torts

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISONG.R. No. 115024 February 7, 1996MA. LOURDES VALENZUELA, petitioner, vs.COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-xG.R. No. 117944 February 7, 1996RICHARD LI, petitioner, vs.COURT OF APPEALS and LOURDES VALENZUELA, respondents.D E C I S I O N

KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to recover damages

by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by her in a vehicular accident in

the early morning of June 24, 1990. The facts found by the trial court are succinctly summarized by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a vehicular accident.

Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990, plaintiff Ma. Lourdes

Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at Marcos highway to her

home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon,

heading towards the direction of Manila. Before reaching A. Lake Street, she noticed something wrong with her tires;

she stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if

needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home in

that car's condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted from

the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her car pointing to the

tools to a man who will help her fix the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by

defendant Richard Li and registered in the name of defendant Alexander Commercial, Inc. Because of the impact plaintiff

was thrown against the windshield of the car of the defendant, which was destroyed, and then fell to the ground. She

was pulled out from under defendant's car. Plaintiff's left leg was severed up to the middle of her thigh, with only some

skin and sucle connected to the rest of the body. She was brought to the UERM Medical Memorial Center where she was

found to have a "traumatic amputation, leg, left up to distal thigh (above knee)". She was confined in the hospital for

twenty (20) days and was eventually fitted with an artificial leg. The expenses for the hospital confinement

(P120,000.00) and the cost of the artificial leg (P27,000.00) were paid by defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in the amount of

P100,000.00 and other medical and related expenses amounting to a total of P180,000.00, including loss of expected

earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph; considering that it was

raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving along the inner

portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in

the vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full

bright lights". Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle, and

bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parking lights or early warning

device, and the area was poorly lighted. He alleged in his defense that the left rear portion of plaintiff's car was

protruding as it was then "at a standstill diagonally" on the outer portion of the right lane towards Araneta Avenue (par.

18, Answer). He confirmed the testimony of plaintiff's witness that after being bumped the car of the plaintiff swerved to

the right and hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was

reckless or negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch of the three cars

involved in the accident, testified that the plaintiff's car was "near the sidewalk"; this witness did not remember whether

the hazard lights of plaintiff's car were on, and did not notice if there was an early warning device; there was a street

Torts and Damages August 13, 2015 1

light at the corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e. "things can be

seen" (p. 16, tsn, Oct. 28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and opened the trunk

compartment, defendant's car came approaching very fast ten meters from the scene; the car was "zigzagging". The rear

left side of plaintiff's car was bumped by the front right portion of defendant's car; as a consequence, the plaintiff's car

swerved to the right and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car,

which was destroyed, and landed under the car. He stated that defendant was under the influence of liquor as he could

"smell it very well" (pp. 43, 79, tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of gross negligence and

liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander Commercial, Inc., Li's employer,

jointly and severally liable for damages pursuant to Article 2180. It ordered the defendants to jointly and severally pay the

following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a result of her severed left

leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro La Conga restaurant

three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month, as unrealized profits of the plaintiff in her

Bistro La Conga restaurant, from August, 1990 until the date of this judgment and (c) P30,000.00, a month for unrealized

profits in plaintiff's two (2) beauty salons from July, 1990 until the date of this decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.

As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for Reconsideration, citing

testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show that the point of impact, as depicted by the

pieces of glass/debris from the parties' cars, appeared to be at the center of the right lane of Aurora Blvd. The trial court denied

the motion. Defendants forthwith filed an appeal with the respondent Court of Appeals. In a Decision rendered March 30, 1994,

the Court of Appeals found that there was "ample basis from the evidence of record for the trial court's finding that the plaintiff's

car was properly parked at the right, beside the sidewalk when it was bumped by defendant's car." 1 Dismissing the defendants'

argument that the plaintiff's car was improperly parked, almost at the center of the road, the respondent court noted that

evidence which was supposed to prove that the car was at or near center of the right lane was never presented during the trial of

the case.2 The respondent court furthermore observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was not corroborated. It

was in fact contradicted by eyewitness Rodriguez who stated that he was outside his beerhouse located at Aurora

Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1990 when his attention was caught by a beautiful lady

(referring to the plaintiff) alighting from her car and opening the trunk compartment; he noticed the car of Richard Li

"approaching very fast ten (10) meters away from the scene"; defendant's car was zigzagging", although there were no

holes and hazards on the street, and "bumped the leg of the plaintiff" who was thrown against the windshield of

defendant's care, causing its destruction. He came to the rescue of the plaintiff, who was pulled out from under

defendant's car and was able to say "hurting words" to Richard Li because he noticed that the latter was under the

influence of liquor, because he "could smell it very well" (p. 36, et. seq., tsn, June 17, 1991). He knew that plaintiff

owned a beerhouse in Sta. Mesa in the 1970's, but did not know either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the Court of Appeals, in

its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any liability towards petitioner Lourdes

Valenzuela and reduced the amount of moral damages to P500,000.00. Finding justification for exemplary damages, the

respondent court allowed an award of P50,000.00 for the same, in addition to costs, attorney's fees and the other damages. The

Court of Appeals, likewise, dismissed the defendants' counterclaims.3

Consequently, both parties assail the respondent court's decision by filing two separate petitions before this Court. Richard Li, in

G.R. No. 117944, contends that he should not be held liable for damages because the proximate cause of the accident was Ma.


Lourdes Valenzuela's own negligence. Alternatively, he argues that in the event that this Court finds him negligent, such

negligence ought to be mitigated by the contributory negligence of Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision insofar as it absolves

Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and insofar as it reduces the amount of the

actual and moral damages awarded by the trial court.4

As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it, in effect,

attempts to have this Court review are factual findings of the trial court, as sustained by the Court of Appeals finding Richard Li

grossly negligent in driving the Mitsubishi Lancer provided by his company in the early morning hours of June 24, 1990. This we

will not do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon us, and this Court will not

normally disturb such factual findings unless the findings of fact of the said court are palpably unsupported by the evidence on

record or unless the judgment itself is based on a misapprehension of facts.5

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness, Rogelio Rodriguez, the

owner-operator of an establishment located just across the scene of the accident. On trial, he testified that he observed a car

being driven at a "very fast" speed, racing towards the general direction of Araneta Avenue.6 Rodriguez further added that he was

standing in front of his establishment, just ten to twenty feet away from the scene of the accident, when he saw the car hit

Valenzuela, hurtling her against the windshield of the defendant's Mitsubishi Lancer, from where she eventually fell under the

defendant's car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the smell of liquor

had alighted from the offending vehicle in order to survey the incident.7 Equally important, Rodriguez declared that he observed

Valenzuela's car parked parallel and very near the sidewalk,8 contrary to Li's allegation that Valenzuela's car was close to the

center of the right lane. We agree that as between Li's "self-serving" asseverations and the observations of a witness who did not

even know the accident victim personally and who immediately gave a statement of the incident similar to his testimony to the

investigator immediately after the incident, the latter's testimony deserves greater weight. As the court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not prepared to set aside the trial

court's reliance on the testimony of Rodriguez negating defendant's assertion that he was driving at a safe speed. While

Rodriguez drives only a motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-

examination and no attempt was made to question .his competence or the accuracy of his statement that defendant

was driving "very fast". This was the same statement he gave to the police investigator after the incident, as told to a

newspaper report (Exh. "P"). We see no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the testimony. Rodriguez

testified that the scene of the accident was across the street where his beerhouse is located about ten to twenty feet

away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident transpired immediately in front of his

establishment. The ownership of the Lambingan se Kambingan is not material; the business is registered in the name of

his mother, but he explained that he owns the establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony that the

streetlights on his side of Aurora Boulevard were on the night the accident transpired (p. 8) is not necessarily

contradictory to the testimony of Pfc. Ramos that there was a streetlight at the corner of Aurora Boulevard and F.

Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain and the rain

has stopped and he was outside his establishment at the time the accident transpired (pp. 64-65, tsn, June 17, 1991).

This was consistent with plaintiff's testimony that it was no longer raining when she left Bistro La Conga (pp. 10-11, tsn,

April 29, 1991). It was defendant Li who stated that it was raining all the way in an attempt to explain why he was

travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived

at the scene only in response to a telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find

no substantial inconsistencies in Rodriguez's testimony that would impair the essential integrity of his testimony or

reflect on his honesty. We are compelled to affirm the trial court's acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so many inconsistencies

leading us to conclude that his version of the accident was merely adroitly crafted to provide a version, obviously self-serving,

which would exculpate him from any and all liability in the incident. Against Valenzuela's corroborated claims, his allegations


were neither backed up by other witnesses nor by the circumstances proven in the course of trial. He claimed that he was driving

merely at a speed of 55 kph. when "out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's

car". He alleged that upon seeing this sudden "apparition" he put on his brakes to no avail as the road was slippery.9

One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving asseverations. The

average motorist alert to road conditions will have no difficulty applying the brakes to a car traveling at the speed claimed by Li.

Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan thoroughfare like Aurora

Boulevard, Li would have had ample time to react to the changing conditions of the road if he were alert - as every driver should

be - to those conditions. Driving exacts a more than usual toll on the senses. Physiological "fight or flight" 10 mechanisms are at

work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc.11 Li's failure to react in a manner

which would have avoided the accident could therefore have been only due to either or both of the two factors: 1) that he was

driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the influence of alcohol. 12 Either factor working

independently would have diminished his responsiveness to road conditions, since normally he would have slowed down prior to

reaching Valenzuela's car, rather than be in a situation forcing him to suddenly apply his brakes. As the trial court noted (quoted

with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the incident, he said that while

driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in front of him which was plaintiff's car,

indicating, again, thereby that, indeed, he was driving very fast, oblivious of his surroundings and the road ahead of him,

because if he was not, then he could not have missed noticing at a still far distance the parked car of the plaintiff at the

right side near the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the plaintiff who

was then standing at the left rear edge of her car.

Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw the plaintiff's car in

front of him, but that it failed as the road was wet and slippery, this goes to show again, that, contrary to his claim, he

was, indeed, running very fast. For, were it otherwise, he could have easily completely stopped his car, thereby avoiding

the bumping of the plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running

slow, as he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road, he could have

avoided hitting the plaintiff by the mere expedient or applying his brakes at the proper time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to what he told the police

immediately after the accident and is, therefore, more believable, that he did not actually step on his brakes but simply

swerved a little to the right when he saw the on-coming car with glaring headlights, from the opposite direction, in order

to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was properly parked at the right

beside the sidewalk. And, it was not even necessary for him to swerve a little to the right in order to safely avoid a

collision with the on-coming car, considering that Aurora Blvd. is a double lane avenue separated at the center by a

dotted white paint, and there is plenty of space for both cars, since her car was running at the right lane going towards

Manila on the on-coming car was also on its right lane going to Cubao.13

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next question for us to

determine is whether or not Valenzuela was likewise guilty of contributory negligence in parking her car alongside Aurora

Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered,

which falls below the standard to which he is required to conform for his own protection.14 Based on the foregoing definition, the

standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for her own protection was not to park

at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to

the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of humanity

when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective care

from persons confronted by unusual and oftentimes threatening conditions.15


Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who suddenly finds himself in a

situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the

impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a

better solution, unless the emergency was brought by his own negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid hitting two

children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court,18 that the driver therein, Jose Koh,

"adopted the best means possible in the given situation" to avoid hitting the children. Using the "emergency rule" the Court

concluded that Koh, in spite of the fact that he was in the wrong lane when the collision with an oncoming truck occurred, was

not guilty of negligence.19

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a

threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the

suddenness of the event which absolutely negates thoroughful care, but by the over-all nature of the circumstances. A woman

driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both

convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in

search for a parking zone or turn on a dark street or alley where she would likely find no one to help her. It would be hazardous

for her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone)

because the hobbling vehicle would be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon

reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other

motorists in danger, she did what was best under the situation. As narrated by respondent court: "She stopped at a lighted place

where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people

present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet

away, behind a Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the

accident confirmed that Valenzuela's car was parked very close to the sidewalk.21 The sketch which he prepared after the incident

showed Valenzuela's car partly straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane

of Aurora Boulevard. This fact was itself corroborated by the testimony of witness Rodriguez.22

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency and could not be

considered to have contributed to the unfortunate circumstances which eventually led to the amputation of one of her lower

extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her own making, and it

was evident that she had taken all reasonable precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the accident. "Negligence,

as it is commonly understood is conduct which creates an undue risk of harm to others." 23It is the failure to observe that degree

of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 24 We

stressed, in Corliss vs. Manila Railroad Company,25 that negligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly negligent in

driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour

had settled into a drizzle rendering the street slippery. There is ample testimonial evidence on record to show that he was under

the influence of liquor. Under these conditions, his chances of effectively dealing with changing conditions on the road were

significantly lessened. As Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of

obstacles and persons on the highway, and of other vehicles at intersections, such as one who sees a child on the curb

may be required to anticipate its sudden dash into the street, and his failure to act properly when they appear may be

found to amount to negligence.26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of his own

making.

We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability on the part of

Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection with official matters. His

functions as assistant manager sometimes required him to perform work outside the office as he has to visit buyers and


company clients, but he admitted that on the night of the accident he came from BF Homes Paranaque he did not have

"business from the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the company car was partly required by the

nature of his work, but the privilege of using it for non-official business is a "benefit", apparently referring to the fringe

benefits attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective duties,

the basis of which liability is not respondeat superior, but the relationship of pater familias, which theory bases the

liability of the master ultimately on his own negligence and not on that of his servant (Cuison v. Norton and Harrison Co.,

55 Phil. 18). Before an employer may be held liable for the negligence of his employee, the act or omission which caused

damage must have occurred while an employee was in the actual performance of his assigned tasks or duties (Francis

High School vs. Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts done within the scope of

the employee's assigned tasks, the Supreme Court has held that this includes any act done by an employee, in

furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury

or damage (Filamer Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to

impose upon its employees the necessary discipline called for in the performance of any act "indispensable to the

business and beneficial to their employer" (at p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li was authorized by the

company to use the company car "either officially or socially or even bring it home", he can be considered as using the

company car in the service of his employer or on the occasion of his functions. Driving the company car was not among

his functions as assistant manager; using it for non-official purposes would appear to be a fringe benefit, one of the

perks attached to his position. But to impose liability upon the employer under Article 2180 of the Civil Code, earlier

quoted, there must be a showing that the damage was caused by their employees in the service of the employer or on

the occasion of their functions. There is no evidence that Richard Li was at the time of the accident performing any act in

furtherance of the company's business or its interests, or at least for its benefit. The imposition of solidary liability

against defendant Alexander Commercial Corporation must therefore fail.27

We agree with the respondent court that the relationship in question is not based on the principle of respondeat superior, which

holds the master liable for acts of the servant, but that of pater familias, in which the liability ultimately falls upon the employer,

for his failure to exercise the diligence of a good father of the family in the selection and supervision of his employees. It is up to

this point, however, that our agreement with the respondent court ends. Utilizing the bonus pater familias standard expressed in

Article 2180 of the Civil Code, 28 we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily liable

for the damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed undue reliance, dealt with

the subject of a school and its teacher's supervision of students during an extracurricular activity. These cases now fall under the

provision on special parental authority found in Art. 218 of the Family Code which generally encompasses all authorized school

activities, whether inside or outside school premises.

Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in relation to Art. 2176) of the

Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that he exercised the diligence of a good

father of the family in the selection and supervision of its employees. Once evidence is introduced showing that the employer

exercised the required amount of care in selecting its employees, half of the employer's burden is overcome. The question of

diligent supervision, however, depends on the circumstances of employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the performance

of the latter's assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in relation to Article 2176 of

the Civil Code. The employer is not expected to exercise supervision over either the employee's private activities or during the

performance of tasks either unsanctioned by the former or unrelated to the employee's tasks. The case at bench presents a

situation of a different character, involving a practice utilized by large companies with either their employees of managerial rank

or their representatives.

It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These company cars are

either wholly owned and maintained by the company itself or are subject to various plans through which employees eventually

acquire their vehicles after a given period of service, or after paying a token amount. Many companies provide liberal "car plans"


to enable their managerial or other employees of rank to purchase cars, which, given the cost of vehicles these days, they would

not otherwise be able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of ownership to the

employee; in the second example, the car is really owned and maintained by the employee himself. In furnishing vehicles to such

employees, are companies totally absolved of responsibility when an accident involving a company-issued car occurs during

private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of road worthiness

from their agents prior to turning over the car (subject of company maintenance) to their representatives. In other words, like a

good father of a family, they entrust the company vehicle only after they are satisfied that the employee to whom the car has

been given full use of the said company car for company or private purposes will not be a threat or menace to himself, the

company or to others. When a company gives full use and enjoyment of a company car to its employee, it in effect guarantees

that it is, like every good father, satisfied that its employee will use the privilege reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-issued car. For large

companies other than those cited in the example of the preceding paragraph, the privilege serves important business purposes

either related to the image of success an entity intends to present to its clients and to the public in general, or - for practical and

utilitarian reasons - to enable its managerial and other employees of rank or its sales agents to reach clients conveniently. In most

cases, providing a company car serves both purposes. Since important business transactions and decisions may occur at all hours

in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a company car

therefore principally serves the business and goodwill of a company and only incidentally the private purposes of the individual

who actually uses the car, the managerial employee or company sales agent. As such, in providing for a company car for business

use and/or for the purpose of furthering the company's image, a company owes a responsibility to the public to see to it that the

managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able to use the company

issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial court, he admitted

that his functions as Assistant Manager did not require him to scrupulously keep normal office hours as he was required quite

often to perform work outside the office, visiting prospective buyers and contacting and meeting with company clients. 30 These

meetings, clearly, were not strictly confined to routine hours because, as a managerial employee tasked with the job of

representing his company with its clients, meetings with clients were both social as well as work-related functions. The service

car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the front of a

highly successful entity, increasing the latter's goodwill before its clientele. It also facilitated meeting between Li and its clients by

providing the former with a convenient mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming from a social visit

with an officemate in Paranaque was a bare allegation which was never corroborated in the court below. It was obviously self-

serving. Assuming he really came from his officemate's place, the same could give rise to speculation that he and his officemate

had just been from a work-related function, or they were together to discuss sales and other work related strategies.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good

father of the family in entrusting its company car to Li. No allegations were made as to whether or not the company took the

steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a

company car.31 Not having been able to overcome the burden of demonstrating that it should be absolved of liability for

entrusting its company car to Li, said company, based on the principle of bonus pater familias, ought to be jointly and severally

liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to the amount of

moral damages. In the case of moral damages, while the said damages are not intended to enrich the plaintiff at the expense of a

defendant, the award should nonetheless be commensurate to the suffering inflicted. In the instant case we are of the opinion

that the reduction in moral damages from an amount of P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified

considering the nature of the resulting damage and the predictable sequelae of the injury.

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal

left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left


extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid

for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the

process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy.

During her lifetime, the prosthetic devise will have to be replaced and re-adjusted to changes in the size of her lower limb

effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the

prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels

observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and

lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo

through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and occupational

therapy. All of these adjustments, it has been documented, are painful.

The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it would be highly

speculative to estimate the amount of psychological pain, damage and injury which goes with the sudden severing of a vital

portion of the human body. A prosthetic device, however technologically advanced, will only allow a reasonable amount of

functional restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety,

sleeplessness, psychological injury, mental and physical pain are inestimable.

As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount of P1,000,000.00

granted by the trial court is in greater accord with the extent and nature of the injury - physical and psychological - suffered by

Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer in the early morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect of REINSTATING the

judgment of the Regional Trial Court.

SO ORDERED.

Padilla, Bellosillo and Hermosisima, Jr., JJ., concur.



ManilaEN BANCG.R. No. L-12219 March 15, 1918AMADO 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. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.

Johnson, J., reserves his vote.



ManilaTHIRD DIVISIONG.R. No. L-44264 September 19, 1988HEDY GAN y YU, petitioner, vs.THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.Pacis, Baluyot, Reyes & De Leon for petitioner.The Solicitor General for respondents.FERNAN, C.J.:

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case No. 10201 of the then

Court of First Instance of Manila, Branch XXII presided by Judge Federico C. Alikpala. She was sentenced to an indeterminate

penalty of four (4) months and one (1) day of arresto mayor as minimum and two (2) years, four (4) months and one (1) day

of prision correccional as maximum and was made to indemnify the heirs of the victim the sum of P12,000.00 without any

subsidiary imprisonment in case of insolvency and to pay the costs. On appeal, the trial court's decision was modified and

petitioner was convicted only of Homicide thru Simple Imprudence. Still unsatisfied with the decision of the Court of

Appeals, 1 petitioner has come to this Court for a complete reversal of the judgment below.

The facts of the case as found by the appellate court are as follows:

In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota car along North

Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay Boulevard, there were two

vehicles, a truck and a jeepney parked on one side of the road, one following the other about two to three

meters from each other. As the car driven by the accused approached the place where the two vehicles were

parked, there was a vehicle coming from the opposite direction, followed by another which tried to overtake

and bypass the one in front of it and thereby encroached the lane of the car driven by the accused. To avoid a

head-on collision with the oncoming vehicle, the defendant swerved to the right and as a consequence, the

front bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to

north, pinning him against the rear of the parked jeepney. The force of the impact caused the parked jeepney

to move forward hitting the rear of the parts truck ahead of it. The pedestrian was injured, the Toyota Sedan

was damaged on its front, the jeep suffered damages on its rear and front paints, and the truck sustained

scratches at the wooden portion of its rear. The body of the old man who was later Identified as Isidoro Casino

was immediately brought to the Jose Reyes Memorial Hospital but was (pronounced) dead on arrival. 2

An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above incident. She entered a

plea of not guilty upon arraignment and the case was set for trial.

Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which the trial fiscal moved for

the dismissal of the case against petitioner during the resumption of hearing on September 7, 1972. The grounds cited therefor

were lack of interest on the part of the complaining witness to prosecute the case as evidenced by an affidavit of desistance

submitted to the trial court and lack of eyewitness to sustain the charge.

The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the prosecution to present its evidence.

After the prosecution rested its case, the petitioner filed a motion to dismiss the case on the ground of insufficiency of evidence.

On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable doubt of the of- offense

charged.

Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of Appeals rendered a decision,

the dispositive portion of which reads as follows:


Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the crime of homicide thru

simple imprudence and, pursuant to paragraph 2, Article 365 of the Revised Penal Code, she is hereby

sentenced to the indeterminate penalty of three (3) months and eleven (11) days of arresto mayor and to

indemnify the heirs of Isidoro Casino in the sum of Twelve Thousand Pesos (Pl2,000.00) without, however, any

subsidiary imprisonment in case of insolvency, and to pay the costs. 3

Petitioner now appeals to this Court on the following assignments of errors:

I

The Court of Appeals erred in holding that when the petitioner saw a car travelling directly towards her, she

should have stepped on the brakes immediately or in swerving her vehicle to the right should have also stepped

on the brakes or lessened her speed, to avoid the death of a pedestrian.

II

The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple Imprudence.

III

The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the sum of

P12,000.00. 4

We reverse.

The test for determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or

property of another is this: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to

the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty oil the doer

to take precaution against its mischievous results and the failure to do so constitutes negligence. 5

A corollary rule is what is known in the law as the emergency rule. "Under that 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." 6

Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple Imprudence resulting in

Homicide.

The appellate court in finding the petitioner guilty said:

The accused should have stepped on the brakes when she saw the car going in the opposite direction followed

by another which overtook the first by passing towards its left. She should not only have swerved the car she

was driving to the right but should have also tried to stop or lessen her speed so that she would not bump into

the pedestrian who was crossing at the time but also the jeepney which was then parked along the street. 7

The course of action suggested by the appellate court would seem reasonable were it not for the fact that such suggestion did

not take into account the amount of time afforded petitioner to react to the situation she was in. For it is undeniable that the

suggested course of action presupposes sufficient time for appellant to analyze the situation confronting her and to ponder on

which of the different courses of action would result in the least possible harm to herself and to others.

Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative distances of

petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend to prove that petitioner did have sufficient

time to reflect on the consequences of her instant decision to swerve her car to the light without stepping on her brakes. In fact,

the evidence presented by the prosecution on this point is the petitioner's statement to the police 8 stating::

And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan na aking

kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit siya naman biglangpagtawid ng tao o

victim at hindi ko na ho naiwasan at ako ay wala ng magawa . Iyan ho ang buong pangyayari nang nasabing

aksidente. 9 (Emphasis supplied)

The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity to have been admitted by it.

Thus, under the circumstances narrated by petitioner, we find that the appellate court is asking too much from a mere mortal like

the petitioner who in the blink of an eye had to exercise her best judgment to extricate herself from a difficult and dangerous

situation caused by the driver of the overtaking vehicle. Petitioner certainly could not be expected to act with all the coolness of a


person under normal conditions. 10 The danger confronting petitioner was real and imminent, threatening her very existence. She

had no opportunity for rational thinking but only enough time to heed the very powerfull instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits. We therefore rule that

the "emergency rule" enunciated above applies with full force to the case at bar and consequently absolve petitioner from any

criminal negligence in connection with the incident under consideration.

We further set aside the award of damages to the heirs of the victim, who by executing a release of the claim due them, had

effectively and clearly waived their right thereto. WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU

of the crime of Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded by the

appellate court to the heirs of the victim.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.

Gutierrez, Jr., J., is on leave.



Manila

EN BANC

March 28, 1969

G.R. No. L-21291PRECIOLITA V. CORLISS, plaintiff-appellant, vs.THE MANILA RAILROAD CO., defendant-appellant.

Moises C. Nicomedes for plaintiff-appellant. The Government Corporate Counsel for defendant-appellee.

FERNANDO, J.:

Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with reason. The future, bright

with promise, looms ahead. One's powers are still to be tested, but one feels ready for whatever challenge may come his way.

There is that heady atmosphere of self-confidence, at times carried to excess. The temptation to take risks is there, ever so often,

difficult, if not impossible, to resist. There could be then a lessening of prudence and foresight, qualities usually associated with

age. For death seems so remote and contingent an event. Such is not always the case though, and a slip may be attended with

consequences at times unfortunate, even fatal.

Some such thought apparently was in the mind of the lower court when it dismissed the complaint for recovery of damages filed

by plaintiff-appellant, Preciolita V. Corliss whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the

victim of a grim tragedy, when the jeep he was driving collided with a locomotive of defendant-appellee Manila Railroad

Company, close to midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of

the Clark Air Force Base. In the decision appealed from, the lower court, after summarizing the evidence, concluded that the

deceased "in his eagerness to beat, so to speak, the oncoming locomotive, took the risk and attempted to reach the other side,

but unfortunately he became the victim of his own miscalculation."[[1]]

The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory proof to that effect, in its

opinion, being lacking. Hence this appeal direct to us, the amount sought in the concept of damages reaching the sum of

P282,065.40. An examination of the evidence of record fails to yield a basis for a reversal of the decision appealed from. We

affirm.

According to the decision appealed from, there is no dispute as to the following: "In December 1956, plaintiff, 19 years of age,

married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time of the

accident, he was driving the fatal jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and that

Corliss Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained serious physical injuries and

burns."[[2]]

Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus: "Ronald J. Ennis, a witness of the

plaintiff, substantially declared in his deposition, ..., that at the time of the accident, he also awaiting transportation at the

entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that while there he saw the jeep coming


towards the Base. He said that said jeep slowed down before reaching the crossing, that it made a brief stop but that it did not

stop — dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted into first gear and that was what he

meant by a brief stop. He also testified that he could see the train coming from the direction of San Fernando and that he heard a

warning but that it was not sufficient enough to avoid the accident."[[3]] Also: "Virgilio de la Paz, another witness of the plaintiff,

testified that on the night of February 21, 1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a

jeep going towards the direction of Clark Field. He stated that he heard the whistle of the locomotive and saw the collision. The

jeep, which caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast and heard

the tooting of the horn. It did not stop at the railroad crossing, according to him."[[4]]

After which reference was made to the testimony of the main witness for defendant-appellee, Teodorico Capili, "who was at the

engine at the time of the mishap," and who "testified that before the locomotive, which had been previously inspected and found

to be in good condition approached, the crossing, that is, about 300 meters away, he blew the siren and repeated it in

compliance with the regulations until he saw the jeep suddenly spurt and that although the locomotive was running between 20

and 25 kilometers an hour and although he had applied the brakes, the jeep was caught in the middle of the tracks."[[5]]

1. The above finding as to the non-existence of negligence attributable to defendant-appellee Manila Railroad Company comes to

us encased in the armor of what admittedly appears to be a careful judicial appraisal and scrutiny of the evidence of record. It is

thus proof against any attack unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand firm in the

face of even the most formidable barrage.

In the more traditional terminology, the lower court judgment has in its favor the presumption of correctness. It is entitled to

great respect. After all, the lower court had the opportunity of weighing carefully what was testified to and apparently did not

neglect it. There is no affront to justice then if its finding be accorded acceptance subject of course the contingency of reversal if

error or errors, substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the governing,

principle to say that the appellate function is exhausted when there is found to be a rational basis for the result reached by the

trial court.

As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is the one at issue, the trial court's

judgment as to their degree of credence deserves serious consideration by this Court."[[6]] An earlier expression of the same

view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we find no reason for rejecting the findings of the

court below. The questions raised hinge on credibility and it is well-settled that in the absence of compelling reasons, its

determination is best left to the trial judge why had the advantage of hearing the parties testify and observing their demeanor on

the witness stand."[[7]]

In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any arbitrary or abusive conduct on

the part of the trial judge in the formulation of the ruling. His conclusion on the matter is sufficiently borne out by the evidence

presented. We are denied, therefore, the prerogative to disturb that finding, consonant to the time honored tradition of the

Tribunal to hold trial judges better situated to make conclusions on questions of fact'."[[8]] On this ground alone we can rest the

affirmance of the judgment appealed from.

2. Nor is the result different even if no such presumption were indulged in and the matter examined as if we were exercising

original and not appellate jurisdiction. The sad and deplorable situation in which plaintiff-appellant now finds herself, to the

contrary notwithstanding we find no reason for reversing the judgment of the lower court.

This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causes damage to another,

there being negligence, is under obligation to pay for the damage done.[[9]] Unless it could be satisfactorily shown, therefore,

that defendant-appellee was guilty of negligence then it could not be held liable. The crucial question, therefore, is the existence

of negligence.

The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain, formerly applicable in this

jurisdiction, [[10]] had been interpreted in earlier decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., [[11]] Manresa was

cited to the following effect "'Among the questions most frequently raised and upon which the majority of cases have been

decided with respect to the application of this liability, are those referring to the determination of the damage or prejudice, and

to the fault or negligence of the person responsible therefor. These are the two indispensable factors in the obligations under


discussion, for without damage or prejudice there can be no liability, and although this element is present no indemnity can be

awarded unless arising from some person's fault or negligence'."

Negligence was defined by us in two 1912 decisions, United States v. Juanillo [[12]] and United States v. Barias. [[13]] Cooley'

formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in his work on Torts (3d ed.),

Sec. 1324, defines negligence to be: "The failure to observe for the protection of the interests of another person that degree of

care, precaution and vigilance which the circumstance justly demand whereby such other person suffers injury." There was

likewise a reliance on Ahern v. Oregon Telephone Co. [[14]] Thus: "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."

To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of plaintiff-appellee must

necessary fail. The facts being what they are, compel the conclusion that the liability sought to be fastened on defendant-

appellee had not arisen.

3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on the ground that there was a

failure to appreciate the true situation. Thus the first three assigned errors are factual in character. The third assigned error could

be summarily disposed of. It would go against the evidence to maintain the view that the whistle was not sounded and the

brakes not applied at a distance of 300 meters before reaching the crossing.

The first two assigned errors would make much of the failure of the lower court to hold that the crossing bars not having been

put down and there being no guard at the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid a

collision and that Teodorico Capili, who drove the engine, was not qualified to do so at the time of the accident. For one cannot

just single out circumstance and then confidently assign to it decisive weight and significance. Considered separately, neither of

the two above errors assigned would call for a judgment different in character. Nor would a combination of acts allegedly

impressed with negligence suffice to alter the result. The quantum of proof required still not been met. The alleged errors fail of

their said effect. The case for plaintiff-appellant, such as it had not been improved. There is no justification for reversing the

judgment of the lower court.

It cannot be stressed too much that the decisive considerations are too variable, too dependent in the lid analysis upon a

common sense estimate of the situation as it presented itself to the parties for us to be able to say that this or that element

having been isolated, negligence is shown. The factors that enter the judgment are too many and diverse for us to imprison them

in a formula sufficient of itself to yield the correct answer to the multi-faceted problems the question of negligence poses. Every

case must be dependent on its facts. The circumstances indicative of lack of due care must be judged in the light of what could

reasonably be expected of the parties. If the objective standard of prudence be met, then negligence is ruled out.

In this particular case, it would be to show less than fidelity to the controlling facts to impute negligence to defendant-appellee.

The first three errors assigned certainly do not call for that conclusion.

4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant apparently had in mind this portion of

the opinion of the lower court: "The weight of authorities is to the effect that a railroad track is in itself a warning or a signal of

danger to those who go upon it, and that those who, for reasons of their own, ignore such warning, do so at their own risk and

responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint frequently, if not daily, must have known that locomotive

engines and trains usually pass at that particular crossing where the accident had taken place." [[15]]

Her assignment of error, however, would single out not the above excerpt from the decision appealed from but what to her is the

apparent reliance of the lower court on Mestres v. Manila Electric Railroad & Light Co. [[16]] and United States v. Manlabat &

Pasibi. [[17]] In the Manabat case, the doctrine announced by this Court follows: "A person in control of an automobile who

crosses a railroad, even at a regular road crossing, and who does not exercise that precaution and that control over it as to be

able to stop the same almost immediately upon the appearance of a train, is guilty of criminal negligence, providing a collision

occurs and injury results. Considering the purposes and the general methods adopted for the management of railroads and

railroad trains, we think it is incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing.

He should approach a railroad crossing cautiously and carefully. He should look and listen and do everything that a reasonably

prudent man would do before he attempts to cross the track." The Mestres doctrine in a suit arising from a collision between an

automobile and a street car is substantially similar. Thus: "It may be said, however, that, where a person is nearing a street


crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who can most readily adjust

himself to the exigencies of the case, and where such person can do so more readily, the motorman has a right to presume that

such duty will be performed."

It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent rigid and inflexible doctrine

thus set forth in the two above cases evidenced by Lilius v. Manila Railroad Co., [[18]] the controlling facts of which, however, are

easily distinguishable from what had been correctly ascertained in the present case. Such a deviation from the earlier principle

announced is not only true of this jurisdiction but also of the United States.

This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the following to say: "Especially noteworthy

in this respect is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,'

which would require an automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen, and if

he cannot be sure otherwise that no train is coming to get out of the car. The basic idea behind this is sound enough: it is by no

means proper care to cross a railroad track without taking reasonable precautions against a train, and normally such precautions

will require looking, hearing, and a stop, or at least slow speed, where the view is obstructed." [[19]]

Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, [[20]] where, according to Prosser, it being shown that

"the only effective stop must be made upon the railway tracks themselves, in a position of obligation danger, the court

disregarded any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile

and sometimes even dangerous,' and saying that the driver need not always stop. 'Illustrations such as these,' said Mr. Justice

Cardozo 'bear witness to the need for caution in framing standards of behavior that amount to rules of law.... Extraordinary

situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal." [[21]]

What Justice Cardozo announced would merely emphasize what was set forth earlier that each and every, case on questions of

negligence is to be decided in accordance with the peculiar circumstances that present themselves. There can be no hard and fast

rule. There must be that observance of that degree of care, precaution, and vigilance which the situation demands. Thus

defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it.

What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated on the testimonies of the

plaintiff's witnesses, on the knowledge of the deceased and his familiarity with the setup of the checkpoint, the existence of the

tracks; and on the further fact that the locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear

that Corliss Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to avoid a possible

accident — and this consisted simply in stopping his vehicle before the crossing and allowing the train to move on. A prudent

man under similar circumstances would have acted in this manner. This, unfortunately, Corliss, Jr. failed to do." [[22]]

WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is affirmed. Without

pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ., concur.



ManilaSECOND DIVISIONG.R. No. L-57079 September 29, 1989PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, vs.COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by

private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries

they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an

excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that

respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the

lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms,

legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield

of the jeep was shattered. 2

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their

own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an

independent contractor which undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a

third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable

for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees. 4 In answer thereto, Barte

claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the

terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with

barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the

presence of excavations. 5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is

hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and P5,000.00

exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as

exemplary damages, with legal rate of interest from the date of the filing of the complaint until fully paid. The

defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party

plaintiff has paid to the plaintiff. With costs against the defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Third-

party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with

Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the complaint of respondent

spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for

damages. 7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979, said


respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the

Court of Appeals denied said motion for reconsideration.10 This resolution was received by respondent spouses on February 22,

1980. 11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second

motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by

Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days from notice thereof. 13 Said

resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had already filed their

second motion for reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for reconsideration. 15 The

Court of Appeals, in view of the divergent opinions on the resolution of the second motion for reconsideration, designated two

additional justices to form a division of five. 16 On September 3, 1980, said division of five promulgated its resolution, penned by

Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980,

and affirming in toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of September 3,

1980, contending that the second motion for reconsideration of private respondent spouses was filed out of time and that the

decision of September 25, 1979 penned by Justice Agrava was already final. It further submitted therein that the relationship of

Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the independent contractor

rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent Court of Appeals promulgated

its resolution denying said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court

dated October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground that

the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special Ninth Division, dated

January 24, 1980, are already final, and on the additional ground that said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor rule

in holding PLDT liable to respondent Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both parties,

may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava asponente;

(b) October 10, 1979, a copy of said decision was received by private respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private respondents;

(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;

(e) February 22, 1980, a copy of said denial resolution was received by private respondents;

(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private

respondents

(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for reconsideration

within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated

September 25, 1979 and setting aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for reconsideration and,

consequently, said second motion for reconsideration itself were filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for

reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which the

first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on the last day of the

reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order denying said

motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt on February 22,

1980 of the resolution denying their first motion for reconsideration, private respondents had two remedial options. On February


23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for leave of court to file

a second motion for reconsideration, conceivably with a prayer for the extension of the period within which to do so. On the

other hand, they could have appealed through a petition for review on certiorari to this Court within fifteen (15) days from

February 23, 1980. 22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on February 29, 1980, and

said second motion for reconsideration on March 7, 1980, both of which motions were by then time-barred.

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which was

suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no longer validly take further

proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing

of the motion for leave to file a second motion for reconsideration by herein respondents on February 29, 1980 and the

subsequent filing of the motion itself on March 7, 1980, after the expiration of the reglementary period to file the same,

produced no legal effects. Only a motion for re-hearing or reconsideration filed in time shall stay the final order or judgment

sought to be re-examined. 23

The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents' aforesaid

motion for leave and, giving them an extension of ten (10) days to file a second motion for reconsideration, is null and void. The

period for filing a second motion for reconsideration had already expired when private respondents sought leave to file the same,

and respondent court no longer had the power to entertain or grant the said motion. The aforesaid extension of ten (10) days for

private respondents to file their second motion for reconsideration was of no legal consequence since it was given when there

was no more period to extend. It is an elementary rule that an application for extension of time must be filed prior to the

expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said extension for filing

a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the same.

No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and

executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3, 1980,

allowing private respondents to file a second motion for reconsideration and reversing the original decision are null and void and

cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the accepted rule

that once a decision has become final and executory it is removed from the power and jurisdiction of the court which rendered it

to further alter or amend, much less revoke it. 25 The decision rendered anew is null and void. 26 The court's inherent power to

correct its own errors should be exercised before the finality of the decision or order sought to be corrected, otherwise litigation

will be endless and no question could be considered finally settled. Although the granting or denial of a motion for

reconsideration involves the exercise of discretion, 27 the same should not be exercised whimsically, capriciously or arbitrarily, but

prudently in conformity with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of the

respondent court in its original decision that the accident which befell private respondents was due to the lack of diligence of

respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. Such findings were

reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent court's

resolution of January 24, 1980 which we quote with approval:

First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it

would not have hit the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the left

that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the

accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was not due to

the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. That

may explain plaintiff-husband's insistence that he did not see the ACCIDENT MOUND for which reason he ran

into it.

Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have

been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.

It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters

where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of the

ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely and


conveniently passable to vehicles. The situation could have been worse to the south of the ACCIDENT MOUND

for which reason no picture of the ACCIDENT MOUND facing south was taken.

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he

could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have climbed

the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running

quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not have been thrown against

the windshield and they would not have suffered their injuries.

Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some

reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND, then

plaintiff-husband had not exercised the diligence of a good father of a family to avoid the accident. With the

drizzle, he should not have run on dim lights, but should have put on his regular lights which should have made

him see the ACCIDENT MOUND in time. If he was running on the outside lane at 25 kilometers an hour, even on

dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part. The

ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see

the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the existence and

location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution, he should

have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT MOUND. 29

The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and

those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby

precludes their right to recover damages. 30 The perils of the road were known to, hence appreciated and assumed by, private

respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious

consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner.

The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform

and warn the public of the presence of excavations on the site. The private respondents already knew of the presence of said

excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the

excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some

quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the

proximate cause only when the doing of the said omitted act would have prevented the injury. 31 It is basic that private

respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause

thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection.

Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the

negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had

knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger,

hence he is solely responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient evidence

to prove any negligence on the part of PLDT. We have for consideration only the self-serving testimony of respondent Antonio

Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of a police report of the

incident and the non-submission of a medical report from the hospital where private respondents were allegedly treated have

not even been satisfactorily explained.

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only

rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated,

with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing

the same motivation to plaintiffs, another person could have deliberately engineered a similar accident in the

hope and expectation that the Court can grant him substantial moral and exemplary damages from the big

corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant

which would have extreme difficulty in contesting such person's claim. If there were no witness or record

available from the police department of Bacolod, defendant would not be able to determine for itself which of


the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police

department. 32

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence

causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. 33 Whosoever

relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested,

otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET

ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur

SECOND DIVISIONNORMAN A. GAID, G.R. No. 171636

Petitioner,

Present:

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:

April 7, 2009

x----------------------------------------------------------------------------x

D E C I S I O N

TINGA, J.:

Before the Court is a petition for review on certiorari[1] assailing the 12 July 2005 Decision[2] of the Court of Appeals and its

subsequent Resolution[3] denying petitioners motion for reconsideration.

Petitioner Norman A. Gaid was charged with the crime of reckless imprudence resulting in homicide in an information which

reads as follow:

That on or about 12:00 high noon of October 25, 2001, infront of the Laguindingan National High School,

Poblacion, Laguindingan, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, the

said accused mentioned above while driving a passengers jeepney color white bearing plate no. KVG-771

owned by barangay captain Levy Etom has no precautionary measure to preempt the accident, did then and

there willfully, unlawfully and feloniously ran [sic] over Michael Dayata resulting of [sic] his untimely death as

pronounced by the attending physician of Northern Mindanao Medical Center Hospital, Cagayan de Oro City.

CONTRARY TO LAW.[4]

Petitioner entered a not guilty plea. Thereafter, trial ensued.

The antecedent facts are undisputed.

At around 12:00 noon on 25 October 2001, petitioner was driving his passenger jeepney along a two-lane road where

the Laguindingan National High School is located toward the direction of Moog in Misamis Oriental. His jeepney was filled to

seating capacity.[5] At the time several students were coming out of the school premises. [6]Meanwhile, a fourteen year-old

student, Michael Dayata (Dayata), was seen by eyewitness Artman Bongolto (Bongolto) sitting near a store on the left side of the

road. From where he was at the left side of the road, Dayata raised his left hand to flag down petitioners jeepney [7] which was

traveling on the right lane of the road.[8] However, neither did petitioner nor the conductor, Dennis Mellalos (Mellalos), saw

anybody flagging down the jeepney to ride at that point.[9]

The next thing Bongalto saw, Dayatas feet was pinned to the rear wheel of the jeepney, after which, he laid flat on the

ground behind the jeepney.[10] Another prosecution witness, Usaffe Actub (Actub), who was also situated on the left side of the


street but directly in front of the school gate, heard a strong impact coming from the jeep sounding as if the driver forced to

accelerate in order to hurdle an obstacle.[11] Dayata was then seen lying on the ground [12] and caught in between the rear tires.[13] Petitioner felt that the left rear tire of the jeepney had bounced and the vehicle tilted to the right side.[14]

Mellalos heard a shout that a boy was run over, prompting him to jump off the jeepney to help the victim. Petitioner

stopped and saw Mellalos carrying the body of the victim. [15] Mellalos loaded the victim on a motorcycle and brought him to the

hospital. Dayata was first brought to the Laguindingan Health Center, but it was closed. Mellalos then proceeded to the El

Salvador Hospital. Upon advice of its doctors, however, Dayata was brought to the Northern Mindanao Medical Center where he

was pronounced dead on arrival.[16]

Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the cause of death.[17] She testified that the

head injuries of Dayata could have been caused by having run over by the jeepney.[18]

The Municipal Circuit Trial Court (MCTC) of Laguindingan[19] found petitioner guilty beyond reasonable doubt of the

crime charged. The lower court held petitioner negligent in his driving considering that the victim was dragged to a distance of

5.70 meters from the point of impact. He was also scored for not stopping his vehicle after noticing that the jeepneys left rear tire

jolted causing the vehicle to tilt towards the right.[20] On appeal, the Regional Trial Court (RTC)[21] affirmed in toto the decision of

the MCTC.

The Court of Appeals affirmed the trial courts judgment with modification in that it found petitioner guilty only of simple

negligence resulting in homicide.

The Court of Appeals exonerated petitioner from the charge of reckless imprudence resulting to homicide on the ground

that he was not driving recklessly at the time of the accident. However, the appellate court still found him to be negligent when

he failed to promptly stop his vehicle to check what caused the sudden jotting of its rear tire.[22]

In its 6 February 2006 Resolution, the Court of Appeals denied petitioners motion for reconsideration.[23]

Hence, the instant petition.

Petitioner submits that the Court of Appeals erred in finding that there is (sic) absolutely lack of precaution on the part

of the petitioner when he continued even after he had noticed that the left rear tire and the jeep tilted to its right side.[24] Petitioner stressed that he, in fact, stopped his jeep when its left rear tire bounced and upon hearing that somebody had been

ran over.

Moreover, petitioner asserts that the Court of Appeals committed a grave abuse of discretion in convicting him of the

offense of simple negligence resulting in homicide. Assuming arguendo that he failed to promptly stop his vehicle, petitioner

maintains that no prudent man placed in the same situation could have foreseen the vehicular accident or could have stopped his

vehicle in time when its left rear tire bounced due to the following reasons: (1) the victim was only a trespasser; (2) petitioners

attention was focused on the road and the students outside the schools gate; and (3) the jeepney was fully loaded with

passengers and cargoes and it was impossible for the petitioner to promptly stop his vehicle.[25]

The Office of the Solicitor-General (OSG) maintained that petitioner was negligent when he continued to run towards

the direction of Moog, Laguindingan, dragging the victim a few meters from the point of impact, despite hearing that a child had

been run over.[26]

The presence or absence of negligence on the part of petitioner is determined by the operative events leading to the

death of Dayata which actually comprised of two phases or stages. The first stage began when Dayata flagged down the jeepney

while positioned on the left side of the road and ended when he was run over by the jeepney. The second stage covered the span

between the moment immediately after the victim was run over and the point when petitioner put the jeepney to a halt.

During the first stage, petitioner was not shown to be negligent.


Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage

results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.[27]

In Manzanares v. People,[28] this Court convicted petitioner of the crime of reckless imprudence resulting in multiple

homicide and serious physical injuries when he was found driving the Isuzu truck very fast before it smashed into a jeepney.[29] Likewise, in Pangonorom v. People,[30] a public utility driver, who was driving very fast, failed to slow down and hit a swerving

car. He was found negligent by this Court.

In the instant case, petitioner was driving slowly at the time of the accident, as testified to by two

eyewitnesses. Prosecution witness Actub affirmed this fact on cross-examination, thus:

ATTY. MACUA:

(to the witness)

Q Mr. Witness, when the passenger jeepney passed by the gate of the Laguindingan National High School, is it running slowly, am I correct?

A Yes, he was running slowly.[31]

The slow pace of the jeepney was seconded by Mellalos:

Q You testified that you heard somebody outside from the vehicle shouting that a boy was ran over, am I correct?

A Yes, Sir.

Q Now, before you heard that shouting, did you observe any motion from the vehicle?

A The jeep was moving slowly and I noticed that there was something that [sic] the jeep a little bit bounced up as if a hump thats the time I heard a shout from outside.[32]

Petitioner stated that he was driving at no more than 15 kilometers per hour.[33]

It appears from the evidence Dayata came from the left side of the street. Petitioner, who was driving the jeepney on

the right lane, did not see the victim flag him down.He also failed to see him go near the jeepney at the left side. Understandably,

petitioner was focused on the road ahead. In Dayatas haste to board the jeep which was then running, his feet somehow got

pinned to the left rear tire, as narrated by Bongolto. Actub only saw Dayata after he heard a strong impact coming from the jeep.

With the foregoing facts, petitioner can not be held liable during the first stage. Specifically, he cannot be held liable for

reckless imprudence resulting in homicide, as found by the trial court. The proximate cause of the accident and the death of the

victim was definitely his own negligence in trying to catch up with the moving jeepney to get a ride.

In the instant case, petitioner had exercised extreme precaution as he drove slowly upon reaching the vicinity of the

school. He cannot be faulted for not having seen the victim who came from behind on the left side.

However, the Court of Appeals found petitioner guilty of simple negligence resulting in homicide for failing to stop

driving at the time when he noticed the bouncing of his vehicle. Verily, the appellate court was referring to the second stage of

the incident.

Negligence has been defined as the 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.[34]

The elements of simple negligence: are (1) that there is lack of precaution on the part of the offender; and (2) that the

damage impending to be caused is not immediate or the danger is not clearly manifest.[35]

The standard test in determining whether a person is negligent in doing an act whereby injury or damage results to the

person or property of another is this: could a prudent man, in the position of the person to whom negligence is attributed,

foresee harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on

the actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so


constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this provision, is always

necessary before negligence can be held to exist.[36]

In Philippine National Construction Corporation v. Court of Appeals,[37] the petitioner was the franchisee that operates

and maintains the toll facilities in the North and South Luzon Toll Expressways. It failed to exercise the requisite diligence in

maintaining the NLEX safe for motorists. The lighted cans and lane dividers on the highway were removed even as flattened

sugarcanes lay scattered on the ground. The highway was still wet from the juice and sap of the flattened sugarcanes. The

petitioner should have foreseen that the wet condition of the highway would endanger motorists passing by at night or in the

wee hours of the morning.[38] Consequently, it was held liable for damages.

In an American case, Hernandez v. Lukas,[39] a motorist traveling within the speed limit and did all was possible to avoid

striking a child who was then six years old only.The place of the incident was a neighborhood where children were playing in the

parkways on prior occasions. The court ruled that it must be still proven that the driver did not exercise due care. The evidence

showed that the driver was proceeding in lawful manner within the speed limit when the child ran into the street and was struck

by the drivers vehicle. Clearly, this was an emergency situation thrust upon the driver too suddenly to avoid.

In this case, the courts below zeroed in on the fact that petitioner did not stop the jeepney when he felt the bouncing of

his vehicle, a circumstance which the appellate courtequates with negligence. Petitioner contends that he did not immediately

stop because he did not see anybody go near his vehicle at the time of the incident.[40]

Assuming arguendo that petitioner had been negligent, it must be shown that his negligence was the proximate cause of

the accident. Proximate cause is defined as that which, in the natural and continuous sequence, unbroken by any efficient,

intervening cause, produces the injury, and without which the result would not have

occurred.[41] In order to establish a motorist's liability for the negligent operation of a vehicle, it must be shown that there was a

direct causal connection between such negligence and the injuries or damages complained of. Thus, negligence that is not a

substantial contributing factor in the causation of the accident is not the proximate cause of an injury.[42]

The head injuries sustained by Dayata at the point of impact proved to be the immediate cause of his death, as indicated

in the post-mortem findings.[43] His skull was crushed as a result of the accident. Had petitioner immediately stopped the jeepney,

it would still not have saved the life of the victim as the injuries he suffered were fatal.

The evidence on record do not show that the jeepney dragged the victim after he was hit and run over by the

jeepney. Quite the contrary, the evidence discloses that the victim was not dragged at all. In fact, it is the other way

around. Bongolto narrated that after the impact, he saw Dayata left behind the jeepney. [44] Actub saw Dayata in a prone position

and bleeding within seconds after impact.[45] Right after the impact, Mellalos immediately jumped out of the jeepney and saw the

victim lying on the ground.[46] The distance of 5.70 meters is the length of space between the spot where the victim fell to the

ground and the spot where the jeepney stopped as observed by the trial judge during the ocular inspection at the scene of the

accident.[47]

Moreover, mere suspicions and speculations that the victim could have lived had petitioner stopped can never be the

basis of a conviction in a criminal case.[48] The Court must be satisfied that the guilt of the accused had been proven beyond

reasonable doubt.[49] Conviction must rest on nothing less than a moral certainty of the guilt of the accused. The overriding

consideration is not whether the court doubts the innocence of the accused but whether it entertains doubt as to his guilt.[50]

Clearly then, the prosecution was not able to establish that the proximate cause of the victims death was petitioners

alleged negligence, if at all, even during the second stage of the incident.

If at all again, petitioners failure to render assistance to the victim would constitute abandonment of ones victim

punishable under Article 275 of the Revised Penal Code.However, the omission is not covered by the information. Thus, to hold

petitioner criminally liable under the provision would be tantamount to a denial of due process


Therefore, petitioner must be acquitted at least on reasonable doubt. The award of damages must also be deleted

pursuant to Article 2179 of the Civil Code which states that when the plaintiffs own negligence was the immediate and proximate

cause of his injury, he cannot recover damages.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated 12 July 2005 is REVERSED and SET

ASIDE. Petitioner Norman A. Gaid isACQUITTED of the crime of Simple Negligence Resulting in Homicide as found by the Court of

Appeals and of the charge of Reckless Imprudence Resulting in Homicide in Criminal Case No. 1937 of the MCTC of Laguindingan,

Misamis Oriental.

SO ORDERED.


ManilaSECOND DIVISIONG.R. No. 79578 March 13, 1991RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner, vs.HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES TIMAN, respondents.Salalima, Trenas, Pagaoa & Associates for petitioner.Paul P. Lentejas for private respondents.SARMIENTO, J.:

A social condolence telegram sent through the facilities of the petitioner gave rise to the present petition for review

on certiorari assailing the decision 1 of the respondent Court of Appeals which affirmed in toto the judgment 2 of the trial court,

dated February 14, 1985, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual and compensatory

damages; P10,000.00 as moral damages and P5,000.00 as exemplary damages.

2. Awarding of attorney's fees in the sum of P5,000.00. Costs against the defendant.

SO ORDERED. 3

The facts as gleaned from the records of the case are as follows:

On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a telegram of condolence to their

cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City, through petitioner Radio Communications of the Philippines,

Inc. (RCPI, hereinafter) at Cubao, Quezon City, to convey their deepest sympathy for the recent death of the mother-in-law of

Hilario Midoranda 4 to wit:

MR. & MRS. HILARIO MIDORANDA

TRINIDAD, CALBAYOG CITY

MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST SYMPATHY TO YOU AND MEMBERS OF THE

FAMILY.

MINER & FLORY. 5

The condolence telegram was correctly transmitted as far as the written text was concerned. However, the condolence message

as communicated and delivered to the addressees was typewritten on a "Happy Birthday" card and placed inside a

"Christmasgram" envelope. Believing that the transmittal to the addressees of the aforesaid telegram in that nonsuch manner

was done intentionally and with gross breach of contract resulting to ridicule, contempt, and humiliation of the private

respondents and the addressees, including their friends and relatives, the spouses Timan demanded an explanation. Unsatisfied

with RCPI's explanations in its letters, dated March 9 and April 20, 1983, the Timans filed a complaint for damages. 6

The parties stipulated at the pre-trial that the issue to be resolved by the trial court was:


WHETHER or not the act of delivering the condolence message in a Happy Birthday" card with a "Christmasgram"

envelope constitutes a breach of contract on the part of the defendant. If in the affirmative, whether or not plaintiff is

entitled to damages. 7

The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by the Court of Appeals. RCPI

now submits the following assignment of errors:

I

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL AND COMPENSATORY DAMAGES IN THE

AMOUNT OF P30,848.05.

II

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL DAMAGES IN THE AMOUNT OF

P10,000.00.

III

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY EXEMPLARY DAMAGES IN THE AMOUNT OF

P5,000.00.

IV

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ATTORNEYS FEES IN THE AMOUNT OF P5,000.00

PLUS COSTS OF SUIT. 8

The four assigned errors are going to be discussed jointly because they are all based on the same findings of fact.

We fully agree with the appellate court's endorsement of the trial court's conclusion that RCPI, a corporation dealing in

telecommunications and offering its services to the public, is engaged in a business affected with public interest. As such, it is

bound to exercise that degree of diligence expected of it in the performance of its obligation.9

One of RCPI's main arguments is that it still correctly transmitted the text of the telegram and was received by the addressees on

time despite the fact that there was "error" in the social form and envelope used. 10 RCPI asserts that there was no showing that

it has any motive to cause harm or damage on private respondents:

Petitioner humbly submits that the "error" in the social form used does not come within the ambit of fraud, malice or

bad faith as understood/defined under the law. 11

We do not agree.

In a distinctly similar case, 12 and oddly also involving the herein petitioner as the same culprit, we held:

Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person

transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee

fixed, the petitioner undertakes to transmit the message accurately . . . As a corporation, the petitioner can act only

through its employees. Hence the acts of its employees in receiving and transmitting messages are the acts of the

petitioner. To hold that the petitioner is not liable directly for the acts of its employees in the pursuit of petitioner's

business is to deprive the general public availing of the services of the petitioner of an effective and adequate remedy. 13

Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to convey a message of sorrow

and sympathy. Precisely, it is denominated "telegram of condolence" because it tenders sympathy and offers to share another's

grief. It seems out of this world, therefore, to place that message of condolence in a birthday card and deliver the same in a

Christmas envelope for such acts of carelessness and incompetence not only render violence to good taste and common sense,

they depict a bizarre presentation of the sender's feelings. They ridicule the deceased's loved ones and destroy the atmosphere

of grief and respect for the departed.

Anyone who avails of the facilities of a telegram company like RCPI can choose to send his message in the ordinary form or in a

social form. In the ordinary form, the text of the message is typed on plain newsprint paper. On the other hand, a social telegram

is placed in a special form with the proper decorations and embellishments to suit the occasion and the message and delivered in

an envelope matching the purpose of the occasion and the words and intent of the message. The sender pays a higher amount

for the social telegram than for one in the ordinary form. It is clear, therefore, that when RCPI typed the private respondents'

message of condolence in a birthday card and delivered the same in a colorful Christmasgram envelope, it committed a breach of

contract as well as gross negligence. Its excuse that it had run out of social condolence cards and envelopes 14 is flimsy and

unacceptable. It could not have been faulted had it delivered the message in the ordinary form and reimbursed the difference in


the cost to the private respondents. But by transmitting it unfittingly—through other special forms clearly, albeit outwardly,

portraying the opposite feelings of joy and happiness and thanksgiving—RCPI only exacerbated the sorrowful situation of the

addressees and the senders. It bears stress that this botchery exposed not only the petitioner's gross negligence but also its

callousness and disregard for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must be held

liable for damages.

It is not surprising that when the Timans' telegraphic message reached their cousin, it became the joke of the Midorandas'

friends, relatives, and associates who thought, and rightly so, that the unpardonable mix-up was a mockery of the death of the

mother-in-law of the senders' cousin. Thus it was not unexpected that because of this unusual incident, which caused much

embarrassment and distress to respondent Minerva Timan, he suffered nervousness and hypertension resulting in his

confinement for three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City. 15

The petitioner argues that "a court cannot rely on speculation, conjectures or guess work as to the fact and amount of damages,

but must depend on the actual proof that damages had been suffered and evidence of the actual amount. 16 In other words, RCPI

insists that there is no causal relation of the illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a

question of fact. The findings of fact of the trial court and the respondent court concur in favor of the private respondents. We

are bound by such findings—that is the general rule well-established by a long line of cases. Nothing has been shown to convince

us to justify the relaxation of this rule in the petitioner's favor. On the contrary, these factual findings are supported by

substantial evidence on record.

Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent court are

persuasive.1âwphi1

. . . When plaintiffs placed an order for transmission of their social condolence telegram, defendant did not inform the

plaintiff of the exhaustion of such social condolence forms. Defendant-appellant accepted through its authorized agent

or agency the order and received the corresponding compensation therefor. Defendant did not comply with its contract

as intended by the parties and instead of transmitting the condolence message in an ordinary form, in accordance with

its guidelines, placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness.

Under the circumstances, We cannot accept the defendant's plea of good faith predicated on such exhaustion of social

condolence forms. Gross negligence or carelessness can be attributed to defendant-appellant in not supplying its various

stations with such sufficient and adequate social condolence forms when it held out to the public sometime in January,

1983, the availability of such social condolence forms and accepted for a fee the transmission of messages on said forms.

Knowing that there are no such forms as testified to by its Material Control Manager Mateo Atienza, and entering into a

contract for the transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud or

malice. . . . 17

RCPI's argument that it can not be held liable for exemplary damages, being penal or punitive in character, 18 is without merit. We

have so held in many cases, and oddly, quite a number of them likewise involved the herein petitioner as the transgressor.

x x x x x x x x x

. . . In contracts and quasi-contracts, exemplary damages may be awarded if the defendant acted in a wanton,

fraudulent, reckless, oppressive or malevolent manner.1âwphi1 There was gross negligence on the part of RCPI

personnel in transmitting the wrong telegram, of which RCPI must be held liable. Gross carelessness or negligence

constitutes wanton misconduct.

x x x x x x x x x

. . . punitive damages may be recovered for wilful or wantonly negligent acts in respect of messages, even though those

acts are neither authorized nor ratified (Arkansas & L.R. Co. vs. Stroude 91 SW 18; West vs. Western U. Tel. Co., 17 P807;

Peterson vs. Western U. Tel. Co., 77 NW 985; Brown vs. Western U. Tel. Co., 6 SE 146). Thus, punitive damages have

been recovered for mistakes in the transmission of telegrams (Pittman vs. Western Union Tel. Co., 66 SO 977; Painter vs.

Western Union Tel. Co., 84 SE 293) (emphasis supplied). 19

We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has reached this Court in which

the petitioner was time and again held liable for the same causes as in the present case breach of contract and gross negligence

—the ineluctable conclusion is that it has not in any way reformed nor improved its services to the public. It must do so now or

else next time the Court may be constrained to adjudge stricter sanctions.


WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto.

Costs against the petitioner.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.


ManilaTHIRD DIVISION G.R. No. L-68102 July 16, 1992GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.G.R. No. L-68103 July 16, 1992CARMEN 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 Castañeda, 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 Nuñag, 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 Nuñag, 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 Castañeda, 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 damagesP 12,000.00 as death indemnityP 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 damagesP 12,000.00 as death indemnityP 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 damagesP 672.00 for Clark Field Hospital (Exh. E)P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 andD-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 damagesP 1,055.00 paid to St. Francis Medical Center (Exhs. G andG-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 Muñoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:P 10,000.00 as moral damagesP 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 xxxQ 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 xxxA 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. Nuñag, 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:

I

. . . 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.

V

. . . 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. 43The same is true where the appellate court's

conclusions are grounded entirely on conjectures, speculations and surmises44 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 paterfamiliasof 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 xxxQ 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. 60The 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.

In the light of recent decisions of this Court, 61 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.

Costs against private respondents.



ManilaFIRST DIVISIONG.R. No. 156034 October 1, 2003DELSAN TRANSPORT LINES, INC., petitioner, vs.C & A construction, inc., respondent.D E C I S I O N

YNARES-SANTIAGO, J.:

Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002 decision 1 of the Court of

Appeals in CA-G.R. CV No. 59034, which reversed the decision2 of the Regional Trial Court of Manila, Branch 46, in Civil Case No.

95-75565, and its November 7, 2002 resolution3 denying petitioner’s motion for reconsideration.

The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National Housing Authority (NHA) to

construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila.4 The project was completed in 1994 but it was

not formally turned over to NHA.

On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines, Inc., anchored at the

Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil tank. At around 12:00 midnight of October

20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express received a report from his radio head operator in Japan5 that a

typhoon was going to hit Manila6 in about eight (8) hours.7 At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep

tried to seek shelter at the North Harbor but could not enter the area because it was already congested.8 At 10:00 a.m., Capt.

Jusep decided to drop anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At that time, the waves

were already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the wind which was dragging

the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the vessel.9 He succeeded in

avoiding the power barge, but when the engine was re-started and the ship was maneuvered full astern, it hit the deflector wall

constructed by respondent.10 The damage caused by the incident amounted to P456,198.24.11

Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently, respondent filed a

complaint for damages with the Regional Trial Court of Manila, Branch 46, which was docketed as Civil Case No. 95-75565. In its

answer, petitioner claimed that the damage was caused by a fortuitous event.12

On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner was not guilty of

negligence because it had taken all the necessary precautions to avoid the accident. Applying the "emergency rule", it absolved

petitioner of liability because the latter had no opportunity to adequately weigh the best solution to a threatening situation. It

further held that even if the maneuver chosen by petitioner was a wrong move, it cannot be held liable as the cause of the

damage sustained by respondent was typhoon "Katring", which is an act of God.13

On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside. 14 It found Capt. Jusep guilty of

negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of October 21, 1994 and thus held petitioner

liable for damages.

Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting until 8:35 in the morning of

October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it was not shown that had the transfer been

made earlier, the vessel could have sought shelter.15 It further claimed that it cannot be held vicariously liable under Article 2180

of the Civil Code because respondent failed to allege in the complaint that petitioner was negligent in the selection and


supervision of its employees.16 Granting that Capt. Jusep was indeed guilty of negligence, petitioner is not liable because it

exercised due diligence in the selection of Capt. Jusep who is a duly licensed and competent Master Mariner.17

The issues to be resolved in this petition are as follows – (1) Whether or not Capt. Jusep was negligent; (2) If yes, whether or not

petitioner is solidarily liable under Article 2180 of the Civil Code for the quasi-delict committed by Capt. Jusep?

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another, there being fault or

negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation

between the parties, is called a quasi-delict. 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.18

In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in deciding to transfer the vessel

only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of October 20, 1994, he received a report from his

radio head operator in Japan19 that a typhoon was going to hit Manila20 after 8 hours.21 This, notwithstanding, he did nothing,

until 8:35 in the morning of October 21, 1994, when he decided to seek shelter at the North Harbor, which unfortunately was

already congested. The finding of negligence cannot be rebutted upon proof that the ship could not have sought refuge at the

North Harbor even if the transfer was done earlier. It is not the speculative success or failure of a decision that determines the

existence of negligence in the present case, but the failure to take immediate and appropriate action under the circumstances.

Capt. Jusep, despite knowledge that the typhoon was to hit Manila in 8 hours, complacently waited for the lapse of more than 8

hours thinking that the typhoon might change direction.22 He cannot claim that he waited for the sun to rise instead of moving

the vessel at midnight immediately after receiving the report because of the difficulty of traveling at night. The hour of 8:35 a.m.

is way past sunrise. Furthermore, he did not transfer as soon as the sun rose because, according to him, it was not very

cloudy23 and there was no weather disturbance yet.24

When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an inexcusable lack of

care and caution which an ordinary prudent person would have observed in the same situation. 25 Had he moved the vessel

earlier, he could have had greater chances of finding a space at the North Harbor considering that the Navotas Port where they

docked was very near North Harbor.26 Even if the latter was already congested, he would still have time to seek refuge in other

ports.

The trial court erred in applying the emergency rule. Under this 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

danger in which he finds himself is brought about by his own negligence.27 Clearly, the emergency rule is not applicable to the

instant case because the danger where Capt. Jusep found himself was caused by his own negligence.

Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt. Jusep.1awphi1.nét Under Article 2180

of the Civil Code an employer may be held solidarily liable for the negligent act of his employee. Thus –

Art. 2180. The obligation imposed in Article 2176 is demandable not only for one’s own acts or omissions, but also for those of

persons for whom one is responsible.

x x x x x x x x x

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.

x x x x x x x x x

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.

Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris tantum that

the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision (culpa in vigilando)

of its employees. To avoid liability for a quasi-delict committed by his employee, an employer must overcome the presumption by

presenting convincing proof that he exercised the care and diligence of a good father of a family in the selection and supervision

of his employee. 28

There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer of Capt. Jusep who

at the time of the incident acted within the scope of his duty. The defense raised by petitioner was that it exercised due diligence


in the selection of Capt. Jusep because the latter is a licensed and competent Master Mariner. It should be stressed, however,

that the required diligence of a good father of a family pertains not only to the selection, but also to the supervision of

employees. It is not enough that the employees chosen be competent and qualified, inasmuch as the employer is still required to

exercise due diligence in supervising its employees.

In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in supervision requires the formulation of rules and regulations

for the guidance of employees and the issuance of proper instructions as well as actual implementation and monitoring of

consistent compliance with the rules. Corollarily, in Ramos v. Court of Appeals,30 the Court stressed that once negligence on the

part of the employees is shown, the burden of proving that he observed the diligence in the selection and supervision of its

employees shifts to the employer.

In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for the proper performance of

functions of its employees and that it strictly implemented and monitored compliance therewith. Failing to discharge the burden,

petitioner should therefore be held liable for the negligent act of Capt. Jusep.

So also, petitioner cannot disclaim liability on the basis of respondent’s failure to allege in its complaint that the former did not

exercise due diligence in the selection and supervision of its employees. In Viron Transportation Co., Inc. v. Delos Santos,31 it was

held that it is not necessary to state that petitioner was negligent in the supervision or selection of its employees, inasmuch as its

negligence is presumed by operation of law. Allegations of negligence against the employee and that of an employer-employee

relation in the complaint are enough to make out a case of quasi-delict under Article 2180 of the Civil Code.32

Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter the same. The

interest imposed should, however, be modified. In Eastern Shipping Lines, Inc. v. Court of Appeals,33it was held that the rate of

interest on obligations not constituting a loan or forbearance of money is six percent (6%) per annum. If the purchase price can

be established with certainty at the time of the filing of the complaint, the six percent (6%) interest should be computed from the

date the complaint was filed until finality of the decision. After the judgment becomes final and executory until the obligation is

satisfied, the amount due shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of

credit.34

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October 3, 1995 until the

finality of this decision. If the adjudged principal and the interest (or any part thereof) remain unpaid thereafter, the interest rate

shall be twelve percent (12%) per annum computed from the time the judgment becomes final and executory until it is fully

satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED.1awphi1.nét The June 14, 2002 decision of the Court of

Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to pay respondent C & A Construction, Inc.,

damages in the amount of P456,198.27, plus P30,000.00 as attorney’s fees, is AFFIRMED with the MODIFICATION that the award

of P456,198.27 shall earn interest at the rate of 6% per annum from October 3, 1995, until finality of this decision, and 12% per

annum thereafter on the principal and interest (or any part thereof) until full payment.

SO ORDERED.

Vitug, and Carpio, JJ., concur.

Davide, Jr., C.J., (Chairman), no part; was former counsel of party.

Azcuna, J., on leave.


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