1. NEGLIGENCE; ARTICLES 1902 and 1903, CIVIL CODE; OWNER’S RESPONSIBILITY FOR NEGLIGENCE OF DRIVER OF AUTOMOBILE FOR PRIVATE USE. — It is needless to say that article 1902 is not applicable against the present defendant — even assuming as true the allegation that he failed to exercise all the diligence of a good father of a family in the selection of his chauffeur — because such failure on his part was not the proximate cause of the damage complained of. He did not by such act or omission cause the damage in question. Said article would be applicable against the defendant’s chauffeur alone, who himself was guilty of the negligent acts by which the damage was caused. (Johnson v. David, 5 Phil., 663, 666-667.) It is, however, insisted for the appellant that the appellee should be held responsible for the acts of his chauffeur under article 1903. But said article specifies the persons who are held responsible for the acts and omissions of another; and, as found by this Court in the cases of Johnson v. David, supra, and Chapman v. Underwood, 27 Phil., 374, "the driver does not fall within the list of persons in Article 1903 of the Civil Code for whose acts the defendant would be responsible." It is not alleged that the appellee is the owner or director of an establishment or business and that he was employing his chauffeur in such business at the time the latter is alleged to have caused the damage.

2. ID.; ID.; ID. — We are not persuaded that the interpretation of the codal provisions in question heretofore made by this Court in the cases above cited is wrong. Indeed, we feel that for the Court to so interpret said provisions as to include persons other than those therein specified as liable for the acts and omissions of another would be an invasion of the powers and prerogatives of the legislature. The later of the two cases above cited (Chapman v. Underwood) was decided by this Court on March 28, 1914, and for nearly three decades the legislature has not seen fit to change the law as interpreted by this Court.

This is an appeal from a judgment of the Court of First Instance of Manila dismissing plaintiff’s complaint on the ground that it states no cause of action against the defendant.

The complaint alleges that the defendant employed one Pedro Estrada as a chauffeur, who operated defendant’s car in Baguio on April 6, 1940; that on said date the said chauffeur, in driving the defendant’s automobile No. 1-9940, thru negligence, carelessness, and imprudence, caused the said automobile to bump and hit the plaintiff while the latter was pouring water into the tank of the automobile belonging to his employer, Mr. Manuel Aguas, which was then parked in front of Villa Carmelita in Baguio; that the plaintiff suffered physical injuries, his kneeball having been broken, and was confined in the hospital from April 6 to May 4, 1940; that before the accident he was earning a salary of P35 a month, but that as a result of the accident he became permanently disabled to perform his ordinary work. The plaintiff claims damages from the defendant in the sum of P10,000, upon the allegation that the defendant did not use and exercise all the diligence of a good father of a family in the selection of his said chauffeur.

The action is predicated upon article 1903, in relation to article 1902, of the Civil Code. These two articles read as follows:jgc:chanrobles.com.ph

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

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

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

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

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

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

"The liability imposed by this article shall cease in case the persons subject thereto prove that they exercised all the diligence of a good father of a family to prevent the damage."cralaw virtua1aw library

It is needless to say that article 1902 is not applicable against the present defendant — even assuming as true the allegation that he failed to exercise all the diligence of a good father of a family in the selection of his chauffeur — because such failure on his part was not the proximate cause of the damage complained of. He did not by such act or omission cause the damage in question. Said article would be applicable against the defendant’s chauffeur alone, who himself was guilty of the negligent acts by which the damage was caused. (Johnson v. David, 5 Phil., 663, 666-667.) It is, however, insisted for the appellant that the appellee should be held responsible for the acts of his chauffeur under article 1903. But said article specifies the persons who are held responsible for the acts and omissions of another; and, as found by this Court in the cases of Johnson v. David, supra, and Chapman v. Underwood, 27 Phil., 374, "the driver does not fall within the list of persons in Article 1903 of the Civil Code for whose acts the defendant would be responsible." It is not alleged that the appellee is the owner or director of an establishment or business and that he was employing his chauffeur in such business at the time the latter is alleged to have caused the damage.

We are not persuaded that the interpretation of the codal provisions in question heretofore made by this Court in the cases above cited is wrong. Indeed, we feel that for the Court to so interpret said provisions as to include persons other than those therein specified as liable for the acts and omissions of another would be an invasion of the powers and prerogatives of the legislature. The later of the two cases above cited (Chapman v. Underwood) was decided by this Court on March 28, 1914, and for nearly three decades the legislature has not seen fit to change the law as interpreted by this Court.

The judgment appealed from is affirmed, but no finding is made as to costs because the appellant has been allowed to litigate as a pauper.

Yulo, C.J., Moran, and Horrilleno, JJ., concur.



BOCOBO, J., with whom concurs PARAS, J., dissenting:chanrob1es virtual 1aw library

I am constrained to dissent because I believe the strict and narrow interpretation by the majority overthrows the principle of responsibility enunciated in article 1903 of the Civil Code. The majority opinion by exempting from liability those employers who are not engaged in any enterprise defeats the object which the legislator contemplated.



Articles 1902 and 1903 provide:jgc:chanrobles.com.ph

"Art. 1902. — El que por accion u omision causa daño a otro, interviniendo culpa o negligencia, esta obligado a reparar el daño causado.

"Art. 1903. — Lo obligacion que impone el articulo anterior es exigible, no solo por los actos u omisiones propios, sino por los de aquellas personas de quienes se debe responder.

"El padre, y, por muerte o incapacidad de este, la madre, son responsables de los perjuicios causados por los hijos menores de edad que viven en su compania.

"Los tutores lo son de los perjuicios causados por los menores o incapacitados que estan bajo su autoridad y habitan en su compania.

"Lo son igualmente los dueños o directores de un establecimiento o empresa, respecto de los perjuicios causados por sus dependientes en el servicio de los ramos en que los tuvieran empleados o con ocasion de sus funciones.

"El Estado es responsable en este concepto cuando obra por mediacion de un agente especial; pero no cuando el daño hubiese sido causado por el funcionario a quien propiamente corresponda la gestion practicada, en cuyo caso sera aplicable lo dispuesto en el articulo anterior.

"Son, por ultimo, responsables los maestros o directores de artes y oficios respecto a los perjuicios causados por sus alumnos o aprendices, mientras permanezcan bajo su custodia.

"La responsabilidad de que trata este articulo cesara cuando las personas en el mencionadas prueben que emplearon toda la diligencia de un buen padre de familia para prevenir el daño."cralaw virtua1aw library

It will be seen that the first paragraph formulates a general principle, while the ensuing enumeration refers to those persons who are presumed to have acted negligently either in choice or supervision. But this list does not free from liability those persons who, though not included in the enumeration, are nevertheless in fact negligent and therefore come within the general principle. In the instant case, although the defendant is not one of those who are presumed to be negligent because he is not the owner or director of an establishment or enterprise, yet he is responsible on the general principle of the first paragraph of article 1903 because the complaint alleges (and defendant admits in his motion to dismiss the complaint) that he (defendant) has been negligent in the selection of Pedro Estrada as his driver, and that he has negligently failed to prevent the damage. Paragraphs 3 and 9 of the complaint allege:jgc:chanrobles.com.ph

"3. That defendant did not use and exercise all the diligence of a good father of a family in the selection of his said chauffeur, so that he has engaged and employed the services of the said operator who is careless, negligent, and imprudent in the performance of his service as such auto operator;



"9. That defendant was and still is duty bound to pay damages to plaintiff, due to the carelessness of his chauffeur, as alleged above, which caused the physical disability of the plaintiff, and further, because of his failure to exercise all the diligence of a good father of a family to prevent the said accident and the said damage, but defendant never has shown willingness to pay damage to said plaintiff;"

In other words, if the defendant had been the owner or director of any establishment or enterprise, it would not have been necessary to allege negligence on his part in choosing or overseeing his driver Estrada, because such negligence would have been presumed by Art. 1903, but inasmuch as he is neither an owner nor a director of any business, it was necessary to allege negligence on his part in selecting his driver, and by failing to prevent the damage, which allegations were made in the complaint in this case and admitted in the motion to dismiss the complaint.

Paragraph 2 of article 1903, Civil Code, reads, "El padre, y, por muerte o incapacidad de este, la madre, son responsables de los perjuicios causados por los hijos menores que viven en su compania." Supposing a case of negligence of a son, who was not living with his father, would the latter be responsible for the former’s negligence? I believe that if the father and the son happened to be together at the time of the damage, and the father was negligent in not preventing the son’s negligent act, the father would be liable. My reason is that although the father is not presumed to be negligent because his son is not living with him, yet because the father proved to be negligent, he is, in my opinion, responsible.

The above illustrates my theory that the enumeration of cases in article 1903 does not exclude other cases where the father, employer, etc., are shown to have been negligent.

In addition to the foregoing hypothetical case, let me present this one: Referring to owners of establishments, suppose the employee negligently caused the damage while he was doing work in a branch other than that in which he was regularly employed, but the owner or employer was present and he was really and actually negligent in not preventing the damage? I believe the owner or employer is liable, although paragraph 4 of article 1903 requires that the employee be "en el servicio de los rames en que los tuvieran empleados o con ocasion de sus funciones." My reason again is that although the owner or employer is not presumed to be negligent because the employee was doing work in another branch, nevertheless, the owner or employer being actually negligent, he is liable.

Another case may be supposed: There is a private charitable institution where beggars live and are taken care of. One of the employees through negligence, while burning certain odds and ends, caused a neighboring nipa house to catch fire and to be burned down. The owner or director of the institution had been previously warned of the danger but he negligently failed to prevent the employee’s negligent act. I believe the owner or director is liable, although the charitable institution is not one of the cases enumerated in article 1903. My reason is the same: The owner or director was really and actually negligent, though he is not presumed to be so.

The same reasoning and conclusion may be had in the case of a private physician who negligently fails to supervise his nurse whose negligence causes injury to a patient.

Other cases could be supposed, but these four show that the enumeration of instances of presumed negligence in article 1903 does not exclude cases of actual and proved negligence.

In the present case it is alleged in the complaint (and admitted in the motion to dismiss) that defendant was negligent in not preventing the damage. Therefore, he is liable under article 1903.



Let me now take up the two cases relied upon by the majority: Johnson v. David, and Chapman v. Underwood. Those two cases support my opinion that the defendant herein is liable.

In the first case, Johnson v. David, 5 Phil., 663, it was found that the master had not been negligent either in the selection of or vigilance over his cochero. This Court said:jgc:chanrobles.com.ph

"The question presented by these facts is, Is the owner of a carriage driven by his cochero, liable for injuries grow-out of the negligence of said cochero, in the absence of such owner?

"No evidence was adduced during the trial of said cause to show that the defendant had been negligent in the employment of the cochero or that he had any knowledge that such cochero was incompetent or of the general negligent character of said cochero, if such existed . . ." (p. 666.)

In the other case, Chapman v. Underwood, 27 Phil., 374, it was also found that the defendant, the owner of the automobile, although present in the vehicle, had had no reasonable opportunity to prevent the driver’s negligent act. This Court said:jgc:chanrobles.com.ph

". . . On the other hand, if the driver, by a sudden act of negligence, and without the owner having reasonable opportunity to prevent the act or the continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver’s act his own.

"In the case before us it does not appear from the record that from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver. Instead, it appears with fair clearness that the interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver." (p. 377.)

It is thus clear that this Court, in the two cases cited by the majority, did not hold the owner of the private vehicle responsible as he was not negligent either in employing or overseeing his driver. These two cases impliedly hold that if the owner of a private vehicle is negligent in the choice of or vigilance over his driver, he (the owner) is liable. In the instant case, the defendant was negligent in these particulars, as alleged in the complaint and admitted by defendant in his motion to dismiss.



The defendant is liable not only as employer of the driver (Art. 1903) but also as owner of the automobile. If we analyze Chapter II, Title XVI of Book IV (Arts. 1902-1910) which treats of obligations arising from culpa or negligence, it will be noted that after enunciating the general principle of responsibility for culpa aquiliana (Art. 1902), the chapter proceeds to regulate the liability under two aspects: first, responsibility for another person’s negligence (Arts. 1903-1904) and obligation for damage caused by a person’s property (Arts. 1905-1910). The defendant as the owner of the automobile is liable for damages, it being admitted in the motion to dismiss that the driver acted with negligence, carelessness and imprudence. (Arts. 1905-1910.) It seems unreasonable and unjust to exempt the owner of a private automobile simply because he is not specifically listed in articles 1905-1910, ignoring the fact that he plainly comes within the fundamental principle of those articles. As Manresa says in commenting on the explosion of engines, excessive smoke, etc. in article 1908: (Vol. 12, p. 640, Manresa, Comentarios Al Codigo Civil.)

"Respondiendo dicho articulo al principio general que informa la materia objeto de este capitulo, de que aquel que cause a otro un daño por accion u omision, mediando culpa o negligencia, debe repararlo, enumera algunos casos que pueden dar lugar a dicha reparacion; pero debemos advertir que no son los unicos, y que la cita de los cuatro expresamente consignados en el referido articulo solo esta hecha demostrationis causa; y en su virtud, en todos aquellos otros que puedan suscitarse en la practica, y en que exista la misma razon fundamental, habra lugar a la reparacion, porque esta no depende de la expresion en la ley de las causas que la motivo, sino del principio esencial que antes hemos dicho, y por consiguiente, no puede dejar de haber lugar a ella porque los casos o sus causas no figuran en el Codigo.

"Esta es la opinion general de los tratadistas, y lo contrario resultaria una injusticia irritante y un desconocimiento de los derechos de los perjudicados, falto de toda razon juridica." (Italics supplied.)

It will be observed that applying the principle of analogy, Manresa includes the ownership of other things than those enumerated in these articles because the same fundamental reason exists. And we know that automobiles have killed and injured more people than have dogs or ruinous buildings, or exploding engines or any of the things specified in articles 1905-1910.



Coming now to a more detailed discussion of analogy as applied in this case, the principle of analogy should be distinguished from liberal interpretation. Under the principle of analogy, the complaint herein states facts sufficient to constitute a cause of action.

Professor Clemente de Diego, an outstanding authority on the Spanish civil law and author of several books on the civil law of Spain, has written an essay on "La Analogia en el Codigo Civil Español" in the Revista de Derecho Privado, (Vol. I, pp. 370-376, Sept. 1914).

After citing certain provisions to show that analogy is authorized by the Spanish Civil Code, he says:jgc:chanrobles.com.ph

"La misma prescripcion del articulo 6.0, al invocar los principios generales de derecho como fuente juridica en defecto de ley y de costumbre, comprueba la tesis, toda vez que el procedimiento analogico es el primer paso en la indagacion y aplicacion de tales principios.

"La analogia forma parte de la dotacion de medios e instrumentos con que el poder judicial cuenta para el ejercicio de su mision. Tampoco de la interpretacion se dice nada en el titulo preliminar del Codigo; solo se dan reglas mas alla con respecto a testamentos y contratos, y