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518 SUPREME COURT REPORTS ANNOTATED

Tamargo vs. Court of Appeals

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,
IIocos Sur; VICTOR BUNDOC; and CLARA BUNDOC,
respondents.

Supreme Court; Motions; While notice of time and place of hear-ing is

mandatory in motion, Supreme Court may suspend its rules thereon to
prevent manifest injustice to appellant—As in fact repeatedly held by this
Court, what is mandatory is the service of the motion

_______________

* THIRD DIVISION.

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Tamargo vs. Court of Appeals

on the opposing counsel indicating the time.and place of hearing. 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.
Actions; Quasi-delicts; Parents and Child; Adoption; The natural
parents of a minor still living with the former when the latter accidentally
shot a girl with an air rifle are liable for damages thus caused rather than

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the adopter even if petition for adoption filed before the accident and
granted thereafter.—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.
Same; Same.—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 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.

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520 SUPREME COURT REPORTS ANNOTATED

Tamargo vs. Court of Appeals

PETITION for review of the decision of the Court of Appeals

The facts are stated in the opinion of the Court.

FELICIANO, J.:

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 parents, against respondent
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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.

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Tamargo vs. Court of Appeals

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
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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
through 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

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Tamargo vs. Court of Appeals

motions, not having contained a notice of time and place of hearing,

had become useless pieces of paper which did not interrupt the
1
reglementary period. As in fact repeatedly held by this Court, what
is mandatory is the service of the motion2
on the opposing counsel
indicating the time and place of hearing.
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
3
for
appeal. As the Court held in Gregorio v. Court of Appeals:

"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
4
defeated."

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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 quasi-delict 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
quasi-delict x x x."

Upon the other hand, the law imposes civil liability upon the father
and, in case of his death or incapacity, the mother, for

______________

1 Pojas v. Hon. Gozo-Dalole, 192 SCRA 575 (1990).

2 Fecundo v. Berjamen, 180 SCRA 235 (1989); Filipinas Fabricators and Sales,
Inc. v. Magsino, 157 SCRA 469 (1988).
3 72 SCRA 120 (1976).
4 Id, at 126.

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Tamargo vs. Court of Appeals

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.
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." (Italics 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
5
and disciplining of the child. The basis for the doctrine of vicarious
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liability
6
was explained by the Court in Cangco v. Manila Railroad
Co. 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-

_______________

5 See in this connection, Art. 311, 316, 357, Civil Code; Exconde v. Capuno, 101 Phil. 843
(1957).
6 38 Phil. 768 (1918).

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524 SUPREME COURT REPORTS ANNOTATED

Tamargo vs. Court of Appeals

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 (Italics 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
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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
favor of the Rapisura spouses, parental authority was vested in the
latter as adopting parents as of the time of the filing of 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.

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7 Id., at 775-776.

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Tamargo us. Court of Appeals

Respondent Bundoc spouses rely on Article 36 of the Child and

8
Youth Welfare Code which reads as follows:

"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." (Italics
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" (Italics 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
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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." (Italics supplied)
9
Article 221 of the Family Code of the Philippines has similarly
insisted upon the requisite that the child, doer of the tortious

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8 Presidential Decree No. 603, dated 10 December 1974.

9 Executive Order No. 209, dated 6 July 1987.

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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."
(Italics 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
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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." (Italics supplied)

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Tamargo vs. Court of Appeals

Under the above Article 35, parental authority is provisionallyvested

in the adopting parents during the period of trial custody, i.e., before
the issuance of a decree of adoption, preciselybecause the adopting
parents are given actual custody of thechild during such trial period.
In the instant case, the trialcustody period either had not yet begun
or had already beencompleted 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.
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 CA-G.R. No. SP15016 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. (Chairman), Bidin, Davide, Jr. and Romero,

JJ., concur.

Petition granted; decision reversed and set aside.

Note.—The notice of hearing is an integral component of

procedural due process. It is intended to afford the adverse parties a

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chance to be heard before the motion is resolved by the court

(Estipona vs. Navarro, 69 SCRA 285).

——o0o——

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