delivered the opinion of the court.
Pastor Vélez Toro sued José Llavina in the District Court of Mayagiiez for the recovery of a certain sum by way of damages, alleging in substance as ground for his claim that on June 19, 1910, while traveling on the highway between Maya-güez and San Germán, leading a horse, he was run over by an automobile, from which accident he had sustained several injuries; that this automobile belonged to an enterprise the *636defendant owns for the daily conveyance of -passengers, and it was piloted by chauffeur Juan G-once, an employe of the concern, who at the time was acting as such employe of the defendant and within the scope of his duties as such; that the aforesaid automobile was piloted in a negligent and careless manner, this being the canse of the accident, in which there was no fault or negligence on the part of the plaintiff.
In his answer the defendant, José Llavina, denies, among other things, that either at the time of the accident or before he had had any automobile service for the daily use: of passengers, he likewise denying that Juan Gonce was an agent or employe of any such enterprise. This denial he repeats in one of the positive averments of his answer, although adding that he has a private automobile for his own use which he sometimes lent or hired to certain friends without such employment ever assuming the character of a permanent service or business, and that on said automobile Juan Gonce is employed as chauffeur. He also denied the fault and negligence ascribed to his chauffeur and that the plaintiff was free from blame.
Trial having been had,- the district court rendered judgment on August 19 last, dismissing the complaint with costs against the plaintiff. The plaintiff moved the court for a new trial, and from the order overruling said motion, as also from the judgment, he took the present appeal.
The opinion prepared by the court below sets out as a reason for its finding that the complaint is undoubtedly based on paragraph 4, section 1804, in connection with section 1803, both of the Revised Civil Code, and that although the plaintiff alleged that the automobile which had caused the accident belonged to an enterprise of the defendant’s for the conveyance of passengers, he' had not proven that the defendant, José Llavina, was at the date of the accident owner or manager of such concern nor that Juan Gonce was employed as chauffeur of any public enterprise whatsoever.
Before entering upon a consideration of the legal question *637involved in said opinion and judgment, which issue' is also raised in the appellant’s brief, we must point ont that the plaintiff did not produce any evidence to prove his affirmation — which was denied by the defendant — that the latter owned at the time of the accident an automobile service for the conveyance of passengers; that consequently the-automobile that had caused the accident for which the plaintiff claims damages belonged to said concern, and that Juan Gonce was employed as chauffeur by any such line; and from the statement made: by the defendant in his answer to the effect that he sometimes lent or hired to certain friends the automobile kept by him for his private use, without this constituting a permanent business or service, it cannot be inferred that he owned the public concern mentioned by the plaintiff. In order to be considered such public concern the automobile must have been regularly engaged in the carrying business, transporting from place to place anybody who paid the proper fare; and the fact of his hiring his private automobile to certain friends but not to everybody does not imply that his automobile was engaged in the business of carrying passengers.
It not having been proven, then, that the defendant owned any public service enterprise whatever for conveying passengers at the time the accident occurred which gave rise to this action, but it having been admitted that he kept said automobile for his private use and that it was piloted by Juan Gonce, employed by him as chauffeur, we may proceed to examine the question already pointed ont by us and which constitutes the fundamental issue in this controversy.
Is the owner of an automobile not engaged in the carrying business but intended for his private use responsible for the fault and negligence of one of his employes acting as chauffeur?
To decide this question we must first determine which law' governs the matter.
When, in 1898, the change of sovereignty occurred in this *638Island, the authority of Spain being transferred to the United States, we had a civil code which regulated the matter of responsibility arising from fanlt or negligence, whether dne to personal acts or to the acts of certain persons for which another was responsible.
Shortly after this the Congress of the United States passed the: act generally known as the “Foraker Act,”, section 8 whereof reads as follows:
“Section 8. That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended, or modified hereinafter, or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended, or repealed by the legislative authority hereinafter provided for Porto Rico or by Act of Congress of the United States. ’ ’
This same act, under section 32, provides:
“Section 32. That the legislative authority herein provided shall extend to all matters of a legislative character not locally inapplicable, including power to create, consolidate, and reorganize the municipalities, so far as may be necessary, and to provide and repeal laws and ordinances therefor; and also the power to alter, amend, modify, and repeal any and all laws and ordinances of every character now in force in Porto Rico, or any municipality or district thereof not inconsistent with the provisions hereof. ’ ’
As a result of these powers the Legislative Assembly of Porto Rico in 1902 passed, and the G-overnor of the Island approved, the Revised Civil Code which, barring a few modifications, was substantially the Spanish Civil Code; and inasmuch as there is no Federal law governing the matter of damages between private persons, nor is there in the Constitution any provision with reference thereto, our legislative assembly has power to legislate upon this matter; and, therefore, only to our Revised Civil Code must we recur in this case for the purpose of deciding the question at issue, Amer*639ican doctrine and jurisprudence being applicable only so far as tbey are based on tbe principles of onr Civil Code, or are derived from general principles of law not in conflict therewith.
It being agreed that the laws of Porto Bico are the only -•ones governing the matter of damages between private persons we mnst note the fact that only two laws have been enacted npon the subject, namely, “An act in relation to the liability of employers for injuries sustained by their employes while in their service, ’ ’ which has no bearing npon this case, and the Bevised Civil Code, from which we transcribe the following sections, forming part of Chapter II, Title XVI, Book IV, and dealing with obligations which arise from fault .or negligence:
“Section 1803. A person who by an act or omission causes damage -to another when there is fault or negligence shall be obliged to repair the damage so done.
■ ‘ ‘ Section 1804. The obligation imposed by the preceding section is d'emandable not only for personal acts and omissions, but also for those of the persons for whom they should be responsible.
“The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them.
‘‘ Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them.
‘‘ Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employes in the service of the branches in which the latter may be employed or on account of their duties.
“The State is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding section shall be applicable.
“Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under, their custody.
“The liability referred to in this section shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage. ’'
*640Tlie two foregoing provisions are an exact reproduction of article's 1902 and 1903 of our former Spanish Civil Code.
By the first section the general rule is established that a person is civilly liable for his own acts or omissions when there has been fault or negligence on his part.
Discussing this matter the learned commentator, Manresa, while commenting upon article 1902, which is section 1803 of our present code, observes •.
“1. Legal grounds of this class of obligations. — This article lays down the general rule as to the imposition of obligations arising from fault or negligence. These have their origin in damage caused by a voluntary act or omission, though done without any punishable intention, wherefore the person who executed the act giving rise to, or occasioning the damage, or who, also voluntarily, incurred the omission which produced it, is the one called upon, in the first place, to sustain the expense or be liable for the reparation of the damage.
“The terms of this article clearly define the special character of this class of obligations, which although in certain cases owe their origin to a fact or positive act such as those arising from quasi-contracts, they differ from them, however, in that the latter proceed from a lawful and purely voluntary act, executed by the person upon whom the obligation is imposed, whereas those we are dealing with now have their origin in an unlawful act or omission, though this be not punishable and is sometimes involuntarily or even not the personal act or omission of the one liable therefor; for, as we shall see further on, there may be cases where the acts or omissions causing the damage may not be those of the person subject to the obligation who, for specific reasons, must be held responsible therefor, because in a certain manner they are imputable to him, despite the fact of his not having incurred them. But the rule established in this article refers only to the liability imposed upon the obligated person when the damage to be repaired has been caused by his own personal acts or omissions; and said rule rests precisely on the legal principle which underlies the whole theory of said obligations, according to which whoever causes a damage is bound to repair the same.
“Hence it appears that the only kind of fault and omission or negligence which can be made the subject of the present chapter is the one above defined in the second place; in other words, that which, without there existing a prior obligation, or the antecedent of a contract, causes a damage arising from an act or omission which is only *641a civil offense — that is to say, that while unlawful, it is not a crime or misdemeanor punished by law — and even without these limits the terms or matter appertaining to this article should be restricted still further, said article referring only to the personal fault or negligence of the obligated person, but not to that arising from acts or omissions of persons other than himself.”
The principle contained in the code, which requires that a person should "be held responsible for his negligent acts or omissions, is a just one, because third persons should not be called upon to suffer the injurious consequences of other people’s negligence.
The general rule is, then, that a person is liable for Ms own acts or omissions, and if he is ever called upon to answer for the acts or omissions of others, this would constitute an exception to the general rule. Such exceptions are contained in the law and consist in imposing responsibility: (1) For damages caused by persons under the custody or dependency of the responsible party; (2) for those caused by animals kept by him for his own service, convenience, or recreation, or by those which he makes use of for the same purpose, though not his property; (3) for damages caused by the ruins of a building or resulting from the industry in which he is engaged, or due to some other specified causes; (4) for those caused by objects thrown or fallen from an inhabited house or part thereof. But as it appears to be repugnant to natural reason and to the general principle of law that any one should be held liable for the faults of others, legists have tried to explain the reason for these exceptions, and propounded different theories to justify them.'
It does not seem to us proper, in an opinion written for the sole purpose of setting forth the grounds of a judicial decision, that we should enter upon an exposition and criticism of all these various theories. We shall therefore confine ourselves to making a brief reference to them, and determining-on which of these theories are based the exceptions to the general rule contained in our Civil Code’.
*642According to the Italian theory indorsed by G-iorgi, Mosca, Sechi, and others, the liability contained in these exceptions is based on a presumption of absolute fault in choosing or watching, for which reason some of them exclude such liability when no freedom was allowed in the choice or when 'there was no possibility of vigilance.
Another theory, that originating in the preparatory labors on the French code, found the reason of such liability- of one person for another, in the utilization of the services of the employe, animals, or things, because' to this the damage was due, and they reached the conclusion of the presumption of absolute fault through those who were under his authority or dependency, a theory which was impugned by Lessona and others on the ground that such presumption juris et de jure was in contradiction to the natural order of things, according to which, instead of carelessness and remissness in the choice of employes, or of negligence in watching them, self-interest, as a rule, prompted one to select as employe or clerk a competent person, and by the same self-interest he was inclined to watch him; whence they concluded that a feigned or presumed fault is generally an injustice.
Others find the reason for this liability, either in the relation of authority or seigniory, in the directions which it behooves principals to give their subordinates, in the growing danger attending the present industrial organization, in pecuniary interest; and others in representation — that is, that the responsible party does juridically by himself what he does through the agency of another; whence the mere fact of a substitution carries with it the liability of the person substituted, some authorities declaring that representation or substitution is the cause of liability.
As to our Civil Code, it is based on the principle of the juris tantum presumption of fault derived from the fact that due care and vigilance were not bestowed on the acts of the subordinate in order to avoid the damage, for which reason the last paragraph of section 1804 relieves from liability per*643sons responsible for tbe acts of others when they prove that all tbe diligence of a good father of a family was employed by them to avoid tbe damage. Upon this point Manresa comments as follows:
“The cause of the obligation imposed is not, then, representation, nor interest, nor the necessity of having somebody to answer for the damage caused by one who can show no personality nor guarantee of solvency, but the implicit or presumed nonperformance of the duties of precaution and prudence imposed by the civil ties which bind the obligor to the persons for whom.he must repair the damage done. This is why the code places this obligation among those arising from fault or negligence.”
If, then, liability for tbe fault of another is an exception to tbe general rule, namely, that no one should answer but for himself, and so many theories had to be called up in order to justify civil punishment for the fault or negligence of another, such liability cannot be enforced unless the exception has been clearly specified in the' law, for such liability being, to a certain extent, in the nature of a penalty, though a civil one, application should be made of the principle that no person can be punished, even civilly, except when the law has specifically so provided.
We are now prepared to answer the question propounded at the outset, upon which answer depends the determination of this litigation.
Confining now the question to that of liability for the acts of another, section 1804, hereinbefore quoted, contains in its first paragraph a confirmation of the preceding section to the effect that a person is liable for his own acts, and adds thereto the rule containing the exception of liability for certain third persons when it says that a person is liable for the acts of those “for whom they should be responsible.” After reading this passage the question occurs to one’s mind: “For whom should a person be responsible?”
Of course, when the law says “for whom they should be responsible, ” it is because the liability is only for the acts of *644certain specified persons, and such specification must, therefore, be made by the law itself.
And so it is in fact, for the first paragraph is followed by others wherein it is provided that the father, or in default thereof the mother, is liable for the minors who live with them, guardians for their wards, etc. These paragraphs contain an enumeration of cases of liability for the acts or omissions of others, Jbut we do not find therein that the owner of hn automobile or vehicle, not engaged' as a public carrier, should be liable for the negligent acts, of his employe.
The terms in which the whole of this section is conceived take away from courts of justice all liberty to assign responsibility in cases not included therein, for when a law specifies and determines the cases where it is applicable, it cannot be applied to other cases not included therein, according to the principle of law efcpressio unius est exclusio alterius.
All the cases of liability are contained in the chapter to which reference has been made, and with respect thereto Manresa, on page 606 of his “Comentarios,” from which we have quoted liberally, has this to say:
“* * Tllere may, moreover, be cases where the act or omission giving rise to the damage or injury is not caused by the person liable for the consequent obligation, but by other persons bound to him by such ties as make him legally responsible for those acts which in fact were not executed by himself; while on the other hand the evil he is called upon to remedy may even originate in causes entirely ^foreign to his will. For this reason the law has had to establish its regulating standards in the matter, the respective regulation thereof constituting the only object of the present articles and of the remainder of this chapter.”
/>/ /" Thus, then, inasmuch as in the cases specified in section J / ^ /1804 of the Revised Civil Code, the owner of an automobile or ' ... >1 vehicle is not made responsible for the acts, involuntary fault, or negligence on the part of his employe, acting as chauffeur, if the same does not form part of a public service enterprise, which latter circumstance has not been proven, we must con-*645elude tliat the plaintiff lias no canse of action against José Llavina, owner of an automobile intended for Ms private nse, wMcli, wMle piloted by chauffeur Jnan Gonce, cansed the damages complained of by Pastor Velez Toro.
. The courts are not legislators, and we would be assuming the functions of legislators were we to hold persons liable upon whom the law imposes no liability. If it be convenient and necessary, in' view of recent inventions and accidents occasioned by them, that owners of automobiles or other apparatus not intended for public service should also be made responsible for their employes, this is a question for our legislative assembly to take up, and which does hot come within our province. Our part is only to apply the law, such as it is, and if .through its strict application something that the law has not provided for should be discovered, it may serve as a timely suggestion to legislators.
It is the first time that this question has been directly brought up for decision to this Supreme Court, for although in the case of Marrero v. López et al. (15 P. R. R., 828) there existed an analogous issue, indemnity for damages being-claimed against Antonio López Martínez for acts involving fault on the part of his overseer, Nicomedes López, who was also sued and adjudged to pay damages, yet in that case the principal, Antonio López, was released from all claim, the only issue raised being as to whether or not his overseer had acted within the scope of his duties when he executed the act for which damage was claimed. This was the only question raised, which was decided by two of the Justices of this Supreme Court, the other Justices holding that because of the absence of a statement of the case there was nothing to consider, and the: question as to whether or not the principal or master is liable for acts of his overseer was neither discussed nor decided.
In view of the foregoing, it is unnecessary to consider the evidence produced in this case, with reference to the fault or negligence characterizing the act of chauffeur Juan Gonce, *646since it matters very little to the principal, José Llavina — the only defendant in this case — whether or not his chauffeitr was negligent, he not being liable for the latter’s acts.
For the same reasons it wonld be idle to take np the various errors assigned by the appellant with reference to the evidence, and we shall only consider the one which may have a bearing upon the case as viewed by ns, namely, whether the plaintiff should have been allowed a new trial for the purpose of showing that the defendant was the owner of automobiles for the nse of the public, as he had alleged in his complaint.
The' motion for a new trial was based upon newly discovered evidence which the mover esteemed important, and by way of justification affidavits of Simón Carlo and Eduardo Riera were joined to said motion.
The new trial based on that ground was properly denied, because no diligence had been shown by the plaintiff to secure said evidence before the trial; and, moreover, it appears from the record that both witnesses were present in court, having been produced by the plaintiff for the purpose of proving other facts which he considered material to his case:, but which were rejected. Their testimony as to the issues raised in their affidavits had not been offered, nor has it been proven that the plaintiff was unaware of their being in a position to testify upon these facts; nor has it even been shown that they were questioned in regard thereto.
There appears to have been an absolute lack of diligence when this should have been affirmatively established.
“Affidavits should show that the party used reasonable diligence to discover and produce the evidence on a former trial.” (Stoakes v. Monroe, 36 Cal., 388.)
“It is not enough to allege diligence, but it is necessary to show that due diligence was employed to discover the evidence and produce it at the trial.” (Jack v. Cooke, 6 Cal., 164; Von Glahn v. Brennan, 81 Cal., 261; Heintz v. Cooper, 104 Cal., 668.)
*647For the foregoing considerations the judgment dismissing the' complaint should he affirmed.
Affirmed.
Chief Justice Hernández and Justices Wolf and del Toro concurred. Mr. Justice MacLeary dissented.