32. DULAY VS.
CA
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. 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 private respondents Safeguard and/or Superguard, alleged employers of defendant
Torzuela. Respondent Superguard filed a Motion to Dismiss on the ground that the complaint
does not state a valid cause of action. Superguard claimed that Torzuela’s act of shooting Dulay
was beyond the scope of his duties, and that since the alleged act of shooting was committed
with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised
Penal Code.
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 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. Respondent Safeguard also filed a motion praying that it be
excluded as defendant on the ground that defendant Torzuela is not one of its employees.
Petitioners opposed both motions, stating that their cause of action against the private
respondents is based on their liability under Article 2180 of the New Civil Code. Respondent
judge declared that the complaint was one for damages founded on crimes punishable under
Articles 100 and 103 of the Revised Penal Code as distinguished from those arising from, quasi-
delict.
Issues:
(1) Whether or not Torzuela’ s act of shooting Napoleon Dulay constitutes a quasi-delict
actionable under Article 2176 of the New Civil Code;
(2) Whether or not Article 33 of the New Civil Code applies only to injuries intentionally
committed; and
(3) Whether or not the liability or respondents is subsidiary under the Revised Penal Code.
Held:
(1) Yes. Article 2176 of the New Civil Code provides that “whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties is called a quasi-delict and is governed by the provisions of this
Chapter.” 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.
(2) No. 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. Although in the Marcia case, it was held that no
independent civil action may be filed under Article 33 where the crime is the result of
criminal negligence, it must be noted, however, that Torzuela, the accused in the case at
bar, is charged with homicide, not with reckless imprudence, whereas the defendant in
Marcia was charged with reckless imprudence. Therefore, in this case, a civil action
based on Article 33 lies.
(3) No. Under Article 2180 of the New Civil Code, 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. 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.
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.
