DULAY v. CA, GR No.

108017, 1995-04-03
Facts:
Altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang
Sa Alabang,"... as a result of which Benigno Torzuela, the security guard on duty at the said
carnival, shot and killed Atty. Napoleon
Dulay.
petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf
and in behalf of her minor children, filed... an action for damages against Benigno Torzuela
and herein private respondents
SAFEGUARD... and/or
SUPERGUARD... alleged employers of defendant Torzuela.
SUPERGUARD filed a Motion to Dismiss
SUPERGUARD further alleged that a complaint for damages based on negligence under
Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since the
civil liability under Article 2176 applies only to quasi-offenses under Article 365 of the
Revised Penal Code. In addition, the private respondent argued that petitioners' filing of the
complaint is premature considering that the conviction of Torzuela in a criminal case is a
condition sine qua non for the employer's subsidiary liability
SAFEGUARD also filed a motion praying that it be excluded as defendant on the ground
that defendant Torzuela is not one of its employees... respondent Judge Regino issued an
order granting SUPERGUARD'S motion to dismiss and SAFEGUARD'S motion for
exclusion as defendant.
The respondent judge held that the complaint did not state facts necessary or sufficient to
constitute a quasi-delict since... it does not mention any negligence on the part of Torzuela
in shooting Napoleon Dulay or that the same was done in the performance of his duties.
The above order was affirmed by the respondent court
Issues:
quasi-delicts are not limited to acts of negligence but also cover acts that are intentional and
voluntary
Article 2180 of the New Civil Code, private respondents are primarily liable for their
negligence either in the selection or supervision of their employees.
Torzuela's act of shooting Dulay is also actionable under Article 33 of the New Civil Code
Ruling:
w/n private respondents can be made liable under art 2176

An examination of the complaint in the present case would... show that the plaintiffs,
petitioners herein, are invoking their right to recover damages against the private
respondents for their vicarious responsibility for the injury caused by Benigno Torzuela's act
of shooting and killing Napoleon Dulay
Contrary to the theory of private respondents, there is no justification for limiting the scope
of Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-
entrenched is the doctrine that Article 2176 covers not only acts committed with negligence,
but... also acts which are voluntary and intentional.
w/n provate respondents can be made liable under art 33... the term

"physical injuries" in Article 33 has already been construed to include bodily injuries causing
death
It is not the crime of physical injuries defined in... the Revised Penal Code. It includes not
only physical injuries but also consummated, frustrated, and attempted homicide
Therefore, in this case, a civil action based on Article 33 lies.
w/n the private respondent's liability is subsidiary.

The liability of the employer under Article 2180 is direct... and immediate; it is not
conditioned upon prior recourse against the negligent employee and a prior showing of the
insolvency of such employee
Since Article 2176 covers not only acts of negligence but also acts which are intentional and
voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's
complaint simply because it failed to make allegations of attendant negligence attributable...
to private respondents.
This Court finds, under the foregoing premises, that the complaint sufficiently alleged an
actionable breach on the part of the defendant Torzuela and respondents SUPERGUARD
and/or SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot
Napoleon Dulay... resulting in the latter's death; that the shooting occurred while Torzuela
was on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer
and responsible for his acts.
This does not operate however, to establish that the defendants below are liable.
If the allegations in a complaint can furnish a sufficient basis by which the complaint can be
maintained, the same should not be dismissed regardless of the defenses that may be
assessed... by the defendants... remanded to the Regional Trial Court for trial on the merits.
FACTS:
On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the
"Big Bang sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security
guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay.

Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and in
behalf of her minor children, filed on February 8, 1989 an action for damages against Benigno Torzuela and
herein private respondents Safeguard Investigation and Security Co., Inc., ("SAFEGUARD") and/or
Superguard Security Corp. ("SUPERGUARD"), alleged employers of defendant Torzuela. The complaint,
docketed as Civil Case No. Q-89-1751.
DECISION OF LOWER COURTS:
(1) RTC: the complaint against the alternative defendants Superguard Security Corporation and Safeguard
Investigation and Security Co., Inc., must be and (sic) it is hereby dismissed.

ISSUE:
Whether Superguard is liable

RULING:
The case is remanded to the Regional Trial Court for trial on the merits.

The complaint sufficiently alleged an actionable breach on the part of the defendant Torzuela and
respondents SUPERGUARD and/or SAFEGUARD. It is enough that the complaint alleged that Benigno
Torzuela shot Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela was
on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and responsible for his
acts. This does not operate however, to establish that the defendants below are liable. Whether or not the
shooting was actually reckless and wanton or attended by negligence and whether it was actually done
within the scope of Torzuela's duties; whether the private respondents SUPERGUARD and/or SAFEGUARD
failed to exercise the diligence of a good father of a family; and whether the defendants are actually liable,
are questions which can be better resolved after trial on the merits where each party can present evidence to
prove their respective allegations and defenses.

It is well-settled that the filing of an independent civil action before the prosecution in the criminal action
presents evidence is even far better than a compliance with the requirement of an express reservation
(Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is precisely what the petitioners opted to
do in this case. However, the private respondents opposed the civil action on the ground that the same is
founded on a delict and not on a quasi-delict as the shooting was not attended by negligence. What is in
dispute therefore is the nature of the petitioner's cause of action.

Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but also
acts which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98
[1977]),

this Court already held that: ". . . Article 2176, where it refers to 'fault or negligence,' covers not only acts 'not
punishable by law' but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is
actually charged also criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act
considered as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or has not been committed by the accused. Briefly
stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law." The same doctrine was echoed in the case of Andamo v. Intermediate
Appellate Court (191 SCRA 195 [1990]), wherein the Court held: "Article 2176, whenever it refers to "fault or
negligence," covers not only acts "not punishable by law" but also acts criminal in character, whether
intentional and voluntary or negligent. Consequently, a civil action lies against the offender in a criminal act,
whether or not he is prosecuted or found guilty or acquitted, provided that the offended party is not allowed,
(if the tortfeasor is actually also charged criminally), to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases
vary." [Citing Virata v. Ochoa, 81 SCRA 472]
Under Article 2180 of the New Civil Code as aforequoted, when an injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision over him after selection or both
(Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]).

The liability of the employer under Article 2180 is direct and immediate; it is not conditioned upon prior
recourse against the negligent employee and a prior showing of the insolvency of such employee (Kapalaran
Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent upon the private respondents to
prove that they exercised the diligence of a good father of a family in the selection and supervision of their
employee.