dissenting.
The Legislative Assembly enacted a Joint Resolution authorizing Ana María Jiménez widow of Ortiz for herself and representing her minor children “to sue The People of Puerto Rico for alleged damages suffered as a consequence of the death of her husband Justino Ortiz Valentin, Jr., father of the above-mentioned children, occurred on July 4, 1954, in San Sebastián, as a consequence of a shot fired at him by policeman Andrés Belén, while the latter was in uniform and on duty.” Further on the Joint Resolution states that said complaint is authorized regardless of whether The People of Puerto Rico had acted or not through *204a special agent when the above-mentioned death occurred.”' (Italics ours.)
The death occurred on July 4, 1954 and the complaint was filed on April 19, 1955, within a year. The only apparent reason for the legislative intervention, a problem of prescription not being in existence, was that of dispossessing The People of Puerto Rico in this case of the privilege given to the State under § 1803 of the Civil Code, of not being liable for criminal or quasi-criminal acts unless it had acted through a special agent. And in so doing, the Legislative Assembly reached a conclusion, which is amply supported by the evidence presented at the trial court to the effect that upon firing the shot the policeman was on duty.
The evidence in the record reveals that when the deceased left on the advise of the others who were there present, the policeman and Raúl Méndez, another agent dressed in civilian clothes, who was accompanying him, boarded a police jeep stationed at the scene of the argument and followed him. Several times a witness testified with self-assurance and firmness that when the victim left in his vehicle, the other officer told the policeman: “pursue him wherever he goes,” without this evidence being contradicted by any one, not even by Méndez, who was under the rules of the court as a witness announced by the defendant. As a matter of fact, they pursued him in an official police vehicle “tracking him down” as one witness stated. The problem of credibility does not arise from the record, and if an inference is made, in my opinion it would be made in the sense that once the trial court granted the complaint, it gave credit to this testimony.
I dissent because I understand that once it has been proved, as the very Legislative Assembly determined, inter alia, and it is established by the evidence in the record, that when the shot was fired the policeman was on police duty, *205that is, in the service of the branch in which he was employed — § 1803 — a presumption of guilt arose pursuant to a provision of the very § 1803 against defendant, which the latter was bound to destroy if he wished to be released, but failed to do so, unless it is concluded that the wrongful act itself, because it was excessive and unjustified, offers such a release. Such a premise would alter, as we have previously said, the doctrine of liability for the acts of another under § 1803. The excess itself in the service did not remove the event from the service.1
In the light of the Joint Resolution of the Legislative Assembly and of the facts in the record, I agree with the trial judge in that this case should be governed by the principles and by the doctrine set forth in Rodríguez v. People, *20675 P.R.R. 377. The fact that he acted therein according to a previous order to perform a specific act and herein he did not, does not constitute, in my opinion, in the case of a policeman, a fundamental difference since the policeman is an employee who in the discharge of his duties has initiative, discretion, freedom of action and freedom to make determinations. That freedom of action is a risk assumed by the employer and which exposes him to liability of guilt in eligendo or in vigilando.
I believe the judgment should be affirmed.