THIRD DIVISION

[G.R. No. 85044. June 3, 1992.]

MACARIO TAMARGO, CELSO TAMARGO and
AURELIA TAMARGO, petitioners, vs. THE HON.
COURT OF APPEALS; THE HON. ARISTON L.
RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur;
VICTOR BUNDOC; and CLARA BUNDOC,
respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL ACTIONS; MOTION
FOR RECONSIDERATION; CONSIDERED PRO
FORMA WHERE NOTICE OF TIME AND PLACE
OF HEARING NOT CONTAINED THEREIN. It
will be recalled that petitioners' motion (and
supplemental motion) for reconsideration filed
before the trial court, not having complied with
the requirements of Section 13, Rule 41, and
Section 4, Rule 15, of the Revised Rules of Court,
were considered pro forma and hence did not
interrupt and suspend the reglementary period to
appeal: the trial court held that the motions, not
having contained a notice of time and place of
hearing, had become useless pieces of paper
which did not interrupt the reglementary period.
As in fact repeatedly held by this Court, what is
mandatory is the service of the motion on the
opposing counsel indicating the time and place of
hearing.
2. ID.; SUPREME COURT; SUSPENSION OF
APPLICATION
OF
TECHNICAL
RULES
EXERCISED IN CASE AT BAR. In view,
however, of the nature of the issue raised in the
instant Petition, and in order that substantial
justice may be served, the Court, invoking its
right to suspend the application of technical rules
to prevent manifest injustice, elects to treat the
notice of appeal as having been seasonably filed
before the trial court, and the motion (and
supplemental motion) for reconsideration filed by
petitioner in the trial court as having interrupted
the reglementary period for appeal. (Gregorio v.
Court of Appeals, 72 SCRA 120 [1978])
3. CIVIL LAW; TORTS; DOCTRINE OF
"IMPUTED NEGLIGENCE" OR VICARIOUS
LIABILITY, CONSTRUED. It is not disputed
that Adelberto Bundoc's voluntary act of shooting
Jennifer Tamargo with an air rifle gave rise to a
cause of action on quasi-delict against him.
(Article 2176 of the Civil Code) Upon the other
hand, the law imposes civil liability upon the
father and, in case of his death or incapacity, the
mother, for any damages that may be caused by
a minor child who lives with them. (Article 2180
of the Civil Code) This principle of parental
liability is a species of what is frequently
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designated as vicarious liability, or the doctrine of

"imputed negligence" under Anglo-American tort
law, where a person is not only liable for torts
committed by himself, but also for torts
committed by others with whom he has a certain
relationship and for whom he is responsible.
Thus, parental liability is made a natural or logical
consequence of the duties and responsibilities of
parents their parental authority which
includes
the
instructing,
controlling
and
disciplining of the child.
4. ID.; ID.; ID.; BASIS. The civil liability
imposed upon parents for the torts of their minor
children living with them, may be seen to be
based upon the parental authority vested by the
Civil Code upon such parents. The civil law
assumes that when an unemancipated child living
with its parents commits a tortious act, the
parents were negligent in the performance of
their legal and natural duty closely to supervise
the child who is in their custody and control.
Parental liability is, in other words, anchored upon
parental authority coupled with presumed
parental dereliction in the discharge of the duties
accompanying such authority. (Cangco v. Manila
Railroad Co., 36 Phil. 768 [1918])
5. ID.; ID.; ID.; ID.; PARENTAL DERELICTION,
ONLY A PRESUMPTION. The parental
dereliction is, of course, only presumed and the
presumption can be overturned under Article
2180 of the Civil Code by proof that the parents
had exercised all the diligence of a good father of
a family to prevent the damage.
6. REMEDIAL LAW; CIVIL ACTIONS; PARTIES;
PARENTS WHO HAD ACTUAL CUSTODY OF
MINOR, INDISPENSABLE PARTIES TO ACTION
FOR DAMAGES BASED ON TORT. In the
instant case, the shooting of Jennifer by Adelberto
with an air rifle occurred when parental authority
was still lodged in respondent Bundoc spouses,
the natural parents of the minor Adelberto. It
would thus follow that the natural parents who
had then actual custody of the minor Adelberto,
are the indispensable parties to the suit for
damages.
7. CIVIL LAW; TORTS; DOCTRINE OF
"IMPUTED NEGLIGENCE" OR VICARIOUS
LIABILITY; EFFECT OF ADOPTION THEREON;
CASE AT BAR. We do not believe that
parental authority is properly regarded as having
been retroactively transferred to and vested in
the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do
not consider that retroactive effect may be given
to the decree of adoption so as to impose a
liability upon the adopting parents accruing at a

time when the adopting parents had no actual or

physical custody over the adopted child.
Retroactive effect may perhaps be given to the
granting of the petition for adoption where such
is essential to permit the accrual of some benefit
or advantage in favor of the adopted child. In the
instant case, however, to hold that parental
authority had been retroactively lodged in the
Rapisura spouses so as to burden them with
liability for a tortious act that they could not have
foreseen and which they could not have
prevented (since they were at the time in the
United States and had no physical custody over
the child Adelberto) would be unfair and
unconscionable. Such a result, moreover, would
be inconsistent with the philosophical and policy
basis underlying the doctrine of vicarious liability.
Put a little differently, no presumption of parental
dereliction on the part of the adopting parents,
the Rapisura spouses, could have arisen since
Adelberto was not in fact subject to their control
at the time the tort was committed.
8. REMEDIAL LAW; SPECIAL CIVIL ACTION;
CERTIORARI; DISMISSAL OF COMPLAINT
WHERE
INDISPENSABLE
PARTIES
ARE
ALREADY BEFORE THE COURT CONSTITUTES
GRAVE ABUSE OF DISCRETION. Under
Article 35 of the Child and Youth Welfare
Code, parental authority is provisionally vested in
the adopting parents during the period of trial
custody, i.e., before the issuance of a decree of
adoption, precisely because the adopting parents
are given actual custody of the child during such
trial period. In the instant case, the trial custody
period either had not yet begun or had already
been completed at the time of the air rifle
shooting; in any case, actual custody of Adelberto
was then with his natural parents, not the
adopting parents. Accordingly, we conclude that
respondent Bundoc spouses, Adelberto's natural
parents, were indispensable parties to the suit for
damages brought by petitioners, and that the
dismissal by the trial court of petitioners'
complaint, the indispensable parties being
already before the court, constituted grave abuse
of discretion amounting to lack or excess of
jurisdiction.
DECISION
FELICIANO, J p:
On 20 October 1982, Adelberto Bundoc, then a
minor of 10 years of age, shot Jennifer Tamargo
with an air rifle causing injuries which resulted in
her death. Accordingly, a civil complaint for
damages was filed with the Regional Trial Court,
Branch 20, Vigan, Ilocos Sur, docketed as Civil
Case No. 3457-V, by Petitioner Macario Tamargo,
Jennifer's adopting parent, and petitioner spouses
Celso and Aurelia Tamargo, Jennifer's natural
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parents, against respondent spouses Victor and

Clara Bundoc, Adelberto's natural parents with
whom he was living at the time of the tragic
incident. In addition to this case for damages, a
criminal information for Homicide through
Reckless Imprudence was filed [Criminal Case No.
1722-V] against Adelberto Bundoc. Adelberto,
however, was acquitted and exempted from
criminal liability on the ground that he had acted
without discernment.
Prior to the incident, or on 10 December 1981,
the spouses Sabas and Felisa Rapisura had filed a
petition to adopt the minor Adelberto Bundoc in
Special Proceedings No. 0373-T before the then
Court of First Instance of Ilocos Sur. This petition
for adoption was granted on 18 November 1982,
that is, after Adelberto had shot and killed
Jennifer.
In their Answer, respondent spouses Bundoc,
Adelberto's natural parents, reciting the result of
the foregoing petition for adoption, claimed that
not they, but rather the adopting parents, namely
the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental
authority had shifted to the adopting parents
from the moment the successful petition for
adoption was filed.
Petitioners in their Reply contended that since
Adelberto Bundoc was then actually living with
his natural parents, parental authority had not
ceased nor been relinquished by the mere filing
and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed
petitioners' complaint, ruling that respondent
natural parents of Adelberto indeed were not
indispensable parties to the action.
Petitioners received a copy of the trial court's
Decision on 7 December 1987. Within the 15-day
reglementary period, or on 14 December 1987,
petitioners filed a motion for reconsideration
followed by a supplemental motion for
reconsideration on 15 January 1988. It appearing,
however, that the motions failed to comply with
Sections 4 and 5 of Rule 15 of the Revised Rules
of Court that notice of the motion shall be
given to all parties concerned at least three (3)
days before the hearing of said motion; and that
said notice shall state the time and place of
hearing both motions were denied by the trial
court in an Order dated 18 April 1988. On 28 April
1988, petitioners filed a notice of appeal. In its
Order dated 6 June 1988, the trial court dismissed
the notice of appeal, this time ruling that the
notice had been filed beyond the 15-day
reglementary period ending 22 December 1987.

Petitioners went to the Court of Appeals on a

petition for mandamus and certiorari questioning
the trial court's Decision dated 3 December 1987
and the Orders dated 18 April 1988 and 6 June
1988. The Court of Appeals dismissed the
petition, ruling that petitioners had lost their right
to appeal.

In the present Petition for Review, petitioners

once again contend that respondent spouses
Bundoc are the indispensable parties to the
action for damages caused by the acts of their
minor child, Adelberto Bundoc. Resolution of this
Petition hinges on the following issues: (1)
whether or not petitioners, notwithstanding loss
of their right to appeal, may still file the instant
Petition; conversely, whether the Court may still
take cognizance of the case even though
petitioners' appeal had been filed out of time;
and (2) whether or not the effects of adoption,
insofar as parental authority is concerned, may
be given retroactive effect so as to make the
adopting parents the indispensable parties in a
damage case filed against their adopted child, for
acts committed by the latter when actual custody
was yet lodged with the biological parents.
1. It will be recalled that petitioners' motion (and
supplemental motion) for reconsideration filed
before the trial court, not having complied with
the requirements of Section 13, Rule 41, and
Section 4, Rule 15, of the Revised Rules of Court,
were considered pro forma and hence did not
interrupt and suspend the reglementary period to
appeal: the trial court held that the motions, not
having contained a notice of time and place of
hearing, had become useless pieces of paper
which did not interrupt the reglementary period.
1 As in fact repeatedly held by this Court, what is
mandatory is the service of the motion on the
opposing counsel indicating the time and place of
hearing. 2
In view, however, of the nature of the issue raised
in the instant Petition, and in order that
substantial justice may be served, the Court,
invoking its right to suspend the application of
technical rules to prevent manifest injustice,
elects to treat the notice of appeal as having
been seasonably filed before the trial court, and
the motion (and supplemental motion) for
reconsideration filed by petitioner in the trial
court as having interrupted the reglementary
period for appeal. As the Court held in Gregorio v.
Court of Appeals: 3

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"Dismissal of appeal purely on technical grounds

is frowned upon where the policy of the courts is
to encourage hearings of appeal on their merits.
The rules of procedure ought not be applied in a
very rigid technical sense, rules of procedure are
used only to help secure not override, substantial
justice. If a technical and rigid enforcement of the
rules is made, their aim would be defeated." 4
2. It is not disputed that Adelberto Bundoc's
voluntary act of shooting Jennifer Tamargo with
an air rifle gave rise to a cause of action on quasidelict against him. As Article 2176 of the Civil
Code provides:
"Whoever by act or omission causes damage to
another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasidelict . . . ."
Upon the other hand, the law imposes civil
liability upon the father and, in case of his death
or incapacity, the mother, for any damages that
may be caused by a minor child who lives with
them. Article 2180 of the Civil Code reads:
"The obligation imposed by article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
The father and, in case of his death or incapacity,
the mother, are responsible for the damages
caused by the minor children who live in their
company. cdll
xxx xxx xxx
The responsibility treated of in this Article shall
cease when the person herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage." (Emphasis
supplied)
This principle of parental liability is a species of
what is frequently designated as vicarious
liability, or the doctrine of "imputed negligence"
under Anglo-American tort law, where a person is
not only liable for torts committed by himself, but
also for torts committed by others with whom he
has a certain relationship and for whom he is
responsible. Thus, parental liability is made a
natural or logical consequence of the duties and
responsibilities of parents their parental
authority which includes the instructing,
controlling and disciplining of the child. 5 The
basis for the doctrine of vicarious liability was

explained by the Court in Cangco v. Manila

Railroad Co. 6 in the following terms:
"With respect to extra-contractual obligation
arising from negligence, whether of act or
omission, it is competent for the legislature to
elect and our Legislature has so elected to
limit such liability to cases in which the person
upon whom such an obligation is imposed is
morally culpable or, on the contrary, for reasons
of public policy, to extend that liability, without
regard to the lack of moral culpability, so as to
include responsibility for the negligence of those
persons whose acts or omissions are imputable,
by a legal fiction, to others who are in a position
to exercise an absolute or limited control over
them. The legislature which adopted our Civil
Code has elected to limit extra-contractual
liability with certain well-defined exceptions
to cases in which moral culpability can be directly
imputed to the persons to be charged. This moral
responsibility may consist in having failed to
exercise due care in one's own acts, or in having
failed to exercise due care in the selection and
control of one's agents or servants, or in the
control of persons who, by reasons of their status,
occupy a position of dependency with respect to
the person made liable for their conduct." 7
(Emphasis supplied)
The civil liability imposed upon parents for the
torts of their minor children living with them, may
be seen to be based upon the parental authority
vested by the Civil Code upon such parents. The
civil law assumes that when an unemancipated
child living with its parents commits a tortious
act, the parents were negligent in the
performance of their legal and natural duty
closely to supervise the child who is in their
custody and control. Parental liability is, in other
words, anchored upon parental authority coupled
with presumed parental dereliction in the
discharge of the duties accompanying such
authority. The parental dereliction is, of course,
only presumed and the presumption can be
overturned under Article 2180 of the Civil Code
by proof that the parents had exercised all the
diligence of a good father of a family to prevent
the damage.
In the instant case, the shooting of Jennifer by
Adelberto with an air rifle occurred when parental
authority was still lodged in respondent Bundoc
spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural
parents who had then actual custody of the minor
Adelberto, are the indispensable parties to the
suit for damages.
The natural parents of Adelberto, however,
stoutly maintain that because a decree of
adoption was issued by the adoption court in
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favor of the Rapisura spouses, parental authority

was vested in the latter as adopting parents as of
the time of the filing the petition for adoption that
is, before Adelberto had shot Jennifer with an air
rifle. The Bundoc spouses contend that they were
therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of
the Child and Youth Welfare Code 8 which reads
as follows: LLjur
"Article 36. Decree of Adoption. If, after
considering the report of the Department of
Social Welfare or duly licensed child placement
agency and the evidence submitted before it, the
court is satisfied that the petitioner is qualified to
maintain, care for, and educate the child, that the
trial custody period has been completed, and that
the best interests of the child will be promoted by
the adoption, a decree of adoption shall be
entered, which shall be effective as of the date
the original petition was filed. The decree shall
state the name by which the child is thenceforth
to be known." (Emphasis supplied).
The Bundoc spouses further argue that the above
Article 36 should be read in relation to Article 39
of the same Code:
"Art. 39. Effect of Adoption. The adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the natural
parents, except where the adopter is the spouse
of the surviving natural parent;"
xxx xxx xxx
(Emphasis supplied)
and urge that their parental authority must be
deemed to have been dissolved as of the time
the petition for adoption was filed.
The Court is not persuaded. As earlier noted,
under the Civil Code, the basis of parental liability
for the torts of a minor child is the relationship
existing between the parents and the minor child
living with them and over whom, the law
presumes, the parents exercise supervision and
control. Article 58 of the Child and Youth Welfare
Code, re-enacted this rule:
"Article 58. Torts Parents and guardians are
responsible for the damage caused by the child
under their parental authority in accordance with
the Civil Code." (Emphasis supplied).
Article 221 of the Family Code of the Philippines 9
has similarly insisted upon the requisite that the

child, doer of the tortious act, shall have been in

the actual custody of the parents sought to be
held liable for the ensuing damage:
"Art. 221. Parents and other persons exercising
parental authority shall be civilly liable for the
injuries and damages caused by the acts or
omissions of their unemancipated children living
in their company and under their parental
authority subject to the appropriate defenses
provided by law." (Emphasis supplied)
We do not believe that parental authority is
properly regarded as having been retroactively
transferred to and vested in the adopting parents,
the Rapisura spouses, at the time the air rifle
shooting happened. We do not consider that
retroactive effect may be given to the decree of
adoption so as to impose a liability upon the
adopting parents accruing at a time when the
adopting parents had no actual or physical
custody over the adopted child. Retroactive effect
may perhaps be given to the granting of the
petition for adoption where such is essential to
permit the accrual of some benefit or advantage
in favor of the adopted child. In the instant case,
however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as
to burden them with liability for a tortious act that
they could not have foreseen and which they
could not have prevented (since they were at the
time in the United States and had no physical
custody over the child Adelberto) would be unfair
and unconscionable. Such a result, moreover,
would be inconsistent with the philosophical and
policy basis underlying the doctrine of vicarious
liability. Put a little differently, no presumption of
parental dereliction on the part of the adopting
parents, the Rapisura spouses, could have arisen
since Adelberto was not in fact subject to their
control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code

fortifies the conclusion reached above. Article 35
provides as follows:
"Art. 35. Trial Custody. No Petition for adoption
shall be finally granted unless and until the
adopting parents are given by the courts a
supervised trial custody period of at least six
months to assess their adjustment and emotional
readiness for the legal union. During the period of
trial custody, parental authority shall be vested in
the adopting parents." (Emphasis supplied)
Under the above Article 35, parental authority is
provisionally vested in the adopting parents
during the period of trial custody, i.e., before the
issuance of a decree of adoption, precisely
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because the adopting parents are given actual

custody of the child during such trial period. In
the instant case, the trial custody period either
had not yet begun or had already been
completed at the time of the air rifle shooting; in
any case, actual custody of Adelberto was then
with his natural parents, not the adopting
parents. llcd
Accordingly, we conclude that respondent Bundoc
spouses, Adelberto's natural parents, were
indispensable parties to the suit for damages
brought by petitioners, and that the dismissal by
the trial court of petitioners' complaint, the
indispensable parties being already before the
court, constituted grave abuse of discretion
amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition
for Review is hereby GRANTED DUE COURSE and
the Decision of the Court of Appeals dated 6
September 1988, in C.A.-G.R. No. SP-15016 is
hereby REVERSED and SET ASIDE. Petitioners'
complaint filed before the trial court is hereby
REINSTATED and this case is REMANDED to that
court for further proceedings consistent with this
Decision. Costs against respondent Bundoc
spouses. This Decision is immediately executory.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ.,
concur.
EN BANC
[G.R. No. 70890. September 18, 1992.]
CRESENCIO LIBI * and AMELIA YAP LIBI,
petitioners, vs. HON. INTERMEDIATE
APPELLATE COURT, FELIPE GOTIONG and
SHIRLEY GOTIONG, respondents.
Alex Y. Tan for petitioners.
Mario D. Ortiz and Danilo V. Ortiz for private
respondents.
SYLLABUS
1. CIVIL LAW; QUASI DELICT; LIABILITY OF
PARENTS FOR CIVIL LIABILITY ARISING
FROM CRIMINAL OFFENSES COMMITTED BY
THEIR MINOR CHILDREN; RULE. The
parents are and should be held primarily liable for
the civil liability arising from criminal offenses
committed by their minor children under their
legal authority or control, or who live in their
company, unless it is proven that the former
acted with the diligence of a good father of a
family to prevent such damages. That primary
liability is premised on the provisions of Article
101 of the Revised Penal Code with respect to
damages ex delicto caused by their children 9
years of age or under, or over 9 but under 15
years of age who acted without discernment;

and, with regard to their children over 9 but

under 15 years of age who acted with
discernment, or 15 years or over but under 21
years of age, such primary liability shall be
imposed pursuant to Article 2180 of the Civil
Code. Under said Article 2180, the enforcement
of such liability shall be effected against the
father and, in case of his death or incapacity, the
mother. This was amplified by the Child and Youth
Welfare Code which provides that the same shall
devolve upon the father and, in case of his death
or incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the
liability may also be voluntarily assumed by a
relative or family friend of the youthful offender.
However, under the Family Code, this civil liability
is now, without such alternative qualification, the
responsibility of the parents and those who
exercise parental authority over the minor
offender. For civil liability arising from quasidelicts committed by minors, the same rules shall
apply in accordance with Articles 2180 and 2182
of the Civil Code, as so modified.
DECISION
REGALADO, J p:
One of the ironic verities of life, it has been said,
is that sorrow is sometimes a touchstone of love.
A tragic illustration is provided by the instant
case, wherein two lovers died while still in the
prime of their years, a bitter episode for those
whose lives they have touched. While we cannot
expect to award complete assuagement to their
families
through
seemingly
prosaic
legal
verbiage, this disposition should at least
terminate the acrimony and rancor of an
extended judicial contest resulting from the
unfortunate occurrence.
In this final denouement of the judicial recourse
the stages whereof were alternately initiated by
the parties, petitioners are now before us seeking
the reversal of the judgment of respondent court
promulgated on January 2, 1985 in AC-G.R. CV
No. 69060 with the following decretal portion:
"WHEREFORE, the decision of the lower court
dismissing
plaintiff's
complaint
is
hereby
reversed; and instead, judgment is hereby
rendered sentencing defendants, jointly and
solidarily, to pay to plaintiffs the following
amounts: prcd
1. Moral damages, P30,000.000;
2. Exemplary damages, P10,000.00;
3. Attorney's fees, P20,000.00, and costs.
However,
denial
of
defendants-appellees'
counterclaims is affirmed." 1
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Synthesized from the findings of the lower courts,

it appears that respondent spouses are the
legitimate parents of Julie Ann Gotiong who, at
the time of the deplorable incident which took
place and from which she died on January 14,
1979, was an 18-year old first year commerce
student of the University of San Carlos, Cebu City;
while petitioners are the parents of Wendell Libi,
then a minor between 18 and 19 years of age
living with his aforesaid parents, and who also
died in the same event on the same date.
For more than two (2) years before their deaths,
Julie Ann Gotiong and Wendell Libi were
sweethearts until December, 1978 when Julie Ann
broke up her relationship with Wendell after she
supposedly found him to be sadistic and
irresponsible. During the first and second weeks
of January, 1979, Wendell kept pestering Julie Ann
with demands for reconciliation but the latter
persisted in her refusal, prompting the former to
resort to threats against her. In order to avoid
him, Julie Ann stayed in the house of her best
friend, Malou Alfonso, at the corner of Maria
Cristina and Juana Osmea Streets, Cebu City,
from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died,
each from a single gunshot wound inflicted with
the same firearm, a Smith and Wesson revolver
licensed in the name of petitioner Cresencio Libi,
which was recovered from the scene of the crime
inside the residence of private respondents at the
corner of General Maxilom and D. Jakosalem
streets of the same city.
Due to the absence of an eyewitness account of
the circumstances surrounding the death of both
minors, their parents, who are the contending
parties herein, posited their respective theories
drawn from their interpretation of circumstantial
evidence, available reports, documents and
evidence of physical facts.
Private respondents, bereaved over the death of
their daughter, submitted that Wendell caused
her death by shooting her with the aforesaid
firearm and, thereafter, turning the gun on
himself to commit suicide. On the other hand,
petitioners, puzzled and likewise distressed over
the death of their son, rejected the imputation
and contended that an unknown third party,
whom Wendell may have displeased or
antagonized by reason of his work as a narcotics
informer of the Constabulary Anti-Narcotics Unit
(CANU), must have caused Wendell's death and
then shot Julie Ann to eliminate any witness and
thereby avoid identification. LibLex

As a result of the tragedy, the parents of Julie Ann

filed Civil Case No. R-17774 in the then Court of
First Instance of Cebu against the parents of
Wendell to recover damages arising from the
latter's vicarious liability under Article 2180 of the
Civil Code. After trial, the court below rendered
judgment on October 20, 1980 as follows:
"WHEREFORE,
premises
duly
considered,
judgment is hereby rendered dismissing plaintiffs'
complaint for insufficiency of the evidence.
Defendants' counterclaim is likewise denied for
lack of sufficient merit." 2
On appeal to respondent court, said judgment of
the lower court dismissing the complaint of
therein plaintiffs-appellants was set aside and
another
judgment
was
rendered
against
defendants-appellees who, as petitioners in the
present appeal by certiorari, now submit for
resolution the following issues in this case:
1. Whether or not respondent court correctly
reversed the trial court in accordance with
established decisional laws; and
2. Whether or not Article 2180 of the Civil Code
was correctly interpreted by respondent court to
make petitioners liable for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus
P. Cerna, Police Medico-Legal Officer of Cebu,
submitted his findings and opinions on some
postulates for determining whether or not the
gunshot wound was inflicted on Wendell Libi by
his own suicidal act. However, undue emphasis
was placed by the lower court on the absence of
gunpowder or tattooing around the wound at the
point of entry of the bullet. It should be
emphasized, however, that this is not the only
circumstance to be taken into account in the
determination of whether it was suicide or not.
It is true that said witness declared that he found
no evidence of contact or close-contact of an
explosive discharge in the entrance wound.
However, as pointed out by private respondents,
the body of deceased Wendell Libi must have
been washed at the funeral parlor, considering
the hasty interment thereof a little after eight (8)
hours from the occurrence wherein he died. Dr.
Cerna himself could not categorically state that
the body of Wendell Libi was left untouched at
the funeral parlor before he was able to conduct
his autopsy. It will also be noted that Dr. Cerna
was negligent in not conducting a paraffin test on
Wendell Libi, hence possible evidence of
gunpowder residue on Wendell's hands was
forever lost when Wendell was hastily buried.
LexLib
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More specifically, Dr. Cerna testified that he

conducted an autopsy on the body of Wendell Libi
about eight (8) hours after the incident or, to be
exact, eight (8) hours and twenty (20) minutes
based on the record of death; that when he
arrived at the Cosmopolitan Funeral Homes, the
body of the deceased was already on the autopsy
table and in the stage of rigor mortis; and that
said body was not washed, but it was dried. 4
However, on redirect examination, he admitted
that during the 8-hour interval, he never saw the
body nor did he see whether said body was wiped
or washed in the area of the wound on the head
which he examined because the deceased was
inside the morgue. 5 In fact, on crossexamination, he had earlier admitted that as far
as the entrance of the wound, the trajectory of
the bullet and the exit of the wound are
concerned, it is possible that Wendell Libi shot
himself. 6
He further testified that the muzzle of the gun
was not pressed on the head of the victim and
that he found no burning or singeing of the hair
or extensive laceration on the gunshot wound of
entrance which are general characteristics of
contact
or
near-contact
fire.
On
direct
examination, Dr. Cerna nonetheless made these
clarification:
"Q Is it not a fact that there are certain guns
which are so made that there would be no black
residue or tattooing that could result from these
guns because they are what we call clean?
A Yes, sir. I know that there are what we call
smokeless powder.
ATTY. ORTIZ:
Q Yes. So, in cases, therefore, of guns where the
powder is smokeless, those indications that you
said may not rule out the possibility that the gun
was closer than 24 inches, is that correct?

A If the . . . assuming that the gun used was .. the

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

a little above that, to be very fair and on your

oath?
A As far as the point of entrance is concerned and
as far as the trajectory of the bullet is concerned
and as far as the angle or the manner of fire is
concerned, it could have been fired by the
victim." 7
As shown by the evidence, there were only two
used bullets 8 found at the scene of the crime,
each of which were the bullets that hit Julie Ann
Gotiong and Wendell Libi, respectively. Also, the
sketch prepared by the Medico-Legal Division of
the National Bureau of Investigation, 9 shows that
there is only one gunshot wound of entrance
located at the right temple of Wendell Libi. The
necropsy report prepared by Dr. Cerna states:
xxx xxx xxx
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4
cm., with contusion collar widest inferiorly by 0.2
cm., edges inverted, oriented upward, located at
the head, temporal region, right, 2.8 cms. behind
and 5.5 cms. above right external auditory
meatus, directed slightly forward, upward and to
the left, involving skin and soft tissues, making a
punch-in fracture on the temporal bone, right,
penetrating cranial cavity, lacerating extensively
along its course the brain tissues, fracturing
parietal bone, left, and finally making an EXIT
wound, irregular, 2.0 x 1.8 cms., edges (e)verted,
parietal region, left, 2.0 cms. behind and 12.9
cms. above left external auditory meatus. LLjur
xxx xxx xxx
"Evidence of contact or close-contact fire, such as
burning around the gunshot wound of entrance,
gunpowder tatooing (sic), smudging, singeing of
hair, extensive laceration or bursting of the
gunshot wound of entrance, or separation of the
skin from the underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated
his theory which was made of record, thus:

ATTY. SENINING:
I would like to make of record that the witness
has demonstrated by extending his right arm
almost straight towards his head." 11
Private respondents assail the fact that the trial
court gave credence to the testimonies of
defendants' witnesses Lydia Ang and James
Enrique Tan, the first being a resident of an
apartment across the street from the Gotiongs
and the second, a resident of the house adjacent
to the Gotiong residence, who declared having
seen a "shadow" of a person at the gate of the
Gotiong house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the
apartment where she was staying faces the gas
station; that it is the second apartment; that from
her window she can see directly the gate of the
Gotiongs and, that there is a firewall between her
apartment and the gas station. 12 After seeing a
man jump from the gate of the Gotiongs to the
rooftop of the Tans, she called the police station
but the telephone lines were busy. Later on, she
talked with James Enrique Tan and told him that
she saw a man leap from the gate towards his
rooftop. 13
However, James Enrique Tan testified that he saw
a "shadow" on top of the gate of the Gotiongs,
but denied having talked with anyone regarding
what he saw. He explained that he lives in a
duplex house with a garden in front of it; that his
house is next to Felipe Gotiong's house; and he
further gave the following answers to these
questions: prcd
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiong's
in relation to your house?
WITNESS:
A It is about 8 feet.

"Q Now, will you please use yourself as Wendell

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

ATTY. ORTIZ: (TO WITNESS)

WITNESS:

ATTY. ORTIZ (TO WITNESS)

A Actually, sir, the 24 inches is approximately one

arm's length.

Q From Your living room window, is that correct?

Q And where were you looking from?

WITNESS:
A From upstairs in my living room.

WITNESS:
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A Yes, but not very clear because the wall is

high." 14
Analyzing the foregoing testimonies, we agree
with respondent court that the same do not
inspire credence as to the reliability and accuracy
of the witnesses' observations, since the visual
perceptions of both were obstructed by high walls
in their respective houses in relation to the house
of herein private respondents. On the other hand,
witness Manolo Alfonso, testifying on rebuttal,
attested without contradiction that he and his
sister, Malou Alfonso, were waiting for Julie Ann
Gotiong when they heard her scream; that when
Manolo climbed the fence to see what was going
on inside the Gotiong house, he heard the first
shot; and, not more than five (5) seconds later,
he heard another shot. Consequently, he went
down from the fence and drove to the police
station to report the incident. 15 Manolo's direct
and candid testimony establishes and explains
the fact that it was he whom Lydia Ang and James
Enrique Tan saw as the "shadow" of a man at the
gate of the Gotiong house.
We have perforce to reject petitioners' effete and
unsubstantiated pretension that it was another
man who shot Wendell and Julie Ann. It is
significant that the Libi family did not even point
to or present any suspect in the crime nor did
they file any case against any alleged "John Doe."
Nor can we sustain the trial court's dubious
theory that Wendell Libi did not die by his own
hand because of the overwhelming evidence
testimonial, documentary and pictorial the
confluence of which point to Wendell as the
assailant of Julie Ann, his motive being revenge
for her rejection of his persistent pleas for a
reconciliation. LibLex
Petitioners' defense that they had exercised the
due diligence of a good father of a family, hence
they should not be civilly liable for the crime
committed by their minor son, is not borne out by
the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell,
testified that her husband, Cresencio Libi, owns a
gun which he kept in a safety deposit box inside a
drawer in their bedroom. Each of these
petitioners holds a key to the safety deposit box
and Amelita's key is always in her bag, all of
which facts were known to Wendell. They have
never seen their son Wendell taking or using the
gun. She admitted, however, that on that fateful
night the gun was no longer in the safety deposit
box. 16 We, accordingly, cannot but entertain
serious doubts that petitioner spouses had really
been exercising the diligence of a good father of
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a family by safely locking the fatal gun away.

Wendell could not have gotten hold thereof
unless one of the keys to the safety deposit box
was negligently left lying around or he had free
access to the bag of his mother where the other
key was.
The diligence of a good father of a family required
by law in a parent and child relationship consists,
to a large extent, of the instruction and
supervision of the child. Petitioners were gravely
remiss in their duties as parents in not diligently
supervising the activities of their son, despite his
minority and immaturity, so much so that it was
only at the time of Wendell's death that they
allegedly discovered that he was a CANU agent
and that Cresencio's gun was missing from the
safety deposit box. Both parents were sadly
wanting in their duty and responsibility in
monitoring and knowing the activities of their
children who, for all they know, may be engaged
in dangerous work such as being drug informers,
17 or even drug users. Neither was a plausible
explanation given for the photograph of Wendell,
with a handwritten dedication to Julie Ann at the
back thereof, 18 holding upright what clearly
appears as a revolver and on how or why he was
in possession of that firearm.
In setting aside the judgment of the court a quo
and holding petitioners civilly liable, as explained
at the start of this opinion, respondent court
waved aside the protestations of diligence on the
part of petitioners and had this to say:
". . . It is still the duty of parents to know the
activity of their children who may be engaged in
this dangerous activity involving the menace of
drugs. Had the defendants-appellees been
diligent in supervising the activities of their son,
Wendell, and in keeping said gun from his reach,
they could have prevented Wendell from killing
Julie Ann Gotiong. Therefore, appellants are liable
under Article 2180 of the Civil Code which
provides:
'The father, and in case of his death or incapacity,
the mother, are responsible for the damages
caused by their minor children who live in their
company.'
"Having been grossly negligent in preventing
Wendell Libi from having access to said gun
which was allegedly kept in a safety deposit box,
defendants-appellees are subsidiarily liable for
the natural consequence of the criminal act of
said minor who was living in their company. This
vicarious liability of herein defendants-appellees
has been reiterated by the Supreme Court in
many cases, prominent of which is the case of

Fuellas vs. Cadano, et. al. (L-14409, Oct. 31,

1961, 3 SCRA 361-367), which held that:
'The subsidiary liability of parents for damages
caused by their minor children imposed by Article
2180 of the New Civil Code covers obligations
arising from both quasi-delicts and criminal
offenses.'
'The subsidiary liability of parent's arising from
the criminal acts of their minor children who
acted with discernment is determined under the
provisions of Article 2180, N.C.C. and under
Article 101 of the Revised Penal Code, because to
hold that the former only covers obligations
which arise from quasi-delicts and not obligations
which arise from criminal offenses, would result in
the absurdity that while for an act where mere
negligence intervenes the father or mother may
stand subsidiarily liable for the damages caused
by his or her son, no liability would attach if the
damage is caused with criminal intent.' (3 SCRA
361-362).

". . . In the instant case, minor son of herein

defendants-appellees, Wendell Libi somehow got
hold of the key to the drawer where said gun was
kept under lock without defendant-spouses ever
knowing that said gun had been missing from
that safety box since 1978 when Wendell Libi had
a picture taken wherein he proudly displayed said
gun and dedicated this picture to his sweetheart,
Julie Ann Gotiong; also since then, Wendell Libi
was said to have kept said gun in his car, in
keeping up with his supposed role of a CANU
agent . . ." llcd
xxx xxx xxx
"Based on the foregoing discussions of the
assigned errors, this Court holds that the lower
court was not correct in dismissing herein
plaintiffs-appellants'
complaint
because
as
preponderantly shown by evidence, defendantsappellees utterly failed to exercise all the
diligence of a good father of the family in
preventing their minor son from committing this
crime by means of the gun of defendantsappellees which was freely accessible to Wendell
Libi for they have not regularly checked whether
said gun was still under lock, but learned that it
was missing from the safety deposit box only
after the crime had been committed." (Emphases
ours.) 19
We agree with the conclusion of respondent court
that petitioners should be held liable for the civil
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liability based on what appears from all

indications was a crime committed by their minor
son. We take this opportunity, however, to digress
and discuss its ratiocination therefor on
jurisprudential dicta which we feel require
clarification.
In imposing sanctions for the so-called vicarious
liability of petitioners, respondent court cites
Fuellas vs. Cadano, et al. 20 which supposedly
holds that "(t)he subsidiary liability of parents for
damages caused by their minor children imposed
by Article 2180 of the New Civil Code covers
obligations arising from both quasi-delicts and
criminal offenses," followed by an extended
quotation ostensibly from the same case
explaining why under Article 2180 of the Civil
Code and Article 101 of the Revised Penal Code
parents should assume subsidiary liability for
damages caused by their minor children. The
quoted passages are set out two paragraphs
back, with pertinent underscoring for purposes of
the discussion hereunder. LLphil
Now, we do not have any objection to the
doctrinal rule holding, the parents liable, but the
categorization of their liability as being
subsidiary, and not primary, in nature requires a
hard second look considering previous decisions
of this court on the matter which warrant
comparative analyses. Our concern stems from
our readings that if the liability of the parents for
crimes or quasi-delicts of their minor children is
subsidiary, then the parents can neither invoke
nor be absolved of civil liability on the defense
that they acted with the diligence of a good
father of a family to prevent damages. On the
other hand, if such liability imputed to the
parents is considered direct and primary, that
diligence would constitute a valid and substantial
defense.
We believe that the civil liability of parents for
quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is
primary and not subsidiary. In fact, if we apply
Article 2194 of said code which provides for
solidary liability of joint tortfeasors, the persons
responsible for the act or omission, in this case
the minor and the father and, in case of his death
of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and
not subsidiary, hence the last paragraph of Article
2180 provides that "(t) he responsibility treated
of in this article shall cease when the persons
herein mentioned prove that they observed all
the diligence of a good father of a family to
prevent damages."

We are also persuaded that the liability of the

parents for felonies committed by their minor
children is likewise primary, not subsidiary. Article
101 of the Revised Penal Code provides:
"ARTICLE 101. Rules regarding civil liability in
certain cases.
xxx xxx xxx
First. In cases of subdivisions . . . 2, and 3 of
Article 12, the civil liability for acts committed
by . . . a person under nine years of age, or by
one over nine but under fifteen years of age, who
has acted without discernment, shall devolve
upon those having such person under their legal
authority or control, unless it appears that there
was no fault or negligence on their part."
(Emphases supplied.) 21
Accordingly, just like the rule in Article 2180 of
the Civil Code, under the foregoing provision the
civil liability of the parents for crimes committed
by their minor children is likewise direct and
primary, and also subject to the defense of lack of
fault or negligence on their part, that is, the
exercise of the diligence of a good father of a
family.
That in both quasi-delicts and crimes the parents
primarily respond for such damages is buttressed
by the corresponding provisions in both codes
that the minor transgressor shall be answerable
or shall respond with his own property only in the
absence or in case of insolvency of the former.
Thus, for civil liability ex quasi delicto of minors,
Article 2182 of the Civil Code states that "(i)f the
minor causing damage has no parents or
guardian, the minor . . . shall be answerable with
his own property in an action against him where a
guardian ad litem shall be appointed." For civil
liability ex delicto of minors, an equivalent
provision is found in the third paragraph of Article
101 of the Revised Penal Code, to wit:
"Should there be no person having such . . .
minor under his authority, legal guardianship or
control, or if such person be insolvent, said . . .
minor shall respond with (his) own property,
excepting property exempt from execution, in
accordance with civil law."
The civil liability of parents for felonies committed
by their minor children contemplated in the
aforesaid rule in Article 101 of the Revised Penal
Code in relation to Article 2180 of the Civil Code
has, aside from the aforecited case of Fuellas,
been the subject of a number of cases
adjudicated by this Court, viz.: Exconde vs.
Capuno, et al., 22 Araneta vs. Arreglado, 23
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Salen, et al. vs. Balce, 24 Paleyan, etc., et al. vs.

Bangkili, et al., 25 and Elcano, et al, vs. Hill, et al.
26 Parenthetically, the aforesaid cases were
basically on the issue of the civil liability of
parents for crimes committed by their minor
children over 9 but under 15 years of age, who
acted with discernment, and also of minors 15
years of age or over, since these situations are
not covered by Article 101, Revised Penal Code.
In both instances, this Court held that the issue of
parental civil liability should be resolved in
accordance with the provisions of Article 2180 of
the Civil Code for the reasons well expressed in
Salen and adopted in the cases hereinbefore
enumerated that to hold that the civil liability
under Article 2180 would apply only to quasidelicts and not to criminal offenses would result
in the absurdity that in an act involving mere
negligence the parents would be liable but not
where the damage is caused with criminal intent.
In said cases, however, there are unfortunate
variances resulting in a regrettable inconsistency
in the Court's determination of whether the
liability of the parents, in cases involving either
crimes or quasi-delicts of their minor children, is
primary or subsidiary.
In Exconde, where the 15-year old minor was
convicted of double homicide through reckless
imprudence, in a separate civil action arising
from the crime the minor and his father were held
jointly and severally liable for failure of the latter
to prove the diligence of a good father of a family.
The same liability in solidum and, therefore,
primary liability was imposed in a separate civil
action in Araneta on the parents and their 14year old son who was found guilty of frustrated
homicide, but on the authority of Article 2194 of
the Civil Code providing for solidary responsibility
of two or more persons who are liable for a quasidelict.
However, in Salen, the father was declared
subsidiarily liable for damages arising from the
conviction of his son, who was over 15 but less
than 18 years of age, by applying Article 2180
but, this time, disregarding Article 2194 of the
Civil Code. In the present case, as already
explained, the petitioners herein were also held
liable but supposedly in line with Fuellas which
purportedly declared the parents subsidiarily
liable for the civil liability for serious physical
injuries committed by their 13-year old son. On
the other hand, in Paleyan, the mother and her
19-year old son were adjudged solidarily liable for
damages arising from his conviction for homicide
by the application of Article 2180 of the Civil
Code since this is likewise not covered by Article
101 of the Revised Penal Code. Finally, in Elcano,
although the son was acquitted in a homicide

charge due to "lack of intent, coupled with

mistake," it was ruled that while under Article
2180 of the Civil Code there should be solidary
liability for damages, since the son, "although
married, was living with his father and getting
subsistence from him at the time of the
occurrence," but "is now of age, as a matter of
equity" the father was only held subsidiarily
liable.
It bears stressing, however, that the Revised
Penal Code provides for subsidiary liability only
for persons causing damages under the
compulsion of irresistible force or under the
impulse of an uncontrollable fear; 27 innkeepers,
tavern-keepers and proprietors of establishments;
28
employers,
teachers,
persons
and
corporations engaged in industry; 29 and
principals, accomplices and accessories for the
unpaid civil liability of their co-accused in the
other classes. 30
Also, coming back to respondent court's reliance
on Fuellas in its decision in the present case, it is
not exactly accurate to say that Fuellas provided
for subsidiary liability of the parents therein. A
careful scrutiny shows that what respondent
court quoted verbatim in its decision now on
appeal in the present case, and which it
attributed to Fuellas, was the syllabus on the law
report of said case which spoke of "subsidiary"
liability. However, such categorization does not
specifically appear in the text of the decision in
Fuellas. In fact, after reviewing therein the cases
of Exconde, Araneta and Salen and the
discussions in said cases of Article 101 of the
Revised Penal Code in relation to Article 2180 of
the Civil Code, this Court concluded its decision in
this wise:

"Moreover, the case at bar was decided by the

Court of Appeals on the basis of evidence
submitted therein by both parties, independent of
the criminal case. And responsibility for fault or
negligence under Article 2176 upon which the
present action was instituted, is entirely separate
and distinct from the civil liability arising from
fault or negligence under the Penal Code (Art.
2177), and having in mind the reasons behind the
law as heretofore stated, any discussion as to the
minor's criminal responsibility is of no moment."
Under the foregoing considerations, therefore, we
hereby rule that the parents are and should be
held primarily liable for the civil liability arising
from criminal offenses committed by their minor
children under their legal authority or control, or
who live in their company, unless it is proven that
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the former acted with the diligence of a good

father of a family to prevent such damages. That
primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with
respect to damages ex delicto caused by their
children 9 years of age or under, or over 9 but
under 15 years of age who acted without
discernment; and, with regard to their children
over 9 but under 15 years of age who acted with
discernment, or 15 years or over but under 21
years of age, such primary liability shall be
imposed pursuant to Article 2180 of the Civil
Code. 31
Under said Article 2180, the enforcement of such
liability shall be effected against the father and,
in case of his death or incapacity, the mother.
This was amplified by the Child and Youth Welfare
Code which provides that the same shall devolve
upon the father and, in case of his death or
incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the
liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. 3
2 However, under the Family Code, this civil
liability is now, without such alternative
qualification, the responsibility of the parents and
those who exercise parental authority over the
minor offender. 33 For civil liability arising from
quasi-delicts committed by minors, the same
rules shall apply in accordance with Articles 2180
and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the
hapless Julie Ann Gotiong was caused by a felony
or a quasi-delict committed by Wendell Libi,
respondent court did not err in holding petitioners
liable for damages arising therefrom. Subject to
the preceding modifications of the premises
relied upon by it therefor and on the bases of the
legal imperatives herein explained, we conjoin in
its findings that said petitioners failed to duly
exercise the requisite diligentissimi patris familias
to prevent such damages.
ACCORDINGLY, the instant Petition is DENIED and
the assailed judgment of respondent Court of
Appeals is hereby AFFIRMED, with costs against
petitioners.
SO ORDERED.
Narvasa, C .J ., Gutierrez, Jr., Cruz, Padilla, Bidin,
Grio-Aquino, Medialdea, Romero, Nocon and
Bellosillo, Jr., JJ ., concur.
Feliciano, J ., is on leave.
Davide, Jr., J ., took no part. I used to be counsel
of one of the parties.

||| (Libi v. Intermediate Appellate Court, G.R. No.

70890, September 18, 1992)

Melo and Campos, Jr., JJ ., took no part.

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