CASE NO.

G.R. No. 74761 November 6, 1990

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

FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a
corporation, which has built through its agents, waterpaths, water conductors and contrivances
within its land, thereby causing inundation and damage to an adjacent land, can be held civilly
liable for damages under Articles 2176 and 2177 of the Civil Code on quasi-delicts such that the
resulting civil case can proceed independently of the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land situated
in Biga (Biluso) Silang, Cavite which is adjacent to that of private respondent, Missionaries of
Our Lady of La Salette, Inc., a religious corporation.
Within the land of respondent corporation, waterpaths and contrivances, including an artificial
lake, were constructed, which allegedly inundated and eroded petitioners' land, caused a young
man to drown, damaged petitioners' crops and plants, washed away costly fences, endangered
the lives of petitioners and their laborers during rainy and stormy seasons, and exposed plants
and other improvements to destruction.
In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG-907-82,
before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City), against Efren Musngi,
Orlando Sapuay and Rutillo Mallillin, officers and directors of herein respondent corporation, for
destruction by means of inundation under Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed another action against respondent
corporation, this time a civil case, docketed as Civil Case No. TG-748, for damages with prayer
for the issuance of a writ of preliminary injunction before the same court.
On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to
the issuance of a writ of preliminary injunction. Hearings were conducted including ocular
inspections on the land. However, on April 26, 1984, the trial court, acting on respondent
corporation's motion to dismiss or suspend the civil action, issued an order suspending further
hearings in Civil Case No, TG-748 until after judgment in the related Criminal Case No. TG-907-
82.
Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial court
issued on August 27, 1984 the disputed order dismissing Civil Case No. TG-748 for lack of
jurisdiction, as the criminal case which was instituted ahead of the civil case was still unresolved.
Said order was anchored on the provision of Section 3 (a), Rule III of the Rules of Court which
provides that "criminal and civil actions arising from the same offense may be instituted
separately, but after the criminal action has been commenced the civil action cannot be
instituted until final judgment has been rendered in the criminal action."
Petitioners appealed from that order to the Intermediate Appellate Court.
On February 17, 1986, respondent Appellate Court, First Civil Cases Division, promulgated a
decision affirming the questioned order of the trial court. A motion for reconsideration filed by
petitioners was denied by the Appellate Court in its resolution dated May 19, 1986.
Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in accordance with
Section 3 (a) of Rule 111 of the Rules of Court. Petitioners contend that the trial court and the
Appellate Court erred in dismissing Civil Case No. TG-748 since it is predicated on a quasi-delict.
Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court is determined by the facts alleged in the
complaint as constituting the cause of action. The purpose of an action or suit and the law to
govern it, including the period of prescription, is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the complaint itself, its allegations
and prayer for relief. The nature of an action is not necessarily determined or controlled by its
title or heading but the body of the pleading or complaint itself. To avoid possible denial of
substantial justice due to legal technicalities, pleadings as well as remedial laws should be
liberally construed so that the litigants may have ample opportunity to prove their respective
claims.
Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No. TG-748:
4) That within defendant's land, likewise located at Biga (Biluso), Silang, Cavite, adjacent on the
right side of the aforesaid land of plaintiffs, defendant constructed waterpaths starting from the
middle-right portion thereof leading to a big hole or opening, also constructed by defendant, thru
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the lower portion of its concrete hollow-blocks fence situated on the right side of its cemented
gate fronting the provincial highway, and connected by defendant to a man height inter-
connected cement culverts which were also constructed and lain by defendant cross-wise
beneath the tip of the said cemented gate, the left-end of the said inter-connected culverts again
connected by defendant to a big hole or opening thru the lower portion of the same concrete
hollowblocks fence on the left side of the said cemented gate, which hole or opening is likewise
connected by defendant to the cemented mouth of a big canal, also constructed by defendant,
which runs northward towards a big hole or opening which was also built by defendant thru the
lower portion of its concrete hollow-blocks fence which separates the land of plaintiffs from that
of defendant (and which serves as the exit-point of the floodwater coming from the land of
defendant, and at the same time, the entrance-point of the same floodwater to the land of
plaintiffs, year after year, during rainy or stormy seasons.
5) That moreover, on the middle-left portion of its land just beside the land of plaintiffs,
defendant also constructed an artificial lake, the base of which is soil, which utilizes the water
being channeled thereto from its water system thru inter-connected galvanized iron pipes (No.
2) and complimented by rain water during rainy or stormy seasons, so much so that the water
below it seeps into, and the excess water above it inundates, portions of the adjoining land of
plaintiffs.
6) That as a result of the inundation brought about by defendant's aforementioned water
conductors, contrivances and manipulators, a young man was drowned to death, while herein
plaintiffs suffered and will continue to suffer, as follows:
a) Portions of the land of plaintiffs were eroded and converted to deep, wide and long canals,
such that the same can no longer be planted to any crop or plant.
b) Costly fences constructed by plaintiffs were, on several occasions, washed away.
c) During rainy and stormy seasons the lives of plaintiffs and their laborers are always in danger.
d) Plants and other improvements on other portions of the land of plaintiffs are exposed to
destruction. ...
A careful examination of the aforequoted complaint shows that the civil action is one under
Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict are
present, to wit: (a) damages suffered by the plaintiff, (b) fault or negligence of the defendant, or
some other person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the plaintiff.
Clearly, from petitioner's complaint, the waterpaths and contrivances built by respondent
corporation are alleged to have inundated the land of petitioners. There is therefore, an
assertion of a causal connection between the act of building these waterpaths and the damage
sustained by petitioners. Such action if proven constitutes fault or negligence which may be the
basis for the recovery of damages.
In the case of Samson vs. Dionisio, the Court applied Article 1902, now Article 2176 of the Civil
Code and held that "any person who without due authority constructs a bank or dike, stopping
the flow or communication between a creek or a lake and a river, thereby causing loss and
damages to a third party who, like the rest of the residents, is entitled to the use and enjoyment
of the stream or lake, shall be liable to the payment of an indemnity for loss and damages to the
injured party.
While the property involved in the cited case belonged to the public domain and the property
subject of the instant case is privately owned, the fact remains that petitioners' complaint
sufficiently alleges that petitioners have sustained and will continue to sustain damage due to
the waterpaths and contrivances built by respondent corporation. Indeed, the recitals of the
complaint, the alleged presence of damage to the petitioners, the act or omission of respondent
corporation supposedly constituting fault or negligence, and the causal connection between the
act and the damage, with no pre-existing contractual obligation between the parties make a
clear case of a quasi delict or culpa aquiliana.
It must be stressed that the use of one's property is not without limitations. Article 431 of the
Civil Code provides that "the owner of a thing cannot make use thereof in such a manner as to
injure the rights of a third person." SIC UTERE TUO UT ALIENUM NON LAEDAS. Moreover,
adjoining landowners have mutual and reciprocal duties which require that each must use his
own land in a reasonable manner so as not to infringe upon the rights and interests of others.
Although we recognize the right of an owner to build structures on his land, such structures
must be so constructed and maintained using all reasonable care so that they cannot be
dangerous to adjoining landowners and can withstand the usual and expected forces of nature.
If the structures cause injury or damage to an adjoining landowner or a third person, the latter
can claim indemnification for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act
or omission constituting fault or negligence, thus:
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Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this chapter.
Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable by
law" but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or not he
is criminally prosecuted and found guilty or acquitted, provided that the offended party is not
allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two, assuming
the awards made in the two cases vary.
The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which states:
Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the defendant.
According to the Report of the Code Commission "the foregoing provision though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a distinct and
independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and "culpa extra-contractual" or "cuasi-delito" has been
sustained by decisions of the Supreme Court of Spain ...
In the case of Castillo vs. Court of Appeals, this Court held that a quasi-delict or culpa aquiliana
is a separate legal institution under the Civil Code with a substantivity all its own, and
individuality that is entirely apart and independent from a delict or crime a distinction exists
between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa
extra-contractual. The same negligence causing damages may produce civil liability arising from
a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual
under the Civil Code. Therefore, the acquittal or conviction in the criminal case is entirely
irrelevant in the civil case, unless, of course, in the event of an acquittal where the court has
declared that the fact from which the civil action arose did not exist, in which case the extinction
of the criminal liability would carry with it the extinction of the civil liability.
In Azucena vs. Potenciano, the Court declared that in quasi-delicts, "(t)he civil action is entirely
independent of the criminal case according to Articles 33 and 2177 of the Civil Code. There can
be no logical conclusion than this, for to subordinate the civil action contemplated in the said
articles to the result of the criminal prosecution whether it be conviction or acquittal would
render meaningless the independent character of the civil action and the clear injunction in
Article 31, that his action may proceed independently of the criminal proceedings and regardless
of the result of the latter."
WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate Appellate
Court affirming the order of dismissal of the Regional Trial Court of Cavite, Branch 18 (Tagaytay
City) dated August 17, 1984 is hereby REVERSED and SET ASIDE. The trial court is ordered to
reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo and Emmanuel R. Andamo vs.
Missionaries of Our Lady of La Salette Inc." and to proceed with the hearing of the case with
dispatch. This decision is immediately executory. Costs against respondent corporation.

SO ORDERED.

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CASE NO. 2

G.R. No. 108017 April 3, 1995

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

BIDIN, J.:
This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated
October 29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the Regional Trial Court
dismissing Civil Case No. Q-89-1751, and its resolution dated November 17, 1991 denying
herein, petitioner's motion for reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay
occurred at the "Big Bang Sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno
Torzuela, the security guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own
behalf and in behalf of her minor children, filed on February 8, 1989 an action for damages
against Benigno Torzuela and herein private respondents Safeguard Investigation and Security
Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"), alleged
employers of defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-1751 among
others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant Safeguard) and
SUPERGUARD SECURITY CORPORATION (Defendant Superguard) are corporations duly
organized and existing in accordance with Philippine laws, with offices at 10th Floor,
Manufacturers Building, Inc., Plaza Santa Cruz, Manila. They are impleaded as alternative
defendants for, while the former appears to be the employer of defendant BENIGNO TORZUELA
(defendant TORZUELA), the latter impliedly acknowledged responsibility for the acts of
defendant TORZUELA by extending its sympathies to plaintiffs.
Defendant BENIGNO TORZUELA is of legal age, an employee of defendant SAFEGUARD and/or
defendant SUPERGUARD and, at the time of the incident complained of, was under their control
and supervision. . . .
3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he was on duty as
security guard at the "Big Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and
killed NAPOLEON V. DULAY with a .38 caliber revolver belonging to defendant SAFEGUARD,
and/or SUPERGUARD (per Police Report dated January 7, 1989, copy attached as Annex A);
4. The incident resulting in the death of NAPOLEON V. DULAY was due to the concurring
negligence of the defendants. Defendant TORZUELA'S wanton and reckless discharge of the
firearm issued to him by defendant SAFEGUARD and/or SUPERGUARD was the immediate and
proximate cause of the injury, while the negligence of defendant SAFEGUARD and/or
SUPERGUARD consists in its having failed to exercise the diligence of a good father of a family in
the supervision and control of its employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's fees.
The said Civil Case No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of Quezon
City, presided by respondent Judge Teodoro Regino.
On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground
that the complaint does not state a valid cause of action. SUPERGUARD claimed that Torzuela's
act of shooting Dulay was beyond the scope of his duties, and that since the alleged act of
shooting was committed with deliberate intent (dolo), the civil liability therefor is governed by
Article 100 of the Revised Penal Code, which states:
Art. 100. Civil liability of a person guilty of a felony. Every person criminally liable for a felony
is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint for damages based on negligence
under Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since
the civil liability under Article 2176 applies only to quasi-offenses under Article 365 of the
Revised Penal Code. In addition, the private respondent argued that petitioners' filing of the
complaint is premature considering that the conviction of Torzuela in a criminal case is a
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condition sine qua non for the employer's subsidiary liability (Rollo, p. 55-59).
Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the
ground that defendant Torzuela is not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of action against the private
respondents is based on their liability under Article 2180 of the New Civil Code, which provides:
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section
13 of the Rules of Court. Therefore, the inclusion of private respondents as alternative
defendants in the complaint is justified by the following: the Initial Investigation Report prepared
by Pat. Mario Tubon showing that Torzuela is an employee of SAFEGUARD; and through overt
acts, SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was
filed before the Regional Trial Court of Makati and was docketed as Criminal Case No. 89-1896.
On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion to
dismiss and SAFEGUARD'S motion for exclusion as defendant. The respondent judge held that
the complaint did not state facts necessary or sufficient to constitute a quasi-delict since it does
not mention any negligence on the part of Torzuela in shooting Napoleon Dulay or that the same
was done in the performance of his duties. Respondent judge ruled that mere allegations of the
concurring negligence of the defendants (private respondents herein) without stating the facts
showing such negligence are mere conclusions of law (Rollo, p. 106). Respondent judge also
declared that the complaint was one for damages founded on crimes punishable under Articles
100 and 103 of the Revised Penal Code as distinguished from those arising from, quasi-delict.
The dispositive portion of the order dated April 13, 1989 states:
WHEREFORE, this Court holds that in view of the material and ultimate facts alleged in the
verified complaint and in accordance with the applicable law on the matter as well as precedents
laid down by the Supreme Court, the complaint against the alternative defendants Superguard
Security Corporation and Safeguard Investigation and Security Co., Inc., must be and (sic) it is
hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court and petitioners' motion for
reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to
acts of negligence but also cover acts that are intentional and voluntary, citing Andamo v. IAC
(191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of shooting Napoleon Dulay
constitutes a quasi-delict actionable under Article 2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the New Civil Code, private respondents
are primarily liable for their negligence either in the selection or supervision of their employees.
This liability is independent of the employee's own liability for fault or negligence and is distinct
from the subsidiary civil liability under Article 103 of the Revised Penal Code. The civil action
against the employer may therefore proceed independently of the criminal action pursuant to
Rule 111 Section 3 of the Rules of Court. Petitioners submit that the question of whether
Torzuela is an employee of respondent SUPERGUARD or SAFEGUARD would be better resolved
after trial.
Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article
33 of the New Civil Code, to wit:
Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence. (Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed independently In the cases provided for in Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been
reserved may be brought by the offended party, shall proceed independently of the criminal
action, and shall require only a preponderance of evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held to include consummated, frustrated
and attempted homicide. Thus, petitioners maintain that Torzuela's prior conviction is
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unnecessary since the civil action can proceed independently of the criminal action. On the other
hand, it is the private respondents' argument that since the act was not committed with
negligence, the petitioners have no cause of action under Articles 2116 and 2177 of the New
Civil Code. The civil action contemplated in Article 2177 is not applicable to acts committed with
deliberate intent, but only applies to quasi-offenses under Article 365 of the Revised Penal Code.
Torzuela's act of shooting Atty. Dulay to death, aside from being purely personal, was done with
deliberate intent and could not have been part of his duties as security guard. And since Article
2180 of the New Civil Code covers only: acts done within the scope of the employee's assigned
tasks, the private respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of
Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides:
Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil
action for the recovery of civil liability is impliedly instituted with the criminal action, unless the
offended party waives the civil action , reserves his right to institute it separately or institutes
the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised Penal Code, and damages
under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from the same act
or omission of the accused. (Emphasis supplied)
It is well-settled that the filing of an independent civil action before the prosecution in the
criminal action presents evidence is even far better than a compliance with the requirement of
express reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is
precisely what the petitioners opted to do in this case. However, the private respondents
opposed the civil action on the ground that the same is founded on a delict and not on a quasi-
delict as the shooting was not attended by negligence. What is in dispute therefore is the nature
of the petitioner's cause of action.
The nature of a cause of action is determined by the facts alleged in the complaint as
constituting the cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an
action or suit and the law to govern it is to be determined not by the claim of the party filing the
action, made in his argument or brief, but rather by the complaint itself, its allegations and
prayer for relief. (De Tavera v. Philippine Tuberculosis Society, 112 SCRA 243 [1982]). An
examination of the complaint in the present case would show that the plaintiffs, petitioners
herein, are invoking their right to recover damages against the private respondents for their
vicarious responsibility for the injury caused by Benigno Torzuela's act of shooting and killing
Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties is called a quasi-delict and is governed by the
provisions of this Chapter.
Contrary to the theory of private respondents, there is no justification for limiting the scope of
Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is
the doctrine that article 2176 covers not only acts committed with negligence, but also acts
which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA
98 [1977]), this Court already held that:
. . . Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by
law" but also acts criminal in character; whether intentional and voluntary or negligent.
Consequently, a separate civil action against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that the offended party is not
allowed, if he is actually charged also criminally, to recover damages on both scores, and would
be entitled in such eventuality only to the bigger award of the two, assuming the awards made
in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of
Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered as quasi-delict only and not as
a crime is not extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. Briefly stated, We here
hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which
may be punishable by law. (Emphasis supplied)
The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191
SCRA 195 [1990]), wherein the Court held:
Article 2176, whenever it refers to "fault or negligence," covers not only acts criminal in
character, whether intentional and voluntary or negligent. Consequently, a civil action lies
against the offender in a criminal act, whether or not he is prosecuted or found guilty or
Page 6 of 44
acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually also
charged criminally), to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases
vary. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied)
Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter,
and should be read as "voluntary" since intent cannot be coupled with negligence as defined by
Article 365 of the Revised Penal Code. In the absence of more substantial reasons, this Court will
not disturb the above doctrine on the coverage of Article 2176.
Private respondents further aver that Article 33 of the New Civil Code applies only to injuries
intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that
the actions for damages allowed thereunder are ex-delicto. However, the term "physical injuries"
in Article 33 has already been construed to include bodily injuries causing death (Capuno v.
Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil.
94 [1955]). It is not the crime of physical injuries defined in the Revised Penal Code. It includes
not only physical injuries but also consummated, frustrated, and attempted homicide (Madeja v.
Caro, 126 SCRA 293 [1983]). Although in the Marcia case (supra), it was held that no
independent civil action may be filed under Article 33 where the crime is the result of criminal
negligence, it must be noted however, that Torzuela, the accused in the case at bar, is charged
with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged with
reckless imprudence. Therefore, in this case, a civil action based on Article 33 lies.
Private respondents also contend that their liability is subsidiary under the Revised Penal Code;
and that they are not liable for Torzuela's act which is beyond the scope of his duties as a
security guard. It having been established that the instant action is not ex-delicto, petitioners
may proceed directly against Torzuela and the private respondents. Under Article 2180 of the
New Civil Code as aforequoted, when an injury is caused by the negligence of the employee,
there instantly arises a presumption of law that there was negligence on the part of the master
or employer either in the selection of the servant or employee, or in supervision over him after
selection or both (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). The liability
of the employer under Article 2180 is direct and immediate; it is not conditioned upon prior
recourse against the negligent employee and a prior showing of the insolvency of such employee
(Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent upon the
private respondents to prove that they exercised the diligence of a good father of a family in the
selection and supervision of their employee.
Since Article 2176 covers not only acts of negligence but also acts which are intentional and
voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's
complaint simply because it failed to make allegations of attendant negligence attributable to
private respondents.
With respect to the issue of whether the complaint at hand states a sufficient cause of action,
the general rule is that the allegations in a complaint are sufficient to constitute a cause of
action against the defendants if, admitting the facts alleged, the court can render a valid
judgment upon the same in accordance with the prayer therein. A cause of action exist if the
following elements are present, namely: (1) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or omission on the part of such
defendant violative of the right of the plaintiff or constituting a breach of the obligation of the
defendant to the plaintiff for which the latter may maintain an action for recovery of damages
(Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the Philippines v.
Pundogar, 218 SCRA 118 [1993])
This Court finds, under the foregoing premises, that the complaint sufficiently alleged an
actionable breach on the part of the defendant Torzuela and respondents SUPERGUARD and/or
SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot Napoleon Dulay
resulting in the latter's death; that the shooting occurred while Torzuela was on duty; and that
either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and responsible for his acts.
This does not operate however, to establish that the defendants below are liable. Whether or not
the shooting was actually reckless and wanton or attended by negligence and whether it was
actually done within the scope of Torzuela's duties; whether the private respondents
SUPERGUARD and/or SAFEGUARD failed to exercise the diligence of a good father of a family;
and whether the defendants are actually liable, are questions which can be better resolved after
trial on the merits where each party can present evidence to prove their respective allegations
and defenses. In determining whether the allegations of a complaint are sufficient to support a
cause of action, it must be borne in mind that the complaint does not have to establish or allege
the facts proving the existence of a cause of action at the outset; this will have to be done at the
trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a
Page 7 of 44
complaint can furnish a sufficient basis by which the complaint can be maintained, the same
should not be dismissed regardless of the defenses that may be assessed by the defendants
(Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v.
Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of
action, the complaint must show that the claim for relief does not exist rather than that a claim
has been defectively stated, is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27
SCRA 50 [1969]). Since the petitioners clearly sustained an injury to their rights under the law,
it would be more just to allow them to present evidence of such injury.
WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision of
the Court of Appeals as well as the Order of the Regional Trial Court dated April 13, 1989 are
hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional Trial
Court for trial on the merits. This decision is immediately executory.

SO ORDERED.

Page 8 of 44
CASE NO. 3

G.R. No. L-44264 September 19, 1988

HEDY GAN y YU, petitioner, vs. THE HONORABLE COURT OF APPEALS and the PEOPLE OF
THE PHILIPPINES, 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,
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.
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.
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.

Page 9 of 44
 III
The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the
sum of P12,000.00.
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.
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."
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.
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
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
biglang pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa . Iyan ho
ang buong pangyayari nang nasabing aksidente. (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. 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.

CASE No. 4
Page 10 of 44
[G.R. No. 119850. June 20, 1996]
MANDARIN VILLA, INC., petitioner, vs. COURT OF APPEALS and CLODUALDO DE JESUS,
respondents.
With ample evidentiary support are the following antecedent facts:
In the evening of October 19, 1989, private respondent, Clodualdo de Jesus, a practicing lawyer
and businessman, hosted a dinner for his friends at the petitioner's restaurant the Mandarin Villa
Seafoods Village, Greenhills, Mandaluyong City. After dinner the waiter handed to him the bill in
the amount of P2,658.50. Private respondent offered to pay the bill through his credit card
issued by Philippine Commercial Credit Card Inc. (BANKARD). This card was accepted by the
waiter who immediately proceeded to the restaurant's cashier for card verification. Ten minutes
later, however, the waiter returned and audibly informed private respondent that his credit card
had expired. Private respondent remonstrated that said credit card had yet to expire on
September 1990, as embossed on its face. The waiter was unmoved, thus, private respondent
and two of his guests approached the restaurant's cashier who again passed the credit card over
the verification computer. The same information was produced, i.e., CARD EXPIRED. Private
respondent and his guests returned to their table and at this juncture, Professor Lirag, another
guest, uttered the following remarks: "Clody [referring to Clodualdo de Jesus], may problema
ba? Baka kailangang maghugas na kami ng pinggan?" Thereupon, private respondent left the
restaurant and got his BPI Express Credit Card from his car and offered it to pay their bill. This
was accepted and honored by the cashier after verification. Petitioner and his companions left
afterwards.
The incident triggered the filing of a suit for damages by private respondent. Following a full-
dress trial, judgment was rendered directing the petitioner and BANKARD to pay jointly and
severally the private respondent: (a) moral damages in the amount of P250,000.00; (b)
exemplary damages in the amount of P100,000.00; and (c) attorney's fees and litigation
expenses in the amount of P50,000.00.
Both the petitioner and BANKARD appealed to the respondent Court of Appeals which rendered a
decision, thus:
"WHEREFORE, the decision appealed from is hereby MODIFIED by:
1. Finding appellant MANDARIN solely responsible for damages in favor of appellee;
2. Absolving appellant BANKARD of any responsibility for damages;
3. Reducing moral damages awarded to appellee to TWENTY FIVE THOUSAND and 00/100
(P25,000.00) PESOS;
4. Reducing exemplary damages awarded to appellee to TEN THOUSAND and 00/100
(P10,000.00) PESOS;
5. Reversing and setting aside the award of P50,000.00 for attorney's fees as well as interest
awarded; and
6. AFFIRMING the dismissal of all counterclaims and cross-claims.
Costs against appellant Mandarin. SO ORDERED."
Mandarin Villa, thus, interposed this present petition, faulting the respondent court with six (6)
assigned errors which may be reduced to the following issues, to wit: (1) whether or not
petitioner is bound to accept payment by means of credit card; (2) whether or not petitioner is
negligent under the circumstances obtaining in this case; and (3) if negligent, whether or not
such negligence is the proximate cause of the private respondent's damage.
Petitioner contends that it cannot be faulted for its cashier's refusal to accept private
respondent's BANKARD credit card, the same not being a legal tender. It argues that private
respondent's offer to pay by means of credit card partook of the nature of a proposal to novate
an existing obligation for which petitioner, as creditor, must first give its consent otherwise there
will be no binding contract between them. Petitioner cannot seek refuge behind this averment.
We note that Mandarin Villa Seafood Village is affiliated with BANKARD. In fact, an "Agreement"
entered into by petitioner and BANKARD dated June 23, 1989, provides inter alia:
"The MERCHANT shall honor validly issued PCCCI credit cards presented by their corresponding
holders in the purchase of goods and/or services supplied by it provided that the card expiration
date has not elapsed and the card number does not appear on the latest cancellation bulletin of
lost, suspended and cancelled PCCCI credit cards and, no signs of tampering, alterations or
irregularities appear on the face of the credit card."
While private respondent may not be a party to the said agreement, the above-quoted
stipulation conferred a favor upon the private respondent, a holder of credit card validly issued
by BANKARD. This stipulation is a stipulation pour autri and under Article 1311 of the Civil Code
private respondent may demand its fulfillment provided he communicated his acceptance to the
petitioner before its revocation. In this case, private respondent's offer to pay by means of his

Page 11 of 44
BANKARD credit card constitutes not only an acceptance of the said stipulation but also an
explicit communication of his acceptance to the obligor.
In addition, the record shows that petitioner posted a logo inside Mandarin Villa Seafood Village
stating that "Bankard is accepted here." This representation is conclusive upon the petitioner
which it cannot deny or disprove as against the private respondent, the party relying thereon.
Petitioner, therefore, cannot disclaim its obligation to accept private respondent's BANKARD
credit card without violating the equitable principle of estoppel.
Anent the second issue, petitioner insists that it is not negligent. In support thereof, petitioner
cites its good faith in checking, not just once but twice, the validity of the aforementioned credit
card prior to its dishonor. It argues that since the verification machine flashed an information
that the credit card has expired, petitioner could not be expected to honor the same much less
be adjudged negligent for dishonoring it. Further, petitioner asseverates that it only followed the
guidelines and instructions issued by BANKARD in dishonoring the aforementioned credit card.
The argument is untenable.
The test for determining the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use the reasonable care and caution
which an ordinary prudent person would have used in the same situation? If not, then he is
guilty of negligence. The Point of Sale (POS) Guidelines which outlined the steps that petitioner
must follow under the circumstances provides:
"CARD EXPIRED
a. Check expiry date on card.
b. If unexpired, refer to CB.
b.1. If valid, honor up to maximum of SPL only.
b.2. If in CB as Lost, do procedures 2a to 2e.,
b.3. If in CB as Suspended/Cancelled, do not honor card.
c. If expired, do not honor card."
A cursory reading of said rule reveals that whenever the words CARD EXPIRED flashes on the
screen of the verification machine, petitioner should check the credit card's expiry date
embossed on the card itself. If unexpired, petitioner should honor the card provided it is not
invalid, cancelled or otherwise suspended. But if expired, petitioner should not honor the card. In
this case, private respondent's BANKARD credit card has an embossed expiry date of September
1990. Clearly, it has not yet expired on October 19,1989, when the same was wrongfully
dishonored by the petitioner. Hence, petitioner did not use the reasonable care and caution
which an ordinary prudent person would have used in the same situation and as such petitioner
is guilty of negligence. In this connection, we quote with approval the following observations of
the respondent Court.
"Mandarin argues that based on the POS Guidelines (supra), it has three options in case the
verification machine flashes 'CARD EXPIRED.' It chose to exercise option (c) by not honoring
appellee's credit card. However, appellant apparently intentionally glossed over option '(a) Check
expiry date on card" (id.) which would have shown without any shadow of doubt that the expiry
date embossed on the BANKARD was 'SEP 90.' (Exhibit "D".) A cursory look at the appellee's
BANKARD would also reveal that appellee had been as of that date a cardholder since 1982, a
fact which would have entitled the customer the courtesy of better treatment."
Petitioner, however, argues that private respondent's own negligence in not bringing with him
sufficient cash was the proximate cause of his damage. It likewise sought exculpation by
contending that the remark of Professor Lirag is a supervening event and at the same time the
proximate cause of private respondent's injury.
We find this contention also devoid of merit. While it is true that private respondent did not have
sufficient cash on hand when he hosted a dinner at petitioner's restaurant, this fact alone does
not constitute negligence on his part. Neither can it be claimed that the same was the proximate
cause of private respondent's damage. We take judicial notice of the current practice among
major establishments, petitioner included, to accept payment by means of credit cards in lieu of
cash. Thus, petitioner accepted private respondent's BPI Express Credit Card after verifying its
validity, a fact which all the more refutes petitioner's imputation of negligence on the private
respondent.
Neither can we conclude that the remark of Professor Lirag was a supervening event and the
proximate cause of private respondent's injury. The humiliation and embarrassment of the
private respondent was brought about not by such a remark of Professor Lirag but by the fact of
dishonor by the petitioner of private respondent's valid BANKARD credit card. If at all, the
remark of Professor Lirag served only to aggravate the embarrassment then felt by private
respondent, albeit silently within himself.
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
Page 12 of 44
CASE NO. 5

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

AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, JR., defendant-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
Page 13 of 44
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 Rakes 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
Page 14 of 44
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.

Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as
particularly applied to automobile accidents. This rule cannot be invoked where the negligence of
the plaintiff is concurrent with that of the defendant. Again, if a traveler when he reaches the
point of collision is in a situation to extricate himself and avoid injury, his negligence at that
point will prevent a recovery. But Justice Street finds as a fact that the negligent act of the
interval of time, and that at the moment the plaintiff had no opportunity to avoid the accident.
Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has
reached a point where he cannot extricate himself and vigilance on his part will not avert the
injury, his negligence in reaching that position becomes the condition and not the proximate
cause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917],
102 Atl., 330.)

Page 15 of 44
CASE NO. 6

G.R. No. 70493 May 18, 1989

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

NARVASA, J.:
There is a two-fold message in this judgment that bears stating at the outset. The first, an
obvious one, is that it is the objective facts established by proofs presented in a controversy that
determine the verdict, not the plight of the persons involved, no matter how deserving of
sympathy and commiseration because, for example, an accident of which they are the innocent
victims has brought them to. reduced circumstances or otherwise tragically altered their lives.
The second is that the doctrine laid done many, many years ago in Picart vs. Smith continues to
be good law to this day.
The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the
Trial Court as follows:
Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the jeep owned by the
Bacnotan Consolidated Industries, Inc., with Calibo at the wheel, as it approached from the
South Lizada Bridge going towards the direction of Davao City at about 1:45 in the afternoon of
July 4,1979. At about that time, the cargo track, loaded with cement bags, GI sheets, plywood,
driven by defendant Paul Zacarias y Infants, coming from the opposite direction of Davao City
and bound for Glan, South Cotabato, had just crossed said bridge. At about 59 yards after
crossing the bridge, the cargo truck and the jeep collided as a consequence of which Engineer
Calibo died while Roranes and Patos sustained physical injuries. Zacarias was unhurt. As a result
of the impact, the left side of the truck was slightly damaged while the left side of the jeep,
including its fender and hood, was extensively damaged. After the impact, the jeep fell and
rested on its right side on the asphalted road a few meters to the rear of the truck, while the
truck stopped on its wheels on the road.
On November 27, 1979, the instant case for damages was filed by the surviving spouse and
children of the late Engineer Calibo who are residents of Tagbilaran City against the driver and
owners of the cargo truck.
For failure to file its answer to the third party complaint, third party defendant, which insured
the cargo truck involved, was declared in default.
The case filed by the heirs of Engineer Calibo his widow and minor children, private respondents
herein was docketed as
Civil Case No. 3283 of the Court of First Instance of Bohol. Named defendants in the complaint
were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners of the Glan
People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." The defendants' answer
however alleged that the lumber and hardware business was exclusively owned by George Y.
Lim, this being evidenced by the Certificate of Registration issued by the Bureau of Domestic
Trade; Fabio S. Agad was not a co-owner thereof but "merely employed by . . . George Y. Lim as
bookkeeper"; and Felix Lim had no connection whatever with said business, "he being a child
only eight (8) years of age."
"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the
Court reached the conclusion "that the plaintiffs failed to establish by preponderance of evidence
the negligence, and thus the liability, of the defendants." Accordingly, the Court dismissed the
complaint (and defendants' counterclaim) "for insufficiency of evidence." Likewise dismissed was
third-party complaint presented by the defendants against the insurer of the truck. The
circumstances leading to the Court's conclusion just mentioned, are detailed in the Court's
decision, as follows:
1. Moments before its collision with the truck being operated by Zacarias, the jeep of the
deceased Calibo was "zigzagging."
2. Unlike Zacarias who readily submitted himself to investigation by the police, Calibo's
companions, Roranes (an accountant), and Patos, who suffered injuries on account of the
collision, refused to be so investigated or give statements to the police officers. This, plus
Roranes' waiver of the right to institute criminal proceedings against Zacarias, and the fact that
indeed no criminal case was ever instituted in Court against Zacarias, were "telling indications
that they did not attribute the happening to defendant Zacarias' negligence or fault."
3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and detailed as that of . . .
Page 16 of 44
Zacarias," and was "uncertain and even contradicted by the physical facts and the police
investigators Dimaano and Esparcia."
4. That there were skid marks left by the truck's tires at the scene, and none by the jeep,
demonstrates that the driver of the truck had applied the brakes and the jeep's driver had not;
and that the jeep had on impact fallen on its right side is indication that it was running at high
speed. Under the circumstances, according to the Court, given "the curvature of the road and
the descending grade of the jeep's lane, it was negligence on the part of the driver of the jeep,
Engr. Calibo, for not reducing his speed upon sight of the truck and failing to apply the brakes as
he got within collision range with the truck."
5. Even if it be considered that there was some antecedent negligence on the part of Zacarias
shortly before the collision, in that he had caused his truck to run some 25 centimeters to the
left of the center of the road, Engr. Calibo had the last clear chance of avoiding the accident
because he still had ample room in his own lane to steer clear of the truck, or he could simply
have braked to a full stop.
The Court of Appeals saw things differently. It rendered judgment on the plaintiffs' appeal,
reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis of the
following circumstances, to wit:
1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the collision
occurred,' and although Zacarias saw the jeep from a distance of about 150 meters, he "did not
drive his truck back to his lane in order to avoid collision with the oncoming jeep . . .;" what is
worse, "the truck driver suddenly applied his brakes even as he knew that he was still within the
lane of the jeep;" had both vehicles stayed in their respective lanes, the collision would never
have occurred, they would have passed "along side each other safely;"
2) Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the latter's demand,
was the 'driver's license of his co-driver Leonardo Baricuatro;"
3) the waiver of the right to file criminal charges against Zacarias should not be taken against
"plaintiffs" Roranes and Patos who had the right, under the law, to opt merely to bring a civil
suit.
The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of negligence
on the part of his employer, and their liability is both primary and solidary." It therefore ordered
"the defendants jointly and solidarily to indemnify the plaintiffs the following amounts:
(1) P30,000.00 for the death of Orlando Calibo;
(2) P378,000.00 for the loss of earning capacity of the deceased
(3) P15,000.00 for attorney's fees;
(4) Cost of suit.
The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this
Court on certiorari and pray for a reversal of the judgment of the Intermediate Appellate Court
which, it is claimed, ignored or ran counter to the established facts. A review of the record
confirms the merit of this assertion and persuades this Court that said judgment indeed
disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment,
consequently, will have to be reversed.
The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep when
the collision occurred" is a loose one, based on nothing more than the showing that at the time
of the accident, the truck driven by Zacarias had edged over the painted center line of the road
into the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by the
uncontradicted evidence, the actual center line of the road was not that indicated by the painted
stripe but, according to measurements made and testified by Patrolman Juanita Dimaano, one of
the two officers who investigated the accident, correctly lay thirty-six (36) centimeters farther to
the left of the truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to
the effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide, and
that of the truck three (3) meters and three (3) centimeters, measured from the center stripe to
the corresponding side lines or outer edges of the road. The total width of the road being,
therefore, six (6) meters and seventy-eight (78) centimeters, the true center line equidistant
from both side lines would divide the road into two lanes each three (meters) and thirty-nine
(39) centimeters wide. Thus, although it was not disputed that the truck overrode the painted
stripe by twenty-five (25) centimeters, it was still at least eleven (11) centimeters away from its
side of the true center line of the road and well inside its own lane when the accident occurred.
By this same reckoning, since it was unquestionably the jeep that rammed into the stopped
truck, it may also be deduced that it (the jeep) was at the time travelling beyond its own lane
and intruding into the lane of the truck by at least the same 11-centimeter width of space.
Not only was the truck's lane, measured from the incorrectly located center stripe uncomfortably
narrow, given that vehicle's width of two (2) meters and forty-six (46) centimeters; the adjacent
Page 17 of 44
road shoulder was also virtually impassable, being about three (3) inches lower than the paved
surface of the road and "soft--not firm enough to offer traction for safe passage besides
which, it sloped gradually down to a three foot-deep ravine with a river below. The truck's lane
as erroneously demarcated by the center stripe gave said vehicle barely half a meter of
clearance from the edge of the road and the dangerous shoulder and little room for maneuver, in
case this was made necessary by traffic contingencies or road conditions, if it always kept to said
lane. It being also shown that the accident happened at or near the point of the truck's approach
to a curve, which called for extra precautions against driving too near the shoulder, it could
hardly be accounted negligent on the part of its driver to intrude temporarily, and by only as
small as a twenty-five centimeter wide space (less than ten inches), into the opposite lane in
order to insure his vehicle's safety. This, even supposing that said maneuver was in fact an
intrusion into the opposite lane, which was not the case at all as just pointed out.
Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in
applying his brakes instead of getting back inside his lane upon qqqespying the approaching
jeep. Being well within his own lane, as has already been explained, he had no duty to swerve
out of the jeep's way as said Court would have had him do. And even supposing that he was in
fact partly inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters
away cannot be considered an unsafe or imprudent action, there also being uncontradicted
evidence that the jeep was "zigzagging" and hence no way of telling in which direction it would
go as it approached the truck.
Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no
driver's license at the time. The traffic accident report attests to the proven fact that Zacarias
voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had
been renewed just the day before the accident, on July 3, 1979. The Court was apparently
misled by the circumstance that when said driver was first asked to show his license by the
investigators at the scene of the collision, he had first inadvertently produced the license of a
fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato.
The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a
few significant indicators that it was rather Engineer Calibo's negligence that was the proximate
cause of the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and
later confirmed in his written statement at the police headquarters that the jeep had been
"zigzagging," which is to say that it was travelling or being driven erratically at the time. The
other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident had
remarked on the jeep's "zigzagging." There is moreover more than a suggestion that Calibo had
been drinking shortly before the accident. The decision of the Trial Court adverts to further
testimony of Esparcia to the effect that three of Calibo's companions at the beach party he was
driving home from when the collision occurred, who, having left ahead of him went to the scene
when they heard about the accident, had said that there had been a drinking spree at the party
and, referring to Calibo, had remarked: "Sabi na huag nang mag drive . . . . pumipilit," (loosely
translated, "He was advised not to drive, but he insisted.")
It was Calibo whose driver's license could not be found on his person at the scene of the
accident, and was reported by his companions in the jeep as having been lost with his wallet at
said scene, according to the traffic accident report, Exhibit "J". Said license unexplainedly found
its way into the record some two years later.
Reference has already been made to the finding of the Trial Court that while Zacarias readily
submitted to interrogation and gave a detailed statement to the police investigators immediately
after the accident, Calibo's two companions in the jeep and supposed eyewitnesses, Agripino
Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who, together
with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal
case against Zacarias.
Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming
some antecedent negligence on the part of Zacarias in failing to keep within his designated lane,
incorrectly demarcated as it was, the physical facts, either expressly found by the Intermediate
Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve
the latter of any actionable responsibility for the accident under the rule of the last clear chance.
Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a
distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately
thirty kilometers per hour. The private respondents have admitted that the truck was already at
a full stop when the jeep plowed into it. And they have not seen fit to deny or impugn
petitioners' imputation that they also admitted the truck had been brought to a stop while the
jeep was still thirty meters away. From these facts the logical conclusion emerges that the driver
of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the
Page 18 of 44
accident, while still at that distance of thirty meters from the truck, by stopping in his turn or
swerving his jeep away from the truck, either of which he had sufficient time to do while running
at a speed of only thirty kilometers per hour. In those circumstances, his duty was to seize that
opportunity of avoidance, not merely rely on a supposed right to expect, as the Appellate Court
would have it, the truck to swerve and leave him a clear path.
The doctrine of the last clear chance provides as valid and complete a defense to accident
liability today as it did when invoked and applied in the 1918 case of Picart vs. Smith, supra,
which involved a similar state of facts. Of those facts, which should be familiar to every student
of law, it is only necessary to recall the summary made in the syllabus of this Court's decision
that:
(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he improperly pulled
his horse over to the railing on the right. The driver of the automobile, however guided his car
toward the plaintiff without diminution of speed until he was only few feet away. He then turned
to the right but passed so closely to the horse that the latter being frightened, jumped around
and was killed by the passing car. . . . .
Plaintiff Picart was thrown off his horse and suffered contusions which required several days of
medical attention. He sued the defendant Smith for the value of his animal, medical expenses
and damage to his apparel and obtained judgment from this Court which, while finding that
there was negligence on the part of both parties, held that that of the defendant was the
immediate and determining cause of the accident and that of the plaintiff ". . . the more remote
factor in the case":
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that
the person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.
Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-
petitioner) George Lim, an inquiry into whether or not the evidence supports the latter's
additional defense of due diligence in the selection and supervision of said driver is no longer
necessary and wig not be undertaken. The fact is that there is such evidence in the record which
has not been controverted.
It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in
holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded in
its appealed decision, as alleged owners, with petitioner George Lim, of Glan People's Lumber
and Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only the
certificate of registration issued by the Bureau of Domestic Trade identifying Glan People's
Lumber and Hardware as a business name registered by George Lim, but also unimpugned
allegations into the petitioners' answer to the complaint that Pablo S. Agad was only an
employee of George Lim and that Felix Lim, then a child of only eight (8) years, was in no way
connected with the business.
In conclusion, it must also be stated that there is no doubt of this Court's power to review the
assailed decision of the Intermediate Appellate Court under the authority of precedents
recognizing exceptions to the familiar rule binding it to observe and respect the latter's findings
of fact. Many of those exceptions may be cited to support the review here undertaken, but only
the most obvious that said findings directly conflict with those of the Trial Court will suffice.
In the opinion of this Court and after a careful review of the record, the evidence singularly fails
to support the findings of the Intermediate Appellate Court which, for all that appears, seem to
have been prompted rather by sympathy for the heirs of the deceased Engineer Calibo than by
an objective appraisal of the proofs and a correct application of the law to the established facts.
Compassion for the plight of those whom an accident has robbed of the love and support of a
husband and father is an entirely natural and understandable sentiment. It should not, however,
be allowed to stand in the way of, much less to influence, a just verdict in a suit at law.
WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby REVERSED,
and the complaint against herein petitioners in Civil Case No. 3283 of the Court of First Instance
of Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.

SO ORDERED.

Page 19 of 44
CASE NO. 7

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

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. THE HONORABLE INTERMEDIATE
APPELLATE COURT AND CASIANO PASCUA, ET AL., respondents.

MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now
Court of Appeals) dated July 29, 1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887
which reversed the decision of the Court of First Instance (now Regional Trial Court) of
Pangasinan dated December 27, 1978; and its resolution dated November 28, 1983 denying the
motion for reconsideration.
It is an established principle that the factual findings of the Court of Appeals are final and may
not be reviewed by this Court on appeal. However, this principle is subject to certain exceptions.
One of these is when the findings of the appellate court are contrary to those of the trial court
(see Sabinosa v. The Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in
which case, a re-examination of the facts and evidence may be undertaken. This is Our task
now.
The antecedent facts are as follows:
About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua, Caridad Pascua,
Adelaida Estomo, Erlinda Meriales, Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas
boarded the jeepney owned by spouses Isidro Mangune and Guillerma Carreon and driven by
Tranquilino Manalo at Dau, Mabalacat, Pampanga bound for Carmen, Rosales, Pangasinan to
spend Christmas at their respective homes. Although they usually ride in buses, they had to ride
in a jeepney that day because the buses were full. Their contract with Manalo was for them to
pay P24.00 for the trip. The private respondents' testimonial evidence on this contractual
relationship was not controverted by Mangune, Carreon and Manalo, nor by Filriters Guaranty
Assurance Corporation, Inc., the insurer of the jeepney, with contrary evidence. Purportedly
riding on the front seat with Manalo was Mercedes Lorenzo. On the left rear passenger seat were
Caridad Pascua, Alejandro Morales and Zenaida Parejas. On the right rear passenger seat were
Catalina Pascua, Adelaida Estomo, and Erlinda Meriales. After a brief stopover at Moncada, Tarlac
for refreshment, the jeepney proceeded towards Carmen, Rosales, Pangasinan.
Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of the jeepney was
detached, so it was running in an unbalanced position. Manalo stepped on the brake, as a result
of which, the jeepney which was then running on the eastern lane (its right of way) made a U-
turn, invading and eventually stopping on the western lane of the road in such a manner that the
jeepney's front faced the south (from where it came) and its rear faced the north (towards
where it was going). The jeepney practically occupied and blocked the greater portion of the
western lane, which is the right of way of vehicles coming from the north, among which was Bus
No. 753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos Reyes.
Almost at the time when the jeepney made a sudden U-turn and encroached on the western lane
of the highway as claimed by Rabbit and delos Reyes, or after stopping for a couple of minutes
as claimed by Mangune, Carreon and Manalo, the bus bumped from behind the right rear portion
of the jeepney. As a result of the collision, three passengers of the jeepney (Catalina Pascua,
Erlinda Meriales and Adelaida Estomo) died while the other jeepney passengers sustained
physical injuries. What could have been a festive Christmas turned out to be tragic.
The causes of the death of the three jeepney passengers were as follows (p. 101, Record on
Appeal):
The deceased Catalina Pascua suffered the following injuries, to wit: fracture of the left parietal
and temporal regions of the skull; fracture of the left mandible; fracture of the right humenous;
compound fracture of the left radious and ullma middle third and lower third; fracture of the
upper third of the right tibia and fillnea; avulsion of the head, left internal; and multiple
abrasions. The cause of her death was shock, secondary to fracture and multiple hemorrhage.
The fractures were produced as a result of the hitting of the victim by a strong force. The
abrasions could be produced when a person falls from a moving vehicles (sic) and rubs parts of
her body against a cement road pavement. . . .
Erlinda Mariles (sic) sustained external lesions such as contusion on the left parietal region of
the skull; hematoma on the right upper lid; and abrasions (sic) on the left knee. Her internal
lesions were: hematoma on the left thorax; multiple lacerations of the left lower lobe of the
lungs; contusions on the left lower lobe of the lungs; and simple fractures of the 2nd, 3rd, 4th,
5th, 6th, 7th, and 8th ribs, left. The forcible impact of the jeep caused the above injuries which
resulted in her death. . . .

Page 20 of 44
The cause of death of Erlinda or Florida Estomo (also called as per autopsy of Dr. Panlasiqui was
due to shock due to internal hemorrhage, ruptured spleen and trauma. . . .
Caridad Pascua suffered physical injuries as follows (p. 101, Record on Appeal):
. . . lacerated wound on the forehead and occipital region, hematoma on the forehead, multiple
abrasions on the forearm, right upper arm, back and right leg. . . .
The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac, upon arrival at
the scene of the mishap, prepared a sketch (common exhibit "K" for private respondents "19" for
Rabbit) showing the relative positions of the two vehicles as well as the alleged point of impact
(p. 100, Record on Appeal):
. . . The point of collision was a cement pave-portion of the Highway, about six (6) meters wide,
with narrow shoulders with grasses beyond which are canals on both sides. The road was
straight and points 200 meters north and south of the point of collision are visible and
unobstructed. Purportedly, the point of impact or collision (Exh. "K-4", Pascua on the sketch Exh.
"K"-Pascua) was on the western lane of the highway about 3 feet (or one yard) from the center
line as shown by the bedris (sic), dirt and soil (obviously from the undercarriage of both
vehicles) as well as paint, marron (sic) from the Rabbit bus and greenish from the jeepney. The
point of impact encircled and marked with the letter "X" in Exh. "K"-4 Pascua, had a diameter of
two meters, the center of which was about two meters from the western edge of cement
pavement of the roadway. Pictures taken by witness Bisquera in the course of the investigation
showed the relative positions of the point of impact and center line (Exh. "P"-Pascua) the back of
the Rabbit bus (Exh. "P"-1-Pascua"), the lifeless body of Catalina Pascua (Exh. "P-2 Pascua"),
and the damaged front part of the Rabbit bus (Exh. "P-3 Pascua"). No skid marks of the Rabbit
bus was found in the vicinity of the collision, before or after the point of impact. On the other
hand, there was a skid mark about 45 meters long purportedly of the jeepney from the eastern
shoulder of the road south of, and extending up to the point of impact.
At the time and in the vicinity of the accident, there were no vehicles following the jeepney,
neither were there oncoming vehicles except the bus. The weather condition of that day was fair.
After conducting the investigation, the police filed with the Municipal Court of San Manuel,
Tarlac, a criminal complaint against the two drivers for Multiple Homicide. At the preliminary
investigation, a probable cause was found with respect to the case of Manalo, thus, his case was
elevated to the Court of First Instance. However, finding no sufficiency of evidence as regards
the case of delos Reyes, the Court dismissed it. Manalo was convicted and sentenced to suffer
imprisonment. Not having appealed, he served his sentence.
Complaints for recovery of damages were then filed before the Court of First Instance of
Pangasinan. In Civil Case No. 1136, spouses Casiano Pascua and Juana Valdez sued as heirs of
Catalina Pascua while Caridad Pascua sued in her behalf. In Civil Case No. 1139, spouses Manuel
Millares and Fidencia Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140, spouses
Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida Estomo.
In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos Reyes were all
impleaded as defendants. Plaintiffs anchored their suits against spouses Mangune and Carreon
and Manalo on their contractual liability. As against Rabbit and delos Reyes, plaintiffs based their
suits on their culpability for a quasi-delict. Filriters Guaranty Assurance Corporation, Inc. was
also impleaded as additional defendant in Civil Case No. 1136 only.
For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to collect the aggregate
amount of P70,060.00 in damages, itemized as follows: P500.00 for burial expenses;
P12,000.00 for loss of wages for 24 years; P10,000.00 for exemplary damages; P10,000.00 for
moral damages; and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad Pascua
claimed P550.00 for medical expenses; P240.00 for loss of wages for two months; P2,000.00 for
disfigurement of her face; P3,000.00 for physical pain and suffering; P2,500.00 as exemplary
damages and P2,000.00 for attorney's fees and expenses of litigation.
In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses; P6,000.00 for the
death of Erlinda, P63,000.00 for loss of income; P10,000.00 for moral damages and P3,000.00
for attorney's fees or total of P80,000.00.
In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses; P6,000.00 for the death of
Adelaide, P56,160.00 for loss of her income or earning capacity; P10,000.00 for moral damages;
and P3,000.00 for attorney's fees.
Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and expenses of
litigation. On the other hand, spouses Mangune and Carreon filed a cross-claim in the amount of
P6,168.00 for the repair of the jeepney and P3,000.00 for its non-use during the period of
repairs.
On December 27, 1978, the trial court rendered its decision finding Manalo negligent, the
dispositive portion of which reads (pp. 113-114, Record on Appeal):
PREMISES CONSIDERED, this Court is of the opinion and so holds:
Page 21 of 44
1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo thru their
negligence, breached contract of carriage with their passengers the plaintiffs' and/or their heirs,
and this Court renders judgment ordering said defendants, jointly and severally, to pay the
plaintiffs
a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs the amounts of
P12,000.00 for indemnity for loss of her life; P41,760.00 for loss of earnings; P324.40 for actual
expenses and P2,000.00 for moral damages;
b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay her the amounts of
P240.00 for loss of wages, P328.20 for actual expenses and P500.00 for moral damages;
c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs (the plaintiffs) the
amount of P12,000.00 for indemnity for loss of her life; P622.00 for actual expenses,
P60,480.00 for loss of wages or income and P2,000.00 for moral damages;
d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or Adelaida Estomo), to
pay her heirs (the plaintiff the amount of P12,000.00 for indemnity for the loss of her life;
P580.00 for actual expenses; P53,160.00 for loss of wages or income and P2,000.00 for moral
damages.
2) The defendant Filriters Guaranty Insurance Co., having contracted to ensure and answer for
the obligations of defendants Mangune and Carreon for damages due their passengers, this
Court renders judgment against the said defendants Filriters Guaranty Insurance Co., jointly and
severally with said defendants (Mangune and Carreon) to pay the plaintiffs the amount herein
above adjudicated in their favor in Civil Case No. 1136 only. All the amounts awarded said
plaintiff, as set forth in paragraph one (1) hereinabove;
3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant, Isidro Mangune,
Guillerma Carreon and Tranquilino Manalo, to pay jointly and severally, cross-claimant Phil.
Rabbit Bus Lines, Inc., the amounts of P216.27 as actual damages to its Bus No. 753 and
P2,173.60 for loss of its earning.
All of the above amount, shall bear legal interest from the filing of the complaints.
Costs are adjudged against defendants Mangune, Carreon and Manalo and Filriters Guaranty.
SO ORDERED
On appeal, the Intermediate Appellate Court reversed the above-quoted decision by finding
delos Reyes negligent, the dispositive portion of which reads (pp. 55-57, Rollo):
WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby REVERSED as to
item No. 3 of the decision which reads:
3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the defendants Isidro
Mangune, Guillerma Carreon and Tranquilino Manalo, to pay jointly and severally, the amounts of
P216.27 as actual damages to its Bus No. 753 and P2,173.60 for loss of its earnings.
and another judgment is hereby rendered in favor of plaintiffs-appellants Casiana Pascua, Juan
Valdez and Caridad Pascua, ordering the Philippine Rabbit Bus Lines, Inc. and its driver Tomas
delos Reyes to pay the former jointly and severally damages in amounts awarded as follows:
For the death of Catalina Pascua, the parents and/or heirs are awarded
Civil Case No. 1136
a) Indemnity for the loss of life P12,000.00
b) Loss of Salaries or earning capacity 14,000.00
c) Actual damages (burial expenses) 800.00
d) For moral damages 10,000.00
e) Exemplary damages 3,000.00
f) For attorney's fees 3,000.00

Total P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua: Civil Case No. 1136
a) Actual damages (hospitalization expenses) P550.00
b) Moral damages (disfigurement of the
face and physical suffering 8,000.00
c) Exemplary damages 2,000.00

Total P10,550.00
For the death of Erlinda Arcega Meriales. the parents and/or heirs: Civil Case No. 1139
a) Indemnity for loss of life P12,000.00
b) Loss of Salary or Earning Capacity 20,000.00
c) Actual damages (burial expenses) 500.00
d) Moral damages 15,000.00
e) Exemplary damages 15,000.00
f) Attorney's fees 3,000.00
Page 22 of 44

Total P65,500.00
For the death of Florida Sarmiento Estomo: Civil Case No. 1140
a) Indemnity for loss of life P12,000.00
b) Loss of Salary or Earning capacity 20,000.00
c) Actual damages (burial expenses) 500.00
d) Moral damages 3,000.00
e) Exemplary damages 3,000.00
f) Attorney's fees 3,000.00

Total P41,500.00
With costs against the Philippine Rabbit Bus Lines, Inc. SO ORDERED.
The motion for reconsideration was denied. Hence, the present petition.
The issue is who is liable for the death and physical injuries suffered by the passengers of the
jeepney?
The trial court, in declaring that Manalo was negligent, considered the following (p. 106, Record
on Appeal):
(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua that a long ways
(sic) before reaching the point of collision, the Mangune jeepney was "running fast" that his
passengers cautioned driver Manalo to slow down but did not heed the warning: that the right
rear wheel was detached causing the jeepney to run to the eastern shoulder of the road then
back to the concrete pavement; that driver Manalo applied the brakes after which the jeepney
made a U-turn (half-turn) in such a manner that it inverted its direction making it face South
instead of north; that the jeepney stopped on the western lane of the road on the right of way of
the oncoming Phil. Rabbit Bus where it was bumped by the latter;
(2) The likewise unrebutted testimony of Police Investigator Tacpal of the San Manuel (Tarlac)
Police who, upon responding to the reported collission, found the real evidence thereat indicate
in his sketch (Exh. K, Pascua ), the tracks of the jeepney of defendant Mangune and Carreon
running on the Eastern shoulder (outside the concrete paved road) until it returned to the
concrete road at a sharp angle, crossing the Eastern lane and the (imaginary) center line and
encroaching fully into the western lane where the collision took place as evidenced by the point
of impact;
(3) The observation of witness Police Corporal Cacalda also of the San Manuel Police that the
path of the jeepney they found on the road and indicated in the sketch (Exh. K-Pascua) was
shown by skid marks which he described as "scratches on the road caused by the iron of the
jeep, after its wheel was removed;"
(4) His conviction for the crime of Multiple Homicide and Multiple Serious Physical Injuries with
Damage to Property thru Reckless Imprudence by the Court of First Instance of Tarlac (Exh. 24-
Rabbit) upon the criminal Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a
result of the collision, and his commitment to prison and service of his sentence (Exh. 25-Rabbit)
upon the finality of the decision and his failure to appeal therefrom; and
(5) The application of the doctrine of res-ipsa loquitar (sic) attesting to the circumstance that the
collision occured (sic) on the right of way of the Phil. Rabbit Bus.
The respondent court had a contrary opinion. Applying primarily (1) the doctrine of last clear
chance, (2) the presumption that drivers who bump the rear of another vehicle guilty and the
cause of the accident unless contradicted by other evidence, and (3) the substantial factor test.
concluded that delos Reyes was negligent.
The misappreciation of the facts and evidence and the misapplication of the laws by the
respondent court warrant a reversal of its questioned decision and resolution.
We reiterate that "[t]he principle about "the last clear" chance, would call for application in a suit
between the owners and drivers of the two colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence." This was Our ruling in Anuran, et al. v.
Buo et al., G.R. Nos. L-21353 and L-21354, May 20, 1966, 17 SCRA 224. Thus, the respondent
court erred in applying said doctrine.
On the presumption that drivers who bump the rear of another vehicle guilty and the cause of
the accident, unless contradicted by other evidence, the respondent court said (p. 49, Rollo):
. . . the jeepney had already executed a complete turnabout and at the time of impact was
already facing the western side of the road. Thus the jeepney assumed a new frontal position vis
a vis, the bus, and the bus assumed a new role of defensive driving. The spirit behind the
presumption of guilt on one who bumps the rear end of another vehicle is for the driver following
a vehicle to be at all times prepared of a pending accident should the driver in front suddenly
Page 23 of 44
come to a full stop, or change its course either through change of mind of the front driver,
mechanical trouble, or to avoid an accident. The rear vehicle is given the responsibility of
avoiding a collision with the front vehicle for it is the rear vehicle who has full control of the
situation as it is in a position to observe the vehicle in front of it.
The above discussion would have been correct were it not for the undisputed fact that the U-turn
made by the jeepney was abrupt (Exhibit "K," Pascua). The jeepney, which was then traveling on
the eastern shoulder, making a straight, skid mark of approximately 35 meters, crossed the
eastern lane at a sharp angle, making a skid mark of approximately 15 meters from the eastern
shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos Reyes could not have
anticipated the sudden U-turn executed by Manalo. The respondent court did not realize that the
presumption was rebutted by this piece of evidence.
With regard to the substantial factor test, it was the opinion of the respondent court that (p. 52,
Rollo):
. . . It is the rule under the substantial factor test that if the actor's conduct is a substantial
factor in bringing about harm to another, the fact that the actor neither foresaw nor should have
foreseen the extent of the harm or the manner in which it occurred does not prevent him from
being liable (Restatement, Torts, 2d). Here, We find defendant bus running at a fast speed when
the accident occurred and did not even make the slightest effort to avoid the accident, . . . . The
bus driver's conduct is thus a substantial factor in bringing about harm to the passengers of the
jeepney, not only because he was driving fast and did not even attempt to avoid the mishap but
also because it was the bus which was the physical force which brought about the injury and
death to the passengers of the jeepney.
The speed of the bus was calculated by respondent court as follows (pp. 54-55, Rollo):
According to the record of the case, the bus departed from Laoag, Ilocos Norte, at 4:00 o'clock
A.M. and the accident took place at approximately around 12:30 P.M., after travelling roughly for
8 hours and 30 minutes. Deduct from this the actual stopover time of two Hours (computed from
the testimony of the driver that he made three 40-minute stop-overs), We will have an actual
travelling time of 6 hours and 30 minutes.
Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.) driving at an
average of 56 km. per hour would take 6 hours and 30 minutes. Therefore, the average speed of
the bus, give and take 10 minutes, from the point of impact on the highway with excellent
visibility factor would be 80 to 90 kms. per hour, as this is the place where buses would make up
for lost time in traversing busy city streets.
Still, We are not convinced. It cannot be said that the bus was travelling at a fast speed when
the accident occurred because the speed of 80 to 90 kilometers per hour, assuming such
calculation to be correct, is yet within the speed limit allowed in highways. We cannot even fault
delos Reyes for not having avoided the collision. As aforestated, the jeepney left a skid mark of
about 45 meters, measured from the time its right rear wheel was detached up to the point of
collision. Delos Reyes must have noticed the perilous condition of the jeepney from the time its
right rear wheel was detached or some 90 meters away, considering that the road was straight
and points 200 meters north and south of the point of collision, visible and unobstructed. Delos
Reyes admitted that he was running more or less 50 kilometers per hour at the time of the
accident. Using this speed, delos Reyes covered the distance of 45 meters in 3.24 seconds. If We
adopt the speed of 80 kilometers per hour, delos Reyes would have covered that distance in only
2.025 seconds. Verily, he had little time to react to the situation. To require delos Reyes to avoid
the collision is to ask too much from him. Aside from the time element involved, there were no
options available to him. As the trial court remarked (pp. 107-108, Record on Appeal):
. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes, could have taken
either of two options: (1) to swerve to its right (western shoulder) or (2) to swerve to its left
(eastern lane), and thus steer clear of the Mangune jeepney. This Court does not so believe,
considering the existing exigencies of space and time.
As to the first option, Phil. Rabbit's evidence is convincing and unrebutted that the Western
shoulder of the road was narrow and had tall grasses which would indicate that it was not
passable. Even plaintiffs own evidence, the pictures (Exhs. P and P-2, Pascua) are mute
confirmation of such fact. Indeed, it can be noticed in the picture (Exh. P-2, Pascua) after the
Rabbit bus came to a full stop, it was tilted to right front side, its front wheels resting most
probably on a canal on a much lower elevation that of the shoulder or paved road. It too shows
that all of the wheels of the Rabbit bus were clear of the roadway except the outer left rear
wheel. These observation appearing in said picture (Exh P-2, Pascua) clearly shows coupled with
the finding the Rabbit bus came to a full stop only five meters from the point of impact (see
sketch, Exh. K-Pascua) clearly show that driver de los Reyes veered his Rabbit bus to the right
attempt to avoid hitting the Mangune's jeepney. That it was not successful in fully clearing the

Page 24 of 44
Mangune jeepney as its (Rabbit's) left front hit said jeepney (see picture Exh. 10-A-Rabbit) must
have been due to limitations of space and time.
Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus could also have
swerved to its left (eastern lane) to avoid bumping the Mangune jeepney which was then on the
western lane. Such a claim is premised on the hypothesis (sic) that the eastern lane was then
empty. This claim would appear to be good copy of it were based alone on the sketch made after
the collision. Nonetheless, it loses force it one were to consider the time element involved, for
moments before that, the Mangune jeepney was crossing that very eastern lane at a sharp
angle. Under such a situation then, for driver delos Reyes to swerve to the eastern lane, he
would run the greater risk of running smack in the Mangune jeepney either head on or
broadside.
After a minute scrutiny of the factual matters and duly proven evidence, We find that the
proximate cause of the accident was the negligence of Manalo and spouses Mangune and
Carreon. They all failed to exercise the precautions that are needed precisely pro hac vice.
In culpa contractual, the moment a passenger dies or is injured, the carrier is presumed to have
been at fault or to have acted negligently, and this disputable presumption may only be
overcome by evidence that he had observed extra-ordinary diligence as prescribed in Articles
1733, 1755 and 1756 of the New Civil Code or that the death or injury of the passenger was due
to a fortuitous event (Lasam v. Smith, Jr., 45 Phil. 657).
The negligence of Manalo was proven during the trial by the unrebutted testimonies of Caridad
Pascua, Police Investigator Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the
crime of Multiple Homicide and Multiple Serious Injuries with Damage to Property thru Reckless
Imprudence, and the application of the doctrine of res ipsa loquitur supra. The negligence of
spouses Mangune and Carreon was likewise proven during the trial (p. 110, Record on Appeal):
To escape liability, defendants Mangune and Carreon offered to show thru their witness Natalio
Navarro, an alleged mechanic, that he periodically checks and maintains the jeepney of said
defendants, the last on Dec. 23, the day before the collision, which included the tightening of the
bolts. This notwithstanding the right rear wheel of the vehicle was detached while in transit. As
to the cause thereof no evidence was offered. Said defendant did not even attempt to explain,
much less establish, it to be one caused by a caso fortuito. . . .
In any event, "[i]n an action for damages against the carrier for his failure to safely carry his
passenger to his destination, an accident caused either by defects in the automobile or through
the negligence of its driver, is not a caso fortuito which would avoid the carriers liability for
damages (Son v. Cebu Autobus Company, 94 Phil. 892 citing Lasam, et al. v. Smith, Jr., 45 Phil.
657; Necesito, etc. v. Paras, et al., 104 Phil. 75).
The trial court was therefore right in finding that Manalo and spouses Mangune and Carreon
were negligent. However, its ruling that spouses Mangune and Carreon are jointly and severally
liable with Manalo is erroneous The driver cannot be held jointly and severally liable with the
carrier in case of breach of the contract of carriage. The rationale behind this is readily
discernible. Firstly, the contract of carriage is between the carrier and the passenger, and in the
event of contractual liability, the carrier is exclusively responsible therefore to the passenger,
even if such breach be due to the negligence of his driver (see Viluan v. The Court of Appeals, et
al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other words, the carrier can neither
shift his liability on the contract to his driver nor share it with him, for his driver's negligence is
his. Secondly, if We make the driver jointly and severally liable with the carrier, that would make
the carrier's liability personal instead of merely vicarious and consequently, entitled to recover
only the share which corresponds to the driver, contradictory to the explicit provision of Article
2181 of the New Civil Code.
We affirm the amount of damages adjudged by the trial court, except with respect to the
indemnity for loss of life. Under Article 1764 in relation to Article 2206 of the New Civil Code, the
amount of damages for the death of a passenger is at least three thousand pesos (P3,000.00).
The prevailing jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see Heirs of
Amparo delos Santos, et al. v. Honorable Court of Appeals, et al., G.R. No. 51165, June 21, 1990
citing De Lima v. Laguna Tayabas Co., G.R. Nos. L-35697-99, April 15, 1988, 160 SCRA 70).
ACCORDINGLY, the petition is hereby GRANTED. The decision of the Intermediate Appellate
Court dated July 29, 1983 and its resolution dated November 28, 1983 are SET ASIDE. The
decision of the Court of First Instance dated December 27, 1978 is REINSTATED MODIFICATION
that only Isidro Mangune, Guillerma Carreon and Filriters Guaranty Assurance Corporation, Inc.
are liable to the victims or their heirs and that the amount of indemnity for loss of life is
increased to thirty thousand pesos (P30,000.00).

SO ORDERED.
CASE NO. 8
Page 25 of 44
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs. INTERMEDIATE APPELLATE
COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners, vs. INTERMEDIATE APPELLATE
COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision
dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners'
complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance
(now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and
"George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and
granted the private respondents' counterclaim for moral damages, attorney's fees and litigation
expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee
and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner
Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children,
respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other
hand, private respondents are the owners of the cargo truck which figured in the mishap; a
certain Ruben Galang was the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision
took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76
owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate
No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh,
Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh
McKee and Araceli Koh McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc
who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated
at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its
way to Angeles City from San Fernando. When the northbound car was about (10) meters away
from the southern approach of the bridge, two (2) boys suddenly darted from the right side of
the road and into the lane of the car. The boys were moving back and forth, unsure of whether
to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to
the left and entered the lane of the truck; he then switched on the headlights of the car, applied
the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided
with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on
the said bridge.
The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch 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. 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.
Page 26 of 44
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. 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.
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.
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. 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. Both
motions were denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon,
private respondents filed their Answer with Counter-claim 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. Petitioners subsequently
moved to reconsider the order denying the motion for consolidation, which Judge Capulong
granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be
consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge
Mario Castaeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col.
Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, and offered
several documentary exhibits. Upon the other hand, private respondents presented as witnesses
Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit.
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia,
Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and
Eugenio Tanhueco, and offered several documentary exhibits. Upon the other hand, the defense

Page 27 of 44
presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit,
and offered documentary exhibits.
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.
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.
Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages and
attorney's fees. 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).
A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and
was received on 2 December 1980.
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 in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. 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. A petition for its review 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.
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, the dispositive
portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is
rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
Page 28 of 44
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 damages
P 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 Muoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another
P10,000.00; as counsel (sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED.
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. This conclusion of reckless imprudence is based on the following findings of fact:
In the face of these diametrically opposed judicial positions, the determinative issue in this
appeal is posited in the fourth assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK
BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross the right lane on the
right side of the highway going to San Fernando. My father, who is (sic) the driver of the car
tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to
avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the
truck driver, to slow down to give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is
(sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact
(sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not
reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1,"
how did you know (sic)?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to
our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in
these Civil Cases) (pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck
stopped only when it had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the
first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured
passengers to the hospital.
We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a
passenger of the truck, and Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary course of events people usually
take the side of the person with whom they are associated at the time of the accident, because,
as a general rule, they do not wish to be identified with the person who was at fault. Thus an
Page 29 of 44
imaginary bond is unconsciously created among the several persons within the same group
(People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness.
He did not go to the succor of the injured persons. He said he wanted to call the police
authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial
court in the criminal case acted correctly in refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his
truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This
contention of appellants was completely passed sub-silencio or was not refuted by appellees in
their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of
Contents submitted by the court below, said Exhibit 2 was not submitted by defendants-
appellees. In this light, it is not far-fetched to surmise that Galang's claim that he stopped was
an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages.
3. Galang divulged that he stopped after seeing the car about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite of the fact that you admitted that the
road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle,
you first saw that car only about ten (10) meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it
before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of
the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in
Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision
on a bridge.
5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to
return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found
skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20,
t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since
the skid marks were found under the truck and none were found at the rear of the truck, the
reasonable conclusion is that the skid marks under the truck were caused by the truck's front
wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to
avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short
distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped
on his brakes but the smashup happened just the same.
For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the
part of the defendants in the selection of their driver or in the supervision over him. Appellees
did not allege such defense of having exercised the duties of a good father of a family in the
selection and supervision of their employees in their answers. They did not even adduce
evidence that they did in fact have methods of selection and programs of supervision. The
inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's
attention was on the highway, he would have sighted the car earlier or at a very safe distance
than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was
already inevitable, because at the time that he entered the bridge his attention was not riveted
to the road in front of him.
On the question of damages, the claims of appellants were amply proven, but the items must be
reduced.

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, 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.
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
Page 30 of 44
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.
In the Resolution of 12 September 1984, We required private respondents to Comment on the
petition. After the said Comment was filed, petitioners submitted a Reply thereto; this Court
then gave due course to the instant petitions and required petitioners to file their Brief, 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, 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, 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.
Page 31 of 44
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, 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." In Salta vs. De
Veyra and PNB vs. Purisima, 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.
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.
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. The same is true where the appellate court's
conclusions are grounded entirely on conjectures, speculations and surmises or where the
conclusions of the lower courts are based on a misapprehension of facts.
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.
Page 32 of 44
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.
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,
thus:
. . . Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth
Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for the protection of the
interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury." (Cooley on Torts,
Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound
rule, (W)e held:
The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that (reasonable care and
caution which an ordinarily prudent person would have used in the same situation?) If not, then
he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the Roman law. . . .
In Corliss vs. Manila Railroad Company, 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."
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.
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
Page 33 of 44
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. 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 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; 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) while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know what happened?
A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims.
(tsn. 28, April 19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the impact, will you tell us if the said truck
ever stopped?
A I saw it stopped (sic) when it has (sic) already collided with the car and it was already
motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief).
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.
In Bustamante vs. Court of Appeals, 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
Page 34 of 44
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, 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. 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. The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
interpose this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed
Resolution of 3 April 1984 finds no sufficient legal and factual moorings.
In the light of recent decisions of this Court, the indemnity for death must, however, be
increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court
of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos.
69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased
from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.
Costs against private respondents.

SO ORDERED.

CASE NO. 9

G.R. No. 89880 February 6, 1991

Page 35 of 44
EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors:
ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC, all surnamed BUSTAMANTE,
Spouses SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and
ENRIQUETA CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-
HIMAYA, and Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREA-
BUSTAMANTE, petitioners, vs. THE HONORABLE COURT OF APPEALS, FEDERICO DEL
PILAR AND EDILBERTO MONTESIANO, respondents.

MEDIALDEA, J.:
This is a petition for review on certiorari seeking the reversal of the decision of the respondent
Court of Appeals dated February 15, 1989 which reversed and set aside the decision of the
Regional Trial Court of Cavite, Branch XV ordering the defendants to pay jointly and severally the
plaintiffs indemnity for death and damages; and in further dismissing the complaint insofar as
defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the motion for reconsideration for lack of merit.
The facts giving rise to the controversy at bar are recounted by the trial court as follows:
At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand
truck, with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No.
DVT 259 along the national road at Calibuyo, Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck sideswiped the left side wall of the passenger bus, ripping
off the said wall from the driver's seat to the last rear seat.
Due to the impact, several passengers of the bus were thrown out and died as a result of the
injuries they sustained, Among those killed were the following:
1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of
plaintiffs Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and
5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion Bersamina.
(Rollo, p. 48)
During the incident, the cargo truck was driven by defendant Montesiano and owned by
defendant Del Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was
registered in the name of defendant Novelo but was owned and/or operated as a passenger bus
jointly by defendants Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to
Baclaran, Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on November
8, 1981, and which the latter transferred to Serrado (Cerrado) on January 18, 1983.
Immediately before the collision, the cargo truck and the passenger bus were approaching each
other, coming from the opposite directions of the highway. While the truck was still about 30
meters away, Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also
observed that the truck was heading towards his lane. Not minding this circumstance due to his
belief that the driver of the truck was merely joking, Susulin shifted from fourth to third gear in
order to give more power and speed to the bus, which was ascending the inclined part of the
road, in order to overtake or pass a Kubota hand tractor being pushed by a person along the
shoulder of the highway. While the bus was in the process of overtaking or passing the hand
tractor and the truck was approaching the bus, the two vehicles sideswiped each other at each
other's left side. After the impact, the truck skidded towards the other side of the road and
landed on a nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)
After a careful perusal of the circumstances of the case, the trial court reached the conclusion
"that the negligent acts of both drivers contributed to or combined with each other in directly
causing the accident which led to the death of the aforementioned persons. It could not be
determined from the evidence that it was only the negligent act of one of them which was the
proximate cause of the collision. In view of this, the liability of the two drivers for their
negligence must be solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision
on March 7, 1986, the dispositive portion is hereunder quoted as follows:
WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren Novelo,
Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and severally to the
plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00 as
indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the loss of
the earning capacity of the said deceased, at its prevailing rate in pesos at the time this decision
shall have become final and executory; P10,000.00 as moral damages; and P5,000.00 as
exemplary damages;

Page 36 of 44
2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the death
of their daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and P5,000.00 as
exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the death
of their daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as exemplary
damages; and
4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for
the death of their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00 as
exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as
indemnity for the death of their son, Noel Bersamina, P10,000.00 as moral damages and
P5,000.00 as exemplary damages.
The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorney's fees
and to pay the costs of the suit.
The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and Serrado,
the actual owners and/or operators of the passenger bus concerned, are hereby ordered to
indemnify Novelo in such amount as he may be required to pay as damages to the plaintiffs.
The cross-claims and counter-claims of the other defendants are hereby dismissed for lack of
merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and
driver, respectively, of the sand and gravel truck have interposed an appeal before the
respondent Court of Appeals. The Court of Appeals decided the appeal on a different light. It
rendered judgment on February 15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the complaint
dismissed insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are
concerned. No costs in this instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the
aforementioned Court of Appeals' decision. However, respondent Court of Appeals in a resolution
dated August 17, 1989 denied the motion for lack of merit. Hence, this petition.
Petitioners raised the following questions of law, namely:
First. Whether the respondent Court can legally and validly absolve defendants-appellants from
liability despite its own finding, as well as that of the trial court that defendant-appellant
Edilberto Montesiano, the cargo truck driver, was driving an old vehicle very fast, with its wheels
already wiggling, such that he had no more control of his truck.
Second. Whether the respondent court can validly and legally disregard the findings of fact
made by the trial court which was in a better position to observe the conduct and demeanor of
the witnesses, particularly appellant Edilberto Montesiano, cargo truck driver, and which
conclusively found appellant Montesiano as jointly and severally negligent in driving his truck
very fast and had lost control of his truck.
Third. Whether the respondent court has properly and legally applied the doctrine of "last clear
chance" in the present case despite its own finding that appellant cargo truck driver Edilberto
Montesiano was admittedly negligent in driving his cargo truck very fast on a descending road
and in the presence of the bus driver coming from the opposite direction.
Fourth. Whether the respondent court has applied the correct law and the correct doctrine
so as to reverse and set aside the judgment with respect to defendants-appellants. (Rollo, pp.
133-134)
As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be
reviewed on appeal, provided, they are borne out by the record or are based on substantial
evidence However, this rule admits of certain exceptions, as when the findings of facts are
conclusions without citation of specific evidence on which they are based; or the appellate
court's findings are contrary to those of the trial court. (Sese v. Intermediate Appellate Court,
G.R. 66168, 31 July 1987, 152 SCRA 585).
Furthermore, only questions of law may be raised in a petition for review on certiorari under Rule
45 of the Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought to it
from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. It is not the function of the Supreme Court to analyze or weigh
such evidence all over again, its jurisdiction being limited to reviewing errors of law that might
have been committed. Barring, therefore, a showing that the findings complained of are totally
devoid of support in the records, or that they are so glaringly erroneous as to constitute serious
abuse of discretion, such findings must stand for the Supreme Court is not expected or required

Page 37 of 44
to examine or contrast the oral and documentary evidence submitted by the parties. (Andres v.
Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177 SCRA 618).
Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly
because the appellate court's findings are contrary to those of the trial court.
The trial court, in declaring that the negligent acts of both drivers directly caused the accident
which led to the death of the aforementioned persons, considered the following:
It was negligent on the part of driver Montesiano to have driven his truck fast, considering that it
was an old vehicle, being a 1947 model as admitted by its owner, defendant Del Pilar; that its
front wheels were wiggling; that the road was descending; and that there was a passenger bus
approaching it. Likewise, driver Susulin was also guilty of negligence in not taking the necessary
precaution to avoid the collision, in the light of his admission that, at a distance of 30 meters, he
already saw the front wheels of the truck wiggling and that the vehicle was usurping his lane
coming towards his direction. Had he exercised ordinary prudence, he could have stopped his
bus or swerved it to the side of the road even down to its shoulder. And yet, Susulin shifted to
third gear so as to, as claimed by him, give more power and speed to his bus in overtaking or
passing a hand tractor which was being pushed along the shoulder of the road. (Rollo, p. 50)
The respondent Court of Appeals ruling on the contrary, opined that "the bus driver had the last
clear chance to avoid the collision and his reckless negligence in proceeding to overtake the
hand tractor was the proximate cause of the collision." (Rollo, p. 95). Said court also noted that
"the record also discloses that the bus driver was not a competent and responsible driver. His
driver's license was confiscated for a traffic violation on April 17, 1983 and he was using a ticket
for said traffic violation on the day of the accident in question (pp. 16-18, TSN, July 23, 1984).
He also admitted that he was not a regular driver of the bus that figured in the mishap and was
not given any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held
that "We are not prepared to uphold the trial court's finding that the truck was running fast
before the impact. The national road, from its direction, was descending. Courts can take judicial
notice of the fact that a motor vehicle going down or descending is more liable to get out of
control than one that is going up or ascending for the simple reason that the one which is going
down gains added momentum while that which is going up loses its initial speeding in so doing."
On the other hand, the trial court found and We are convinced that the cargo truck was running
fast. It did not overlook the fact that the road was descending as in fact it mentioned this
circumstance as one of the factors disregarded by the cargo truck driver along with the fact that
he was driving an old 1947 cargo truck whose front wheels are already wiggling and the fact that
there is a passenger bus approaching it. In holding that the driver of the cargo truck was
negligent, the trial court certainly took into account all these factors so it was incorrect for the
respondent court to disturb the factual findings of the trial court, which is in a better position to
decide the question, having heard the witness themselves and observed their deportment.
The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is
that the negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that even though a person's
own acts may have placed him in a position of peril, and an injury results, the injured person is
entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that
of a third person imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the
reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to
avoid an accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al.
(G.R. Nos. 66102-04, August 30, 1990), the Court citing the landmark decision held in the case
of Anuran, et al. v. Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear chance"
applies "in a suit between the owners and drivers of colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence."

Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint
tortfeasors as a test of whether only one of them should be held liable to the injured person by
Page 38 of 44
reason of his discovery of the latter's peril, and it cannot be invoked as between defendants
concurrently negligent. As against third persons, a negligent actor cannot defend by pleading
that another had negligently failed to take action which could have avoided the injury." (57 Am.
Jur. 2d, pp. 806-807).
All premises considered, the Court is convinced that the respondent Court committed an error of
law in applying the doctrine of last clear chance as between the defendants, since the case at
bar is not a suit between the owners and drivers of the colliding vehicles but a suit brought by
the heirs of the deceased passengers against both owners and drivers of the colliding vehicles.
Therefore, the respondent court erred in absolving the owner and driver of the cargo truck from
liability.
Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the
deceased, their respective awards of P30,000.00 are hereby increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of
Appeals are hereby REVERSED and SET ASIDE and the judgment of the lower court is
REINSTATED with the modification on the indemnity for death of each of the victims which is
hereby increased to P50,000.00 each. No pronouncement as to costs.

SO ORDERED.

CASE NO. 10

Page 39 of 44
[G.R. Nos. 79050-51. November 14, 1989.]
PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her
personal guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her minor
children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, Respondents.

SYLLABUS
1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. The doctrine
of last clear chance applies only in a situation where the defendant, having the last fair chance
to avoid the impending harm and failed to do so, becomes liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff.
2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. In order that the doctrine of
last clear chance may be applied, it must be shown that the person who allegedly had the last
opportunity to avert the accident was aware of the existence of the peril or with exercise of due
care should have been aware of it.
3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY AVAILABLE
MEANS. This doctrine of last chance has no application to a case where a person is to act
instantaneously, and if the injury cannot be avoided by using all means available after the peril is
or should have been discovered.
4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY OR A
STOP INTERSECTION. Section 43 (c), Article III, Chapter IV of Republic Act No. 1436 cannot
apply to case a bar where at the time of the accident, the jeepney had already crossed the
intersection.
5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. A finding of
negligence on the part of the driver establishes a presumption that the employer has been
negligent and the latter has the burden of proof that it has exercised due negligence not only in
the selection of its employees but also in adequately supervising their work.
6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES. Plaintiffs
failure to present documentary evidence to support their claim for damages for loss of earning
capacity of the deceased victim does not bar recovery of the damages, if such loss may be based
sufficiently on their testimonies.
7. ID.; ID.; INDEMNITY FIXED AT P30,000. The indemnity for the death of a person was fixed
by this Court at (P30,000.00).

DECISION
CORTES, J.:
In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the
decision of the Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the
Court of First Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R
wherein PANTRANCO was ordered to pay damages and attorneys fees to herein private
respondents.
The pertinent fact are as follows:
At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa
and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O.
Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their
way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of
Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico,
who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio
Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the
highway going to Malalam River. Upon reaching the highway, the jeepney turned right and
proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards
Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila,
encroached on the jeepneys lane while negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their
children, Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries.
The jeepney was extensively damaged. After the accident the driver of the PANTRANCO Bus,
Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time on up to
the present, Ramirez has never been seen and has apparently remained in hiding.
All the victims and/or their surviving heirs except herein private respondents settled the case
amicably under the "No Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her
minor children, filed separate actions for damages arising from quasi-delict against PANTRANCO,
Page 40 of 44
respectively docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of
Pangasinan.
In its answer, PANTRANCO, aside from pointing to the late David Icos alleged negligence as the
proximate cause of the accident, invoked the defense of due diligence in the selection and
supervision of its driver, Ambrosio Ramirez.
On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the
total amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven
(P2,304,647.00) as damages, plus 10% thereof as attorneys fees and costs to Maricar Baesa in
Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as attorneys fees and costs to
Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were consolidated and the
Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay the total
amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven Pesos
(P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorneys fees to
Maricar Baesa, and the total amount of Three Hundred Forty-Four Thousand Pesos
(P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorneys fees to Fe Ico and her
children, and to pay the costs in both cases. The dispositive portion of the assailed decision
reads as follows:
WHEREFORE, the decision appealed from is hereby modified by ordering the defendant
PANTRANCO North Express, Inc. to pay:
I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following damages:
A) As compensatory damages for the death of Ceasar Baesa P30,000.00;
B) As compensatory damages for the death of Marilyn Baesa P30,000.00;
C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa
P30,000.00;
D) For the loss of earnings of Ceasar Baesa P630,000.00;
E) For the loss of earnings of Marilyn Bascos Baesa P375,000.00;
F) For the burial expenses of the deceased Ceasar and Marilyn Baesa P41,200.00;
G) For hospitalization expenses of Maricar Baesa P3,727.00;
H) As moral damages P50,000.00;
I) As attorneys fees P20,000.00;
II. The plaintiffs in Civil Case No. 589-R, the following damages:
A) As compensatory damages for the death of David Ico P30,000.00;
B) For loss of earning capacity of David Ico P252,000.00;
C) As moral damages for the death of David Ico and the injury of Fe Ico P30,000.00
D) As payment for the jeepney P20,000.00;
E) For the hospitalization of Fe Ico P12,000.000;
F) And for attorneys fees P10,000.00; and to pay the costs in both cases.
The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the
medical expenses in the sum of P3,273.55, should be deducted from the award in her favor.
All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate
from date of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]
PANTRANCO filed a motion for reconsideration of the Court of Appeals decision, but on June 26,
1987, it denied the same for lack of merit. PANTRANCO then filed the instant petition for review.
I
Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance"
against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the
driver of the passenger jeepney who had the last clear chance to avoid the collision and was
therefore negligent in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm.
The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and
failed to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan Peoples Lumber and
Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No.
70493, May 18, 1989]. The subsequent negligence of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the
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accident which intervenes between the accident and the more remote negligence of the plaintiff,
thus making the defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable
to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as
a defense to defeat claim for damages.
To avoid liability for the negligence of its driver, petitioner claims that the original negligence of
its driver was not the proximate cause of the accident and that the sole proximate cause was the
supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is
petitioners position that even assuming arguendo, that the bus encroached into the lane of the
jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt
shoulder on his right without danger to himself or his passengers.
The above contention of petitioner is manifestly devoid of merit.
Contrary to the petitioners contention, the doctrine of "last clear chance" finds no application in
this case. For the doctrine to be applicable, it is necessary to show that the person who allegedly
had the last opportunity to avert the accident was aware of the existence of the peril or should,
with exercise of due care, have been aware of it. One cannot be expected to avoid an accident or
injury if he does not know or could not have known the existence of the peril. In this case, there
is nothing to show that the jeepney driver David Ico knew of the impending danger. When he
saw at a distance that the approaching bus was encroaching on his lane, he did not immediately
swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus
driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite
direction. As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810,
August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the
highway is generally entitled to assume that an approaching vehicle coming towards him on the
wrong side, will return to his proper lane of traffic. There was nothing to indicate to David Ico
that the bus could not return to its own lane or was prevented from returning to the proper lane
by anything beyond the control of its driver. Leo Marantan, an alternate driver of the Pantranco
bus who was seated beside the driver Ramirez at the time of the accident, testified that Ramirez
had no choice but to swerve the steering wheel to the left and encroach on the jeepneys lane
because there was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this
is belied by the evidence on record which clearly shows that there was enough space to swerve
the bus back to its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals found that at the time of the accident the
Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David
Ico must have realized that the bus was not returning to its own lane, it was already too late to
swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus
was running prevented David Ico from swerving the jeepney to the right shoulder of the road in
time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a
few seconds before the actual collision, he had no opportunity to avoid it. This Court has held
that the last clear chance doctrine "can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand after
the peril is or should have been discovered" [Ong v. Metropolitan Water District, supra].
Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article
III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a
through highway or a stop intersection shall yield the right of way to all vehicles approaching in
either direction on such through highway.
Petitioners misplaced reliance on the aforesaid law is readily apparent in this case. The cited law
itself provides that it applies only to vehicles entering a through highway or a stop intersection.
At the time of the accident, the jeepney had already crossed the intersection and was on its way
to Malalam River. Petitioner itself cited Fe Icos testimony that the accident occurred after the
jeepney had travelled a distance of about two (2) meters from the point of intersection [Petition
p. 10; Rollo, p. 27]. In fact, even the witness for the petitioner, Leo Marantan, testified that both
vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating
that the jeepney had already crossed the intersection.
Considering the foregoing, the Court finds that the negligence of petitioners driver in
encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane
immediately upon seeing the jeepney coming from the opposite direction was the sole and
proximate cause of the accident without which the collision would not have occurred. There was
no supervening or intervening negligence on the part of the jeepney driver which would have
made the prior negligence of petitioners driver a mere remote cause of the accident.

II
On the issue of its liability as an employer, petitioner claims that it had observed the diligence of
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a good father of a family to prevent damage, conformably to the last paragraph of Article 2180
of the Civil Code. Petitioner adduced evidence to show that in hiring its drivers, the latter are
required to have professional drivers license and police clearance. The drivers must also pass
written examinations, interviews and practical driving tests, and are required to undergo a six-
month training period. Rodrigo San Pedro, petitioners Training Coordinator, testified on
petitioners policy of conducting regular and continuing training programs and safety seminars
for its drivers, conductors, inspectors and supervisors at a frequency rate of at least two (2)
seminars a month.
On this point, the Court quotes with approval the following findings of the trial court which was
adopted by the Court of Appeals in its challenged decision:
When an injury is caused by the negligence of an employee, there instantly arises a presumption
that the employer has been negligent either in the selection of his employees or in the
supervision over their acts. Although this presumption is only a disputable presumption which
could be overcome by proof of diligence of a good father of a family, this Court believes that the
evidence submitted by the defendant to show that it exercised the diligence of a good father of a
family in the case of Ramirez, as a company driver is far from sufficient. No support evidence
has been adduced. The professional drivers license of Ramirez has not been produced. There is
no proof that he is between 25 to 38 years old. There is also no proof as to his educational
attainment, his age, his weight and the fact that he is married or not. Neither are the result of
the written test, psychological and physical test, among other tests, have been submitted in
evidence [sic]. His NBI or police clearances and clearances from previous employment were not
marked in evidence. No evidence was presented that Ramirez actually and really attended the
seminars. Vital evidence should have been the certificate of attendance or certificate of
participation or evidence of such participation like a logbook signed by the trainees when they
attended the seminars. If such records are not available, the testimony of the classmates that
Ramirez was their classmate in said seminar (should have been presented) [CA Decision, pp. 8-
9; Rollo, pp. 51-52].
Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its
driver only means that he underwent the same rigid selection process and was subjected to the
same strict supervision imposed by petitioner on all applicants and employees. It is argued by
the petitioner that unless proven otherwise, it is presumed that petitioner observed its usual
recruitment procedure and company polices on safety and efficiency [Petition, p. 20; Rollo, p.
37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the
presumption of negligence on the part of petitioner and the burden of proving that it exercised
due diligence not only in the selection of its employees but also in adequately supervising their
work rests with the petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v.
Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623]. Contrary to petitioners claim, there is
no presumption that the usual recruitment procedures and safety standards were observed. The
mere issuance of rules and regulations and the formulation of various company policies on
safety, without showing that they are being complied with, are not sufficient to exempt petitioner
from liability arising from the negligence of its employee. It is incumbent upon petitioner to show
that in recruiting and employing the erring driver, the recruitment procedures and company
policies on efficiency and safety were followed. Petitioner failed to do this. Hence, the Court finds
no cogent reason to disturb the finding of both the trial court and the Court of Appeals that the
evidence presented by the petitioner, which consists mainly of the uncorroborated testimony of
its Training Coordinator, is insufficient to overcome the presumption of negligence against
petitioner.
III
On the question of damages, petitioner claims that the Court of Appeals erred in fixing the
damages for the loss of earning capacity of the deceased victims. Petitioner assails respondent
courts findings because no documentary evidence in support thereof, such as income tax
returns, pay-rolls, pay slips or invoices obtained in the usual course of business, were presented
[Petition, p. 22; Rollo, p. 39]. Petitioner argues that the "bare and self-serving testimonies of the
wife of the deceased David Ico and the mother of the deceased Marilyn Baesa . . . have no
probative value to sustain in law the Court of Appeals conclusion on the respective earnings of
the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioners contention that
the evidence presented by the private respondent does not meet the requirements of clear and
satisfactory evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of
damages for the loss of earning capacity of the deceased victims. While it is true that private
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respondents should have presented documentary evidence to support their claim for damages
for loss of earning capacity of the deceased victims, the absence thereof does not necessarily
bar the recovery of the damages in question. The testimony of Fe Ico and Francisca Bascos as to
the earning capacity of David Ico, and the spouses Baesa, respectively, are sufficient to establish
a basis from which the court can make a fair and reasonable estimate of the damages for the
loss of earning capacity of the three deceased victims. Moreover, in fixing the damages for loss
of earning capacity of a deceased victim, the court can consider the nature of his occupation, his
educational attainment and the state of his health at the time of death.
In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981
and was driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both
thirty (30) years old at the time of their death. Ceasar Baesa was a commerce degree holder
and the proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper and the Valley
Times at Cauayan, Isabela. Marilyn Baesa graduated as a nurse in 1976 and at the time of her
death, was the company nurse, personnel manager, treasurer and cashier of the Ilagan Press at
Ilagan, Isabela. Respondent court duly considered these factors, together with the
uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the amount of damages for
the loss of earning capacity of David Ico and the spouses Baesa.
However, it should be pointed out that the Court of Appeals committed error in fixing the
compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent
court awarded to plaintiff (private respondent) Maricar Baesa Thirty Thousand Pesos
(P30,000.00) as "compensatory damages for the death of Harold Jim Baesa and Marcelino
Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals awarded only
Fifteen Thousand Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa and
another Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly
erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126
SCRA 518, the indemnity for the death of a person was fixed by this Court at Thirty Thousand
Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos
(P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino Baesa
or Thirty Thousand Pesos (P30,000.00) for the death of each brother.
The other items of damages awarded by respondent court which were not challenged by the
petitioner are hereby affirmed.
WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court
of Appeals is hereby AFFIRMED with the modification that the amount of compensatory damages
for the death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos
(P30,000.00) each.

SO ORDERED.

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