, 1?e ill note that you transerred to the tourist class1. I said,

1$othin* o that /ind. 3hat is tantamount to acceptin* my transer.1 And I also said,

1Gou are not *oin* to note anythin* there ecause I am protestin* to this transer1.

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Q ?as she ale to note it

A $o, ecause I did not *ive my tic/et.

Q Aout that purser

A ?ell, the seats there are so close that you eel uncomortale and you dont have

enou*h le* room, I stood up and I ent to the pantry that as ne>t to me and the

purser as there. +e told me, 1I have recorded the incident in my noteoo/.1 +e read

it and translated it to me ecause it as recorded in French 1First class

passen*er as orced to *o to the tourist class a*ainst his ill, and that the captain

reused to intervene.1

r. HA3(

I move to stri/e out the last part o the testimony o the itness ecause the est

evidence ould e the notes. Gour +onor.

C@D)3

I ill allo that as part o his testimony. ;

'etitioner char*es that the 7ndin* o the Court o Appeals that the purser made an entry in

his noteoo/ readin* 1First class passen*er as orced to *o to the tourist class a*ainst his

ill, and that the captain reused to intervene1 is predicated upon evidence :Carrascosos

testimony aove< hich is incompetent. ?e do not thin/ so. 3he su6ect o in0uiry is not the

entry, ut the ouster incident. 3estimony on the entry does not come ithin the proscription

o the est evidence rule. Buch testimony is admissile.;a

esides, rom a readin* o the transcript 6ust 0uoted, hen the dialo*ue happened, the

impact o the startlin* occurrence as still resh and continued to e elt. 3he e>citement

had not as yet died don. Btatements then, in this environment, are admissile as part o

the res estae. #&For, they *ro 1out o the nervous e>citement and mental and physical

condition o the declarant1. #!3he utterance o the purser re*ardin* his entry in the

noteoo/ as spontaneous, and related to the circumstances o the ouster incident. Its

trustorthiness has een *uaranteed. #2It thus escapes the operation o the hearsay rule. It

orms part o the res estae.

At all events, the entry as made outside the 'hilippines. And, y an employee o petitioner.

It ould have een an easy matter or petitioner to have contradicted Carrascosos

testimony. I it ere really true that no such entry as made, the deposition o the purser

could have cleared up the matter.

?e, thereore, hold that the transcried testimony o Carrascoso is admissile in evidence.

%. (>emplary dama*es are ell aarded. 3he Civil Code *ives the court ample poer to

*rant e>emplary dama*es in contracts and 0uasi- contracts. 3he only condition is that

deendant should have 1acted in a anton, raudulent, rec/less, oppressive, or malevolent

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manner.1 #83he manner o e6ectment o respondent Carrascoso rom his 7rst class seat 7ts

into this le*al precept. And this, in addition to moral dama*es.#;

. 3he ri*ht to attorneys ees is ully estalished. 3he *rant o e>emplary dama*es 6usti7es

a similar 6ud*ment or attorneys ees. 3he least that can e said is that the courts elo elt

that it is ut 6ust and e0uitale that attorneys ees e *iven. ##?e do not intend to rea/

aith ith the tradition that discretion ell e>ercised as it as here should not e

distured.

!&. Questioned as e>cessive are the amounts decreed y oth the trial court and the Court

o Appeals, thus '2#,&&&.&& as moral dama*es5 '!&,&&&.&&, y ay o e>emplary dama*es,

and '8,&&&.&& as attorneys ees. 3he tas/ o 7>in* these amounts is primarily ith the trial

court.#"3he Court o Appeals did not interere ith the same. 3he dictates o *ood sense

su**est that e *ive our imprimatur thereto. ecause, the acts and circumstances point to

the reasonaleness thereo.#4

@n alance, e say that the 6ud*ment o the Court o Appeals does not sufer rom

reversile error. ?e accordin*ly vote to aKrm the same. Costs a*ainst petitioner. Boordered.

Concepcion, C.., Re%es, .B.:., Barrera, 0izon, Reala, Ma'alintal,

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DAID TALOR,plaintif-appellee,

vs.

T+E MANILA ELECTRIC RAILROAD AND LIG+T COMPAN,deendant-appellant.

@. H. :arence, for appellant.

@. :. @ri$t, for appellee.

CARON,J.:

An action to recover dama*es or the loss o an eye and other in6uries, instituted y avid

3aylor, a minor, y his ather, his nearest relative.

3he deendant is a orei*n corporation en*a*ed in the operation o a street railay and an

electric li*ht system in the city o anila. Its poer plant is situated at the eastern end o a

small island in the 'asi* )iver ithin the city o anila, /non as the Isla del 'rovisor. 3he

poer plant may e reached y oat or y crossin* a ootrid*e, impassale or vehicles, at

the esterly end o the island.

3he plaintif, avid 3aylor, as at the time hen he received the in6uries complained o, !#

years o a*e, the son o a mechanical en*ineer, more mature than the avera*e oy o his

a*e, and havin* considerale aptitude and trainin* in mechanics.

@n the 8&th o Beptemer, !, plaintif, ith a oy named anuel Claparols, aout !2

years o a*e, crossed the ootrid*e to the Isla del 'rovisor, or the purpose o visitin* one

urphy, an employee o the deendant, ho and promised to ma/e them a cylinder or a

miniature en*ine. Findin* on in0uiry that r. urphy as not in his 0uarters, the oys,

impelled apparently y youthul curiosity and perhaps y the unusual interest hich oth

seem to have ta/en in machinery, spent some time in anderin* aout the companys

premises. 3he visit as made on a Bunday aternoon, and it does not appear that they saor spo/e to anyone ater leavin* the poer house here they had as/ed or r. urphy.

Ater atchin* the operation o the travellin* crane used in handlin* the deendants coal,

they al/ed across the open space in the nei*horhood o the place here the company

dumped in the cinders and ashes rom its urnaces. +ere they ound some tenty or thirty

rass ulminatin* caps scattered on the *round. 3hese caps are appro>imately o the size

and appearance o small pistol cartrid*es and each has attached to it to lon* thin ires y

means o hich it may e dischar*ed y the use o electricity. 3hey are intended or use in

the e>plosion o lastin* char*es o dynamite, and have in themselves a considerale

e>plosive poer. Ater some discussion as to the onership o the caps, and their ri*ht to

ta/e them, the oys pic/ed up all they could 7nd, hun* them on stic/, o hich each too/

end, and carried them home. Ater crossin* the ootrid*e, they met a little *irl named Jessie

Adrian, less than years old, and all three ent to the home o the oy anuel. 3he oys

then made a series o e>periments ith the caps. 3hey trust the ends o the ires into an

electric li*ht soc/et and otained no result. 3hey ne>t tried to rea/ the cap ith a stone

and ailed. anuel loo/ed or a hammer, ut could not 7nd one. 3hen they opened one o

the caps ith a /nie, and 7ndin* that it as 7lled ith a yelloish sustance they *ot

matches, and avid held the cap hile anuel applied a li*hted match to the contents. An

e>plosion olloed, causin* more or less serious in6uries to all three. Jessie, ho hen the

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oys proposed puttin* a match to the contents o the cap, ecame ri*htened and started to

run aay, received a sli*ht cut in the nec/. anuel had his hand urned and ounded, and

avid as struc/ in the ace y several particles o the metal capsule, one o hich in6ured

his ri*ht eye to such an e>tent as to the necessitate its removal y the sur*eons ho ere

called in to care or his ounds.

3he evidence does de7nitely and conclusively disclose ho the caps came to e on the

deendants premises, nor ho lon* they had een there hen the oys ound them. It

appears, hoever, that some months eore the accident, durin* the construction o the

deendants plant, detonatin* caps o the same size and /ind as those ound y the oys

ere used in sin/in* a ell at the poer plant near the place here the caps ere ound5

and it also appears that at or aout the time hen these caps ere ound, similarly caps

ere in use in the construction o an e>tension o deendants street car line to Fort ?illiam

cRinley. 3he caps hen ound appeared to the oys ho pic/ed them up to have een lyin*

or a considerale time, and rom the place here they ere ound ould seem to have

een discarded as detective or orthless and 7t only to e thron upon the ruish heap.

$o measures seems to have een adopted y the deendant company to prohiit or preventvisitors rom enterin* and al/in* aout its premises unattended, hen they elt disposed

so to do. As admitted in deendant counsels rie, 1it is undoutedly true that children in

their play sometimes crossed the oot rid*e to the islands51 and, e may add, roamed

aout at ill on the uninclosed premises o the deendant, in the nei*horhood o the place

here the caps ere ound. 3here is evidence that any efort ever as made to orid these

children rom visitin* the deendant companys premises, althou*h it must e assumed that

the company or its employees ere aare o the act that they not inre0uently did so.

3o years eore the accident, plaintif spent our months at sea, as a cain oy on one o

the interisland transports. ater he too/ up or/ in his athers oKce, learnin* mechanical

drain* and mechanical en*ineerin*. Aout a month ater his accident he otainedemployment as a mechanical dratsman and continued in that employment or si> months at

a salary o '2.#& a day5 and it appears that he as a oy o more than avera*e intelli*ence,

taller and more mature oth mentally and physically than most oys o 7teen.

3he acts set out in the ore*oin* statement are to our mind ully and conclusively

estalished y the evidence o record, and are sustantially admitted y counsel. 3he only

0uestions o act hich are seriously disputed are plaintifs alle*ations that the caps hich

ere ound y plaintif on deendant companys premises ere the property o the

deendant, or that they had come rom its possession and control, and that the company or

some o its employees let them e>posed on its premises at the point here they ere

ound.

3he evidence in support o these alle*ations is mea*er, and the deendant company,

apparently relyin* on the rule o la hich places the urden o proo o such alle*ations

upon the plaintif, ofered no evidence in reuttal, and insists that plaintif ailed in his proo.

?e thin/, hoever, that plaintifs evidence is suKcient to sustain a 7ndin* in accord ith his

alle*ations in this re*ard.

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It as proven that caps, similar to those ound y plaintif, ere used, more or less

e>tensively, on the cRinley e>tension o the deendant companys trac/5 that some o

these caps ere used in lastin* a ell on the companys premises a e months eore the

accident5 that not ar rom the place here the caps ere ound the company has a

storehouse or the materials, supplies and so orth, used y it in its operations as a street

railay and a purveyor o electric li*ht5 and that the place, in the nei*horhood o hich the

caps ere ound, as ein* used y the company as a sort o dumpin* *round or ashes and

cinders. Fulminatin* caps or detonators or the dischar*e y electricity o lastin* char*es

y dynamite are not articles in common use y the avera*e citizen, and under all the

circumstances, and in the asence o all evidence to the contrary, e thin/ that the

discovery o tenty or thirty o these caps at the place here they ere ound y the

plaintif on deendants premises airly 6usti7es the inerence that the deendant company

as either the oner o the caps in 0uestion or had the caps under its possession and

control. ?e thin/ also that the evidence tends to disclose that these caps or detonators ere

illully and /noin*ly thron y the company or its employees at the spot here they ere

ound, ith the e>pectation that they ould e uried out o the si*ht y the ashes hich it

as en*a*ed in dumpin* in that nei*horhood, they ein* old and perhaps deective5 and,

hoever this may e, e are satis7ed that the evidence is suKcient to sustain a 7ndin* thatthe company or some o its employees either illully or throu*h an oversi*ht let them

e>posed at a point on its premises hich the *eneral pulic, includin* children at play,

here not prohiited rom visitin*, and over hich the company /ne or ou*ht to have

/non that youn* oys ere li/ely to roam aout in pastime or in play.

Counsel or appellant endeavors to ea/en or destroy the proative value o the acts on

hich these conclusions are ased y intimidatin* or rather assumin* that the lastin* or/

on the companys ell and on its cRinley e>tension as done y contractors. It as

conclusively proven, hoever, that hile the or/man employed in lastin* the ell as

re*ularly employed y J. E. ?hite and Co., a 7rm o contractors, he did the or/ on the ell

directly and immediately under the supervision and control o one o deendant companys

oremen, and there is no proo hatever in the record that the lastin* on the cRinley

e>tension as done y independent contractors. @nly one itness testi7ed upon this point,

and hile he stated that he understood that a part o this or/ as done y contract, he

could not say so o his on /noled*e, and /ne nothin* o the terms and conditions o the

alle*ed contract, or o the relations o the alle*ed contractor to the deendant company. 3he

act havin* een proven that detonatin* caps ere more or less e>tensively employed on

or/ done y the deendant companys directions and on its ehal, e thin/ that the

company should have introduced the necessary evidence to support its contention i it

ished to avoid the not unreasonale inerence that it as the oner o the material used in

these operations and that it as responsile or tortious or ne*li*ent acts o the a*ents

employed therein, on the *round that this or/ had een intrusted to independent

contractors as to hose acts the ma>im respondent superior should not e applied. I thecompany did not in act on or ma/e use o caps such as those ound on its premises, as

intimated y counsel, it as a very simple matter or it to prove that act, and in the

asence o such proo e thin/ that the other evidence in the record suKciently estalishes

the contrary, and 6usti7es the court in drain* the reasonale inerence that the caps ound

on its premises ere its property, and ere let here they ere ound y the company or

some o its employees.

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'laintif appears to have rested his case, as did the trial 6ud*e his decision in plaintifs avor,

upon the provisions o article !&% o the Civil Code read to*ether ith articles !&2, !&8,

and !&% o that code.

A)3. !&% @li*ations are created y la, y contracts, y 0uasi-contracts, and illicit

acts and omissions or y those in hich any /ind o ault or ne*li*ence occurs.

A)3. !&2 A person ho y an act or omission causes dama*e to another hen there

is ault or ne*li*ence shall e oli*ed to repair the dama*e so done.

A)3. !&8 3he oli*ation imposed y the precedin* article is demandale, not only

or personal acts and omissions, ut also or those o the persons or hom they

should e responsile.

3he ather, and on his death or incapacity the mother, is liale or the dama*es

caused y the minors ho live ith them.

>>> >>> >>>

@ners or directors o an estalishment or enterprise are e0ually liale or dama*es

caused y their employees in the service o the ranches in hich the latter may e

employed or on account o their duties.

>>> >>> >>>

3he liaility reerred to in this article shall cease hen the persons mentioned therein

prove that they employed all the dili*ence o a *ood ather o a amily to avoid the

dama*e.

A)3. !&% 3he oners shall also e liale or the dama*e caused

! y the e>plosion o machines hich may not have een cared or ith due

dili*ence, and or /indlin* o e>plosive sustances hich may not have een placed

in a sae and proper place.

Counsel or the deendant and appellant rests his appeal strictly upon his contention that the

acts proven at the trial do not estalished the liaility o the deendant company under the

provisions o these articles, and since e a*ree ith this vie o the case, it is not necessary

or us to consider the various 0uestions as to orm and the ri*ht o action 9analo*ous to

those raised in the case o )a/es vs. Atlantic, Eul and 'aci7c Co., 4 'hil. )ep., 8#=, hich

ould, perhaps, e involved in a decision aKrmin* the 6ud*ment o the court elo.

?e a*ree ith counsel or appellant that under the Civil Code, as under the *enerally

accepted doctrine in the Dnited Btates, the plaintif in an action such as that under

consideration, in order to estalish his ri*ht to a recovery, must estalish y competent

evidence

9!= ama*es to the plaintif.

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92= $e*li*ence y act or omission o hich deendant personally, or some person or

hose acts it must respond, as *uilty.

98= 3he connection o cause and efect eteen the ne*li*ence and the dama*e.

3hese proposition are, o course, elementary, and do not admit o discussion, the real

diKculty arisin* in the application o these principles to the particular acts developed in the

case under consideration.

It is clear that the accident could not have happened and not the ulminatin* caps een let

e>posed at the point here they ere ound, or i their oner had e>ercised due care in

/eepin* them in an appropriate place5 ut it is e0ually clear that plaintif ould not have

een in6ured had he not, or his on pleasure and convenience, entered upon the

deendants premises, and strolled around thereon ithout the e>press permission o the

deendant, and had he not pic/ed up and carried aay the property o the deendant hich

he ound on its premises, and had he not thereater delierately cut open one o the caps

and applied a match to its contents.

ut counsel or plaintif contends that ecause o plaintifs youth and ine>perience, his

entry upon deendant companys premises, and the intervention o his action eteen the

ne*li*ent act o deendant in leavin* the caps e>posed on its premises and the accident

hich resulted in his in6ury should not e held to have contriuted in any ise to the

accident, hich should e deemed to e the direct result o deendants ne*li*ence in

leavin* the caps e>posed at the place here they ere ound y the plaintif, and this latter

the pro>imate cause o the accident hich occasioned the in6uries sustained y him.

In support o his contention, counsel or plaintif relies on the doctrine laid don in many o

the courts o last resort in the Dnited Btates in the cases /non as the 13orpedo1 and

13urntale1 cases, and the cases ased thereon.

In a typical cases, the 0uestion involved has een hether a railroad company is liale or

an in6ury received y an inant o tender years, ho rom mere idle curiosity, or or the

purposes o amusement, enters upon the railroad companys premises, at a place here the

railroad company /ne, or had *ood reason to suppose, children ould e li/ely to come,

and there ound e>plosive si*nal torpedoes let une>posed y the railroad companys

employees, one o hich hen carried aay y the visitor, e>ploded and in6ured him5 or

here such inant ound upon the premises a dan*erous machine, such as a turntale, let in

such condition as to ma/e it proale that children in playin* ith it ould e e>posed to

accident or in6ury thererom and here the inant did in act sufer in6ury in playin* ith such

machine.

In these, and in *reat variety o similar cases, the *reat ei*ht o authority holds the oner

o the premises liale.

As laid don in Railroad Co. vs. /tout 9!4 ?all. 9%; D. B.=, "#4=, herein the principal

0uestion as hether a railroad company as liale or in in6ury received y an inant hile

upon its premises, rom idle curiosity, or or purposes o amusement, i such in6ury as,

under circumstances, attriutale to the ne*li*ence o the company=, the principles on

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hich these cases turn are that 1hile a railroad company is not ound to the same de*ree

o care in re*ard to mere stran*ers ho are unlaully upon its premises that it oes to

passen*ers conveyed y it, it is not e>empt rom responsiility to such stran*ers or in6uries

arisin* rom its ne*li*ence or rom its tortious acts51 and that 1the conduct o an inant o

tender years is not to e 6ud*ed y the same rule hich *overns that o adult. ?hile it is the

*eneral rule in re*ard to an adult that to entitle him to recover dama*es or an in6ury

resultin* rom the ault or ne*li*ence o another he must himsel have een ree rom ault,

such is not the rule in re*ard to an inant o tender years. 3he care and caution re0uired o a

child is accordin* to his maturity and capacity only, and this is to e determined in each

case y the circumstances o the case.1

3he doctrine o the case o Railroad Compan% vs. /tout as vi*orously controverted and

sharply criticized in several state courts, and the supreme court o ichi*an in the case

o R%an vs. =oar 9!2% ich., ;"8= ormally repudiated and disapproved the doctrine o the

3urntale cases, especially that laid don in Railroad Compan% vs. /tout, in a very ale

decision herein it held, in the lan*ua*e o the syllaus 9!= 3hat the oner o the land is not

liale to trespassers thereon or in6uries sustained y them, not due to his anton or illul

acts5 92= that no e>ception to this rule e>ists in avor o children ho are in6ured ydan*erous machinery naturally calculated to attract them to the premises5 98= that an

invitation or license to cross the premises o another can not e predicated on the mere act

that no steps have een ta/en to interere ith such practice5 9;= that there is no diference

eteen children and adults as to the circumstances that ill arrant the inerence o an

invitation or a license to enter upon anothers premises.

Bimilar criticisms o the opinion in the case o Railroad Compan% vs. /tout ere indul*ed in

y the courts in Connecticut and assachusetts. 9$olan vs. )ailroad Co., #8 Conn., ;"!5 !#;

ass., 8;=. And the doctrine has een 0uestioned in ?isconsin, 'ennsylvania, $e

+ampshire, and perhaps in other Btates.

@n the other hand, many i not most o the courts o last resort in the Dnited Btates, citin*

and approvin* the doctrine laid don in (n*land in the leadin* case o :%nc$ vs. 9urdin 9!

Q. ., 2, 8#, 8"=, lay don the rule in these cases in accord ith that announced in

the Railroad Compan% vs. /tout 9supra=, and the Bupreme Court o the Dnited Btates, in a

unanimous opinion delivered y Justice +arlan in the case o Union (aci"c Raila% Co. vs.

Mc0onal and reconsidered the doctrine laid don in )ailroad Co. vs. Btout, and ater an

e>haustive and critical analysis and revie o many o the ad6ud*ed cases, oth (n*lish and

American, ormally declared that it adhered 1to the principles announced in the case

o Railroad Co. vs. /tout.1

In the case o Union (aci"c Raila% Co. vs. Mac0onald 9supra= the acts ere as ollos 3he

plaintif, a oy !2 years o a*e, out o curiosity and or his on pleasure, entered upon and

visited the deendants premises, ithout deendants e>press permission or invitation, and

hile there, as y accident in6ured y allin* into a urnin* slac/ pile o hose e>istence he

had no /noled*e, ut hich had een let y deendant on its premises ithout any ence

around it or anythin* to *ive arnin* o its dan*erous condition, althou*h deendant /ne or

had reason the interest or curiosity o passers-y. @n these acts the court held that the

plaintif could not e re*arded as a mere trespasser, or hose saety and protection hile

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on the premises in 0uestion, a*ainst the unseen dan*er reerred to, the deendant as

under no oli*ation to ma/e provision.

?e 0uote at len*th rom the discussion y the court o the application o the principles

involved to the acts in that case, ecause hat is said there is stri/in*ly applicale in the

case at ar, and ould seem to dispose o deendants contention that, the plaintif in this

case ein* a trespasser, the deendant company oed him no duty, and in no case could e

held liale or in6uries hich ould not have resulted ut or the entry o plaintif on

deendants premises.

?e adhere to the principles announced in Railroad Co. vs. /tout 9supra=. Applied to

the case no eore us, they re0uire us to hold that the deendant as *uilty o

ne*li*ence in leavin* un*uarded the slac/ pile, made y it in the vicinity o its depot

uildin*. It could have oridden all persons rom comin* to its coal mine or

purposes merely o curiosity and pleasure. ut it did not do so. @n the contrary, it

permitted all, ithout re*ard to a*e, to visit its mine, and itness its operation. It

/ne that the usual approach to the mine as y a narro path s/irtin* its slac/ pit,

close to its depot uildin*, at hich the people o the villa*e, old and youn*, ouldoten assemle. It /ne that children ere in the hait o re0uentin* that locality

and playin* around the shat house in the immediate vicinity o the slac/ pit. 3he

sli*htest re*ard or the saety o these children ould have su**ested that they ere

in dan*er rom ein* so near a pit, eneath the surace o hich as concealed

9e>cept hen sno, ind, or rain prevailed= a mass o urnin* coals into hich a

child mi*ht accidentally all and e urned to death. Dnder all the circumstances, the

railroad company ou*ht not to e heard to say that the plaintif, a mere lad, moved

y curiosity to see the mine, in the vicinity o the slac/ pit, as a trespasser, to hom

it oed no duty, or or hose protection it as under no oli*ation to ma/e

provisions.

In =onsend vs. @at$en 9 (ast, 244, 2%!= it as held that i a man dan*erous traps,

aited ith Lesh, in his on *round, so near to a hi*hay, or to the premises o

another, that do*s passin* alon* the hi*hay, or /ept in his nei*hors premises,

ould proaly e attracted y their instinct into the traps, and in conse0uence o

such act his nei*hors do*s e so attracted and therey in6ured, an action on the

case ould lie. 1?hat diference,1 said ord (llenorou*h, C.J., 1is there in reason

eteen drain* the animal into the trap y means o his instinct hich he can not

resist, and puttin* him there y manual orce1 ?hat diference, in reason e may

oserve in this case, is there eteen an e>press license to the children o this

villa*e to visit the deendants coal mine, in the vicinity o its slac/ pile, and an

implied license, resultin* rom the hait o the deendant to permit them, ithout

o6ection or arnin*, to do so at ill, or purposes o curiosity or pleasure )eerrin*it the case o =onsend vs. @at$en, ude =$ompson, in his or/ on the a o

$e*li*ence, volume !, pa*e 8, note, ell says 1It ould e a ararous rule o la

that ould ma/e the oner o land liale or settin* a trap thereon, aited ith

stin/in* meat, so that his nei*hors do* attracted y his natural instinct, mi*ht run

into it and e /illed, and hich ould e>empt him rom liaility or the conse0uence

o leavin* e>posed and un*uarded on his land a dan*erous machine, so that his

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nei*hors child attracted to it and tempted to intermeddle ith it y instincts e0ually

stron*, mi*ht therey e /illed or maimed or lie.1

Chie Justice Cooley, voicin* the opinion o the supreme court o ichi*an, in the case

o (oers vs. Harlo 9#8 ich., #&4=, said that 9p. #!#=

Children, herever they *o, must e e>pected to act upon childli/e instincts and

impulses5 and others ho are char*eale ith a duty o care and caution toard

them must calculate upon this, and ta/e precautions accordin*ly. I they leave

e>posed to the oservation o children anythin* hich ould e temptin* to them,

and hich they in their immature 6ud*ment mi*ht naturally suppose they ere at

lierty to handle or play ith, they should e>pect that lierty to e ta/en.

And the same eminent 6urist in his treatise or torts, alludin* to the doctrine o implied

invitation to visit the premises o another, says

In the case o youn* children, and other persons not ully sui juris, an implied license

mi*ht sometimes arise hen it ould not on ehal o others. 3hus leavin* atemptin* thin* or children to play ith e>posed, here they ould e li/ely to *ather

or that purpose, may e e0uivalent to an invitation to them to ma/e use o it5 and,

perhaps, i one ere to thro aay upon his premises, near the common ay, thin*s

temptin* to children, the same implication should arise. 9Chap. !&, p. 8&8.=

3he reasonin* hich led the Bupreme Court o the Dnited Btates to its conclusion in the

cases o Railr