G.R. No.

L-48006 July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

BOCOBO, J.:

This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo,
liable in damages for the death of Faustino Garcia caused by the negligence of Pedro
Fontanilla, a taxi driver employed by said Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between Malabon and
Navotas, Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab
driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was
overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from
which he died two days later. A criminal action was filed against Fontanilla in the Court of First
Instance of Rizal, and he was convicted and sentenced to an indeterminate sentence of one
year and one day to two years of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved. The Court of Appeals affirmed
the sentence of the lower court in the criminal case. Severino Garcia and Timotea Almario,
parents of the deceased on March 7, 1939, brought an action in the Court of First Instance of
Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of
Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded damages in
favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint. This decision
was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest
from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the
cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to
Barredo's responsibility, the Court of Appeals found:

... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised
the diligence of a good father of a family to prevent damage. (See p. 22, appellant's
brief.) In fact it is shown he was careless in employing Fontanilla who had been caught
several times for violation of the Automobile Law and speeding (Exhibit A) violation
which appeared in the records of the Bureau of Public Works available to be public and
to himself. Therefore, he must indemnify plaintiffs under the provisions of article 1903 of
the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case.
The petitioner's brief states on page 10:
 ... The Court of Appeals holds that the petitioner is being sued for his failure to exercise
all the diligence of a good father of a family in the selection and supervision of Pedro
Fontanilla to prevent damages suffered by the respondents. In other words, The Court of
Appeals insists on applying in the case article 1903 of the Civil Code. Article 1903 of the
Civil Code is found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said
article to a civil liability arising from a crime as in the case at bar simply because Chapter
II of Title 16 of Book IV of the Civil Code, in the precise words of article 1903 of the Civil
Code itself, is applicable only to "those (obligations) arising from wrongful or negligent
acts or commission not punishable by law.

The gist of the decision of the Court of Appeals is expressed thus:

... We cannot agree to the defendant's contention. The liability sought to be imposed
upon him in this action is not a civil obligation arising from a felony or a misdemeanor
(the crime of Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil
Code by reason of his negligence in the selection or supervision of his servant or
employee.

The pivotal question in this case is whether the plaintiffs may bring this separate civil action
against Fausto Barredo, thus making him primarily and directly, responsible under article 1903
of the Civil Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's
negligence being punishable by the Penal Code, his (defendant's) liability as an employer is
only subsidiary, according to said Penal code, but Fontanilla has not been sued in a civil action
and his property has not been exhausted. To decide the main issue, we must cut through the
tangle that has, in the minds of many confused and jumbled together delitos and cuasi delitos,
or crimes under the Penal Code and fault or negligence under articles 1902-1910 of the Civil
Code. This should be done, because justice may be lost in a labyrinth, unless principles and
remedies are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists and we are likewise guided by the
decisions of this Court in previous cases as well as by the solemn clarity of the consideration in
several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely
apart and independent from delict or crime. Upon this principle and on the wording and spirit
article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely
anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

CIVIL CODE

ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts
and omissions which are unlawful or in which any kind of fault or negligence intervenes.
 xxx xxx xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by
the provisions of the Penal Code.

ART. 1093. Those which are derived from acts or omissions in which fault or negligence,
not punishable by law, intervenes shall be subject to the provisions of Chapter II, Title
XVI of this book.

xxx xxx xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault
or negligence shall be liable for the damage so done.

ART. 1903. The obligation imposed by the next preceding article is enforcible, not only
for personal acts and omissions, but also for those of persons for whom another is
responsible.

The father and in, case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to
their authority and living with them.

Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which
employed, or on occasion of the performance of their duties.

The State is subject to the same liability when it acts through a special agent, but not if
the damage shall have been caused by the official upon whom properly devolved the
duty of doing the act performed, in which case the provisions of the next preceding
article shall be applicable.

Finally, teachers or directors of arts trades are liable for any damages caused by their
pupils or apprentices while they are under their custody.

The liability imposed by this article shall cease in case the persons mentioned therein
prove that they are exercised all the diligence of a good father of a family to prevent the
damage.

ART. 1904. Any person who pays for damage caused by his employees may recover
from the latter what he may have paid.

REVISED PENAL CODE

 ART. 100. Civil liability of a person guilty of felony. Every person criminally liable for a
felony is also civilly liable.

ART. 101. Rules regarding civil liability in certain cases. The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of
article 11 of this Code does not include exemption from civil liability, which shall be
enforced to the following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed
by any imbecile or insane person, and 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.

Should there be no person having such insane, imbecile or minor under his authority,
legal guardianship, or control, or if such person be insolvent, said insane, imbecile, or
minor shall respond with their own property, excepting property exempt from execution,
in accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit
the harm has been prevented shall be civilly liable in proportion to the benefit which they
may have received.

The courts shall determine, in their sound discretion, the proportionate amount for which each
one shall be liable.

When the respective shares can not be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in
all events, whenever the damage has been caused with the consent of the authorities or their
agents, indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or
causing the fear shall be primarily liable and secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the latter that part of their property exempt from
execution.

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. In default of persons criminally liable, innkeepers, tavern keepers, and
any other persons or corporation shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general
or special police regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or
theft within their houses lodging therein, or the person, or for the payment of the value
thereof, provided that such guests shall have notified in advance the innkeeper himself,
 or the person representing him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such innkeeper or his representative may
have given them with respect to the care of and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation against or
intimidation of persons unless committed by the innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. The subsidiary liability established
in the next preceding article shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies committed by their servants,
pupils, workmen, apprentices, or employees in the discharge of their duties.

xxx xxx xxx

ART. 365. Imprudence and negligence. Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period to prision correccional in its
minimum period; if it would have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if it would have constituted a less serious felony, the
penalty of arresto mayor in its minimum period shall be imposed."

It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad
enough to cover the driver's negligence in the instant case, nevertheless article 1093
limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as article 365 of
the Revised Penal Code punishes not only reckless but even simple imprudence or negligence,
the fault or negligence under article 1902 of the Civil Code has apparently been crowded out. It
is this overlapping that makes the "confusion worse confounded." However, a closer study
shows that such a concurrence of scope in regard to negligent acts does not destroy the
distinction between the civil liability arising from a crime and the responsibility for cuasi-delitos
or culpa extra-contractual. The same negligent act causing damages may produce civil liability
arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This
legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the
Roman Law. In fact, in Spanish legal terminology, this responsibility is often referred to as culpa
aquiliana. The Partidas also contributed to the genealogy of the present fault or negligence
under the Civil Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer
emienda, porque, como quier que el non fizo a sabiendas en dao al otro, pero acaescio por su
culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one
of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual:
"los actos . . . en que intervenga cualquier genero de culpa o negligencia." Then article 1093
provides that this kind of obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-0910. This portion of the Civil Code is exclusively devoted to the legal
institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil
Code, by means of indemnification, merely repairs the damage.

3. That delicts are not as broad as quasi-delicts, because the former are punished only if there
is a penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any
king of fault or negligence intervenes." However, it should be noted that not all violations of the
penal law produce civil responsibility, such as begging in contravention of ordinances, violation
of the game laws, infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant,
"Curso Elemental de Derecho Civil," Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Espaola" (Vol.
XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a

diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en
ningun casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different
persons. Thus, there is a civil responsibility, properly speaking, which in no case carries
with it any criminal responsibility, and another which is a necessary consequence of the
penal liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a
collision between two trains belonging respectively to the Ferrocarril Cantabrico and the
Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal case, in which
the company had been made a party as subsidiarily responsible in civil damages. The employee
had been acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had also
been exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a
civil action for damages against the Ferrocarril del Norte. Maura's opinion was in the affirmative,
stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):

Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia
menos parece sostenible que exista cosa juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos inferidos por el choque de los trenes. El titulo
en que se funda la accion para demandar el resarcimiento, no puede confundirse con
las responsabilidades civiles nacidas de delito, siquiera exista en este, sea el cual sea,
una culpa rodeada de notas agravatorias que motivan sanciones penales, mas o menos
severas. La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena misma ataen al orden
publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro
es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos,
no borra la diversidad originaria de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a

cuento y que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de
toda accion u omision, causante de daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de lo
civil cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos.
Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines
sociales y politicos del mismo, desenvuelven y ordenan la materia de responsabilidades
civiles nacidas de delito, en terminos separados del regimen por ley comun de la culpa
que se denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris.
Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de
indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las
diferenciaciones que en el tal paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las

responsabilidades civiles, entre los que sean por diversos conceptos culpables del delito
o falta, las hacen extensivas a las empresas y los establecimientos al servicio de los
cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto
literal, en defecto de los que sean responsables criminalmente. No coincide en ello el
Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo anterior es
exigible, no solo por los actos y omisiones propios, sino por los de aquellas personas de
quienes se debe responder; personas en la enumeracion de las cuales figuran los
dependientes y empleados de los establecimientos o empresas, sea por actos del
servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en la
jurisprudencia, que las empresas, despues de intervenir en las causas criminales con el
caracter subsidiario de su responsabilidad civil por razon del delito, son demandadas y
condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado
de nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de
suerte que tienen unos y otros normas de fondo en distintos cuerpos legales, y
diferentes modos de proceder, habiendose, por aadidura, abstenido de asistir al juicio
criminal la Compaia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones,
parece innegable que la de indemnizacion por los daos y perjuicios que le irrogo el
choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no
hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion quedaba
legitimamente reservada para despues del proceso; pero al declararse que no existio
delito, ni responsabilidad dimanada de delito, materia unica sobre que tenian jurisdiccion
aquellos juzgadores, se redobla el motivo para la obligacion civil ex lege, y se patentiza
mas y mas que la accion para pedir su cumplimiento permanece incolume, extraa a
la cosa juzgada.

As things are, apropos of the reality pure and simple of the facts, it seems less tenable
that there should be res judicata with regard to the civil obligation for damages on
account of the losses caused by the collision of the trains. The title upon which the
action for reparation is based cannot be confused with the civil responsibilities born of a
crime, because there exists in the latter, whatever each nature, a culpa surrounded with
aggravating aspects which give rise to penal measures that are more or less severe.
The injury caused by a felony or misdemeanor upon civil rights requires restitutions,
reparations, or indemnifications which, like the penalty itself, affect public order; for this
reason, they are ordinarily entrusted to the office of the prosecuting attorney; and it is
clear that if by this means the losses and damages are repaired, the injured party no
longer desires to seek another relief; but this coincidence of effects does not eliminate
the peculiar nature of civil actions to ask for indemnity.

Such civil actions in the present case (without referring to contractual faults which are
not pertinent and belong to another scope) are derived, according to article 1902 of the
Civil Code, from every act or omission causing losses and damages in which culpa or
negligence intervenes. It is unimportant that such actions are every day filed before the
civil courts without the criminal courts interfering therewith. Articles 18 to 21 and 121 to
128 of the Penal Code, bearing in mind the spirit and the social and political purposes of
that Code, develop and regulate the matter of civil responsibilities arising from a crime,
separately from the regime under common law, of culpa which is known as aquiliana, in
accordance with legislative precedent of the Corpus Juris. It would be unwarranted to
make a detailed comparison between the former provisions and that regarding the
obligation to indemnify on account of civil culpa; but it is pertinent and necessary to point
out to one of such differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil
responsibilities among those who, for different reasons, are guilty of felony or
misdemeanor, make such civil responsibilities applicable to enterprises and
 establishments for which the guilty parties render service, but with subsidiary character,
that is to say, according to the wording of the Penal Code, in default of those who are
criminally responsible. In this regard, the Civil Code does not coincide because article
1903 says: "The obligation imposed by the next preceding article is demandable, not
only for personal acts and omissions, but also for those of persons for whom another is
responsible." Among the persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service or on the occasion of
their functions. It is for this reason that it happens, and it is so observed in judicial
decisions, that the companies or enterprises, after taking part in the criminal cases
because of their subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive
justice and the civil courts being a true postulate of our judicial system, so that they have
different fundamental norms in different codes, as well as different modes of procedure,
and inasmuch as the Compaa del Ferrocarril Cantabrico has abstained from taking part
in the criminal case and has reserved the right to exercise its actions, it seems
undeniable that the action for indemnification for the losses and damages caused to it by
the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of a
sentence, but it remained intact when the decision of March 21 was rendered. Even if
the verdict had not been that of acquittal, it has already been shown that such action had
been legitimately reserved till after the criminal prosecution; but because of the
declaration of the non-existence of the felony and the non-existence of the responsibility
arising from the crime, which was the sole subject matter upon which the Tribunal del
Jurado had jurisdiction, there is greater reason for the civil obligation ex lege, and it
becomes clearer that the action for its enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the
Spanish Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-
contractual are similar to those of the Spanish Civil Code, says, referring to article 1384 of the
French Civil Code which corresponds to article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for another), without
including the author of the act. The action against the principal is accessory in the sense
that it implies the existence of a prejudicial act committed by the employee, but it is not
subsidiary in the sense that it can not be instituted till after the judgment against the
author of the act or at least, that it is subsidiary to the principal action; the action for
responsibility (of the employer) is in itself a principal action. (Laurent, Principles of
French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that
the responsibility of the employer is principal and not subsidiary. He writes:
 Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u
omisiones de aquellas personas por las que se debe responder, es subsidiaria? es
principal? Para contestar a esta pregunta es necesario saber, en primer lugar, en que se
funda el precepto legal. Es que realmente se impone una responsabilidad por una falta
ajena? Asi parece a primera vista; pero semejante afirmacion seria contraria a la justicia
y a la maxima universal, segun la que las faltas son personales, y cada uno responde
de aquellas que le son imputables. La responsabilidad de que tratamos se impone con
ocasion de un delito o culpa, pero no por causa de ellos, sino por causa del causi delito,
esto es, de la imprudencia o de la negligencia del padre, del tutor, del dueo o director
del establecimiento, del maestro, etc. Cuando cualquiera de las personas que enumera
el articulo citado (menores de edad, incapacitados, dependientes, aprendices) causan
un dao, la ley presume que el padre, el tutor, el maestro, etc., han cometido una falta
de negligencia para prevenir o evitar el dao. Esta falta es la que la ley castiga. No hay,
pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad sea
subsidiaria es, por lo tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of
those persons for who one is responsible, subsidiary or principal? In order to answer this
question it is necessary to know, in the first place, on what the legal provision is based.
Is it true that there is a responsibility for the fault of another person? It seems so at first
sight; but such assertion would be contrary to justice and to the universal maxim that all
faults are personal, and that everyone is liable for those faults that can be imputed to
him. The responsibility in question is imposed on the occasion of a crime or fault, but not
because of the same, but because of the cuasi-delito, that is to say, the imprudence or
negligence of the father, guardian, proprietor or manager of the establishment, of the
teacher, etc. Whenever anyone of the persons enumerated in the article referred to
(minors, incapacitated persons, employees, apprentices) causes any damage, the law
presumes that the father, guardian, teacher, etc. have committed an act of negligence in
not preventing or avoiding the damage. It is this fault that is condemned by the law. It is,
therefore, only apparent that there is a responsibility for the act of another; in reality the
responsibility exacted is for one's own act. The idea that such responsibility is subsidiary
is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil

Espaol," says in Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,

doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de
aquellas personas con las que media algun nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el
Codigo de esta clase distingue entre menores e incapacitados y los demas, declarando
directa la primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el
orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del
 articulo que impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for
his own faults, this being the doctrine of article 1902; but, by exception, one is liable for
the acts of those persons with whom there is a bond or tie which gives rise to the
responsibility. Is this responsibility direct or subsidiary? In the order of the penal law, the
Penal Code distinguishes between minors and incapacitated persons on the one hand,
and other persons on the other, declaring that the responsibility for the former is direct
(article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme of the
civil law, in the case of article 1903, the responsibility should be understood as direct,
according to the tenor of that articles, for precisely it imposes responsibility "for the acts
of those persons for whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the
principles above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct
legal institution, independent from the civil responsibility arising from criminal liability, and that
an employer is, under article 1903 of the Civil Code, primarily and directly responsible for the
negligent acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case,
Ramon Lafuente died as the result of having been run over by a street car owned by the
"compaia Electric Madrilea de Traccion." The conductor was prosecuted in a criminal case
but he was acquitted. Thereupon, the widow filed a civil action against the street car company,
paying for damages in the amount of 15,000 pesetas. The lower court awarded damages; so
the company appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of
the Civil Code because by final judgment the non-existence of fault or negligence had been
declared. The Supreme Court of Spain dismissed the appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de

que el Tribunal a quo, al condonar a la compaia Electrica Madrilea al pago del dao
causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos
juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el
mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo
diferentes as pectos, y como la de lo criminal declrao dentro de los limites de su
competencia que el hecho de que se trata no era constitutivo de delito por no haber
mediado descuido o negligencia graves, lo que no excluye, siendo este el unico
fundamento del fallo absolutorio, el concurso de la culpa o negligencia no califacadas,
fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun
el 1903, netre otras perosnas, a los Directores de establecimientos o empresas por los
daos causados por sus dependientes en determinadas condiciones, es manifesto que
la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al condenar a la
compaia recurrente a la indemnizacion del dao causado por uno de sus empleados,
lejos de infringer los mencionados textos, en relacion con el articulo 116 de la Ley de
 Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones
ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la
causa.

Considering that the first ground of the appeal is based on the mistaken supposition that
the trial court, in sentencing the Compaia Madrilea to the payment of the damage
caused by the death of Ramon Lafuente Izquierdo, disregards the value and juridical
effects of the sentence of acquittal rendered in the criminal case instituted on account of
the same act, when it is a fact that the two jurisdictions had taken cognizance of the
same act in its different aspects, and as the criminal jurisdiction declared within the limits
of its authority that the act in question did not constitute a felony because there was no
grave carelessness or negligence, and this being the only basis of acquittal, it does no
exclude the co-existence of fault or negligence which is not qualified, and is a source of
civil obligations according to article 1902 of the Civil Code, affecting, in accordance with
article 1903, among other persons, the managers of establishments or enterprises by
reason of the damages caused by employees under certain conditions, it is manifest
that the civil jurisdiccion in taking cognizance of the same act in this latter aspect and in
ordering the company, appellant herein, to pay an indemnity for the damage caused by
one of its employees, far from violating said legal provisions, in relation with article 116
of the Law of Criminal Procedure, strictly followed the same, without invading attributes
which are beyond its own jurisdiction, and without in any way contradicting the decision
in that cause. (Emphasis supplied.)

It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or with the street car
company. This is precisely what happens in the present case: the driver, Fontanilla, has not
been sued in a civil action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme
Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is
not qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present
case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his
civil responsibility arising from the crime, he would have been held primarily liable for civil
damages, and Barredo would have been held subsidiarily liable for the same. But the plaintiffs
are directly suing Barredo, on his primary responsibility because of his own presumed
negligence which he did not overcome under article 1903. Thus, there were two liabilities
of Barredo: first, the subsidiary one because of the civil liability of the taxi driver arising from the
latter's criminal negligence; and, second, Barredo's primary liability as an employer under article
1903. The plaintiffs were free to choose which course to take, and they preferred the second
remedy. In so doing, they were acting within their rights. It might be observed in passing, that
the plaintiff choose the more expeditious and effective method of relief, because Fontanilla was
either in prison, or had just been released, and besides, he was probably without property which
might be seized in enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held
liable civilly, notwithstanding the acquittal of the employee (the conductor) in a previous criminal
case, with greater reason should Barredo, the employer in the case at bar, be held liable for
damages in a civil suit filed against him because his taxi driver had been convicted. The degree
of negligence of the conductor in the Spanish case cited was less than that of the taxi driver,
Fontanilla, because the former was acquitted in the previous criminal case while the latter was
found guilty of criminal negligence and was sentenced to an indeterminate sentence of one year
and one day to two years of prision correccional.

(See also Sentence of February 19, 1902, which is similar to the one above quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was
brought against a railroad company for damages because the station agent, employed by the
company, had unjustly and fraudulently, refused to deliver certain articles consigned to the
plaintiff. The Supreme Court of Spain held that this action was properly under article 1902 of the
Civil Code, the court saying:

Considerando que la sentencia discutida reconoce, en virtud de los hechos que

consigna con relacion a las pruebas del pleito: 1., que las expediciones facturadas por
la compaia ferroviaria a la consignacion del actor de las vasijas vacias que en su
demanda relacionan tenian como fin el que este las devolviera a sus remitentes con
vinos y alcoholes; 2., que llegadas a su destino tales mercanias no se quisieron
entregar a dicho consignatario por el jefe de la estacion sin motivo justificado y con
intencion dolosa, y 3., que la falta de entrega de estas expediciones al tiempo de
reclamarlas el demandante le originaron daos y perjuicios en cantidad de bastante
importancia como expendedor al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir los pedidos que se le habian
hecho por los remitentes en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que
integran este recurso, porque la demanda inicial del pleito a que se contrae no contiene
accion que nazca del incumplimiento del contrato de transporte, toda vez que no se
funda en el retraso de la llegada de las mercancias ni de ningun otro vinculo contractual
entre las partes contendientes, careciendo, por tanto, de aplicacion el articulo 371 del
Codigo de Comercio, en que principalmente descansa el fallo recurrido, sino que se
limita a pedir la reparaction de los daos y perjuicios producidos en el patrimonio del
actor por la injustificada y dolosa negativa del porteador a la entrega de las mercancias
a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta
claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a
la Compaia demandada como ligada con el causante de aquellos por relaciones de
caracter economico y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it
declares, in relation to the evidence in the case: (1) that the invoice issued by the
 railroad company in favor of the plaintiff contemplated that the empty receptacles
referred to in the complaint should be returned to the consignors with wines and liquors;
(2) that when the said merchandise reached their destination, their delivery to the
consignee was refused by the station agent without justification and with fraudulent
intent, and (3) that the lack of delivery of these goods when they were demanded by the
plaintiff caused him losses and damages of considerable importance, as he was a
wholesale vendor of wines and liquors and he failed to realize the profits when he was
unable to fill the orders sent to him by the consignors of the receptacles:

Considering that upon this basis there is need of upholding the four assignments of
error, as the original complaint did not contain any cause of action arising from non-
fulfillment of a contract of transportation, because the action was not based on the delay
of the goods nor on any contractual relation between the parties litigant and, therefore,
article 371 of the Code of Commerce, on which the decision appealed from is based, is
not applicable; but it limits to asking for reparation for losses and damages produced on
the patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the
carrier to deliver the goods consigned to the plaintiff as stated by the sentence, and the
carrier's responsibility is clearly laid down in article 1902 of the Civil Code which binds, in
virtue of the next article, the defendant company, because the latter is connected with
the person who caused the damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)

The above case is pertinent because it shows that the same act may come under both the
Penal Code and the Civil Code. In that case, the action of the agent was unjustified
and fraudulent and therefore could have been the subject of a criminal action. And yet, it was
held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to
be noted that it was the employer and not the employee who was being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year
1907]), the trial court awarded damages to the plaintiff, a laborer of the defendant, because the
latter had negligently failed to repair a tramway in consequence of which the rails slid off while
iron was being transported, and caught the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence
lies only in a criminal action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him. According to this theory
the plaintiff should have procured the arrest of the representative of the company
accountable for not repairing the track, and on his prosecution a suitable fine should
have been imposed, payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article
1093 of the Civil Code makes obligations arising from faults or negligence not punished
by the law, subject to the provisions of Chapter II of Title XVI. Section 1902 of that
chapter reads:

"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.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, 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.

xxx xxx xxx

"Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the
latter may be employed or in the performance of their duties.

xxx xxx xxx

"The liability referred to in this article 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."

As an answer to the argument urged in this particular action it may be sufficient to point
out that nowhere in our general statutes is the employer penalized for failure to provide
or maintain safe appliances for his workmen. His obligation therefore is one 'not
punished by the laws' and falls under civil rather than criminal jurisprudence. But the
answer may be a broader one. We should be reluctant, under any conditions, to adopt a
forced construction of these scientific codes, such as is proposed by the defendant, that
would rob some of these articles of effect, would shut out litigants against their will from
the civil courts, would make the assertion of their rights dependent upon the selection for
prosecution of the proper criminal offender, and render recovery doubtful by reason of
the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon
their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de
Enjuiciamiento Criminal), which, though never in actual force in these Islands, was
formerly given a suppletory or explanatory effect. Under article 111 of this law, both
classes of action, civil and criminal, might be prosecuted jointly or separately, but while
the penal action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith, unless it had
been waived by the party injured or been expressly reserved by him for civil proceedings
for the future. If the civil action alone was prosecuted, arising out of a crime that could be
enforced only on private complaint, the penal action thereunder should be extinguished.
 These provisions are in harmony with those of articles 23 and 133 of our Penal Code on
the same subject.

An examination of this topic might be carried much further, but the citation of these
articles suffices to show that the civil liability was not intended to be merged in the
criminal nor even to be suspended thereby, except as expressly provided in the law.
Where an individual is civilly liable for a negligent act or omission, it is not required that
the injured party should seek out a third person criminally liable whose prosecution must
be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are in
process of prosecution, or in so far as they determine the existence of the criminal act
from which liability arises, and his obligation under the civil law and its enforcement in
the civil courts is not barred thereby unless by the election of the injured person.
Inasmuch as no criminal proceeding had been instituted, growing our of the accident in
question, the provisions of the Penal Code can not affect this action. This construction
renders it unnecessary to finally determine here whether this subsidiary civil liability in
penal actions has survived the laws that fully regulated it or has been abrogated by the
American civil and criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from
the briefs before us to have arisen from the interpretation of the words of article 1093,
"fault or negligence not punished by law," as applied to the comprehensive definition of
offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of
an employer arising out of his relation to his employee who is the offender is not to be
regarded as derived from negligence punished by the law, within the meaning of articles
1902 and 1093. More than this, however, it cannot be said to fall within the class of acts
unpunished by the law, the consequence of which are regulated by articles 1902 and
1903 of the Civil Code. The acts to which these articles are applicable are understood to
be those not growing out of pre-existing duties of the parties to one another. But where
relations already formed give rise to duties, whether springing from contract or quasi
contract, then breaches of those duties are subject to articles 1101, 1103, and 1104 of
the same code. A typical application of this distinction may be found in the
consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment,
that to the passengers out of the contract for passage, while that to the injured bystander
would originate in the negligent act itself.

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child
Salvador Bona brought a civil action against Moreta to recover damages resulting from the
death of the child, who had been run over by an automobile driven and managed by the
defendant. The trial court rendered judgment requiring the defendant to pay the plaintiff the sum
of P1,000 as indemnity: This Court in affirming the judgment, said in part:
 If it were true that the defendant, in coming from the southern part of Solana Street, had
to stop his auto before crossing Real Street, because he had met vehicles which were
going along the latter street or were coming from the opposite direction along Solana
Street, it is to be believed that, when he again started to run his auto across said Real
Street and to continue its way along Solana Street northward, he should have adjusted
the speed of the auto which he was operating until he had fully crossed Real Street and
had completely reached a clear way on Solana Street. But, as the child was run over by
the auto precisely at the entrance of Solana Street, this accident could not have
occurred if the auto had been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering Solana Street, in a
northward direction, could have seen the child in the act of crossing the latter street from
the sidewalk on the right to that on the left, and if the accident had occurred in such a
way that after the automobile had run over the body of the child, and the child's body
had already been stretched out on the ground, the automobile still moved along a
distance of about 2 meters, this circumstance shows the fact that the automobile entered
Solana Street from Real Street, at a high speed without the defendant having blown the
horn. If these precautions had been taken by the defendant, the deplorable accident
which caused the death of the child would not have occurred.

It will be noticed that the defendant in the above case could have been prosecuted in a criminal
case because his negligence causing the death of the child was punishable by the Penal Code.
Here is therefore a clear instance of the same act of negligence being a proper subject-matter
either of a criminal action with its consequent civil liability arising from a crime or of an entirely
separate and independent civil action for fault or negligence under article 1902 of the Civil
Code. Thus, in this jurisdiction, the separate individually of a cuasi-delito or culpa
aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal
case and for which, after such a conviction, he could have been sued for this civil liability arising
from his crime.

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and
Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-
year-old child, Purificacion Bernal, brought a civil action to recover damages for the child's
death as a result of burns caused by the fault and negligence of the defendants. On the evening
of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso
with her daughter Purificacion Bernal had come from another municipality to attend the same.
After the procession the mother and the daughter with two others were passing along Gran
Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by
defendants J. V. House, when an automobile appeared from the opposite direction. The little
girl, who was slightly ahead of the rest, was so frightened by the automobile that she turned to
run, but unfortunately she fell into the street gutter where hot water from the electric plant was
flowing. The child died that same night from the burns. The trial courts dismissed the action
because of the contributory negligence of the plaintiffs. But this Court held, on appeal, that there
was no contributory negligence, and allowed the parents P1,000 in damages from J. V. House
who at the time of the tragic occurrence was the holder of the franchise for the electric plant.
This Court said in part:

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless
was led to order the dismissal of the action because of the contributory negligence of the
plaintiffs. It is from this point that a majority of the court depart from the stand taken by
the trial judge. The mother and her child had a perfect right to be on the principal street
of Tacloban, Leyte, on the evening when the religious procession was held. There was
nothing abnormal in allowing the child to run along a few paces in advance of the
mother. No one could foresee the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with hot water. The doctrine
announced in the much debated case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]),
7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not operate as a bar to
recovery, but in its strictest sense could only result in reduction of the damages.

It is most significant that in the case just cited, this Court specifically applied article 1902 of the
Civil Code. It is thus that although J. V. House could have been criminally prosecuted for
reckless or simple negligence and not only punished but also made civilly liable because of his
criminal negligence, nevertheless this Court awarded damages in an independent civil action for
fault or negligence under article 1902 of the Civil Code.

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the
death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of the mishap was a defect in
the steering gear. The defendant Leynes had rented the automobile from the International
Garage of Manila, to be used by him in carrying passengers during the fiesta of Tuy, Batangas.
Leynes was ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal
this Court reversed the judgment as to Leynes on the ground that he had shown that the
exercised the care of a good father of a family, thus overcoming the presumption of negligence
under article 1903. This Court said:

As to selection, the defendant has clearly shown that he exercised the care and
diligence of a good father of a family. He obtained the machine from a reputable garage
and it was, so far as appeared, in good condition. The workmen were likewise selected
from a standard garage, were duly licensed by the Government in their particular calling,
and apparently thoroughly competent. The machine had been used but a few hours
when the accident occurred and it is clear from the evidence that the defendant had no
notice, either actual or constructive, of the defective condition of the steering gear.

The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but
also provides when the liability shall cease. It says:
 "The liability referred to in this article 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."

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that
there was negligence on the part of the matter or employer either in the selection of the
servant or employee, or in supervision over him after the selection, or both; and (2) that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted.
It follows necessarily that if the employer shows to the satisfaction of the court that in
selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieve from liability.

This theory bases the responsibility of the master ultimately on his own negligence and
not on that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37
[year 1915]). In the latter case, the complaint alleged that the defendant's servant had so
negligently driven an automobile, which was operated by defendant as a public vehicle, that
said automobile struck and damaged the plaintiff's motorcycle. This Court, applying article 1903
and following the rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is the owner or
director of a business or enterprise and the negligent acts are committed while the
servant is engaged in his master's employment as such owner.

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs.
Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages
brought by Cuison for the death of his seven-year-old son Moises. The little boy was on his way
to school with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the
boy underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco Bautista, who
were working for Ora, an employee of defendant Norton & Harrison Co., pleaded guilty to the
crime of homicide through reckless negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:

The basis of civil law liability is not respondent superior but the relationship of pater
familias. This theory bases the liability of the master ultimately on his own negligence
and not on that of his servant. (Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624;
Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the
plaintiff brought an action for damages for the demolition of its wharf, which had been struck by
the steamer Helen C belonging to the defendant. This Court held (p. 526):
 The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a
duly licensed captain, authorized to navigate and direct a vessel of any tonnage, and
that the appellee contracted his services because of his reputation as a captain,
according to F. C. Cadwallader. This being so, we are of the opinion that the
presumption of liability against the defendant has been overcome by the exercise of the
care and diligence of a good father of a family in selecting Captain Lasa, in accordance
with the doctrines laid down by this court in the cases cited above, and the defendant is
therefore absolved from all liability.

It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the
six cases above set forth. He is, on the authority of these cases, primarily and directly
responsible in damages under article 1903, in relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City
of Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the
crime of damage to property and slight injuries through reckless imprudence. He was found
guilty and sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with
subsidiary imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio,
the City of Manila filed an action against the Manila Electric Company to obtain payment,
claiming that the defendant was subsidiarily liable. The main defense was that the defendant
had exercised the diligence of a good father of a family to prevent the damage. The lower court
rendered judgment in favor of the plaintiff. This Court held, in part, that this case was governed
by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable
language authorizes the determination of subsidiary liability. The Civil Code negatives its
application by providing that civil obligations arising from crimes or misdemeanors shall
be governed by the provisions of the Penal Code. The conviction of the motorman was a
misdemeanor falling under article 604 of the Penal Code. The act of the motorman was
not a wrongful or negligent act or omission not punishable by law. Accordingly, the civil
obligation connected up with the Penal Code and not with article 1903 of the Civil Code.
In other words, the Penal Code affirms its jurisdiction while the Civil Code negatives its
jurisdiction. This is a case of criminal negligence out of which civil liability arises and not
a case of civil negligence.

xxx xxx xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil
Code. Indeed, as pointed out by the trial judge, any different ruling would permit the
master to escape scot-free by simply alleging and proving that the master had exercised
all diligence in the selection and training of its servants to prevent the damage. That
 would be a good defense to a strictly civil action, but might or might not be to a civil
action either as a part of or predicated on conviction for a crime or misdemeanor. (By
way of parenthesis, it may be said further that the statements here made are offered to
meet the argument advanced during our deliberations to the effect that article 0902 of
the Civil Code should be disregarded and codal articles 1093 and 1903 applied.)

It is not clear how the above case could support the defendant's proposition, because the Court
of Appeals based its decision in the present case on the defendant's primary responsibility
under article 1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is
predicated on an entirely different theory, which is the subsidiary liability of an employer arising
from a criminal act of his employee, whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary liability under article 1903 of the Civil
Code. We have already seen that this is a proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by
simple negligence and sentenced, among other things, to pay the heirs of the deceased the
sum of P1,000. An action was then brought to enforce the subsidiary liability of the defendant as
employer under the Penal Code. The defendant attempted to show that it had exercised the
diligence of a good father of a family in selecting the motorman, and therefore claimed
exemption from civil liability. But this Court held:

In view of the foregoing considerations, we are of opinion and so hold, (1) that the
exemption from civil liability established in article 1903 of the Civil Code for all who have
acted with the diligence of a good father of a family, is not applicable to the subsidiary
civil liability provided in article 20 of the Penal Code.

The above case is also extraneous to the theory of the defendant in the instant case, because
the action there had for its purpose the enforcement of the defendant's subsidiary liability under
the Penal Code, while in the case at bar, the plaintiff's cause of action is based on the
defendant's primary and direct responsibility under article 1903 of the Civil Code. In fact, the
above case destroys the defendant's contention because that decision illustrates the principle
that the employer's primary responsibility under article 1903 of the Civil Code is different in
character from his subsidiary liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to
recognize the distinction between civil liability arising from a crime, which is governed by the
Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and
has likewise failed to give the importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be
set forth. Suffice it to say that the question involved was also civil liability arising from a crime.
Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil
liability arising from criminal negligence (governed by the Penal Code) and responsibility for
fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent
act may produce either a civil liability arising from a crime under the Penal Code, or a separate
responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more
concretely, the authorities above cited render it inescapable to conclude that the employer in
this case the defendant-petitioner is primarily and directly liable under article 1903 of the Civil
Code.

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to
dispose of this case. But inasmuch as we are announcing doctrines that have been little
understood in the past, it might not be inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the literal import of article 1093 of the Civil Code,
the legal institution of culpa aquiliana would have very little scope and application in actual life.
Death or injury to persons and damage to property through any degree of negligence even
the slightest would have to be indemnified only through the principle of civil liability arising
from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the
letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the
law to smother and render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant
pay in damages. There are numerous cases of criminal negligence which can not be shown
beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases,
the defendant can and should be made responsible in a civil action under articles 1902 to 1910
of the Civil Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi
jus ibi remedium.

Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to
sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the
plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is such a
remedy under our laws, but there is also a more expeditious way, which is based on the primary
and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the
law is more likely to facilitate remedy for civil wrongs, because the procedure indicated by the
defendant is wasteful and productive of delay, it being a matter of common knowledge that
professional drivers of taxis and similar public conveyance usually do not have sufficient means
with which to pay damages. Why, then, should the plaintiff be required in all cases to go through
this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts
have endeavored to shorten and facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees
should be carefully chosen and supervised in order to avoid injury to the public. It is the masters
or employers who principally reap the profits resulting from the services of these servants and
employees. It is but right that they should guarantee the latter's careful conduct for the
personnel and patrimonial safety of others. As Theilhard has said, "they should reproach
themselves, at least, some for their weakness, others for their poor selection and all for their
negligence." And according to Manresa, "It is much more equitable and just that such
responsibility should fall upon the principal or director who could have chosen a careful and
prudent employee, and not upon the injured person who could not exercise such selection and
who used such employee because of his confidence in the principal or director." (Vol. 12, p. 622,
2nd Ed.) Many jurists also base this primary responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol.
7, p. 747) that before third persons the employer and employee "vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien le emplea y utiliza."
("become as one personality by the merging of the person of the employee in that of him who
employs and utilizes him.") All these observations acquire a peculiar force and significance
when it comes to motor accidents, and there is need of stressing and accentuating the
responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to the overlapping or concurrence of spheres already
discussed, and for lack of understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has
nevertheless rendered practically useless and nugatory the more expeditious and effective
remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked
to help perpetuate this usual course. But we believe it is high time we pointed out to the harm
done by such practice and to restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of
quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no
longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for
the better safeguarding of private rights because it re-establishes an ancient and additional
remedy, and for the further reason that an independent civil action, not depending on the issues,
limitations and results of a criminal prosecution, and entirely directed by the party wronged or
his counsel, is more likely to secure adequate and efficacious redress.

G.R. No. 74761 November 6, 1990

NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and MISSIONARIES OF
OUR LADY OF LA SALETTE, INC., respondents.

Lope E. Adriano for petitioners.

Padilla Law Office for private respondent.

FERNAN, C.J.:

The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a
corporation, which has built through its agents, waterpaths, water conductors and contrivances
within its land, thereby causing inundation and damage to an adjacent land, can be held civilly
liable for damages under Articles 2176 and 2177 of the Civil Code on quasi-delicts such that the
resulting civil case can proceed independently of the criminal case.

The antecedent facts are as follows:

Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land situated
in Biga (Biluso) Silang, Cavite which is adjacent to that of private respondent, Missionaries of
Our Lady of La Salette, Inc., a religious corporation.

Within the land of respondent corporation, waterpaths and contrivances, including an artificial
lake, were constructed, which allegedly inundated and eroded petitioners' land, caused a young
man to drown, damaged petitioners' crops and plants, washed away costly fences, endangered
the lives of petitioners and their laborers during rainy and stormy seasons, and exposed plants
and other improvements to destruction.

In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG-907-82,
before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City), against Efren Musngi,
Orlando Sapuay and Rutillo Mallillin, officers and directors of herein respondent corporation, for
destruction by means of inundation under Article 324 of the Revised Penal Code.

Subsequently, on February 22, 1983, petitioners filed another action against respondent
corporation, this time a civil case, docketed as Civil Case No. TG-748, for damages with prayer
for the issuance of a writ of preliminary injunction before the same court. 1

On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to
the issuance of a writ of preliminary injunction. Hearings were conducted including ocular
inspections on the land. However, on April 26, 1984, the trial court, acting on respondent
corporation's motion to dismiss or suspend the civil action, issued an order suspending further
hearings in Civil Case No, TG-748 until after judgment in the related Criminal Case No. TG-907-
82.

Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial court
issued on August 27, 1984 the disputed order dismissing Civil Case No. TG-748 for lack of
jurisdiction, as the criminal case which was instituted ahead of the civil case was still
unresolved. Said order was anchored on the provision of Section 3 (a), Rule III of the Rules of
Court which provides that "criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been commenced the civil action cannot
be instituted until final judgment has been rendered in the criminal action." 2

Petitioners appealed from that order to the Intermediate Appellate Court. 3

On February 17, 1986, respondent Appellate Court, First Civil Cases Division, promulgated a
decision 4 affirming the questioned order of the trial court. 5 A motion for reconsideration filed by
petitioners was denied by the Appellate Court in its resolution dated May 19, 1986. 6

Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in accordance with
Section 3 (a) of Rule 111 of the Rules of Court. Petitioners contend that the trial court and the
Appellate Court erred in dismissing Civil Case No. TG-748 since it is predicated on a quasi-
delict. Petitioners have raised a valid point.

It is axiomatic that the nature of an action filed in court is determined by the facts alleged in the
complaint as constituting the cause of action. 7 The purpose of an action or suit and the law to
govern it, including the period of prescription, is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the complaint itself, its allegations
and prayer for relief. 8 The nature of an action is not necessarily determined or controlled by its
title or heading but the body of the pleading or complaint itself. To avoid possible denial of
substantial justice due to legal technicalities, pleadings as well as remedial laws should be
liberally construed so that the litigants may have ample opportunity to prove their respective
claims. 9

Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No. TG-748:

4) That within defendant's land, likewise located at Biga (Biluso), Silang, Cavite,
adjacent on the right side of the aforesaid land of plaintiffs, defendant
constructed waterpaths starting from the middle-right portion thereof leading to a
big hole or opening, also constructed by defendant, thru the lower portion of its
concrete hollow-blocks fence situated on the right side of its cemented gate
fronting the provincial highway, and connected by defendant to a man height
inter-connected cement culverts which were also constructed and lain by
defendant cross-wise beneath the tip of the said cemented gate, the left-end of
the said inter-connected culverts again connected by defendant to a big hole or
opening thru the lower portion of the same concrete hollowblocks fence on the
left side of the said cemented gate, which hole or opening is likewise connected
 by defendant to the cemented mouth of a big canal, also constructed by
defendant, which runs northward towards a big hole or opening which was also
built by defendant thru the lower portion of its concrete hollow-blocks fence which
separates the land of plaintiffs from that of defendant (and which serves as the
exit-point of the floodwater coming from the land of defendant, and at the same
time, the entrance-point of the same floodwater to the land of plaintiffs, year after
year, during rainy or stormy seasons.

5) That moreover, on the middle-left portion of its land just beside the land of
plaintiffs, defendant also constructed an artificial lake, the base of which is soil,
which utilizes the water being channeled thereto from its water system thru inter-
connected galvanized iron pipes (No. 2) and complimented by rain water during
rainy or stormy seasons, so much so that the water below it seeps into, and the
excess water above it inundates, portions of the adjoining land of plaintiffs.

6) That as a result of the inundation brought about by defendant's

aforementioned water conductors, contrivances and manipulators, a young man
was drowned to death, while herein plaintiffs suffered and will continue to suffer,
as follows:

a) Portions of the land of plaintiffs were eroded and converted to

deep, wide and long canals, such that the same can no longer be
planted to any crop or plant.

b) Costly fences constructed by plaintiffs were, on several

occasions, washed away.

c) During rainy and stormy seasons the lives of plaintiffs and their
laborers are always in danger.

d) Plants and other improvements on other portions of the land of

plaintiffs are exposed to destruction. ... 10

A careful examination of the aforequoted complaint shows that the civil action is one under
Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict are
present, to wit: (a) damages suffered by the plaintiff, (b) fault or negligence of the defendant, or
some other person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the plaintiff. 11

Clearly, from petitioner's complaint, the waterpaths and contrivances built by respondent
corporation are alleged to have inundated the land of petitioners. There is therefore, an
assertion of a causal connection between the act of building these waterpaths and the damage
sustained by petitioners. Such action if proven constitutes fault or negligence which may be the
basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176 of the
Civil Code and held that "any person who without due authority constructs a bank or dike,
stopping the flow or communication between a creek or a lake and a river, thereby causing loss
and damages to a third party who, like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and
damages to the injured party.

While the property involved in the cited case belonged to the public domain and the property
subject of the instant case is privately owned, the fact remains that petitioners' complaint
sufficiently alleges that petitioners have sustained and will continue to sustain damage due to
the waterpaths and contrivances built by respondent corporation. Indeed, the recitals of the
complaint, the alleged presence of damage to the petitioners, the act or omission of respondent
corporation supposedly constituting fault or negligence, and the causal connection between the
act and the damage, with no pre-existing contractual obligation between the parties make a
clear case of a quasi delict or culpa aquiliana.

It must be stressed that the use of one's property is not without limitations. Article 431 of the
Civil Code provides that "the owner of a thing cannot make use thereof in such a manner as to
injure the rights of a third person." SIC UTERE TUO UT ALIENUM NON LAEDAS. Moreover,
adjoining landowners have mutual and reciprocal duties which require that each must use his
own land in a reasonable manner so as not to infringe upon the rights and interests of others.
Although we recognize the right of an owner to build structures on his land, such structures
must be so constructed and maintained using all reasonable care so that they cannot be
dangerous to adjoining landowners and can withstand the usual and expected forces of nature.
If the structures cause injury or damage to an adjoining landowner or a third person, the latter
can claim indemnification for the injury or damage suffered.

Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act
or omission constituting fault or negligence, thus:

Article 2176. 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.

Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable by
law" but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or not
he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not
allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two, assuming
the awards made in the two cases vary. 13

The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which states:
 Article 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. But the plaintiff cannot recover damages twice for the same act
or omission of the defendant.

According to the Report of the Code Commission "the foregoing provision though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a distinct and
independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and "culpa extra-contractual" or "cuasi-delito" has been
sustained by decisions of the Supreme Court of Spain ... 14

In the case of Castillo vs. Court of Appeals, 15 this Court held that a quasi-delict or culpa
aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and
individuality that is entirely apart and independent from a delict or crime a distinction exists
between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa
extra-contractual. The same negligence causing damages may produce civil liability arising from
a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual
under the Civil Code. Therefore, the acquittal or conviction in the criminal case is entirely
irrelevant in the civil case, unless, of course, in the event of an acquittal where the court has
declared that the fact from which the civil action arose did not exist, in which case the extinction
of the criminal liability would carry with it the extinction of the civil liability.

In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts, "(t)he civil action is
entirely independent of the criminal case according to Articles 33 and 2177 of the Civil Code.
There can be no logical conclusion than this, for to subordinate the civil action contemplated in
the said articles to the result of the criminal prosecution whether it be conviction or acquittal
would render meaningless the independent character of the civil action and the clear
injunction in Article 31, that his action may proceed independently of the criminal proceedings
and regardless of the result of the latter."

WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate
Appellate Court affirming the order of dismissal of the Regional Trial Court of Cavite, Branch 18
(Tagaytay City) dated August 17, 1984 is hereby REVERSED and SET ASIDE. The trial court is
ordered to reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo and Emmanuel R.
Andamo vs. Missionaries of Our Lady of La Salette Inc." and to proceed with the hearing of the
case with dispatch. This decision is immediately executory. Costs against respondent
corporation.

G.R. No. 108017 April 3, 1995

MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children
KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO, in his
capacity as Presiding Judge of the Regional Trial Court National Capital Region, Quezon
City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC., and SUPERGUARD
SECURITY CORPORATION, respondents.

BIDIN, J.:

This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated
October 29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the Regional Trial Court
dismissing Civil Case No. Q-89-1751, and its resolution dated November 17, 1991 denying
herein, petitioner's motion for reconsideration.

The antecedent facts of the case are as follows:

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.

Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own
behalf and in behalf of her minor children, filed on February 8, 1989 an action for damages
against Benigno Torzuela and herein private respondents Safeguard Investigation and Security
Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"), alleged
employers of defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-1751 among
others alleges the following:

1. . . .

Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC.,

(Defendant Safeguard) and SUPERGUARD SECURITY CORPORATION
(Defendant Superguard) are corporations duly organized and existing in
accordance with Philippine laws, with offices at 10th Floor, Manufacturers
Building, Inc., Plaza Santa Cruz, Manila. They are impleaded as alternative
defendants for, while the former appears to be the employer of defendant
BENIGNO TORZUELA (defendant TORZUELA), the latter impliedly
acknowledged responsibility for the acts of defendant TORZUELA by extending
its sympathies to plaintiffs.

Defendant BENIGNO TORZUELA is of legal age, an employee of defendant

SAFEGUARD and/or defendant SUPERGUARD and, at the time of the incident
complained of, was under their control and supervision. . . .
 3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he
was on duty as security guard at the "Big Bang sa Alabang," Alabang Village,
Muntinlupa, Metro Manila shot and killed NAPOLEON V. DULAY with a .38
caliber revolver belonging to defendant SAFEGUARD, and/or SUPERGUARD
(per Police Report dated January 7, 1989, copy attached as Annex A);

4. The incident resulting in the death of NAPOLEON V. DULAY was due to the
concurring negligence of the defendants. Defendant TORZUELA'S wanton and
reckless discharge of the firearm issued to him by defendant SAFEGUARD
and/or SUPERGUARD was the immediate and proximate cause of the injury,
while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists
in its having failed to exercise the diligence of a good father of a family in the
supervision and control of its employee to avoid the injury.

xxx xxx xxx

(Rollo, pp. 117-118)

Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's
fees. The said Civil Case No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of
Quezon City, presided by respondent Judge Teodoro Regino.

On March 2, 1989, private 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, which states:

Art. 100. Civil liability of a person guilty of a felony. Every person criminally
liable for a felony is also civilly liable.

Respondent 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 private 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 (Rollo, p. 55-59).

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 (Rollo, p. 96).

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, which provides:
 Art. 2180. 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.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or an industry.

xxx xxx xxx

(Emphasis supplied)

Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section
13 of the Rules of Court. Therefore, the inclusion of private respondents as alternative
defendants in the complaint is justified by the following: the Initial Investigation Report prepared
by Pat. Mario Tubon showing that Torzuela is an employee of SAFEGUARD; and through overt
acts, SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64 and 98).

Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was
filed before the Regional Trial Court of Makati and was docketed as Criminal Case No. 89-1896.

On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion
to dismiss and SAFEGUARD'S motion for exclusion as defendant. The respondent judge held
that the complaint did not state facts necessary or sufficient to constitute a quasi-delict since it
does not mention any negligence on the part of Torzuela in shooting Napoleon Dulay or that the
same was done in the performance of his duties. Respondent judge ruled that mere allegations
of the concurring negligence of the defendants (private respondents herein) without stating the
facts showing such negligence are mere conclusions of law (Rollo, p. 106). Respondent judge
also 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. The dispositive portion of the order dated April 13, 1989 states:

WHEREFORE, this Court holds that in view of the material and ultimate facts
alleged in the verified complaint and in accordance with the applicable law on the
matter as well as precedents laid down by the Supreme Court, the complaint
against the alternative defendants Superguard Security Corporation and
Safeguard Investigation and Security Co., Inc., must be and (sic) it is hereby
dismissed. (Rollo, p. 110)

The above order was affirmed by the respondent court and petitioners' motion for
reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to
acts of negligence but also cover acts that are intentional and voluntary, citing Andamo v. IAC
(191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of shooting Napoleon Dulay
constitutes a quasi-delict actionable under Article 2176 of the New Civil Code.

Petitioners further contend that under Article 2180 of the New Civil Code, private respondents
are primarily liable for their negligence either in the selection or supervision of their employees.
This liability is independent of the employee's own liability for fault or negligence and is distinct
from the subsidiary civil liability under Article 103 of the Revised Penal Code. The civil action
against the employer may therefore proceed independently of the criminal action pursuant to
Rule 111 Section 3 of the Rules of Court. Petitioners submit that the question of whether
Torzuela is an employee of respondent SUPERGUARD or SAFEGUARD would be better
resolved after trial.

Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article
33 of the New Civil Code, to wit:

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for
damages, entirely separate and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence. (Emphasis
supplied)

In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides:

Rule 111. . . . .

Sec. 3. When civil action may proceed independently In the cases provided for
in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action which has been reserved may be brought by the
offended party, shall proceed independently of the criminal action, and shall
require only a preponderance of evidence. (Emphasis supplied)

The term "physical injuries" under Article 33 has been held to include consummated, frustrated
and attempted homicide. Thus, petitioners maintain that Torzuela's prior conviction is
unnecessary since the civil action can proceed independently of the criminal action. On the
other hand, it is the private respondents' argument that since the act was not committed with
negligence, the petitioners have no cause of action under Articles 2116 and 2177 of the New
Civil Code. The civil action contemplated in Article 2177 is not applicable to acts committed with
deliberate intent, but only applies to quasi-offenses under Article 365 of the Revised Penal
Code. Torzuela's act of shooting Atty. Dulay to death, aside from being purely personal, was
done with deliberate intent and could not have been part of his duties as security guard. And
since Article 2180 of the New Civil Code covers only: acts done within the scope of the
employee's assigned tasks, the private respondents cannot be held liable for damages.
We find for petitioners.

It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of
Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides:

Sec. 1. Institution of criminal and civil actions. When a criminal action is

instituted, the civil action for the recovery of civil liability is impliedly instituted with
the criminal action, unless the offended party waives the civil action , reserves
his right to institute it separately or institutes the civil action prior to the criminal
action.

Such civil action includes recovery of indemnity under the Revised Penal Code,
and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of the accused. (Emphasis
supplied)

It is well-settled that the filing of an independent civil action before the prosecution in the
criminal action presents evidence is even far better than a compliance with the requirement of
express reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is
precisely what the petitioners opted to do in this case. However, the private respondents
opposed the civil action on the ground that the same is founded on a delict and not on a quasi-
delict as the shooting was not attended by negligence. What is in dispute therefore is the nature
of the petitioner's cause of action.

The nature of a cause of action is determined by the facts alleged in the complaint as
constituting the cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an
action or suit and the law to govern it is to be determined not by the claim of the party filing the
action, made in his argument or brief, but rather by the complaint itself, its allegations and
prayer for relief. (De Tavera v. Philippine Tuberculosis Society, 112 SCRA 243 [1982]). An
examination of the complaint in the present case would show that the plaintiffs, petitioners
herein, are invoking their right to recover damages against the private respondents for their
vicarious responsibility for the injury caused by Benigno Torzuela's act of shooting and killing
Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint.

Article 2176 of the New Civil Code provides:

Art. 2176. 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. As far back as the definitive case of Elcano v. Hill (77 SCRA
98 [1977]), this Court already held that:

. . . Article 2176, where it refers to "fault or negligence," covers not only acts "not
punishable by law" but also acts criminal in character; whether intentional and
voluntary or negligent. Consequently, a separate civil action against the offender
in a criminal act, whether or not he is criminally prosecuted and found guilty or
acquitted, provided that the offended party is not allowed, if he is actually
charged also criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the
awards made in the two cases vary. In other words, the extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for
the same act considered as quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. Briefly
stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes
voluntary and negligent acts which may be punishable by law. (Emphasis
supplied)

The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191
SCRA 195 [1990]), wherein the Court held:

Article 2176, whenever it refers to "fault or negligence," covers not only acts
criminal in character, whether intentional and voluntary or negligent.
Consequently, a civil action lies against the offender in a criminal act, whether or
not he is prosecuted or found guilty or acquitted, provided that the offended party
is not allowed, (if the tortfeasor is actually also charged criminally), to recover
damages on both scores, and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in the two cases vary. [citing
Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied)

Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter,
and should be read as "voluntary" since intent cannot be coupled with negligence as defined by
Article 365 of the Revised Penal Code. In the absence of more substantial reasons, this Court
will not disturb the above doctrine on the coverage of Article 2176.

Private respondents further aver that Article 33 of the New Civil Code applies only to injuries
intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that
the actions for damages allowed thereunder are ex-delicto. However, the term "physical injuries"
in Article 33 has already been construed to include bodily injuries causing death (Capuno v.
Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil.
94 [1955]). 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 (Madeja v.
Caro, 126 SCRA 293 [1983]). Although in the Marcia case (supra), 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.

Private respondents also contend that their liability is subsidiary under the Revised Penal Code;
and that they are not liable for Torzuela's act which is beyond the scope of his duties as a
security guard. It having been established that the instant action is not ex-delicto, petitioners
may proceed directly against Torzuela and the private respondents. Under Article 2180 of the
New Civil Code as aforequoted, 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 (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). 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 (Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). 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.

Since Article 2176 covers not only acts of negligence but also acts which are intentional and
voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's
complaint simply because it failed to make allegations of attendant negligence attributable to
private respondents.

With respect to the issue of whether the complaint at hand states a sufficient cause of action,
the general rule is that the allegations in a complaint are sufficient to constitute a cause of action
against the defendants if, admitting the facts alleged, the court can render a valid judgment
upon the same in accordance with the prayer therein. A cause of action exist if the following
elements are present, namely: (1) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; (2) an obligation on the part of the named defendant to
respect or not to violate such right; and (3) an act or omission on the part of such defendant
violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to
the plaintiff for which the latter may maintain an action for recovery of damages (Del Bros Hotel
Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the Philippines v. Pundogar, 218
SCRA 118 [1993])

This Court finds, under the foregoing premises, that the complaint sufficiently alleged an
actionable breach on the part of the defendant Torzuela and respondents SUPERGUARD
and/or SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot
Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela was on
duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and
responsible for his acts. This does not operate however, to establish that the defendants below
are liable. Whether or not the shooting was actually reckless and wanton or attended by
negligence and whether it was actually done within the scope of Torzuela's duties; whether the
private respondents SUPERGUARD and/or SAFEGUARD failed to exercise the diligence of a
good father of a family; and whether the defendants are actually liable, are questions which can
be better resolved after trial on the merits where each party can present evidence to prove their
respective allegations and defenses. In determining whether the allegations of a complaint are
sufficient to support a cause of action, it must be borne in mind that the complaint does not have
to establish or allege the facts proving the existence of a cause of action at the outset; this will
have to be done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra).
If the allegations in a complaint can furnish a sufficient basis by which the complaint can be
maintained, the same should not be dismissed regardless of the defenses that may be
assessed by the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated
Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to
dismiss for lack of cause of action, the complaint must show that the claim for relief does not
exist rather than that a claim has been defectively stated, is ambiguous, indefinite or uncertain
(Azur v. Provincial Board, 27 SCRA 50 [1969]). Since the petitioners clearly sustained an injury
to their rights under the law, it would be more just to allow them to present evidence of such
injury.

WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision
of the Court of Appeals as well as the Order of the Regional Trial Court dated April 13, 1989 are
hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional
Trial Court for trial on the merits. This decision is immediately executory.

-----YU v CA MISSING-----

[G.R. No. 119850. June 20, 1996]

MANDARIN VILLA, INC., petitioner, vs. COURT OF APPEALS and CLODUALDO DE

JESUS, respondents.

RESOLUTION

FRANCISCO, J.:

With ample evidentiary support are the following antecedent facts:

In the evening of October 19, 1989, private respondent, Clodualdo de Jesus, a practicing
lawyer and businessman, hosted a dinner for his friends at the petitioner's restaurant the
Mandarin Villa Seafoods Village, Greenhills, Mandaluyong City. After dinner the waiter handed
to him the bill in the amount of P2,658.50. Private respondent offered to pay the bill through his
credit card issued by Philippine Commercial Credit Card Inc. (BANKARD). This card was
accepted by the waiter who immediately proceeded to the restaurant's cashier for card
verification. Ten minutes later, however, the waiter returned and audibly informed private
respondent that his credit card had expired.[1] Private respondent remonstrated that said credit
card had yet to expire on September 1990, as embossed on its face. [2] The waiter was
unmoved, thus, private respondent and two of his guests approached the restaurant's cashier
who again passed the credit card over the verification computer. The same information was
produced, i.e., CARD EXPIRED. Private respondent and his guests returned to their table and
at this juncture, Professor Lirag, another guest, uttered the following remarks: "Clody [referring
to Clodualdo de Jesus], may problema ba? Baka kailangang maghugas na kami ng
pinggan?"[3]Thereupon, private respondent left the restaurant and got his BPI Express Credit
Card from his car and offered it to pay their bill. This was accepted and honored by the cashier
after verification.[4] Petitioner and his companions left afterwards.

The incident triggered the filing of a suit for damages by private respondent. Following a
full-dress trial, judgment was rendered directing the petitioner and BANKARD to pay jointly and
severally the private respondent: (a) moral damages in the amount of P250,000.00; (b)
exemplary damages in the amount of P100,000.00; and (c) attorney's fees and litigation
expenses in the amount of P50,000.00.

Both the petitioner and BANKARD appealed to the respondent Court of Appeals which
rendered a decision, thus:

"WHEREFORE, the decision appealed from is hereby MODIFIED by:

1. Finding appellant MANDARIN solely responsible for damages in favor of appellee;

2. Absolving appellant BANKARD of any responsibility for damages;

3. Reducing moral damages awarded to appellee to TWENTY FIVE THOUSAND and 00/100
(P25,000.00) PESOS;

4. Reducing exemplary damages awarded to appellee to TEN THOUSAND and 00/100

(P10,000.00) PESOS;

5. Reversing and setting aside the award of P50,000.00 for attorney's fees as well as interest
awarded; and

6. AFFIRMING the dismissal of all counterclaims and cross-claims.

Costs against appellant Mandarin.

SO ORDERED."[5]

Mandarin Villa, thus, interposed this present petition, faulting the respondent court with six
(6) assigned errors which may be reduced to the following issues, to wit: (1) whether or not
petitioner is bound to accept payment by means of credit card; (2) whether or not petitioner is
negligent under the circumstances obtaining in this case; and (3) if negligent, whether or not
such negligence is the proximate cause of the private respondent's damage.
 Petitioner contends that it cannot be faulted for its cashier's refusal to accept private
respondent's BANKARD credit card, the same not being a legal tender. It argues that private
respondent's offer to pay by means of credit card partook of the nature of a proposal to novate
an existing obligation for which petitioner, as creditor, must first give its consent otherwise there
will be no binding contract between them. Petitioner cannot seek refuge behind this averment.

We note that Mandarin Villa Seafood Village is affiliated with BANKARD. In fact, an
"Agreement"[6] entered into by petitioner and BANKARD dated June 23, 1989, provides inter
alia:

"The MERCHANT shall honor validly issued PCCCI credit cards presented by their
corresponding holders in the purchase of goods and/or services supplied by it provided that the
card expiration date has not elapsed and the card number does not appear on the latest
cancellation bulletin of lost, suspended and cancelled PCCCI credit cards and, no signs of
tampering, alterations or irregularities appear on the face of the credit card."[7]

While private respondent may not be a party to the said agreement, the above-quoted
stipulation conferred a favor upon the private respondent, a holder of credit card validly issued
by BANKARD. This stipulation is a stipulation pour autri and under Article 1311 of the Civil Code
private respondent may demand its fulfillment provided he communicated his acceptance to the
petitioner before its revocation.[8] In this case, private respondent's offer to pay by means of his
BANKARD credit card constitutes not only an acceptance of the said stipulation but also an
explicit communication of his acceptance to the obligor.

In addition, the record shows that petitioner posted a logo inside Mandarin Villa Seafood
Village stating that "Bankard is accepted here." [9] This representation is conclusive upon the
petitioner which it cannot deny or disprove as against the private respondent, the party relying
thereon. Petitioner, therefore, cannot disclaim its obligation to accept private respondent's
BANKARD credit card without violating the equitable principle of estoppel.[10]

Anent the second issue, petitioner insists that it is not negligent. In support thereof,
petitioner cites its good faith in checking, not just once but twice, the validity of the
aforementioned credit card prior to its dishonor. It argues that since the verification machine
flashed an information that the credit card has expired, petitioner could not be expected to honor
the same much less be adjudged negligent for dishonoring it. Further, petitioner asseverates
that it only followed the guidelines and instructions issued by BANKARD in dishonoring the
aforementioned credit card. The argument is untenable.

The test for determining the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use the reasonable care and
caution which an ordinary prudent person would have used in the same situation? If not, then he
is guilty of negligence.[11] The Point of Sale (POS) Guidelines which outlined the steps that
petitioner must follow under the circumstances provides:

"x x x x x x x x x
 "CARD EXPIRED

a. Check expiry date on card.

b. If unexpired, refer to CB.

b.1. If valid, honor up to maximum of SPL only.

b.2. If in CB as Lost, do procedures 2a to 2e.,

b.3. If in CB as Suspended/Cancelled, do not honor card.

c. If expired, do not honor card."[12]

A cursory reading of said rule reveals that whenever the words CARD EXPIRED flashes on
the screen of the verification machine, petitioner should check the credit card's expiry date
embossed on the card itself. If unexpired, petitioner should honor the card provided it is not
invalid, cancelled or otherwise suspended. But if expired, petitioner should not honor the
card. In this case, private respondent's BANKARD credit card has an embossed expiry date of
September 1990.[13] Clearly, it has not yet expired on October 19,1989, when the same was
wrongfully dishonored by the petitioner. Hence, petitioner did not use the reasonable care and
caution which an ordinary prudent person would have used in the same situation and as such
petitioner is guilty of negligence. In this connection, we quote with approval the following
observations of the respondent Court.

"Mandarin argues that based on the POS Guidelines (supra), it has three options in case
the verification machine flashes 'CARD EXPIRED.' It chose to exercise option (c) by not
honoring appellee's credit card. However, appellant apparently intentionally glossed over option
'(a) Check expiry date on card" (id.) which would have shown without any shadow of doubt that
the expiry date embossed on the BANKARD was 'SEP 90.' (Exhibit "D".) A cursory look at the
appellee's BANKARD would also reveal that appellee had been as of that date a cardholder
since 1982, a fact which would have entitled the customer the courtesy of better treatment."[14]

Petitioner, however, argues that private respondent's own negligence in not bringing with
him sufficient cash was the proximate cause of his damage. It likewise sought exculpation by
contending that the remark of Professor Lirag [15] is a supervening event and at the same time
the proximate cause of private respondent's injury.

We find this contention also devoid of merit. While it is true that private respondent did not
have sufficient cash on hand when he hosted a dinner at petitioner's restaurant, this fact alone
does not constitute negligence on his part. Neither can it be claimed that the same was the
proximate cause of private respondent's damage. We take judicial notice[16] of the current
practice among major establishments, petitioner included, to accept payment by means of credit
cards in lieu of cash. Thus, petitioner accepted private respondent's BPI Express Credit Card
after verifying its validity,[17] a fact which all the more refutes petitioner's imputation of negligence
on the private respondent.

Neither can we conclude that the remark of Professor Lirag was a supervening event and
the proximate cause of private respondent's injury. The humiliation and embarrassment of the
private respondent was brought about not by such a remark of Professor Lirag but by the fact of
dishonor by the petitioner of private respondent's valid BANKARD credit card. If at all, the
remark of Professor Lirag served only to aggravate the embarrassment then felt by private
respondent, albeit silently within himself.

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the
sum of P31,000, as damages alleged to have been caused by an automobile driven by the
defendant. From a judgment of the Court of First Instance of the Province of La Union absolving
the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12,
1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in
question the plaintiff was riding on his pony over said bridge. Before he had gotten half way
across, the defendant approached from the opposite direction in an automobile, going at the
rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a
horseman on it and blew his horn to give warning of his approach. He continued his course and
after he had taken the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However,
being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the
pony closely up against the railing on the right side of the bridge instead of going to the left. He
says that the reason he did this was that he thought he did not have sufficient time to get over to
the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80
meters. As the automobile approached, the defendant guided it toward his left, that being the
proper side of the road for the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited fright, and the rider had made
no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant,
instead of veering to the right while yet some distance away or slowing down, continued to
approach directly toward the horse without diminution of speed. When he had gotten quite near,
there being then no possibility of the horse getting across to the other side, the defendant
quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing
where it as then standing; but in so doing the automobile passed in such close proximity to the
animal that it became frightened and turned its body across the bridge with its head toward the
railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the
limb was broken. The horse fell and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident occurred the free space where
the pony stood between the automobile and the railing of the bridge was probably less than one
and one half meters. As a result of its injuries the horse died. The plaintiff received contusions
which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in
the manner above described was guilty of negligence such as gives rise to a civil obligation to
repair the damage done; and we are of the opinion that he is so liable. As the defendant started
across the bridge, he had the right to assume that the horse and the rider would pass over to
the proper side; but as he moved toward the center of the bridge it was demonstrated to his
eyes that this would not be done; and he must in a moment have perceived that it was too late
for the horse to cross with safety in front of the moving vehicle. In the nature of things this
change of situation occurred while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to escape being run down by going to
a place of greater safety. The control of the situation had then passed entirely to the defendant;
and it was his duty either to bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass sufficiently far away from the horse
to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was
almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had
not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk
that, if the animal in question was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the defendant exposed the horse and
rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated
as follows: Did the defendant in doing the alleged negligent act use that person would have
used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of
the Roman law. The existence of negligence in a given case is not determined by reference to
the personal judgment of the actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must
of course be always determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculations cannot here be of much value but this
much can be profitably said: Reasonable men govern their conduct by the circumstances which
are before them or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm
as a result of the course actually pursued? If so, it was the duty of the actor to take precautions
to guard against that harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to exist.
Stated in these terms, the proper criterion for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was sufficiently probable to warrant his
foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would
therefore have foreseen harm to the horse and the rider as reasonable consequence of that
course. Under these circumstances the law imposed on the defendant the duty to guard against
the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that
the person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should
perhaps be mentioned in this connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise have been assessed wholly
against the other party. The defendant company had there employed the plaintiff, as a laborer,
to assist in transporting iron rails from a barge in Manila harbor to the company's yards located
not far away. The rails were conveyed upon cars which were hauled along a narrow track. At
certain spot near the water's edge the track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails
slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident
was due to the effects of the typhoon which had dislodged one of the supports of the track. The
court found that the defendant company was negligent in having failed to repair the bed of the
track and also that the plaintiff was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of being in front or behind. It was held that
while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep
the track in proper repair nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence
in that case consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the one now before us,
where the defendant was actually present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh the negligence of the respective parties
in order to apportion the damage according to the degree of their relative fault. It is enough to
say that the negligence of the defendant was in this case the immediate and determining cause
of the accident and that the antecedent negligence of the plaintiff was a more remote factor in
the case.

A point of minor importance in the case is indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this connection it appears that soon after the
accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious injuries (lesiones
graves). At the preliminary investigation the defendant was discharged by the magistrate and
the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon
the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence -- a point upon which it is unnecessary to
express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding
upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31
Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred
pesos (P200), with costs of other instances. The sum here awarded is estimated to include the
value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles
of his apparel, and lawful interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as not to be recoverable.

G.R. No. 70493 May 18, 1989

GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM
and PAUL ZACARIAS y INFANTE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO, Minors
ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE
CORAZON, JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented by
their mother, CECILIA A. VDA. DE CALIBO, respondents.

Rufino Mayor and Isidro M. Ampig for petitioners.

Manuel L. Hontanosas for private respondents.

NARVASA, J.:

There is a two-fold message in this judgment that bears stating at the outset. The first, an
obvious one, is that it is the objective facts established by proofs presented in a controversy that
determine the verdict, not the plight of the persons involved, no matter how deserving of
sympathy and commiseration because, for example, an accident of which they are the innocent
victims has brought them to. reduced circumstances or otherwise tragically altered their lives.
The second is that the doctrine laid done many, many years ago in Picart vs. Smith 1 continues
to be good law to this day.

The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the
Trial Court as follows: 2

Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the
jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the
wheel, as it approached from the South Lizada Bridge going towards the
direction of Davao City at about 1:45 in the afternoon of July 4,1979. At about
that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven
by defendant Paul Zacarias y Infants, coming from the opposite direction of
Davao City and bound for Glan, South Cotabato, had just crossed said bridge. At
about 59 yards after crossing the bridge, the cargo truck and the jeep collided as
a consequence of which Engineer Calibo died while Roranes and Patos
sustained physical injuries. Zacarias was unhurt. As a result of the impact, the left
side of the truck was slightly damaged while the left side of the jeep, including its
fender and hood, was extensively damaged. After the impact, the jeep fell and
rested on its right side on the asphalted road a few meters to the rear of the
truck, while the truck stopped on its wheels on the road.

On November 27, 1979, the instant case for damages was filed by the surviving
spouse and children of the late Engineer Calibo who are residents of Tagbilaran
City against the driver and owners of the cargo truck.

For failure to file its answer to the third party complaint, third party defendant,
which insured the cargo truck involved, was declared in default.

The case filed by the heirs of Engineer Calibo his widow and minor children, private
respondents herein was docketed as

Civil Case No. 3283 of the Court of First Instance of Bohol. 3 Named defendants in the
complaint were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners
of the Glan People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." 4 The
defendants' answer however alleged that the lumber and hardware business was exclusively
owned by George Y. Lim, this being evidenced by the Certificate of Registration issued by the
Bureau of Domestic Trade; Fabio S. Agad was not a co-owner thereof but "merely employed
by . . . George Y. Lim as bookkeeper"; and Felix Lim had no connection whatever with said
business, "he being a child only eight (8) years of age." 5

"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the
Court reached the conclusion "that the plaintiffs failed to establish by preponderance of
evidence the negligence, and thus the liability, of the defendants." Accordingly, the Court
dismissed the complaint (and defendants' counterclaim) "for insufficiency of evidence." Likewise
dismissed was third-party complaint presented by the defendants against the insurer of the
truck. The circumstances leading to the Court's conclusion just mentioned, are detailed in the
Court's decision, as follows:

1. Moments before its collission with the truck being operated by Zacarias, the
jeep of the deceased Calibo was "zigzagging." 6

2. Unlike Zacarias who readily submitted himself to investigation by the police,

Calibo's companions, Roranes (an accountant), and Patos, who suffered injuries
on account of the collision, refused to be so investigated or give statements to
the police officers. This, plus Roranes' waiver of the right to institute criminal
proceedings against Zacarias, and the fact that indeed no criminal case was ever
instituted in Court against Zacarias, were "telling indications that they did not
attribute the happening to defendant Zacarias' negligence or fault." 7

3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and detailed as
that of . . . Zacarias," and was "uncertain and even contradicted by the physical
facts and the police investigators Dimaano and Esparcia." 8

4. That there were skid marks left by the truck's tires at the scene, and none by
the jeep, demonstrates that the driver of the truck had applied the brakes and the
jeep's driver had not; and that the jeep had on impact fallen on its right side is
indication that it was running at high speed. Under the circumstances, according
to the Court, given "the curvature of the road and the descending grade of the
jeep's lane, it was negligence on the part of the driver of the jeep, Engr. Calibo,
for not reducing his speed upon sight of the truck and failing to apply the brakes
as he got within collision range with the truck."

5. Even if it be considered that there was some antecedent negligence on the

part of Zacarias shortly before the collision, in that he had caused his truck to run
some 25 centimeters to the left of the center of the road, Engr. Calibo had the
last clear chance of avoiding the accident because he still had ample room in his
own lane to steer clear of the truck, or he could simply have braked to a full stop.

The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs'
appeal, l0 reversing the decision of the Trial Court. It found Zacarias to be negligent on the
basis of the following circumstances, to wit:
 1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the
collision occurred,' and although Zacarias saw the jeep from a distance of about
150 meters, he "did not drive his truck back to his lane in order to avoid collision
with the oncoming jeep . . .;" 11 what is worse, "the truck driver suddenly applied
his brakes even as he knew that he was still within the lane of the jeep;" 12 had
both vehicles stayed in their respective lanes, the collision would never have
occurred, they would have passed "along side each other safely;" 13

2) Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the
latter's demand, was the 'driver's license of his co-driver Leonardo Baricuatro;" 14

3) the waiver of the right to file criminal charges against Zacarias should not be
taken against "plaintiffs" Roranes and Patos who had the right, under the law, to
opt merely to bring a civil suit. 15

The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of
negligence on the part of his employer, and their liability is both primary and solidary." It
therefore ordered "the defendants jointly and solidarily to indemnify the plaintiffs the following
amounts:

(1) P30,000.00 for the death of Orlando Calibo;

(2) P378,000.00 for the loss of earning capacity of the deceased

(3) P15,000.00 for attorney's fees;

(4) Cost of suit. 16

The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this
Court on certiorari and pray for a reversal of the judgment of the Intermediate Appellate Court
which, it is claimed, ignored or ran counter to the established facts. A review of the record
confirms the merit of this assertion and persuades this Court that said judgment indeed
disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment,
consequently, will have to be reversed.

The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep
when the collision occurred" is a loose one, based on nothing more than the showing that at the
time of the accident, the truck driven by Zacarias had edged over the painted center line of the
road into the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by
the uncontradicted evidence, the actual center line of the road was not that indicated by the
painted stripe but, according to measurements made and testified by Patrolman Juanita
Dimaano, one of the two officers who investigated the accident, correctly lay thirty-six (36)
centimeters farther to the left of the truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to
the effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide, and
that of the truck three (3) meters and three (3) centimeters, measured from the center stripe to
the corresponding side lines or outer edges of the road. 17The total width of the road being,
therefore, six (6) meters and seventy-eight (78) centimeters, the true center line equidistant from
both side lines would divide the road into two lanes each three (meters) and thirty-nine (39)
centimeters wide. Thus, although it was not disputed that the truck overrode the painted stripe
by twenty-five (25) centimeters, it was still at least eleven (11) centimeters away from its side of
the true center line of the road and well inside its own lane when the accident occurred. By this
same reckoning, since it was unquestionably the jeep that rammed into the stopped truck, it
may also be deduced that it (the jeep) was at the time travelling beyond its own lane and
intruding into the lane of the truck by at least the same 11-centimeter width of space.

Not only was the truck's lane, measured from the incorrectly located center stripe uncomfortably
narrow, given that vehicle's width of two (2) meters and forty-six (46) centimeters; the adjacent
road shoulder was also virtually impassable, being about three (3) inches lower than the paved
surface of the road and "soft--not firm enough to offer traction for safe passage besides
which, it sloped gradually down to a three foot-deep ravine with a river below. 18 The truck's lane
as erroneously demarcated by the center stripe gave said vehicle barely half a meter of
clearance from the edge of the road and the dangerous shoulder and little room for maneuver,
in case this was made necessary by traffic contingencies or road conditions, if it always kept to
said lane. It being also shown that the accident happened at or near the point of the truck's
approach to a curve, 19 which called for extra precautions against driving too near the shoulder, it
could hardly be accounted negligent on the part of its driver to intrude temporarily, and by only
as small as a twenty-five centimeter wide space (less than ten inches), into the opposite lane in
order to insure his vehicle's safety. This, even supposing that said maneuver was in fact an
intrusion into the opposite lane, which was not the case at all as just pointed out.

Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in
applying his brakes instead of getting back inside his lane upon qqqespying the approaching
jeep. Being well within his own lane, as has already been explained, he had no duty to swerve
out of the jeep's way as said Court would have had him do. And even supposing that he was in
fact partly inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters
away cannot be considered an unsafe or imprudent action, there also being uncontradicted
evidence that the jeep was "zigzagging" 20 and hence no way of telling in which direction it would
go as it approached the truck.

Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no
driver's license at the time. The traffic accident report attests to the proven fact that Zacarias
voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had
been renewed just the day before the accident, on July 3, 1979. 21 The Court was apparently
misled by the circumstance that when said driver was first asked to show his license by the
investigators at the scene of the collision, he had first inadvertently produced the license of a
fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato. 22

The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a
few significant indicators that it was rather Engineer Calibo's negligence that was the proximate
cause of the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and
later confirmed in his written statement at the police headquarters 23 that the jeep had been
"zigzagging," which is to say that it was travelling or being driven erratically at the time. The
other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident had
remarked on the jeep's "zigzagging." 24 There is moreover more than a suggestion that Calibo
had been drinking shortly before the accident. The decision of the Trial Court adverts to further
testimony of Esparcia to the effect that three of Calibo's companions at the beach party he was
driving home from when the collision occurred, who, having left ahead of him went to the scene
when they heard about the accident, had said that there had been a drinking spree at the party
and, referring to Calibo, had remarked: "Sabi na huag nang mag drive . . . . pumipilit," (loosely
translated, "He was advised not to drive, but he insisted.")

It was Calibo whose driver's license could not be found on his person at the scene of the
accident, and was reported by his companions in the jeep as having been lost with his wallet at
said scene, according to the traffic accident report, Exhibit "J". Said license unexplainedly found
its way into the record some two years later.

Reference has already been made to the finding of the Trial Court that while Zacarias readily
submitted to interrogation and gave a detailed statement to the police investigators immediately
after the accident, Calibo's two companions in the jeep and supposed eyewitnesses, Agripino
Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who,
together with Patos, had sustained injuries as a result of the collision, waived his right to file a
criminal case against Zacarias. 25

Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming
some antecedent negligence on the part of Zacarias in failing to keep within his designated
lane, incorrectly demarcated as it was, the physical facts, either expressly found by the
Intermediate Appellate Court or which may be deemed conceded for lack of any dispute, would
still absolve the latter of any actionable responsibility for the accident under the rule of the last
clear chance.

Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a
distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately
thirty kilometers per hour. 26 The private respondents have admitted that the truck was already
at a full stop when the jeep plowed into it. And they have not seen fit to deny or impugn
petitioners' imputation that they also admitted the truck had been brought to a stop while the
jeep was still thirty meters away. 27 From these facts the logical conclusion emerges that the
driver of the jeep had what judicial doctrine has appropriately called the last clear chance to
avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his
turn or swerving his jeep away from the truck, either of which he had sufficient time to do while
running at a speed of only thirty kilometers per hour. In those circumstances, his duty was to
seize that opportunity of avoidance, not merely rely on a supposed right to expect, as the
Appellate Court would have it, the truck to swerve and leave him a clear path.

The doctrine of the last clear chance provides as valid and complete a defense to accident
liability today as it did when invoked and applied in the 1918 case of Picart vs. Smith,
supra, which involved a similar state of facts. Of those facts, which should be familiar to every
student of law, it is only necessary to recall the summary made in the syllabus of this Court's
decision that:

(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he

improperly pulled his horse over to the railing on the right. The driver of the
automobile, however guided his car toward the plaintiff without diminution of
speed until he was only few feet away. He then turned to the right but passed so
closely to the horse that the latter being frightened, jumped around and was killed
by the passing car. . . . .

Plaintiff Picart was thrown off his horse and suffered contusions which required several days of
medical attention. He sued the defendant Smith for the value of his animal, medical expenses
and damage to his apparel and obtained judgment from this Court which, while finding that there
was negligence on the part of both parties, held that that of the defendant was the immediate
and determining cause of the accident and that of the plaintiff ". . . the more remote factor in the
case":

It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such
case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances
the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.

Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-
petitioner) George Lim, an inquiry into whether or not the evidence supports the latter's
additional defense of due diligence in the selection and supervision of said driver is no longer
necessary and wig not be undertaken. The fact is that there is such evidence in the record
which has not been controverted.

It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in
holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded in
its appealed decision, as alleged owners, with petitioner George Lim, of Glan People's Lumber
and Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only the
certificate of registration issued by the Bureau of Domestic Trade identifying Glan People's
Lumber and Hardware as a business name registered by George Lim, 28 but also unimpugned
allegations into the petitioners' answer to the complaint that Pablo S. Agad was only an
employee of George Lim and that Felix Lim, then a child of only eight (8) years, was in no way
connected with the business.

In conclusion, it must also be stated that there is no doubt of this Court's power to review the
assailed decision of the Intermediate Appellate Court under the authority of precedents
recognizing exceptions to the familiar rule binding it to observe and respect the latter's findings
of fact. Many of those exceptions may be cited to support the review here undertaken, but only
the most obvious that said findings directly conflict with those of the Trial Court will
suffice. 29 In the opinion of this Court and after a careful review of the record, the evidence
singularly fails to support the findings of the Intermediate Appellate Court which, for all that
appears, seem to have been prompted rather by sympathy for the heirs of the deceased
Engineer Calibo than by an objective appraisal of the proofs and a correct application of the law
to the established facts. Compassion for the plight of those whom an accident has robbed of the
love and support of a husband and father is an entirely natural and understandable sentiment. It
should not, however, be allowed to stand in the way of, much less to influence, a just verdict in a
suit at law.

WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby

REVERSED, and the complaint against herein petitioners in Civil Case No. 3283 of the Court of
First Instance of Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.

G.R. Nos. 66102-04 August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner,

vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO PASCUA, ET
AL., respondents.

Santiago & Santiago for petitioner.

Federico R. Vinluan for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now
Court of Appeals) dated July 29, 1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887
which reversed the decision of the Court of First Instance (now Regional Trial Court) of
Pangasinan dated December 27, 1978; and its resolution dated November 28, 1983 denying the
motion for reconsideration.

It is an established principle that the factual findings of the Court of Appeals are final and may
not be reviewed by this Court on appeal. However, this principle is subject to certain exceptions.
One of these is when the findings of the appellate court are contrary to those of the trial court
(see Sabinosa v. The Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in
which case, a re-examination of the facts and evidence may be undertaken. This is Our task
now.

The antecedent facts are as follows:

About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua, Caridad Pascua,
Adelaida Estomo, Erlinda Meriales, Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas
boarded the jeepney owned by spouses Isidro Mangune and Guillerma Carreon and driven by
Tranquilino Manalo at Dau, Mabalacat, Pampanga bound for Carmen, Rosales, Pangasinan to
spend Christmas at their respective homes. Although they usually ride in buses, they had to ride
in a jeepney that day because the buses were full. Their contract with Manalo was for them to
pay P24.00 for the trip. The private respondents' testimonial evidence on this contractual
relationship was not controverted by Mangune, Carreon and Manalo, nor by Filriters Guaranty
Assurance Corporation, Inc., the insurer of the jeepney, with contrary evidence. Purportedly
riding on the front seat with Manalo was Mercedes Lorenzo. On the left rear passenger seat
were Caridad Pascua, Alejandro Morales and Zenaida Parejas. On the right rear passenger
seat were Catalina Pascua, Adelaida Estomo, and Erlinda Meriales. After a brief stopover at
Moncada, Tarlac for refreshment, the jeepney proceeded towards Carmen, Rosales,
Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of the jeepney was
detached, so it was running in an unbalanced position. Manalo stepped on the brake, as a result
of which, the jeepney which was then running on the eastern lane (its right of way) made a U-
turn, invading and eventually stopping on the western lane of the road in such a manner that the
jeepney's front faced the south (from where it came) and its rear faced the north (towards where
it was going). The jeepney practically occupied and blocked the greater portion of the western
lane, which is the right of way of vehicles coming from the north, among which was Bus No. 753
of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos Reyes. Almost at
the time when the jeepney made a sudden U-turn and encroached on the western lane of the
highway as claimed by Rabbit and delos Reyes, or after stopping for a couple of minutes as
claimed by Mangune, Carreon and Manalo, the bus bumped from behind the right rear portion
of the jeepney. As a result of the collision, three passengers of the jeepney (Catalina Pascua,
Erlinda Meriales and Adelaida Estomo) died while the other jeepney passengers sustained
physical injuries. What could have been a festive Christmas turned out to be tragic.

The causes of the death of the three jeepney passengers were as follows (p. 101, Record on
Appeal):
 The deceased Catalina Pascua suffered the following injuries, to wit: fracture of
the left parietal and temporal regions of the skull; fracture of the left mandible;
fracture of the right humenous; compound fracture of the left radious and ullma
middle third and lower third; fracture of the upper third of the right tibia and
fillnea; avulsion of the head, left internal; and multiple abrasions. The cause of
her death was shock, secondary to fracture and multiple hemorrhage. The
fractures were produced as a result of the hitting of the victim by a strong force.
The abrasions could be produced when a person falls from a moving vehicles
(sic) and rubs parts of her body against a cement road pavement. . . .

Erlinda Mariles (sic) sustained external lesions such as contusion on the left
parietal region of the skull; hematoma on the right upper lid; and abrasions (sic)
on the left knee. Her internal lesions were: hematoma on the left thorax; multiple
lacerations of the left lower lobe of the lungs; contusions on the left lower lobe of
the lungs; and simple fractures of the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs,
left. The forcible impact of the jeep caused the above injuries which resulted in
her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy of
Dr. Panlasiqui was due to shock due to internal hemorrhage, ruptured spleen and
trauma. . . .

Caridad Pascua suffered physical injuries as follows (p. 101, Record on Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on the

forehead, multiple abrasions on the forearm, right upper arm, back and right leg. .
..

The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac, upon arrival at
the scene of the mishap, prepared a sketch (common exhibit "K" for private respondents "19" for
Rabbit) showing the relative positions of the two vehicles as well as the alleged point of impact
(p. 100, Record on Appeal):

. . . The point of collision was a cement pave-portion of the Highway, about six (6)
meters wide, with narrow shoulders with grasses beyond which are canals on
both sides. The road was straight and points 200 meters north and south of the
point of collision are visible and unobstructed. Purportedly, the point of impact or
collision (Exh. "K-4", Pascua on the sketch Exh. "K"-Pascua) was on the western
lane of the highway about 3 feet (or one yard) from the center line as shown by
the bedris (sic), dirt and soil (obviously from the undercarriage of both vehicles)
as well as paint, marron (sic) from the Rabbit bus and greenish from the jeepney.
The point of impact encircled and marked with the letter "X" in Exh. "K"-4 Pascua,
had a diameter of two meters, the center of which was about two meters from the
western edge of cement pavement of the roadway. Pictures taken by witness
Bisquera in the course of the investigation showed the relative positions of the
 point of impact and center line (Exh. "P"-Pascua) the back of the Rabbit bus
(Exh. "P"-1-Pascua"), the lifeless body of Catalina Pascua (Exh. "P-2 Pascua"),
and the damaged front part of the Rabbit bus (Exh. "P-3 Pascua"). No skid marks
of the Rabbit bus was found in the vicinity of the collision, before or after the point
of impact. On the other hand, there was a skid mark about 45 meters long
purportedly of the jeepney from the eastern shoulder of the road south of, and
extending up to the point of impact.

At the time and in the vicinity of the accident, there were no vehicles following the jeepney,
neither were there oncoming vehicles except the bus. The weather condition of that day was
fair.

After conducting the investigation, the police filed with the Municipal Court of San Manuel,
Tarlac, a criminal complaint against the two drivers for Multiple Homicide. At the preliminary
investigation, a probable cause was found with respect to the case of Manalo, thus, his case
was elevated to the Court of First Instance. However, finding no sufficiency of evidence as
regards the case of delos Reyes, the Court dismissed it. Manalo was convicted and sentenced
to suffer imprisonment. Not having appealed, he served his sentence.

Complaints for recovery of damages were then filed before the Court of First Instance of
Pangasinan. In Civil Case No. 1136, spouses Casiano Pascua and Juana Valdez sued as heirs
of Catalina Pascua while Caridad Pascua sued in her behalf. In Civil Case No. 1139, spouses
Manuel Millares and Fidencia Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140,
spouses Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida Estomo.

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos Reyes were all
impleaded as defendants. Plaintiffs anchored their suits against spouses Mangune and Carreon
and Manalo on their contractual liability. As against Rabbit and delos Reyes, plaintiffs based
their suits on their culpability for a quasi-delict. Filriters Guaranty Assurance Corporation, Inc.
was also impleaded as additional defendant in Civil Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to collect the
aggregate amount of P70,060.00 in damages, itemized as follows: P500.00 for burial expenses;
P12,000.00 for loss of wages for 24 years; P10,000.00 for exemplary damages; P10,000.00 for
moral damages; and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad Pascua
claimed P550.00 for medical expenses; P240.00 for loss of wages for two months; P2,000.00
for disfigurement of her face; P3,000.00 for physical pain and suffering; P2,500.00 as exemplary
damages and P2,000.00 for attorney's fees and expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses; P6,000.00 for the
death of Erlinda, P63,000.00 for loss of income; P10,000.00 for moral damages and P3,000.00
for attorney's fees or total of P80,000.00.
In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses; P6,000.00 for the death
of Adelaide, P56,160.00 for loss of her income or earning capacity; P10,000.00 for moral
damages; and P3,000.00 for attorney's fees.

Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and expenses of
litigation. On the other hand, spouses Mangune and Carreon filed a cross-claim in the amount
of P6,168.00 for the repair of the jeepney and P3,000.00 for its non-use during the period of
repairs.

On December 27, 1978, the trial court rendered its decision finding Manalo negligent, the
dispositive portion of which reads (pp. 113-114, Record on Appeal):

PREMISES CONSIDERED, this Court is of the opinion and so holds:

1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo

thru their negligence, breached contract of carriage with their passengers the
plaintiffs' and/or their heirs, and this Court renders judgment ordering said
defendants, jointly and severally, to pay the plaintiffs

a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs the
amounts of P12,000.00 for indemnity for loss of her life; P41,760.00 for loss of
earnings; P324.40 for actual expenses and P2,000.00 for moral damages;

b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay her
the amounts of P240.00 for loss of wages, P328.20 for actual expenses and
P500.00 for moral damages;

c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs (the
plaintiffs) the amount of P12,000.00 for indemnity for loss of her life; P622.00
for actual expenses, P60,480.00 for loss of wages or income and P2,000.00 for
moral damages;

d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or Adelaida
Estomo), to pay her heirs (the plaintiff the amount of P12,000.00 for indemnity for
the loss of her life; P580.00 for actual expenses; P53,160.00 for loss of wages or
income and P2,000.00 for moral damages.

2) The defendant Filriters Guaranty Insurance Co., having contracted to ensure

and answer for the obligations of defendants Mangune and Carreon for damages
due their passengers, this Court renders judgment against the said defendants
Filriters Guaranty Insurance Co., jointly and severally with said defendants
(Mangune and Carreon) to pay the plaintiffs the amount herein above
adjudicated in their favor in Civil Case No. 1136 only. All the amounts awarded
said plaintiff, as set forth in paragraph one (1) hereinabove;
 3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant,
Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to pay jointly and
severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the amounts of P216.27 as
actual damages to its Bus No. 753 and P2,173.60 for loss of its earning.

All of the above amount, shall bear legal interest from the filing of the complaints.

Costs are adjudged against defendants Mangune, Carreon and Manalo and
Filriters Guaranty.

SO ORDERED

On appeal, the Intermediate Appellate Court reversed the above-quoted decision by finding
delos Reyes negligent, the dispositive portion of which reads (pp. 55-57, Rollo):

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby

REVERSED as to item No. 3 of the decision which reads:

3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the
defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to pay
jointly and severally, the amounts of P216.27 as actual damages to its Bus No.
753 and P2,173.60 for loss of its earnings.

and another judgment is hereby rendered in favor of plaintiffs-appellants Casiana

Pascua, Juan Valdez and Caridad Pascua, ordering the Philippine Rabbit Bus
Lines, Inc. and its driver Tomas delos Reyes to pay the former jointly and
severally damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded

Civil Case No. 1136

a) Indemnity for the loss of life P12,000.00

b) Loss of Salaries or earning capacity 14,000.00

c) Actual damages (burial expenses) 800.00

d) For moral damages 10,000.00

e) Exemplary damages 3,000.00

f) For attorney's fees 3,000.00

Total P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua:

Civil Case No. 1136

a) Actual damages (hospitalization expenses) P550.00

b) Moral damages (disfigurement of the

face and physical suffering 8,000.00

c) Exemplary damages 2,000.00

Total P10,550.00

For the death of Erlinda Arcega Meriales. the parents and/or heirs:

Civil Case No. 1139

a) Indemnity for loss of life P12,000.00

b) Loss of Salary or Earning Capacity 20,000.00

c) Actual damages (burial expenses) 500.00

d) Moral damages 15,000.00

e) Exemplary damages 15,000.00

f) Attorney's fees 3,000.00

Total P65,500.00

For the death of Florida Sarmiento Estomo:

Civil Case No. 1140

a) Indemnity for loss of life P12,000.00

b) Loss of Salary or Earning capacity 20,000.00

 c) Actual damages (burial expenses) 500.00

d) Moral damages 3,000.00

e) Exemplary damages 3,000.00

f) Attorney's fees 3,000.00

Total P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

The issue is who is liable for the death and physical injuries suffered by the passengers of the
jeepney?

The trial court, in declaring that Manalo was negligent, considered the following (p. 106, Record
on Appeal):

(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua that a
long ways (sic) before reaching the point of collision, the Mangune jeepney was
"running fast" that his passengers cautioned driver Manalo to slow down but did
not heed the warning: that the right rear wheel was detached causing the
jeepney to run to the eastern shoulder of the road then back to the concrete
pavement; that driver Manalo applied the brakes after which the jeepney made a
U-turn (half-turn) in such a manner that it inverted its direction making it face
South instead of north; that the jeepney stopped on the western lane of the road
on the right of way of the oncoming Phil. Rabbit Bus where it was bumped by the
latter;

(2) The likewise unrebutted testimony of Police Investigator Tacpal of the San
Manuel (Tarlac) Police who, upon responding to the reported collission, found the
real evidence thereat indicate in his sketch (Exh. K, Pascua ), the tracks of the
jeepney of defendant Mangune and Carreon running on the Eastern shoulder
(outside the concrete paved road) until it returned to the concrete road at a sharp
angle, crossing the Eastern lane and the (imaginary) center line and encroaching
fully into the western lane where the collision took place as evidenced by the
point of impact;
 (3) The observation of witness Police Corporal Cacalda also of the San Manuel
Police that the path of the jeepney they found on the road and indicated in the
sketch (Exh. K-Pascua) was shown by skid marks which he described as
"scratches on the road caused by the iron of the jeep, after its wheel was
removed;"

(4) His conviction for the crime of Multiple Homicide and Multiple Serious
Physical Injuries with Damage to Property thru Reckless Imprudence by the
Court of First Instance of Tarlac (Exh. 24-Rabbit) upon the criminal Information by
the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a result of the collision, and
his commitment to prison and service of his sentence (Exh. 25-Rabbit) upon the
finality of the decision and his failure to appeal therefrom; and

(5) The application of the doctrine of res-ipsa loquitar (sic) attesting to the
circumstance that the collision occured (sic) on the right of way of the Phil. Rabbit
Bus.

The respondent court had a contrary opinion. Applying primarily (1) the doctrine of last clear
chance, (2) the presumption that drivers who bump the rear of another vehicle guilty and the
cause of the accident unless contradicted by other evidence, and (3) the substantial factor test.
concluded that delos Reyes was negligent.

The misappreciation of the facts and evidence and the misapplication of the laws by the
respondent court warrant a reversal of its questioned decision and resolution.

We reiterate that "[t]he principle about "the last clear" chance, would call for application in a suit
between the owners and drivers of the two colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence." This was Our ruling in Anuran, et al. v.
Buo et al., G.R. Nos. L-21353 and L-21354, May 20, 1966, 17 SCRA 224. 1 Thus, the
respondent court erred in applying said doctrine.

On the presumption that drivers who bump the rear of another vehicle guilty and the cause of
the accident, unless contradicted by other evidence, the respondent court said (p. 49, Rollo):

. . . the jeepney had already executed a complete turnabout and at the time of
impact was already facing the western side of the road. Thus the jeepney
assumed a new frontal position vis a vis, the bus, and the bus assumed a new
role of defensive driving. The spirit behind the presumption of guilt on one who
bumps the rear end of another vehicle is for the driver following a vehicle to be at
all times prepared of a pending accident should the driver in front suddenly come
to a full stop, or change its course either through change of mind of the front
driver, mechanical trouble, or to avoid an accident. The rear vehicle is given the
responsibility of avoiding a collision with the front vehicle for it is the rear vehicle
 who has full control of the situation as it is in a position to observe the vehicle in
front of it.

The above discussion would have been correct were it not for the undisputed fact that the U-
turn made by the jeepney was abrupt (Exhibit "K," Pascua). The jeepney, which was then
traveling on the eastern shoulder, making a straight, skid mark of approximately 35 meters,
crossed the eastern lane at a sharp angle, making a skid mark of approximately 15 meters from
the eastern shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos Reyes could not
have anticipated the sudden U-turn executed by Manalo. The respondent court did not realize
that the presumption was rebutted by this piece of evidence.

With regard to the substantial factor test, it was the opinion of the respondent court that (p.
52, Rollo):

. . . It is the rule under the substantial factor test that if the actor's conduct is a
substantial factor in bringing about harm to another, the fact that the actor neither
foresaw nor should have foreseen the extent of the harm or the manner in which
it occurred does not prevent him from being liable (Restatement, Torts, 2d). Here,
We find defendant bus running at a fast speed when the accident occurred and
did not even make the slightest effort to avoid the accident, . . . . The bus driver's
conduct is thus a substantial factor in bringing about harm to the passengers of
the jeepney, not only because he was driving fast and did not even attempt to
avoid the mishap but also because it was the bus which was the physical force
which brought about the injury and death to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 54-55, Rollo):

According to the record of the case, the bus departed from Laoag, Ilocos Norte,
at 4:00 o'clock A.M. and the accident took place at approximately around 12:30
P.M., after travelling roughly for 8 hours and 30 minutes. Deduct from this the
actual stopover time of two Hours (computed from the testimony of the driver that
he made three 40-minute stop-overs), We will have an actual travelling time of 6
hours and 30 minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.)
driving at an average of 56 km. per hour would take 6 hours and 30 minutes.
Therefore, the average speed of the bus, give and take 10 minutes, from the
point of impact on the highway with excellent visibility factor would be 80 to 90
kms. per hour, as this is the place where buses would make up for lost time in
traversing busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at a fast speed when
the accident occurred because the speed of 80 to 90 kilometers per hour, assuming such
calculation to be correct, is yet within the speed limit allowed in highways. We cannot even fault
delos Reyes for not having avoided the collision. As aforestated, the jeepney left a skid mark of
about 45 meters, measured from the time its right rear wheel was detached up to the point of
collision. Delos Reyes must have noticed the perilous condition of the jeepney from the time its
right rear wheel was detached or some 90 meters away, considering that the road was straight
and points 200 meters north and south of the point of collision, visible and unobstructed. Delos
Reyes admitted that he was running more or less 50 kilometers per hour at the time of the
accident. Using this speed, delos Reyes covered the distance of 45 meters in 3.24 seconds. If
We adopt the speed of 80 kilometers per hour, delos Reyes would have covered that distance in
only 2.025 seconds. Verily, he had little time to react to the situation. To require delos Reyes to
avoid the collision is to ask too much from him. Aside from the time element involved, there
were no options available to him. As the trial court remarked (pp. 107-108, Record on Appeal):

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes, could
have taken either of two options: (1) to swerve to its right (western shoulder) or
(2) to swerve to its left (eastern lane), and thus steer clear of the Mangune
jeepney. This Court does not so believe, considering the existing exigencies of
space and time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted that
the Western shoulder of the road was narrow and had tall grasses which would
indicate that it was not passable. Even plaintiffs own evidence, the pictures
(Exhs. P and P-2, Pascua) are mute confirmation of such fact. Indeed, it can be
noticed in the picture (Exh. P-2, Pascua) after the Rabbit bus came to a full stop,
it was tilted to right front side, its front wheels resting most probably on a canal
on a much lower elevation that of the shoulder or paved road. It too shows that
all of the wheels of the Rabbit bus were clear of the roadway except the outer left
rear wheel. These observation appearing in said picture (Exh P-2, Pascua)
clearly shows coupled with the finding the Rabbit bus came to a full stop only five
meters from the point of impact (see sketch, Exh. K-Pascua) clearly show that
driver de los Reyes veered his Rabbit bus to the right attempt to avoid hitting the
Mangune's jeepney. That it was not successful in fully clearing the Mangune
jeepney as its (Rabbit's) left front hit said jeepney (see picture Exh. 10-A-Rabbit)
must have been due to limitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus could
also have swerved to its left (eastern lane) to avoid bumping the Mangune
jeepney which was then on the western lane. Such a claim is premised on the
hypothesis (sic) that the eastern lane was then empty. This claim would appear to
be good copy of it were based alone on the sketch made after the collision.
Nonetheless, it loses force it one were to consider the time element involved, for
moments before that, the Mangune jeepney was crossing that very eastern lane
at a sharp angle. Under such a situation then, for driver delos Reyes to swerve to
the eastern lane, he would run the greater risk of running smack in the Mangune
jeepney either head on or broadside.
After a minute scrutiny of the factual matters and duly proven evidence, We find that the
proximate cause of the accident was the negligence of Manalo and spouses Mangune and
Carreon. They all failed to exercise the precautions that are needed precisely pro hac vice.

In culpa contractual, the moment a passenger dies or is injured, the carrier is presumed to have
been at fault or to have acted negligently, and this disputable presumption may only be
overcome by evidence that he had observed extra-ordinary diligence as prescribed in Articles
1733, 1755 and 1756 of the New Civil Code 2 or that the death or injury of the passenger was
due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).

The negligence of Manalo was proven during the trial by the unrebutted testimonies of Caridad
Pascua, Police Investigator Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the
crime of Multiple Homicide and Multiple Serious Injuries with Damage to Property thru Reckless
Imprudence, and the application of the doctrine of res ipsa loquitur supra. The negligence of
spouses Mangune and Carreon was likewise proven during the trial (p. 110, Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru their
witness Natalio Navarro, an alleged mechanic, that he periodically checks and
maintains the jeepney of said defendants, the last on Dec. 23, the day before the
collision, which included the tightening of the bolts. This notwithstanding the right
rear wheel of the vehicle was detached while in transit. As to the cause thereof
no evidence was offered. Said defendant did not even attempt to explain, much
less establish, it to be one caused by a caso fortuito. . . .

In any event, "[i]n an action for damages against the carrier for his failure to safely carry
his passenger to his destination, an accident caused either by defects in the automobile
or through the negligence of its driver, is not a caso fortuito which would avoid the
carriers liability for damages (Son v. Cebu Autobus Company, 94 Phil. 892 citing Lasam,
et al. v. Smith, Jr., 45 Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).

The trial court was therefore right in finding that Manalo and spouses Mangune and Carreon
were negligent. However, its ruling that spouses Mangune and Carreon are jointly and severally
liable with Manalo is erroneous The driver cannot be held jointly and severally liable with the
carrier in case of breach of the contract of carriage. The rationale behind this is readily
discernible. Firstly, the contract of carriage is between the carrier and the passenger, and in the
event of contractual liability, the carrier is exclusively responsible therefore to the passenger,
even if such breach be due to the negligence of his driver (see Viluan v. The Court of Appeals,
et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other words, the carrier can
neither shift his liability on the contract to his driver nor share it with him, for his driver's
negligence is his. 4 Secondly, if We make the driver jointly and severally liable with the carrier,
that would make the carrier's liability personal instead of merely vicarious and consequently,
entitled to recover only the share which corresponds to the driver, 5 contradictory to the explicit
provision of Article 2181 of the New Civil Code. 6
We affirm the amount of damages adjudged by the trial court, except with respect to the
indemnity for loss of life. Under Article 1764 in relation to Article 2206 of the New Civil Code, the
amount of damages for the death of a passenger is at least three thousand pesos (P3,000.00).
The prevailing jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see Heirs
of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al., G.R. No. 51165, June 21,
1990 citing De Lima v. Laguna Tayabas Co., G.R. Nos. L-35697-99, April 15, 1988, 160 SCRA
70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of the Intermediate Appellate
Court dated July 29, 1983 and its resolution dated November 28, 1983 are SET ASIDE. The
decision of the Court of First Instance dated December 27, 1978 is REINSTATED
MODIFICATION that only Isidro Mangune, Guillerma Carreon and Filriters Guaranty Assurance
Corporation, Inc. are liable to the victims or their heirs and that the amount of indemnity for loss
of life is increased to thirty thousand pesos (P30,000.00).

G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision
dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners'
complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance
(now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo,"
and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo,"
respectively, and granted the private respondents' counterclaim for moral damages, attorney's
fees and litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh
McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh
McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while
petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and
children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the
other hand, private respondents are the owners of the cargo truck which figured in the mishap; a
certain Ruben Galang was the driver of the truck at the time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision
took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines
'76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing
Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee,
Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc
who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated
at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its
way to Angeles City from San Fernando. When the northbound car was about (10) meters away
from the southern approach of the bridge, two (2) boys suddenly darted from the right side of
the road and into the lane of the car. The boys were moving back and forth, unsure of whether
to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to
the left and entered the lane of the truck; he then switched on the headlights of the car, applied
the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided
with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on
the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60)
"footsteps" long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line
to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook,
is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet
high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was
two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching
the center line of the bridge, with the smashed front side of the car resting on its front bumper.
The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the
car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front
tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid
marks.

In his statement to the investigating police officers immediately after the accident, Galang
admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed
on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to
Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No.
68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00
as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses,
P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus
attorney's fees. 3 In the second case, petitioners in G.R. No. 68102 prayed for the following: (a)
in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00
for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as
moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous
damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries
suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages,
P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the
filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious
physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00
payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital,
and miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's
fees amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless
Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property"
was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to
Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it
was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben
Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees,
P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00
as business losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss
on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an
indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidate the
case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed
by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio
Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they
alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by
Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed
observing all traffic rules and regulations applicable under the circumstances then prevailing;" in
their counterclaim, they prayed for an award of damages as may be determined by the court
after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of
litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a
motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No.
3751, which private respondents opposed and which the court denied. 9 Petitioners
subsequently moved to reconsider the order denying the motion for consolidation, 10 which
Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No.
4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by
Judge Mario Castaeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag,
Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and
offered several documentary exhibits. Upon the other hand, private respondents presented as
witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia,
Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan
and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the
defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and
Roman Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in
the aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the

accused Ruben Galang guilty beyond reasonable doubt of the crime charged in
the information and after applying the provisions of Article 365 of the Revised
Penal Code and indeterminate sentence law, this Court, imposes upon said
accused Ruben Galang the penalty of six (6) months of arresto mayor as
 minimum to two (2) years, four (4) months and one (1) day of prision
correccional as maximum; the accused is further sentenced to pay and indemnify
the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death;
to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the
funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00
representing her loss of income; to indemnify and pay the heirs of the deceased
Jose Koh the value of the car in the amount of P53,910.95, and to pay the
costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel
for petitioners filed with Branch III of the court where the two (2) civil cases were pending
a manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages
and attorney's fees. 17 The dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the

defendants and against the plaintiffs, these cases are hereby ordered
DISMISSED with costs against the plaintiffs. The defendants had proven their
counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are
hereby awarded moral and exemplary damages in the amount of P100,000.00
plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The
actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for
lack of proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and
was received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The
appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third
Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12
November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No.
69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases
Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-
CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay

sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng
paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with
this Court; said petition was subsequently denied. A motion for its reconsideration was denied
with finality in the Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive
portion of which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and
another one is rendered, ordering defendants-appellees to pay plaintiffs-
appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)
 For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477
and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben
Galang's inattentiveness or reckless imprudence which caused the accident. The appellate
court further said that the law presumes negligence on the part of the defendants (private
respondents), as employers of Galang, in the selection and supervision of the latter; it was
further asserted that these defendants did not allege in their Answers the defense of having
exercised the diligence of a good father of a family in selecting and supervising the said
employee. 27 This conclusion of reckless imprudence is based on the following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative

issue in this appeal is posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE
TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS
HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to

cross the right lane on the right side of the highway going to San
Fernando. My father, who is (sic) the driver of the car tried to avoid
the two (2) boys who were crossing, he blew his horn and
swerved to the left to avoid hitting the two (2) boys. We noticed the
truck, he switched on the headlights to warn the truck driver, to
slow down to give us the right of way to come back to our right
lane.

Q Did the truck slow down?

 A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the
right lane since the truck is (sic) coming, my father stepped on the
brakes and all what (sic) I heard is the sound of impact (sic), sir.
(tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein
accused, Ruben Galang did not reduce its speed before the actual
impact of collision (sic) as you narrated in this Exhibit "1," how did
you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we

could have got (sic) back to our right lane on side (sic) of the
highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these
Civil Cases) (pp. 30-31, Appellants' Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the

truck stopped only when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he

was one of the first to arrive at the scene of the accident. As a matter of fact, he
brought one of the injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida
Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived
across the street.

Regarding Soliman, experience has shown that in the ordinary course of events
people usually take the side of the person with whom they are associated at the
time of the accident, because, as a general rule, they do not wish to be identified
with the person who was at fault. Thus an imaginary bond is unconsciously
created among the several persons within the same group (People vs. Vivencio,
CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an

accommodation witness. He did not go to the succor of the injured persons. He
said he wanted to call the police authorities about the mishap, but his phone had
no dial tone. Be this (sic) as it may, the trial court in the criminal case acted
correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang
stopped his truck at a safe distance from the car, according to plaintiffs (p. 25,
Appellants' Brief). This contention of appellants was completely passed sub-
silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the
exhibits not included in the record. According to the Table of Contents submitted
by the court below, said Exhibit 2 was not submitted by defendants-appellees. In
this light, it is not far-fetched to surmise that Galang's claim that he stopped was
an eleventh-hour desperate attempt to exculpate himself from imprisonment and
damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that

you admitted that the road is straight and you may be able to (sic)
see 500-1000 meters away from you any vehicle, you first saw
that car only about ten (10) meters away from you for the first
time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that
you have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to
5, Sept. 18, 1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped

only because of the impact. At ten (10) meters away, with the truck running at 30
miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief),
it is well-nigh impossible to avoid a collision on a bridge.
 5. Galang's truck stopped because of the collision, and not because he waited for
Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L.
Nuag, stated that he found skid marks under the truck but there were not (sic)
skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of
skid marks show (sic) that the truck was speeding. Since the skid marks were
found under the truck and none were found at the rear of the truck, the
reasonable conclusion is that the skid marks under the truck were caused by the
truck's front wheels when the trucks (sic) suddenly stopped seconds before the
mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car
at barely 10 meters away, a very short distance to avoid a collision, and in his
futile endeavor to avoid the collision he abruptly stepped on his brakes but the
smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes

negligence on the part of the defendants in the selection of their driver or in the
supervision over him. Appellees did not allege such defense of having exercised
the duties of a good father of a family in the selection and supervision of their
employees in their answers. They did not even adduce evidence that they did in
fact have methods of selection and programs of supervision. The inattentiveness
or negligence of Galang was the proximate cause of the mishap. If Galang's
attention was on the highway, he would have sighted the car earlier or at a very
safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to
stop when a collision was already inevitable, because at the time that he entered
the bridge his attention was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the
items must be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed
by private respondents on the basis of which the respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial
court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by
the respondent Court on 4 July 1984. 30

Hence, this petition.

Petitioners allege that respondent Court:

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY

REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS'
DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY
COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE
RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS
(ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY
BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT

DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY
STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE
FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE
TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A

MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT
UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED
IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE
PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE

ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY
INAPPLICABLE TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS

DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH
ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND
IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE
ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO
THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY
EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW
AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.
 VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE
ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY
IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE
RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the

petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this
Court then gave due course to the instant petitions and required petitioners to file their
Brief, 35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in
order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from
a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of
Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No.
4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt on the
part of the parties, and it may therefore be reasonably concluded that none was made, to
consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have
then believed, and understandably so, since by then no specific provision of law or ruling of this
Court expressly allowed such a consolidation, that an independent civil action, authorized under
Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot
be consolidated with the criminal case. Indeed, such consolidation could have been farthest
from their minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence."
Be that as it may, there was then no legal impediment against such consolidation. Section 1,
Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial
court, or in short, attain justice with the least expense to the parties litigants, 36 would have
easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of
two (2) judges appreciating, according to their respective orientation, perception and perhaps
even prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such
was what happened in this case. It should not, hopefully, happen anymore. In the recent case
of Cojuangco vs. Court or Appeals, 37 this Court held that the present provisions of Rule 111 of
the Revised Rules of Court allow a consolidation of an independent civil action for the recovery
of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final judgment has been rendered in that
criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty
of reckless imprudence, although already final by virtue of the denial by no less than this Court
of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has
no relevance or importance to this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in
a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L.
Reyes, "in the case of independent civil actions under the new Civil Code, the result of the
criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil
action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in

Article 33, permitted in the same manner to be filed separately from the criminal
case, may proceed similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be
filed separately and to proceed independently even during the pendency of the
latter case, the intention is patent to make the court's disposition of the criminal
case of no effect whatsoever on the separate civil case. This must be so because
the offenses specified in Article 33 are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a separate civil action because
of the distinct separability of their respective juridical cause or basis of
action . . . .

What remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties
therein. It would have been entirely different if the petitioners' cause of action was for damages
arising from a delict, in which case private respondents' liability could only be subsidiary
pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the
judgment of conviction in the criminal case against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether
or not respondent Court's findings in its challenged resolution are supported by evidence or are
based on mere speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised.
The resolution of factual issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such findings are not supported by the evidence or
when the trial court failed to consider the material facts which would have led to a conclusion
different from what was stated in its judgment. 43 The same is true where the appellate court's
conclusions are grounded entirely on conjectures, speculations and surmises 44 or where the
conclusions of the lower courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension of
facts and the inferences made therefrom are manifestly mistaken. The respondent Court's
decision of 29 November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly
invaded the lane of the truck and that the collision occurred in said lane gave rise to the
presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded that it was Jose Koh's negligence that
was the immediate and proximate cause of the collision. This is an unwarranted deduction as
the evidence for the petitioners convincingly shows that the car swerved into the truck's lane
because as it approached the southern end of the bridge, two (2) boys darted across the road
from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to

cross the right lane on the right side of the highway going to San
Fernando. My father, who is (sic) the driver of the car tried to avoid
the two (2) boys who were crossing, he blew his horn and
swerved to the left to avoid hitting the two (2) boys. We noticed the
truck, he switched on the headlights to warn the truck driver, to
slow down to give us the right of way to come back to our right
lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the
right lane since the truck is (sic) coming, my father stepped on the
brakes and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry
into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a
greater peril death or injury to the two (2) boys. Such act can hardly be classified as
negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate
Court, 47 thus:

. . . Negligence is the omission to do something which a reasonable man, guided

by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would
not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it,
"(T)he failure to observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury." (Cooley on Torts, Fourth Edition, vol.
3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but
still a sound rule, (W)e held:

The test by which to determine the existence of negligence in a

particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that (reasonable care and
caution which an ordinarily prudent person would have used in the
same situation?) If not, then he is guilty of negligence. The law
here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

. . . Negligence is want of the care required by the circumstances. It is a relative

or comparative, not an absolute, term and its application depends upon the
situation of the parties and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is great, a high degree of
care is necessary, and the failure to observe it is a want of ordinary care under
the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this
case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and
ordinary prudent man would have tried to avoid running over the two boys by swerving the car
away from where they were even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the vehicle in the
opposite lane would be several meters away and could very well slow down, move to the side of
the road and give way to the oncoming car. Moreover, under what is known as the emergency
rule, "one who suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon reflection may appear to have been
a better method, unless the emergency in which he finds himself is brought about by his own
negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose
Koh adopted the best means possible in the given situation to avoid hitting them. Applying the
above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his
negligence was the proximate cause of the collision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury, and without which the result
would not have occurred. And more comprehensively, the proximate legal cause
is that acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the final event
in the chain immediately effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent,
was the initial act in the chain of events, it cannot be said that the same caused the eventual
injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act
of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane
of the truck would not have resulted in the collision had the latter heeded the emergency signals
given by the former to slow down and give the car an opportunity to go back into its proper lane.
Instead of slowing down and swerving to the far right of the road, which was the proper
precautionary measure under the given circumstances, the truck driver continued at full speed
towards the car. The truck driver's negligence becomes more apparent in view of the fact that
the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters,
in width. This would mean that both car and truck could pass side by side with a clearance of
3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have
partially accommodated the truck. Any reasonable man finding himself in the given situation
would have tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed
by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a
person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any
traffic regulation. We cannot give credence to private respondents' claim that there was an error
in the translation by the investigating officer of the truck driver's response in Pampango as to
whether the speed cited was in kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; 53 unless there is proof to the contrary, this
presumption holds. In the instant case, private respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony
of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio
Tanhueco, an impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein
accused, Ruben Galang did not reduce its speed before the actual
impact of collision as you narrated in this Exhibit "1," how did you
know?

A It just kept on coming, sir. If only he reduced his speed, we

could have got (sic) back to our right lane on side (sic) of the
highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in
these Civil Cases) (pp. 30-31, Appellants' Brief) 54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what

happened?

A I saw the truck and a car collided (sic), sir, and I went to the
place to help the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will
you tell us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the
car and it was already motionless. (tsn. 31, April 19, 1979;
Emphasis Supplied). (p. 27, Appellants' Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause of
the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here.
Last clear chance is a doctrine in the law of torts which states that the contributory negligence of
the party injured will not defeat the claim for damages if it is shown that the defendant might, by
the exercise of reasonable care and prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person who had the last clear chance to
avoid the mishap is considered in law solely responsible for the consequences thereof. 56

In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine,
stated broadly, is that the negligence of the plaintiff does not preclude a recovery
for the negligence of the defendant where it appears that the defendant, by
exercising reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's negligence. In other
words, the doctrine of last clear chance means that even though a person's own
acts may have placed him in a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is usually stated, a person
who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or that of a third person
imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p.
165).

The practical import of the doctrine is that a negligent defendant is held liable to a
negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiff's peril, or according to some
authorities, should have been aware of it in the reasonable exercise of due care,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57
Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v.
Metropolitan Water District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his
negligence.
 The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made liable for all the consequences
of the accident notwithstanding the prior negligence of the plaintiff [Picart v.
Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs.
Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes the immediate or
proximate cause of the accident which intervenes between the accident and the
more remote negligence of the plaintiff, thus making the defendant liable to the
plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck
driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is
that they exercised all the diligence of a good father of a family to prevent the damage. Article
2180 reads as follows:

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.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

xxx xxx xxx

The 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 damage.

The diligence of a good father referred to means the diligence in the selection and supervision
of employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did
not interpose this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed
Resolution of 3 April 1984 finds no sufficient legal and factual moorings.

61
In the light of recent decisions of this Court, the indemnity for death must, however, be
increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent
Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV
Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is
increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

G.R. No. 89880 February 6, 1991

EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors:

ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC, all surnamed BUSTAMANTE,
Spouses SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and
ENRIQUETA CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-
HIMAYA, and Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREA-
BUSTAMANTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND EDILBERTO
MONTESIANO, respondents.

Dolorfino and Dominguez Law Offices for petitioners.

J.C. Baldoz & Associates for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari seeking the reversal of the decision of the respondent
Court of Appeals dated February 15, 1989 which reversed and set aside the decision of the
Regional Trial Court of Cavite, Branch XV ordering the defendants to pay jointly and severally
the plaintiffs indemnity for death and damages; and in further dismissing the complaint insofar
as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the motion for reconsideration for lack of merit.

The facts giving rise to the controversy at bar are recounted by the trial court as follows:

At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and
sand truck, with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231
and Plate No. DVT 259 along the national road at Calibuyo, Tanza, Cavite. The front left
side portion (barandilla) of the body of the truck sideswiped the left side wall of the
passenger bus, ripping off the said wall from the driver's seat to the last rear seat.
 Due to the impact, several passengers of the bus were thrown out and died as a result of
the injuries they sustained, Among those killed were the following:

1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of
plaintiffs Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;

2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;

3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;

4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and

5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion
Bersamina. (Rollo, p. 48)

During the incident, the cargo truck was driven by defendant Montesiano and owned by
defendant Del Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was
registered in the name of defendant Novelo but was owned and/or operated as a passenger bus
jointly by defendants Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to
Baclaran, Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on
November 8, 1981, and which the latter transferred to Serrado (Cerrado) on January 18, 1983.

Immediately before the collision, the cargo truck and the passenger bus were approaching each
other, coming from the opposite directions of the highway. While the truck was still about 30
meters away, Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also
observed that the truck was heading towards his lane. Not minding this circumstance due to his
belief that the driver of the truck was merely joking, Susulin shifted from fourth to third gear in
order to give more power and speed to the bus, which was ascending the inclined part of the
road, in order to overtake or pass a Kubota hand tractor being pushed by a person along the
shoulder of the highway. While the bus was in the process of overtaking or passing the hand
tractor and the truck was approaching the bus, the two vehicles sideswiped each other at each
other's left side. After the impact, the truck skidded towards the other side of the road and
landed on a nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)

After a careful perusal of the circumstances of the case, the trial court reached the conclusion
"that the negligent acts of both drivers contributed to or combined with each other in directly
causing the accident which led to the death of the aforementioned persons. It could not be
determined from the evidence that it was only the negligent act of one of them which was the
proximate cause of the collision. In view of this, the liability of the two drivers for their negligence
must be solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision on March 7,
1986, the dispositive portion is hereunder quoted as follows:

WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin,

Efren Novelo, Federico del Pilar and Edilberto Montesiano are hereby ordered to pay
jointly and severally to the plaintiffs, as follows:

1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of
P30,000.00 as indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as
indemnity for the loss of the earning capacity of the said deceased, at its prevailing rate
 in pesos at the time this decision shall have become final and executory; P10,000.00 as
moral damages; and P5,000.00 as exemplary damages;

2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the
death of their daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and
P5,000.00 as exemplary damages;

3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the
death of their daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as
exemplary damages; and

4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity

for the death of their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00
as exemplary damages; and

5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as

indemnity for the death of their son, Noel Bersamina, P10,000.00 as moral damages and
P5,000.00 as exemplary damages.

The defendants are also required to pay the plaintiffs the sum of P10,000.00 as
attorney's fees and to pay the costs of the suit.

The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and
Serrado, the actual owners and/or operators of the passenger bus concerned, are
hereby ordered to indemnify Novelo in such amount as he may be required to pay as
damages to the plaintiffs.

The cross-claims and counter-claims of the other defendants are hereby dismissed for
lack of merit.

SO ORDERED. (pp. 55-57, Rollo)

From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and
driver, respectively, of the sand and gravel truck have interposed an appeal before the
respondent Court of Appeals. The Court of Appeals decided the appeal on a different light. It
rendered judgment on February 15, 1989, to wit:

WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the
complaint dismissed insofar as defendants-appellants Federico del Pilar and Edilberto
Montesiano are concerned. No costs in this instance.

SO ORDERED. (p. 96, Rollo)

On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the

aforementioned Court of Appeals' decision. However, respondent Court of Appeals in a
resolution dated August 17, 1989 denied the motion for lack of merit. Hence, this petition.

Petitioners raised the following questions of law, namely:

 First. Whether the respondent Court can legally and validly absolve defendants-
appellants from liability despite its own finding, as well as that of the trial court that
defendant-appellant Edilberto Montesiano, the cargo truck driver, was driving an old
vehicle very fast, with its wheels already wiggling, such that he had no more control of
his truck.

Second. Whether the respondent court can validly and legally disregard the findings of
fact made by the trial court which was in a better position to observe the conduct and
demeanor of the witnesses, particularly appellant Edilberto Montesiano, cargo truck
driver, and which conclusively found appellant Montesiano as jointly and severally
negligent in driving his truck very fast and had lost control of his truck.

Third. Whether the respondent court has properly and legally applied the doctrine of "last
clear chance" in the present case despite its own finding that appellant cargo truck driver
Edilberto Montesiano was admittedly negligent in driving his cargo truck very fast on a
descending road and in the presence of the bus driver coming from the opposite
direction.

Fourth. Whether the respondent court has applied the correct law and the correct
doctrine so as to reverse and set aside the judgment with respect to defendants-
appellants. (Rollo, pp. 133-134)

As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be
reviewed on appeal, provided, they are borne out by the record or are based on substantial
evidence However, this rule admits of certain exceptions, as when the findings of facts are
conclusions without citation of specific evidence on which they are based; or the appellate
court's findings are contrary to those of the trial court. (Sese v. Intermediate Appellate Court,
G.R. 66168, 31 July 1987, 152 SCRA 585).

Furthermore, only questions of law may be raised in a petition for review on certiorari under
Rule 45 of the Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought
to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it,
its findings of fact being conclusive. It is not the function of the Supreme Court to analyze or
weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that
might have been committed. Barring, therefore, a showing that the findings complained of are
totally devoid of support in the records, or that they are so glaringly erroneous as to constitute
serious abuse of discretion, such findings must stand for the Supreme Court is not expected or
required to examine or contrast the oral and documentary evidence submitted by the parties.
(Andres v. Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177
SCRA 618).

Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly
because the appellate court's findings are contrary to those of the trial court.

The trial court, in declaring that the negligent acts of both drivers directly caused the accident
which led to the death of the aforementioned persons, considered the following:

It was negligent on the part of driver Montesiano to have driven his truck fast,
considering that it was an old vehicle, being a 1947 model as admitted by its owner,
defendant Del Pilar; that its front wheels were wiggling; that the road was descending;
 and that there was a passenger bus approaching it. Likewise, driver Susulin was also
guilty of negligence in not taking the necessary precaution to avoid the collision, in the
light of his admission that, at a distance of 30 meters, he already saw the front wheels of
the truck wiggling and that the vehicle was usurping his lane coming towards his
direction. Had he exercised ordinary prudence, he could have stopped his bus or
swerved it to the side of the road even down to its shoulder. And yet, Susulin shifted to
third gear so as to, as claimed by him, give more power and speed to his bus in
overtaking or passing a hand tractor which was being pushed along the shoulder of the
road. (Rollo, p. 50)

The respondent Court of Appeals ruling on the contrary, opined that "the bus driver had the last
clear chance to avoid the collision and his reckless negligence in proceeding to overtake the
hand tractor was the proximate cause of the collision." (Rollo, p. 95). Said court also noted that
"the record also discloses that the bus driver was not a competent and responsible driver. His
driver's license was confiscated for a traffic violation on April 17, 1983 and he was using a ticket
for said traffic violation on the day of the accident in question (pp. 16-18, TSN, July 23, 1984).
He also admitted that he was not a regular driver of the bus that figured in the mishap and was
not given any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)

The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held
that "We are not prepared to uphold the trial court's finding that the truck was running fast
before the impact. The national road, from its direction, was descending. Courts can take
judicial notice of the fact that a motor vehicle going down or descending is more liable to get out
of control than one that is going up or ascending for the simple reason that the one which is
going down gains added momentum while that which is going up loses its initial speeding in so
doing."

On the other hand, the trial court found and We are convinced that the cargo truck was running
fast. It did not overlook the fact that the road was descending as in fact it mentioned this
circumstance as one of the factors disregarded by the cargo truck driver along with the fact that
he was driving an old 1947 cargo truck whose front wheels are already wiggling and the fact
that there is a passenger bus approaching it. In holding that the driver of the cargo truck was
negligent, the trial court certainly took into account all these factors so it was incorrect for the
respondent court to disturb the factual findings of the trial court, which is in a better position to
decide the question, having heard the witness themselves and observed their deportment.

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly,
is that the negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that even though a person's
own acts may have placed him in a position of peril, and an injury results, the injured person is
entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of
a third person imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the
reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to
avoid an accident (57 Am. Jur., 2d, pp. 798-799).

In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al.
(G.R. Nos. 66102-04, August 30, 1990), the Court citing the landmark decision held in the case
of Anuran, et al. v. Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear chance"
applies "in a suit between the owners and drivers of colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence."

Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint
tortfeasors as a test of whether only one of them should be held liable to the injured person by
reason of his discovery of the latter's peril, and it cannot be invoked as between defendants
concurrently negligent. As against third persons, a negligent actor cannot defend by pleading
that another had negligently failed to take action which could have avoided the injury." (57 Am.
Jur. 2d, pp. 806-807).

All premises considered, the Court is convinced that the respondent Court committed an error of
law in applying the doctrine of last clear chance as between the defendants, since the case at
bar is not a suit between the owners and drivers of the colliding vehicles but a suit brought by
the heirs of the deceased passengers against both owners and drivers of the colliding vehicles.
Therefore, the respondent court erred in absolving the owner and driver of the cargo truck from
liability.

Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the
deceased, their respective awards of P30,000.00 are hereby increased to P50,000.00.

ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court
of Appeals are hereby REVERSED and SET ASIDE and the judgment of the lower court is
REINSTATED with the modification on the indemnity for death of each of the victims which is
hereby increased to P50,000.00 each. No pronouncement as to costs.

[G.R. Nos. 79050-51. November 14, 1989.]

PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her
personal guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her
minor children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, Respondents.

Efren N. Ambrosio & Associates for petitioner PNEI.

Emiliano S. Micu for Respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. The
doctrine of last clear chance applies only in a situation where the defendant, having the last fair
chance to avoid the impending harm and failed to do so, becomes liable for all the
consequences of the accident notwithstanding the prior negligence of the plaintiff.

2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. In order that the doctrine
of last clear chance may be applied, it must be shown that the person who allegedly had the last
opportunity to avert the accident was aware of the existence of the peril or with exercise of due
care should have been aware of it.

3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY

AVAILABLE MEANS. This doctrine of last chance has no application to a case where a
person is to act instantaneously, and if the injury cannot be avoided by using all means available
after the peril is or should have been discovered.

4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY
OR A STOP INTERSECTION. Section 43 (c), Article III, Chapter IV of Republic Act No. 1436
cannot apply to case a bar where at the time of the accident, the jeepney had already crossed
the intersection.

5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. A finding of

negligence on the part of the driver establishes a presumption that the employer has been
negligent and the latter has the burden of proof that it has exercised due negligence not only in
the selection of its employees but also in adequately supervising their work.

6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES.

Plaintiffs failure to present documentary evidence to support their claim for damages for loss of
earning capacity of the deceased victim does not bar recovery of the damages, if such loss may
be based sufficiently on their testimonies.

7. ID.; ID.; INDEMNITY FIXED AT P30,000. The indemnity for the death of a person was
fixed by this Court at (P30,000.00).

DECISION

CORTES, J.:

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the
decision of the Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the
Court of First Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-
R wherein PANTRANCO was ordered to pay damages and attorneys fees to herein private
respondents.chanrobles virtual lawlibrary

The pertinent fact are as follows:chanrob1es virtual 1aw library

At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa
and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe
O. Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on
their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary
of Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico,
who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio
Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the
highway going to Malalam River. Upon reaching the highway, the jeepney turned right and
proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards
Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila,
encroached on the jeepneys lane while negotiating a curve, and collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their
children, Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered
injuries. The jeepney was extensively damaged. After the accident the driver of the
PANTRANCO Bus, Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela.
From that time on up to the present, Ramirez has never been seen and has apparently
remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case
amicably under the "No Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her
minor children, filed separate actions for damages arising from quasi-delict against
PANTRANCO, respectively docketed as Civil Case No. 561-R and 589-R of the Court of First
Instance of Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Icos alleged negligence as
the proximate cause of the accident, invoked the defense of due diligence in the selection and
supervision of its driver, Ambrosio Ramirez.chanroblesvirtualawlibrary

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding
the total amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven
(P2,304,647.00) as damages, plus 10% thereof as attorneys fees and costs to Maricar Baesa in
Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as attorneys fees and costs
to Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were consolidated and
the Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay the
total amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven
Pesos (P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorneys
fees to Maricar Baesa, and the total amount of Three Hundred Forty-Four Thousand Pesos
(P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorneys fees to Fe Ico and her
children, and to pay the costs in both cases. The dispositive portion of the assailed decision
reads as follows:chanrob1es virtual 1aw library

WHEREFORE, the decision appealed from is hereby modified by ordering the defendant
PANTRANCO North Express, Inc. to pay:chanrob1es virtual 1aw library

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following
damages:chanrob1es virtual 1aw library

A) As compensatory damages for the death of Ceasar Baesa P30,000.00;

B) As compensatory damages for the death of Marilyn Baesa P30,000.00;

C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa
P30,000.00;

D) For the loss of earnings of Ceasar Baesa P630,000.00;

E) For the loss of earnings of Marilyn Bascos Baesa P375,000.00;

F) For the burial expenses of the deceased Ceasar and Marilyn Baesa P41,200.00;

G) For hospitalization expenses of Maricar Baesa P3,727.00;

H) As moral damages P50,000.00;

I) As attorneys fees P20,000.00;

II. The plaintiffs in Civil Case No. 589-R, the following damages:chanrob1es virtual 1aw library

A) As compensatory damages for the death of David Ico P30,000.00;

B) For loss of earning capacity of David Ico P252,000.00;

C) As moral damages for the death of David Ico and the injury of Fe Ico P30,000.00

D) As payment for the jeepney P20,000.00;

E) For the hospitalization of Fe Ico P12,000.000;

F) And for attorneys fees P10,000.00;

and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the
medical expenses in the sum of P3,273.55, should be deducted from the award in her
favor.chanrobles virtual lawlibrary

All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate
from date of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeals decision, but on June
26, 1987, it denied the same for lack of merit. PANTRANCO then filed the instant petition for
review.

Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance"
against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the
driver of the passenger jeepney who had the last clear chance to avoid the collision and was
therefore negligent in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm.
The doctrine of the last clear chance was defined by this Court in the case of Ong v.
Metropolitan Water District, 104 Phil. 397 (1958), in this wise:chanrob1es virtual 1aw library

The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and
failed to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan Peoples Lumber and
Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No.
70493, May 18, 1989]. The subsequent negligence of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more remote negligence of the plaintiff,
thus making the defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable
to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as
a defense to defeat claim for damages.chanrobles lawlibrary : rednad

To avoid liability for the negligence of its driver, petitioner claims that the original negligence of
its driver was not the proximate cause of the accident and that the sole proximate cause was
the supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is
petitioners position that even assuming arguendo, that the bus encroached into the lane of the
jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt
shoulder on his right without danger to himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioners contention, the doctrine of "last clear chance" finds no application in
this case. For the doctrine to be applicable, it is necessary to show that the person who
allegedly had the last opportunity to avert the accident was aware of the existence of the peril or
should, with exercise of due care, have been aware of it. One cannot be expected to avoid an
accident or injury if he does not know or could not have known the existence of the peril. In this
case, there is nothing to show that the jeepney driver David Ico knew of the impending danger.
When he saw at a distance that the approaching bus was encroaching on his lane, he did not
immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed
that the bus driver will return the bus to its own lane upon seeing the jeepney approaching from
the opposite direction. As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No.
L-26810, August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own side
of the highway is generally entitled to assume that an approaching vehicle coming towards him
on the wrong side, will return to his proper lane of traffic. There was nothing to indicate to David
Ico that the bus could not return to its own lane or was prevented from returning to the proper
lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the
Pantranco bus who was seated beside the driver Ramirez at the time of the accident, testified
that Ramirez had no choice but to swerve the steering wheel to the left and encroach on the
jeepneys lane because there was a steep precipice on the right [CA Decision, p. 2; Rollo, p.
45]. However, this is belied by the evidence on record which clearly shows that there was
enough space to swerve the bus back to its own lane without any danger [CA Decision, p. 7;
Rollo, p. 50].

Moreover, both the trial court and the Court of Appeals found that at the time of the accident the
Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David
Ico must have realized that the bus was not returning to its own lane, it was already too late to
swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus
was running prevented David Ico from swerving the jeepney to the right shoulder of the road in
time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a
few seconds before the actual collision, he had no opportunity to avoid it. This Court has held
that the last clear chance doctrine "can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand after
the peril is or should have been discovered" [Ong v. Metropolitan Water District,
supra].chanrobles.com : virtual law library

Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article
III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a
through highway or a stop intersection shall yield the right of way to all vehicles approaching in
either direction on such through highway.

Petitioners misplaced reliance on the aforesaid law is readily apparent in this case. The cited
law itself provides that it applies only to vehicles entering a through highway or a stop
intersection. At the time of the accident, the jeepney had already crossed the intersection and
was on its way to Malalam River. Petitioner itself cited Fe Icos testimony that the accident
occurred after the jeepney had travelled a distance of about two (2) meters from the point of
intersection [Petition p. 10; Rollo, p. 27]. In fact, even the witness for the petitioner, Leo
Marantan, testified that both vehicles were coming from opposite directions [CA Decision, p. 7;
Rollo, p. 50], clearly indicating that the jeepney had already crossed the intersection.

Considering the foregoing, the Court finds that the negligence of petitioners driver in
encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane
immediately upon seeing the jeepney coming from the opposite direction was the sole and
proximate cause of the accident without which the collision would not have occurred. There was
no supervening or intervening negligence on the part of the jeepney driver which would have
made the prior negligence of petitioners driver a mere remote cause of the accident.

II

On the issue of its liability as an employer, petitioner claims that it had observed the diligence of
a good father of a family to prevent damage, conformably to the last paragraph of Article 2180 of
the Civil Code. Petitioner adduced evidence to show that in hiring its drivers, the latter are
required to have professional drivers license and police clearance. The drivers must also pass
written examinations, interviews and practical driving tests, and are required to undergo a six-
month training period. Rodrigo San Pedro, petitioners Training Coordinator, testified on
petitioners policy of conducting regular and continuing training programs and safety seminars
for its drivers, conductors, inspectors and supervisors at a frequency rate of at least two (2)
seminars a month.

On this point, the Court quotes with approval the following findings of the trial court which was
adopted by the Court of Appeals in its challenged decision:chanrob1es virtual 1aw library
When an injury is caused by the negligence of an employee, there instantly arises a
presumption that the employer has been negligent either in the selection of his employees or in
the supervision over their acts. Although this presumption is only a disputable presumption
which could be overcome by proof of diligence of a good father of a family, this Court believes
that the evidence submitted by the defendant to show that it exercised the diligence of a good
father of a family in the case of Ramirez, as a company driver is far from sufficient. No support
evidence has been adduced. The professional drivers license of Ramirez has not been
produced. There is no proof that he is between 25 to 38 years old. There is also no proof as to
his educational attainment, his age, his weight and the fact that he is married or not. Neither are
the result of the written test, psychological and physical test, among other tests, have been
submitted in evidence [sic]. His NBI or police clearances and clearances from previous
employment were not marked in evidence. No evidence was presented that Ramirez actually
and really attended the seminars. Vital evidence should have been the certificate of attendance
or certificate of participation or evidence of such participation like a logbook signed by the
trainees when they attended the seminars. If such records are not available, the testimony of
the classmates that Ramirez was their classmate in said seminar (should have been presented)
[CA Decision, pp. 8-9; Rollo, pp. 51-52].chanrobles law library

Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its
driver only means that he underwent the same rigid selection process and was subjected to the
same strict supervision imposed by petitioner on all applicants and employees. It is argued by
the petitioner that unless proven otherwise, it is presumed that petitioner observed its usual
recruitment procedure and company polices on safety and efficiency [Petition, p. 20; Rollo, p.
37].

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the
presumption of negligence on the part of petitioner and the burden of proving that it exercised
due diligence not only in the selection of its employees but also in adequately supervising their
work rests with the petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v.
Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623]. Contrary to petitioners claim, there is
no presumption that the usual recruitment procedures and safety standards were observed. The
mere issuance of rules and regulations and the formulation of various company policies on
safety, without showing that they are being complied with, are not sufficient to exempt petitioner
from liability arising from the negligence of its employee. It is incumbent upon petitioner to show
that in recruiting and employing the erring driver, the recruitment procedures and company
policies on efficiency and safety were followed. Petitioner failed to do this. Hence, the Court
finds no cogent reason to disturb the finding of both the trial court and the Court of Appeals that
the evidence presented by the petitioner, which consists mainly of the uncorroborated testimony
of its Training Coordinator, is insufficient to overcome the presumption of negligence against
petitioner.cralawnad

III

On the question of damages, petitioner claims that the Court of Appeals erred in fixing the
damages for the loss of earning capacity of the deceased victims. Petitioner assails respondent
courts findings because no documentary evidence in support thereof, such as income tax
returns, pay-rolls, pay slips or invoices obtained in the usual course of business, were presented
[Petition, p. 22; Rollo, p. 39]. Petitioner argues that the "bare and self-serving testimonies of the
wife of the deceased David Ico and the mother of the deceased Marilyn Baesa . . . have no
probative value to sustain in law the Court of Appeals conclusion on the respective earnings of
the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioners contention that the
evidence presented by the private respondent does not meet the requirements of clear and
satisfactory evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of
damages for the loss of earning capacity of the deceased victims. While it is true that private
respondents should have presented documentary evidence to support their claim for damages
for loss of earning capacity of the deceased victims, the absence thereof does not necessarily
bar the recovery of the damages in question. The testimony of Fe Ico and Francisca Bascos as
to the earning capacity of David Ico, and the spouses Baesa, respectively, are sufficient to
establish a basis from which the court can make a fair and reasonable estimate of the damages
for the loss of earning capacity of the three deceased victims. Moreover, in fixing the damages
for loss of earning capacity of a deceased victim, the court can consider the nature of his
occupation, his educational attainment and the state of his health at the time of death.

In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981 and
was driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both
thirty (30) years old at the time of their death. Ceasar Baesa was a commerce degree holder
and the proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper and the
Valley Times at Cauayan, Isabela. Marilyn Baesa graduated as a nurse in 1976 and at the time
of her death, was the company nurse, personnel manager, treasurer and cashier of the Ilagan
Press at Ilagan, Isabela. Respondent court duly considered these factors, together with the
uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the amount of damages for
the loss of earning capacity of David Ico and the spouses Baesa.chanrobles.com:cralaw:red

However, it should be pointed out that the Court of Appeals committed error in fixing the
compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent
court awarded to plaintiff (private respondent) Maricar Baesa Thirty Thousand Pesos
(P30,000.00) as "compensatory damages for the death of Harold Jim Baesa and Marcelino
Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals awarded only
Fifteen Thousand Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa and
another Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly
erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126
SCRA 518, the indemnity for the death of a person was fixed by this Court at Thirty Thousand
Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand
Pesos (P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino
Baesa or Thirty Thousand Pesos (P30,000.00) for the death of each brother.

The other items of damages awarded by respondent court which were not challenged by the
petitioner are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent
Court of Appeals is hereby AFFIRMED with the modification that the amount of compensatory
damages for the death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty
Thousand Pesos (P30,000.00) each.