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REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT


___ Judicial Region
Branch __, Cebu City

LUZ DIAZ,
Plaintiff,

CRIM CASE NO. ____________


-versus- For: Damages

EMMA CRISOSTOMO,
Defendant.
x------------------------------------------/

MEMORANDUM
(for the Defendant)

Defendant, Emma Crisostomo (Crisostomo), herein represented by


the undersigned counsel, unto this Honorable Court, most respectfully
submits this Memorandum and states, as follows:

Crisostomo is the defendant in this case which is an action for


damages for the death of the dog of plaintiff, Luz Diaz.

STATEMENT OF THE FACTS

In order that this honorable court may be enlightened and guided in


the judicious disposition of the above-entitled case, cited hereunder the
material, relevant and pertinent facts of the case to wit:

1. Plaintiff is the owner of the pet dog Trix.

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2. The defendant is the neighbor of the plaintiff and that she
employed the services of a certain Gregorio Timbol for
renovation of her house.
3. A vehicular accident occurred when the truck owned by
Grigorio Timbol ran over the dog of the plaintiff.
4. Due to this unfortunate event, the plaintiff’s dog, Trix suffered
grave injuries causing its death.
5. That there was no one inside the truck when the dog got ran
over.
6. That the truck was properly parked accordingly to the
subdivision rules and rocks were placed behind the rear tires.

ISSUE

(1) Whether or not the defendant is the proximate cause of the death of
the dog of the plaintiff.
(2) Whether or not the defendant is the employer of Gregorio Timbol
(Timbol), the driver of the truck.

ARGUMENTS

Crisostomo was not the proximate


cause of the death of the dog of the
plaintiff.

In the case of Ramos vs. C.O.L. Realty Corporation, 1 proximate


cause was defined as that cause, which is natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and

1
G.R. No. 184905. August 28, 2009. 597 SCRA 526, 535-536

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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, 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.

In the present case, the negligence of truck driver, which in this case
was also the owner of the truck, was the proximate cause of the death of
the dog of the plaintiff. When the truck was parked, the driver should have
exerted due diligence to make sure that the truck would not roll back down
the street specially in this case that the truck was parked in the slanted part
of the road. Due to the additional circumstance that the
truck was old, an ordinary prudent man would have been cautious to
foresee that at any time the parked truck could have failed its breaks, rolled
down the slanted road and injure or harm either a person or any property
which came upon its path.

In the case of Philippine National Railways vs. Court of Appeals2,


the court has settled that negligence is the failure to observe, for the
protection of the interests of another person that degree of care, precaution,
and vigilance which the circumstance justly demand, whereby such other
person suffers injury – all that the law requires is for a person to use that
care and diligence expected of sensible men under comparable
circumstances.

2
G.R. No. 157658. October 15, 2007. 536 SCRA 147, 154.

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The so-called efforts made by the driver could not excuse him from
the aftermath of what his negligence has caused the plaintiff. Mere
placement of rocks against the back of the wheels of the old truck falls
short of what a diligent person would do in being precautious of the
possibility that the unmanned truck would move on its own and go down
the path of the slanted road.

From the foregoing, the truth of the matter that the driver had
carelessly parked the truck undoubtedly could not be denied with reason.
Albeit the driver knew that the weight of the truck could have brought it
hazardously rolling down the road, he should not have left the truck
unmanned as what a sensible man would do. Truly, it was his act of
abandoning the truck that was the proximate, direct and logical cause of
the incident that left the dog of the plaintiff dead and lifeless.

Timbol, the driver of the truck,


was not an employee of Crisostomo.

The plaintiff avers that under Article 2180, in relation to Article


2176, the defendant is liable for damages as an employer of the driver. To
wit:

Article 2176 of the Civil Code

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 2180 of the Civil Code

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.
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xxx
In the case of Secosa vs. Francisco, 3 the court has pronounced that
when an injury is caused by the negligence of an employee, there instantly
arises a presumption that there has been negligence on the part of the
employer, either in the selection of his employee or in the supervision over
him after his selection. The presumption may be rebutted by a clear
showing that the employer exercised the care and diligence of a good father
of the family in the selection and supervision of his employee.

However, for such presumption to arise, it is of paramount


consideration that an employer-employee relationship be proven to exist.

In the instant case, it has been established by the defense during trial
that there was no employer-employee relationship between defendant and
Timbol at the time when the incident transpired. When Timbol was
engaged by defendant as a carpenter, he was in fact hired as an independent
contractor of the defendant and not as an employee.

In the case of Philippine Airlines Inc. vs. NLRC,4 the court defined
an independent contractor as a person who undertakes to perform work on
its own account, under its own responsibility and according to its own
manner and method, free from the control and direction of the principal.
No employment relationship arises between its employees and the
principal.

Also, in the case of Royale Homes Marketing Corporation vs. Fidel


Alcantara, the court held that not every form of control that a hiring party
imposes on the hired party is indicative of employee-employer

3
G.R. No. 160039. June 29, 2004. 433 SCRA 273, 277.
4
G.R. No. 125792. November 9, 1998.

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relationship. Rules and regulations that merely serve as guidelines towards
the achievement of a mutually desired result without dictating the means
and methods of accomplishing it do not establish employer-employee
relationship.

In the facts of the present case, it is not only seeming but is all too
apparent that Timbol was hired as an independent contractor of the
defendant and not as an employee. Under Question 2 and Question 3 of the
transcript of stenographic notes of the direct examination of Timbol, it was
clearly established that he was working on a project of renovating the
house of the defendant. Clearly, the defendant does not have control over
the means and manner as to how the project should progress but only has
control insofar as the to the ends to be achieved by the project.

Thus, without such employer-employee relationship being


established, the presumption of negligence and the alleged vicarious
liability of the defendant will not subsist.

PRAYER

WHEREFORE, all the premises considered, it is most respectfully


prayed of this Honorable Court that the case be dismissed and that
judgment be rendered in favor of the defendant.

Other reliefs just and equitable is likewise prayed for.

Respectfully submitted this October 14 2018. Cebu City,


Philippines.

JEREMY S. MARAVE
6
Graft Investigation and Prosecution Officer III
MCLE Compliance No. V-0005837/27 January 2018

Copy Furnished:

Atty. Gines Abellana


K of C Bldg., Patria de Cebu Cmpd.
Cor. P Burgos-Legaspi Streets, Cebu City