Day 7 Torts Digest and Whole

8/10/2019 Day 7 Torts Digest and Whole

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CONSTRUCTION DEVELOPMENT CORPORATION OF THE PHILIPPINES, petitioner,

vs. REBECCA G. ESTRELLA, RACHEL E. FLETCHER, PHILIPPINE PHOENIX SURETY & INSURANCE INC., BATANGAS LAGUNA TAYABAS

BUS CO., and WILFREDO DATINGUINOO, respondents. September 8, 2006

December 29, 1978, respondents Rebecca G. Estrella and her granddaughter, Rachel E. Fletcher, boarded in San Pablo City, a BLTB

bus bound for Pasay City. However, they never reached their destination because their bus was rammed from behind by a tractor

truck of CDCP in the South Expressway. The strong impact pushed forward their seats and pinned their knees to the seats in front of

them. They regained consciousness only when rescuers created a hole in the bus and extricated their legs from under the seats

They were brought to the Makati Medical Center where the doctors diagnosed their injuries to be as follows:

Medical Certificate of Rebecca Estrella

Fracture, left tibia mid 3rd

Lacerated wound, chin

Contusions with abrasions, left lower leg

Fracture, 6th and 7th ribs, right3

Medical Certificate of Rachel Fletcher

Extensive lacerated wounds, right leg posterior aspect popliteal area

and antero-lateral aspect mid lower leg with severance of muscles.

Partial amputation BK left leg with severance of gastro-soleus and

antero-lateral compartment of lower leg.

Fracture, open comminuted, both tibial

Thereafter, respondents filed a Complaint for damages against CDCP, BLTB, Espiridion Payunan, Jr. and Wilfredo Datinguinoo

before the Regional Trial Court of Manila, Branch 13. They alleged (1) that Payunan, Jr. and Datinguinoo, who were the drivers of

CDCP and BLTB buses, respectively, were negligent and did not obey traffic laws ; (2) that BLTB and CDCP did not exercise the

diligence of a good father of a family in the selection and supervision of their employees; (3) that BLTB allowed its bus to operate

knowing that it lacked proper maintenance thus exposing its passengers to grave danger ; (4) that they suffered actual damages

amounting to P250,000.00 for Estrella and P300,000.00 for Fletcher; (5) that they suffered physical discomfort, serious anxiety, fright

and mental anguish, besmirched reputation and wounded feelings, moral shock, and lifelong social humiliation; (6) that defendants

failed to act with justice, give respondents their due, observe honesty and good faith which entitles them to claim for exemplary

damage; and (7) that they are entitled to a reasonable amount of attorney's fees and litigation expenses.

CDCP filed its Answer which was later amended to include a third-party complaint against Philippine Phoenix Surety and Insurance

Inc. (Phoenix). On February 9, 1993, the trial court rendered a decision finding CDCP and BLTB and their employees liable for

damages, the dispositive portion of which, states:

WHEREFORE, judgment is rendered: In the Complaint 1. In favor of the plaintiffs and against the defendants BLTB, Wilfredo

Datinguinoo, Construction and Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr., ordering said

defendants,jointly and severallyto pay the plaintiffs the sum of P79,254.43 as actual damages and to pay the sum of P10,000.00 as

attorney's fees or a total of P89,254.43;

2. In addition, defendant Construction and Development Corporation of the Philippines and defendant Espiridion Payunan, Jr., shall

pay the plaintiffs the amount of Fifty Thousand (P50,000.00) Pesos to plaintiff Rachel Fletcher and Twenty Five Thousand

(P25,000.00) Pesos to plaintiff Rebecca Estrella;

3. On the counterclaim of BLTB Co. and Wilfredo DatinguinooDismissing the counterclaim;

4. On the crossclaim against Construction and Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr.

Dismissing the crossclaim; 5. On the counterclaim of Construction and Development Corporation of the Philippines (now PNCC)

Dismissing the counterclaim; 6. On the crossclaim against BLTB Dismissing the crossclaim; 7. On the Third Party Complaint by

Construction and Development Corporation of the Philippines against Philippine Phoenix Surety and Insurance, Incorporated

Dismissing the Third Party Complaint. SO ORDERED.8 The trial court held that BLTB, as a common carrier, was bound to observe

extraordinary diligence in the vigilance over the safety of its passengers. It must carry the passengers safely as far as human care

and foresight provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances . Thus

where a passenger dies or is injured, the carrier is presumed to have been at fault or has acted negligently. BLTB's inability to carry

respondents to their destination gave rise to an action for breach of contract of carriage while its failure to rebut the presumption

of negligence made it liable to respondents for the breach.9


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Regarding CDCP, the trial court found that the tractor-truck it owned bumped the BLTB bus from behind. Evidence showed that

CDCP's driver was reckless and driving very fast at the time of the incident. The gross negligence of its driver raised the

presumption that CDCP was negligent either in the selection or in the supervision of its employe es which it failed to rebut thus

making it and its driver liable to respondents.10

Unsatisfied with the award of damages and attorney's fees by the trial court, respondents moved that the decision be reconsidered

but was denied. Respondents elevated the case11 to the Court of Appeals which affirmed the decision of the trial court but modified

the amount of damages, the dispositive portion of which provides:

WHEREFORE, the assailed decision dated October 7, 1993 of the Regional Trial Court, Branch 13, Manila is hereby AFFIRMED with

the following MODIFICATION: 1. The interest of six (6) percent per annum on the actual damages of P79,354.43 should commence

to run from the time the judicial demand was made or from the filing of the complaint on February 4, 1980;

2. Thirty (30) percent of the total amount recovered is hereby awarded as attorney's fees; 3. Defendants-appellants Construction

and Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr. are ordered to pay plaintiff-appellants

Rebecca Estrella and Rachel Fletcher the amount of Twenty Thousand (P20,000.00) each as exemplary damages and P80,000.00 by

way of moral damages to Rachel Fletcher.

SO ORDERED. The Court of Appeals held that the actual or compensatory damage sought by respondents for the injuries they

sustained in the form of hospital bills were already liquidated and were ascertained . Accordingly, the 6% interest per annum

should commence to run from the time the judicial demand was made or from the filing of the complaint and not from the date of

judgment. The Court of Appeals also awarded attorney's fees equivalent to 30% of the total amount recovered based on the retaine

agreement of the parties. The appellate court also held that respondents are entitled to exemplary and moral damages. Finally, it

affirmed the ruling of the trial court that the claim of CDCP against Phoenix had already prescribed.

Hence, this petition raising the following issues:

I WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING RESPONDENTS BLTB AND/OR ITS DRIVER WILFREDO

DATINGUINOO SOLELY LIABLE FOR THE DAMAGES SUSTAINED BY HEREIN RESPONDENTS FLETCHER AND ESTRELLA.

II WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AWARDING EXCESSIVE OR UNFOUNDED DAMAGES, ATTORNEY'S

FEES AND LEGAL INTEREST TO RESPONDENTS FLETCHER AND ESTRELLA.

III WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING RESPONDENT PHOENIX LIABLE UNDER ITSINSURANCE POLICY ON THE GROUND OF PRESCRIPTION.

The issues for resolution are as follows: (1) whether BLTB and its driver Wilfredo Datinguinoo are solely liable for the damages

sustained by respondents; (2) whether the damages, attorney's fees and legal interest awarded by the CA are excessive and

unfounded; (3) whether CDCP can recover under its insurance policy from Phoenix.

Petitioner contends that since it was made solidarily liable with BLTB for actual damages and attorney's fees in paragraph 1 of the

trial court's decision, then it should no longer be held liable to pay the amounts stated in paragraph 2 of the same decision

Petitioner claims that the liability for actual damages and attorney's fees is based on culpa contractual, thus, only BLTB sh ould be

held liable. As regards paragraph 2 of the trial court's decision, petitioner claims that it is ambiguous and arbitrary because the

dispositive portion did not state the basis and nature of such award. Respondents, on the other hand, argue that petitioner is also

at fault, hence, it was properly joined as a party. There may be an action arising out of one incident where questions of fact are

common to all. Thus, the cause of action based on culpa aquiliana in the civil suit they filed against it was valid.

The petition lacks merit. The case filed by respondents against petitioner is an action for culpa aquiliana or quasi-delict under

Article 2176 of the Civil Code.13 In this regard, Article 2180 provides that the obligation imposed by Article 2176 is demandable fo

the acts or omissions of those persons for whom one is responsible. Consequently, an action based on quasi -delict may be instituted

against the employer for an employee's act or omission. The liability for the negligent conduct of the subordinate is direct and

primary, but is subject to the defense of due diligence in the selection and supervision of the employee.14 In the instant case, the

trial court found that petitioner failed to prove that it exercised the diligence of a good father of a family in the selection and

supervision of Payunan, Jr.


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The trial court and the Court of Appeals found petitioner solidarily liable with BLTB for the actual damages suffered by

respondents because of the injuries they sustained . It was established that Payunan, Jr. was driving recklessly because of the skid

marks as shown in the sketch of the police investigator. t is well-settled in Fabre, Jr. v. Court of Appeals,15 that the owner of the

other vehicle which collided with a common carrier is solidarily liable to the injured passenger of the same. We held, thus:

The same rule of liability was applied in situations where the negligence of the driver of the bus on which plaintiff was riding

concurred with the negligence of a third party who was the driver of another vehicle, thus causing an accident. In Anuran v. Buo

Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the

bus company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly and severally held liable to the

injured passenger or the latter's heirs. The basis of this allocation of liability was explained in Viluan v. Court of Appeals, thus:

Nor should it make any difference that the liability of petitioner [bus owner] springs from contract while that of respondents [owne

and driver of other vehicle] arises from quasi-delict. As early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in

case of injury to a passenger due to the negligence of the driver of the bus on which he was riding and of the driver of another

vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages. x x x As in the case of BLTB

private respondents in this case and her co-plaintiffs did not stake out their claim against the carrier and the driver exclusively on

one theory, much less on that of breach of contract alone. After all, it was permitted for them to allege alternative causes o

action and join as many parties as may be liable on such causes of action so long as private respondent and her co-plaintiffs do

not recover twice for the same injury. What is clear from the cases is the intent of the plaintiff there to recover from both the

carrier and the driver, thus justifying the holding that the carrier and the driver were jointly and severally liable because their

separate and distinct acts concurred to produce the same injury.16 (Emphasis supplied)

In a "joint" obligation, each obligor answers only for a part of the whole liability; in a "solidary" or "joint and several" obligation, the

relationship between the active and the passive subjects is so close that each of them must comply with or demand the fulfillment o

the whole obligation. In Lafarge Cement v. Continental Cement Corporation,17 we reiterated that joint tort feasors are jointly and

severally liable for the tort which they commit . Citing Worcester v. Ocampo,18 we held that:

x x x The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is tort. They

fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in which he participates,

but is also jointly liable with his tort feasors. x x x

It may be stated as a general rule that joint tort feasors are all the persons who command, instigate, promote, encourage, advise,

countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit

They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act

themselves. x x x

Joint tort feasors are jointly and severally liable for the tort which they commit. The persons injured may sue all of them or any

number less than all. Each is liable for the whole damages caused by all, and all together are jointly liable for the whole damage. I

is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is

it any excuse for him that his participation in the tort was insignificant as compared to that of the others. x x x Joint tort feasors are

not liable pro rata. The damages can not be apportioned among them, except among themselves. They cannot insist upon an

apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the whole amount. x x x

A payment in full for the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the

others. There can be but satisfaction. The release of one of the joint tort feasors by agreement generally operates to discharge all. x

x x Of course the court during trial may find that some of the alleged tort feasors are liable and that others are not liable. The courts

may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are

charged jointly and severally.19

Petitioner's claim that paragraph 2 of the dispositive portion of the trial court's decision is ambiguous and arbitrary and also entitles

respondents to recover twice is without basis. In the body of the trial court's decision, it was clearly stated that petitioner and its

driver Payunan, Jr., are jointly and solidarily liable for moral damages in the amount of P50,000.00 to respondent Fletcher and

P25,000.00 to respondent Estrella.20 Moreover, there could be no double recovery because the award in paragraph 2 is for mora

damages while the award in paragraph 1 is for actual damages and attorney's fees.

Petitioner next claims that the damages, attorney's fees, and legal interest awarded by the Court of Appeals are excessive. Mora

damages may be recovered in quasi-delicts causing physical injuries.21 The award of moral damages in favor of Fletcher and

Estrella in the amount of P80,000.00 must be reduced since prevailing jurisprudence fixed the same at P50,000.00 .22 While mora


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damages are not intended to enrich the plaintiff at the expense of the defendant, the award should nonetheless be commensurate

to the suffering inflicted.23

The Court of Appeals correctly awarded respondents exemplary damages in the amount of P20,000.00 each. Exemplary damages

may be awarded in addition to moral and compensatory damages.24 Article 2231 of the Civil Code also states that in quasi

delicts, exemplary damages may be granted if the defendant acted with gross negligence .25 In this case, petitioner's driver was

driving recklessly at the time its truck rammed the BLTB bus. Petitioner, who has direct and primary liability for the negligent

conduct of its subordinates, was also found negligent in the selection and supervision of its employees. In Del Rosario v. Court of

Appeals,26 we held, thus:

ART. 2229 of the Civil Code also provides that such damages may be imposed, by way of example or correction for the public good.

While exemplary damages cannot be recovered as a matter of right, they need not be proved, although plaintiff must show that he

is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary

damages should be awarded. Exemplary Damages are imposed not to enrich one party or impoverish another but to serve as a

deterrent against or as a negative incentive to curb socially deleterious actions.

Regarding attorney's fees, we held in Traders Royal Bank Employees Union-Independent v. National Labor Relations Commission,27

that: There are two commonly accepted concepts of attorney's fees, the so-called ordinary and extraordinary. In its ordinary

concept, an attorney's fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the

latter. The basis of this compensation is the fact of his employment by and his agreement with the client.

In its extraordinary concept, an attorney's fee is an indemnity for damages ordered by the court to be paid by the losing party in a

litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized in Article

2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the

lawyer as additional compensation or as part thereof.28 (Emphasis supplied)

In the instant case, the Court of Appeals correctly awarded attorney's fees and other expenses of litigation as they may be recovered

as actual or compensatory damages when exemplary damages are awarded; when the defendant acted in gross and evident bad

faith in refusing to satisfy the plaintiff's valid, just and demandable claim; and in any other case where the court deems it just and

equitable that attorney's fees and expenses of litigation should be recovered.29

Regarding the imposition of legal interest at the rate of 6% from the time of the filing of the complaint, we held in Eastern Shipping

Lines, Inc. v. Court of Appeals,30 that when an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or

quasi-delicts is breached, the contravenor can be held liable for payment of interest in the concept of actual and compensatory

damages,31 subject to the following rules, to wit

1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the

interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest

from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed

from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages

awarded may be imposed at the discretion of the court at the rate of 6% per annum . No interest, however, shall be adjudged on

unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where

the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or

extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made,

the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages

may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on

the amount finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the

case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim

period being deemed to be by then an equivalent to a forbearance of credit.32 (Emphasis supplied)

Accordingly, the legal interest of 6% shall begin to run on February 9, 1993 when the trial court rendered judgment and not on

February 4, 1980 when the complaint was filed. This is because at the time of the filing of the complaint, the amount of the damages

to which plaintiffs may be entitled remains unliquidated and unknown, until it is definitely ascertained, assessed and determined by


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the court and only upon presentation of proof thereon.33 From the time the judgment becomes final and executory, the interes

rate shall be 12% until its satisfaction.

Anent the last issue of whether petitioner can recover under its insurance policy from Phoenix, we affirm the findings of both the

trial court and the Court of Appeals, thus: As regards the liability of Phoenix, the court a quo correctly ruled that defendant

appellant CDCP's claim against Phoenix already prescribed pursuant to Section 384 of P.D. 612, as amended, which provides:

Any person having any claim upon the policy issued pursuant to this chapter shall, without any unnecessary delay, present to the

insurance company concerned a written notice of claim setting forth the nature, extent and duration of the injuries sustained as

certified by a duly licensed physician. Notice of claim must be filed within six months from date of the accident, otherwise, the claimshall be deemed waived. Action or suit for recovery of damage due to loss or injury must be brought in proper cases, with the

Commissioner or Courts within one year from denial of the claim, otherwise, the claimant's right of action shall prescribe. (As

amended by PD 1814, BP 874.)34

The law is clear and leaves no room for interpretation . A written notice of claim must be filed within six months from the date of

the accident. Since petitioner never made any claim within six months from the date of the accident, its claim has already

prescribed.

WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 46896 dated March 29, 2001,

which modified the Decision of the Regional Trial Court of Manila, Branch 13, in Civil Case No. R-82-2137, is AFFIRMED with the

MODIFICATIONS that petitioner is held jointly and severally liable to pay (1) actual damages in the amount of P79,354.43; (2) mora

damages in the amount of P50,000.00 each for Rachel Fletcher and Rebecca Estrella; (3) exemplary damages in the amount of

P20,000.00 each for Rebecca Estrella and Rachel Fletcher; and (4) thirty percent (30%) of the total amount recovered as attorney's

fees. The total amount adjudged shall earn interest at the rate of 6% per annum from the date of judgment of the trial court until

finality of this judgment. From the time this Decision becomes final and executory and the judgment amount remains unsatisfied,

the same shall earn interest at the rate of 12% per annum until its satisfaction.

G.R. No. L-10134 June 29, 1957

SABINA EXCONDE, plaintiff-appellant,

vs. DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

Magno T. Bueser for appellant.

Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees.

BAUTISTA ANGELO, J.:

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of Isidoro

Caperina and Amado Ticzonon March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No. 15001). During the trial,

Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a separate civil action for damages against

the accused. After trial, Dante Capuno was found guilty of the crime charged and, on appeal, the Court Appeals affirmed the

decision. Dante Capuno was only (15) years old when he committed the crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno asking for

damages in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperia. Defendants set up the defense that if any

one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father Delfin because at the time of the

accident, the former was not under the control, supervision and custody, of the latter . This defense was sustained by the lower

court and, as a consequence it only convicted Dante Capuno to pay the damages claimed in the complaint. From decision, plaintiff

appealed to the Court of Appeals but the case was certified to us on the ground that the appeal only involves questions of law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak Elementary Schoo

situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said city

upon instruction of the city school's supervisor. From the school Dante, with other students, boarded a jeep and when the same

started to run, he took hold of the wheel and drove it while the driver sat on his left side. They have not gone far when the jeep

turned turtle and two of its passengers, Amado Ticzon and Isidore Caperia, died as a consequence. It further appears that Delfin

Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that his son was going to attend a

parade. He only came to know it when his son told him after the accident that he attended the parade upon instruction of his

teacher.


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The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally with his

son Dante, for damages resulting from the death of Isidoro Caperia caused by the negligent act of minor Dante Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and omissions, but also

for those of persons for whom another is responsible.

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

x x x x x x x x x

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

their custody.

Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son Dante because

at the time the latter committed the negligent act which resulted in the death of the victim, he was a minor and was then living with

his father, and inasmuch as these facts are not disputed, the civil liability of the father is evident. And so, plaintiff contends, the

lower court erred in relieving the father from liability.

We find merit in this claim. It is true that under the law above quoted, " teachers or directors of arts and trades are liable for any

damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an

institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See 12

Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School and as part of his extra-

curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city school's supervisor. And it was in

connection with that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred . In the

circumstances, it is clear that neither the head of that school, nor the city school's supervisor, could be held liable for the

negligent act of Dante because he was not then a student of an institute of arts and trades as provided by law.

The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any damages that

may be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they

exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating

them and instructing them in proportion to their means" , while, on the other hand, gives them the "right to correct and punishthem in moderation" (Articles 154 and 155, Spanish Civil Code ). The only way by which they can relieve themselves of this liability

is if they prove that they exercised all the diligence of a good father of a family to prevent the damage(Arti cle 1903, las

paragraph, Spanish Civil Code). This defendants failed to prove.

WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno shall pay to

plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action. Bengzon, Montemayor, Labrador and

Endencia, JJ., concur.

Paras, C.J., concurs in the result.

Separate Opinions REYES, J.B.L., J., dissenting:

After mature consideration I believe we should affirm the judgement relieving the father of liability. I can see no sound reason fo

limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones . What substantial difference is

there between them in so far as, concerns the proper supervision and vigilance over their pupils? It cannot be seriously contended

that an academic teacher is exempt from the duty of watching do not commit a tort to the detriment of third persons, so long as

they are in a position to exercise authority and supervision over the pupil. In my opinion, in the phrase "teachers or heads of

establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers"

but only "heads of establishments". The phrase is only an updated version of the equivalent terms "preceptors y artesanos" used in

the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando that the

parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent

places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the

torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of


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the school nor with the authority and supervision of the teacher while the child is under instruction . And if there is no authority

there can be no responsibility.

In the case before us, there is no question that the pupil, Dante Capuno, was instructed by the City School Supervisor to attend

the Rizal parade.His father could not properly refuse to allow the child to attend, in defiance of the school authorities. The fathe

had every reason to assume that in ordering a minor to attend a parade with other children, the school authorities would provide

adequate supervision over them. If a teacher or scout master was present, then he should be the one responsible for allowing the

minor to drive the jeep without being qualified to do so. On the other hand, if no teacher or master was at hand to watch over the

pupils, the school authorities are the ones answerable for that negligence, and not the father.

At any rate, I submit that the father should not be held liable for a tort that he was in no way able to prevent, and which he had

every right to assume the school authorities would avoid. Having proved that he trusted his child to the custody of schoo

authorities that were competent to exercise vigilance over him, the father has rebutted the presumption of Art. 1903 and the

burden of proof shifted to the claimant to show actual negligence on the part of the parent in order to render him li able.

G.R. No. L-24101 September 30, 1970

MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL., plaintiffs-appellees, vs. ALFONSO MONFORT

defendant-appellant.

Rodolfo J. Herman for plaintiffs-appellees.

Luis G. Torres and Abraham E. Tionko for defendant-appellant.

MAKALINTAL, J.:

This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably to the

plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are not in issue.

Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School in Bacolod

City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in the school premises

While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object commonly worn by young girls over

their hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at

her. At that precise moment the latter turned around to face her friend, and the object hit her right eye. Smarting from the pain

she rubbed the injured part and treated it with some powder . The next day, July 10, the eye became swollen and it was then that

the girl related the incident to her parents, who thereupon took her to a doctor for treatment. She underwent surgical operation

twice, first on July 20 and again on August 4, 1962, and stayed in the hospital for a total of twenty-three days, for all of which the

parents spent the sum of P1,703.75. Despite the medical efforts, however, Maria Teresa Cuadra completely lost the sight of her

right eye.

In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria Teresa

Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages; and P2,000.00

as attorney's fees, plus the costs of the suit.

The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to another under

the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176 and 2180 thereof, which

read:

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 provisions of this Chapter.

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.

The father and, in case of his death or incapacity are responsible for the damages caused by the minor children who live in thei

company. 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 underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the omission, there

being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom another is

responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated therein, such as that of the


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father or the mother under the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in Article

2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is

merely prima facie and may therefore be rebutted. This is the clear and logical inference that may be drawn from the last paragraph

of Article 2180, which states "that 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."

Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. But what is

the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act or omission of a

minor child, especially when it takes place in his absence or outside his immediate company? Obviously there can be no

meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good father of the family toprevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine whether or not by

the exercise of such diligence the damage could have been prevented.

In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by the

observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such

damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she was

as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused the

injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful, would

have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed any trait in

the child's character which would reflect unfavorably on her upbringing and for which the blame could be attributed to her

parents.

The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is at all

obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral compulsion of

good conscience.

The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs. Reyes, J.B.L., Actg. C.J.,

Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur.

Concepcion, C.J., is on leave. Fernando, J., took no part.

Separate Opinions

BARREDO, J., dissenting:

I am afraid I cannot go along with my esteemed colleagues in holding that the act of appellant's daughter does not constitute fault

within the contemplation of our law or torts. She was 13 years and should have known that by jokingly saying "aloud that she had

found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her," it was likely that something wouldhappen to her friend, as in fact, she was hurt.

As to the liability of appellant as father, I prefer to hold that there being no evidence that he had properly advised his daughter to

behave properly and not to play dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of the Civil

Code.There is nothing in the record to show that he had done anything at all to even try to minimize the damage caused upon

plaintiff child.

WHOLE CASE

Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure questions of law from the order of the Court of First

Instance of Tarlac, dismissing their complaint against Archimedes J. Balingit.

The dismissal was based on the ground that Balingit as the manager of Phil-American Forwarders, Inc., which together with

Fernando Pineda and Balingit, was sued for damages in an action based on quasi-delict or culpa aquiliana, is not the manager of an

establishment contemplated in article 2180 of the Civil Code (Civil Case No. 3865).

In the complaint for damages filed by the bus company and Pangalangan against Phil-American Forwarders, Inc., Balingit and Pineda

it was alleged that on November 24, 1962, Pineda drove recklessly a freight truck, owned by Phil-American Forwarders, Inc., along

the national highway at Sto. Tomas, Pampanga. The truck bumped the bus driven by Pangalangan, which was owned by Philippine

Rabbit Bus Lines, Inc. As a result of the bumping, Pangalangan suffered injuries and the bus was damaged and could not be used for

seventy-nine days, thus depriving the company of earnings amounting to P8,665.51. Balingit was the manager of Phil-American

Forwarders, Inc.


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Among the defenses interposed by the defendants in their answer was that Balingit was not Pineda's employer. Balingit moved that

the complaint against him be dismissed on the ground that the bus company and the bus driver had no cause of action against him

As already stated, the lower court dismissed the action as to Balingit. The bus company and its driver appealed.

The 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.

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.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the

service of the branches in which the latter are employed or on the occasion of their functions. 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. 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. (1903a)

The novel and unprecedented legal issue in this appeal is whether the terms "employers" and "owners and managers of an

establishment or enterprise" (dueos o directores de un establicimiento o empresa) used in article 2180 of the Civil Code, formerly

article 1903 of the old Code, embrace the manager of a corporation owning a truck, the reckless operation of which allegedly

resulted in the vehicular accident from which the damage arose.

We are of the opinion that those terms do not include the manager of a corporation. It may be gathered from the context of article

2180 that the term "manager" ("director" in the Spanish version) is used in the sense of "employer". Hence, under the allegations of

the complaint, no tortious or quasi-delictual liability can be fastened on Balingit as manager of Phil-American Forwarders, Inc., in

connection with the vehicular accident already mentioned because he himself may be regarded as an employee or dependiente of

his employer, Phil-American Forwarders, Inc.

The bus company and its driver, in their appellants' brief, injected a new factual issue which was not alleged in their complaint. They

argue that Phil- American Forwarders, Inc. is merely a business conduit of Balingit because out of its capital stock with a par value of

P41,200, Balingit and his wife had subscribed P40,000 and they paid P10,000 on their subscription, while the other incorporators,

namely, Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay paid P250.25 and P25, respectively.

That argument implies that the veil of corporate fiction should be pierced and that Phil-American Forwarders, Inc. and Balingit and

his wife should be treated as one and the same civil personality.

We cannot countenance that argument in this appeal. It was not raised in the lower court. The case has to be decided on the basis o

the pleadings filed in the trial court where it was assumed that Phil-American Forwarders, Inc. has a personality separate and distinc

from that of the Balingit spouses.

The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is one which was raised in the lower court and which is

within the issues framed by the parties (Sec. 18, Rule 46, Rules of Court).

When a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be

permitted to change his theory on appeal because, to permit him to do so, could be unfair to the adverse party (2 Moran's

Comments on the Rules of Court, 1970 Ed. p. 505). WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the

plaintiffs-appellants.

DIGEST

PHILIPPINE RABBIT BUS LINES and FELIX PANGALANGAN v. PHIL-AMERICAN FORWARDERS, ARCHIMEDES BALINGIT, and

FERNANDO PINEDA

1975 / Aquino / Appeal from CFI order

FACTS

Pineda recklessly drove a freight truck [owned by Phil-American Forwarders] along the national highway at Pampanga, and the truck

bumped the PRBL bus driven by Pangalangan. As a result, Pangalangan suffered injuries and the bus was damaged and could not be

used for 79 days, thus depriving PRBL of earnings amounting to P8,665.51. Balingit was the manager of Phil-American Forwarders.


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PRBL and Pangalangan filed a complaint for damages against Phil-American Forwarders, Balingit, and Pineda. Defendants said

Balingit was not Pineda's employer. Balingit moved that the complaint against him be dismissed on the ground that PRBL and

Pangalangan had no cause of action against him. CFI dismissed the complaint against Balingit, on the ground that he is not the

manager of an establishment as contemplated in NCC 2180.

ISSUE AND HOLDING

WON the terms "employers" and "owners and managers of an establishment or enterprise" embrace the manager of a corporation

owning a truck, the reckless operation of which allegedly resulted in the vehicular accident from which the damage arose. NO.

RATIOThose terms do not include the manager of a corporation. It may be gathered from the context of NCC 2180 that the term

"manager" ("director" in the Spanish version) is used in the sense of "employer". Hence, no tortious or quasi -delictual liability can be

imposed on Balingit as manager of Phil-American Forwarders, in connection with the vehicular accident in question, because he

himself may be regarded as an employee or dependiente of Phil-American Forwarders.

G.R. No. 104658. April 7, 1993.

PILIPINAS SHELL PETROLEUM CORPORATION, petitioner,

vs. THE HONORABLE COURT OF APPEALS and CLARITA T. CAMACHO, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.

Yolanda Quisumbing-Javellana & Associates for private respondent.

SYLLABUS

1. LABOR LAWS AND SOCIAL LEGISLATION; EMPLOYER-EMPLOYEE RELATIONSHIP; FACTORS CONSIDERED IN DETERMINING

EXISTENCE THEREOF; CASE AT BAR. It is firmly settled that the existence or non-existence of the employer-employee

relationship is commonly to be determined by examination of certain factors or aspects of that relationship. These include: (a) the

manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or absence of a

power to control the putative employee's conduct, although the latter is the most important element . . . As aptly held by the tria

court, petitioner did not exercise control and supervision over Feliciano with regard to the manner in which he conducted the

hydro-pressure test.All that petitioner did, through its Field Engineer, Roberto Mitra , was relay to Feliciano the request of private

respondent for a hydro-pressure test, to determine any possible leakages in the storage tanks in her gasoline station . The mere

hiring of Feliciano by petitioner for that particular task is not the form of control and supervision contemplated by law which may

be the basis for establishing an employer-employee relationship between petitioner and Feliciano. The fact that there was no suchcontrol is further amplified by the absence of any shell representative in the job site at the time when the test was conducted

Roberto Mitra was never there. Only Feliciano and his men were. True, it was petitioner who sent Feliciano to private respondent's

gasoline station to conduct the hydro-pressure test as per the request of private respondent herself. But this single act did not

automatically make Feliciano an employee of petitioner.As discussed earlier, more than mere hiring is required. It must further

be established that petitioner is the one who is paying Feliciano's salary on a regular basis; that it has the power to dismiss said

employee, and more importantly, that petitioner has control and supervision over the work of Feliciano. The last requisite was

sorely missing in the instant case.

2. ID.; JOB CONTRACTING; REQUISITES; HALLMARKS OF INDEPENDENT CONTRACTOR. Section 8 of Rule VIII, Book III of the

Omnibus Rules Implementing the Labor Code provides: "Sec. 8. Job contracting. There is job contracting permissible under the

Code if the following conditions are met: (1) The contractor carries on an independent business and undertakes the contract work

on his own account under his own responsibility according to his own manner and method, free from the control and direction of his

employer or principal in all matters connected with the performance of the work except as to the results thereof; and (2) The

contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials

which are necessary in the conduct of his business." Feliciano is independently maintaining a business under a duly registered

business name, "JFS Repair and Maintenance Service," and is duly registered with the Bureau of Domestic Trade. He does not enjoy

a fixed salary but instead charges a lump sum consideration for every piece of work he accomplishes. If he is not able to finish his

work, he does not get paid, as what happened in this case. Further, Feliciano utilizes his own tools and equipment and has a

complement of workers. Neither is he required to work on a regular basis. Instead, he merely awaits calls from clients such as

petitioner whenever repairs and maintenance services are requested. Moreover, Feliciano does not exclusively service petitioner

because he can accept other business but not from other oil companies. All these are the hallmarks of an independent contractor.


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3. CIVIL LAW; QUASI-DELICTS; INDEPENDENT CONTRACTOR RESPONSIBLE FOR HIS OWN ACTS AND OMISSIONS. Being an

independent contractor, Feliciano is responsible for his own acts and omissions. As he alone was in control over the manner of

how he was to undertake the hydro-pressure test, he alone must bear the consequences of his negligence, if any, in the conduct

of the same.

CAMPOS, JR., J p:

Was the hydro-pressure test of the underground storage tank in private respondent Clarita T. Camacho's gasoline station

conducted by an independent contractor or not? A negative answer will make petitioner Pilipinas Shell Petroleum Corporation

(Shell, for brevity) liable for the said independent contractor's acts or omissions; otherwise, no. This is the issue that this Court is

called upon to resolve in this case.

The facts are as follows:

Private respondent Clarita T. Camacho (private respondent for short) was the operator of a gasoline station in Naguilian Road,

Baguio City, wherein she sells petitioner Shell's petroleum products . Sometime in April 1983, private respondent requested

petitioner to conduct a hydro-pressure test on the underground storage tanks of the said station in order to determine whethe

or not the sales losses she was incurring for the past several months were due to leakages therein . Petitioner acceded to the said

request and on April 27, 1983, one Jesus "Jessie" Feliciano together with other workers, came to private respondent's station with

a Job Order from petitioner to perform the hydro-pressure test.

On the same day, Feliciano and his men drained the underground storage tank which was to be tested of its remaining gasoline

After which, they filled the tank with water through a water hose from the deposit tank of private respondent. Then, afte

requesting one of private respondent's gasoline boys to shut off the water when the tank was filled, Feliciano and his men left. At

around 2:00 a.m. the following day, private respondent saw that the water had reached the lip of the pipe of the underground

storage tank and so, she shut off the water faucet.

At around 5:30 a.m., private respondent's husband opened the station and started selling gasoline. But at about 6:00 a.m., the

customers who had bought gasoline returned to the station complaining that their vehicles stalled because there was water in

the gasoline that they bought. On account of this, private respondent was constrained to replace the gasoline sold to the said

customers. However, a certain Eduardo Villanueva, one of the customers, filed a complaint with the police against private

respondent for selling the adulterated gasoline. In addition, he caused the incident to be published in two local newspapers.

Feliciano, who arrived later that morning, did not know what caused the water pollution of the gasoline in the adjacent storage tank

So he called up Nick Manalo, Superintendent of Shell's Poro Point Installation at San Fernando, La Union, and referred the matter to

the latter. Manalo went up to Baguio in the afternoon to investigate. Thereafter, he and Feliciano again filled with water the

underground storage tank undergoing hydro-pressure test whereat they noticed that the water was transferring to the othertanks from whence came the gasoline being sold. Manalo asked permission from Shell's Manila Office to excavate the underground

pipes of the station. Upon being granted permission to do so, Feliciano and his men began excavating the driveway of private

respondent's station in order to expose the underground pipeline. The task was continued by one Daniel "Danny" Pascua who

replaced Feliciano, Pascua removed the corroded pipeline and installed new independent vent pipe for each storage tank.

Meanwhile, petitioner undertook to settle the criminal complaint filed by Villanueva. Subsequently, Villanueva filed an Affidavit of

Desistance, 1 declaring, inter alia

"THAT, after careful evaluation of the surrounding circumstances, especially the explanation of the representatives of SHELL Phils.,

that the gasoline tanks of Mrs. Camacho were subject to Hydro test, in such a way that water was used for the said test, I believe

that she may not have had anything to do with the filling of water in the tank of my car;

xxx xxx xxx THAT, said representatives of SHELL Phils. have interceded for and in behalf of Mrs. Camacho and have fully satisfied my

claim against her.

THAT, in view of all the foregoing I do not intend to prosecute the case and I am therefore asking for the dismissal of the case against

Mrs. Camacho." Thereafter, private respondent demanded from petitioner the payment of damages in the amount of P10,000.00

Petitioner, instead, offered private respondent additional credit line and other beneficial terms, which offer was, however

rejected.cdrep

Subsequently, or on October 12, 1983, private respondent filed before the trial court a complaint for damages against petitioner

due to the latter's alleged negligence in the conduct of the hydro-pressure test in her gasoline station. For its part, petitione


12/40

denied liability because, according to it, the hydro-pressure test on the underground storage tanks was conducted by an

independent contractor.

The trial court dismissed private respondent's complaint for damages for the reason that:

"The hydro-pressure test which brought about the incident was conducted by Jesus Feliciano, who was neither an employee nor

agent nor representative of the defendant. Jesus Feliciano is responsible for his own acts and omissions. He alone was in control o

the manner of how he is to undertake the hydro-pressure test.

Considering that the conduct of said hydro-pressure test was under the sole and exclusive control and supervision of Jesus Felicianothe overflow with water causing the same to sip into the adjoining tank cannot be attributed to the fault or negligence of defendant

2

From the adverse decision of the trial court, private respondent appealed to the Court of Appeals which court reversed the

decision of the trial court.Thus,

"PREMISES CONSIDERED, the decision being appealed from is hereby SET ASIDE and, in lieu thereof, another rendered ordering

defendant to pay plaintiff:

1. P100,000.00 as moral damages;

2. P2,639.25 and P15,000.00 representing the actual losses suffered by plaintiff as a result of the water pollution of the

gasoline.

SO ORDERED." 3

Petitioner moved to have the above decision reconsidered but the same was denied in a Resolution dated March 9, 1992. Hence,

this recourse. As stated at the very outset, the pivotal issue in this case is whether or not petitioner should be held accountable for

the damage to private respondent due to the hydro-pressure test conducted by Jesus Feliciano.

It is a well-entrenched rule that an employer-employee relationship must exist before an employer may be held liable for the

negligence of his employee. It is likewise firmly settled that the existence or non-existence of the employer-employee relationship is

commonly to be determined by examination of certain factors or aspects of that relationship. These include: (a) the manner of

selection and engagement of the putative employee; (b) the mode of payment of wages; (c ) the presence or absence of a power to

control the putative employee's conduct,4 although the latter is the most important element. 5

In this case, respondent Court of Appeals held petitioner liable for the damage caused to private respondent as a result of the hydro

pressure test conducted by Jesus Feliciano due to the following circumstances: 61. Feliciano was hired by petitioner;

2. He received his instructions from the Field Engineer of petitioner, Mr. Roberto Mitra;

3. While he was at private respondent's service station, he also received instructions from Nick Manalo, petitioner's Poro Point Depot Superintendent;

4. Instructions from petitioner's Manila Office were also relayed to him while he was at .the job site at Baguio City;

5. His work was under the constant supervision of petitioner's engineer;

6. Before he could complete the work, he was instructed by Mr. Manalo, petitioner's Superintendent, to discontinue the same and it was turned over to

Daniel Pascua, who was likewise hired by petitioner.

Based on the foregoing, respondent Court of Appeals concluded that Feliciano was not an independent contractor but was unde

the control and supervision of petitioner in the performance of the hydro-pressure test, hence, it held petitioner liable for the

former's acts and omissions.

We are not in accord with the above finding of respondent Court of Appeals. As aptly held by the trial court, petitioner did not

exercise control and supervision over Feliciano with regard to the manner in which he conducted the hydro-pressure test. All that

petitioner did, through its Field Engineer, Roberto Mitra, was relay to Feliciano the request of private respondent for a hydro

pressure test, to determine any possible leakages in the storage tanks in her gasoline station . The mere hiring of Feliciano by

petitioner for that particular task is not the form of control and supervision contemplated by may be the basis for establishing an

employer-employee relationship between petitioner and Feliciano. The fact that there was no such control is further amplified by


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the absence of any Shell representative in the job site time when the test was conducted. Roberto Mitra was never there . Only

Feliciano and his men were.

True, it was petitioner who sent Feliciano to private respondent's gasoline station in conduct the hydro-pressure test as per the

request of private respondent herself. But this single act did not automatically make Feliciano an employee of petitioner. As

discussed earlier, more than mere hiring is required. It must further be established that petitioner is the one who is paying Felicia's

salary on a regular basis; that it has the power to dismiss said employee, and more importantly, that petitioner has control and

supervision over the work of Feliciano.The last requisite was sorely missing in the instant case.

A careful perusal of the records will lead to the conclusion that Feliciano is an independent contractor. Section 8 of Rule VIII, Book IIof the Omnibus Rules Implementing the Labor Code provides:

"Sec. 8. Job contracting. There is job contracting permissible under the Code if the following conditions are met:

(1) The contractor carries on an independent business and undertakes the contract work on his own account under his own

responsibility according to his own manner and method, free from the control and direction of his employer or principal in al

matters connected with the performance of the work except as to the results thereof; and

(2) The contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and

other materials which are necessary in the conduct of his business."

Feliciano is independently maintaining a business under a duly registered business name, "JFS Repair and Maintenance Service, " and

is duly registered with the Bureau of Domestic Trade. 7 He does not enjoy a fixed salary but instead charges a lump sum

consideration for every piece of work he accomplishes. 8 If he is not able to finish his work, he does not get paid, as what happened

in this case. 9 Further, Feliciano utilizes his own tools and equipment and has a complement of workers. Neither is he required to

work on a regular basis. Instead, he merely awaits calls from clients such as petitioner whenever repairs and maintenance services

are requested. Moreover, Feliciano does not exclusively service petitioner because he can accept other business but not from othe

oil companies. 10 All these are the hallmarks of an independent contractor.

Being an independent contractor, Feliciano is responsible for his own acts and omissions. As he alone was in control over the

manner of how he was to undertake the hydro-pressure test, he alone must bear the consequences of his negligence, if any, in

the conduct of the same.

Anent the issue of damages, the same has been rendered moot by the failure of private respondent to establish an employer-

employee relationship between petitioner and Feliciano. Absent said relationship, petitioner cannot be held liable for the acts andomissions of the independent contractor, Feliciano.

WHEREFORE, premises considered, the appealed decision of respondent Court of Appeals is hereby SET ASIDE and the decision of

the trial court REINSTATED. Without pronouncement as to costs.

SO ORDERED.

[G. R. No. 141089. August 1, 2002]

METRO MANILA TRANSIT CORPORATION and APOLINARIO AJOC, petitioners, vs. THE COURT OF APPEALS and COL. MARTIN P

SABALBURO, NAPOLEON G. SABALBURO, MARTIN G. SABALBURO, JR., BABY MARIFLOR G. SABALBURO, and MIRASOL G.

SABALBURO, respondents.

D E C I S I O N

QUISUMBING, J.:

On appeal is the decision[1] of the Court of Appeals promulgated on August 25, 1999 in CA-G.R. CV No. 45002, which affirmed in

toto the judgment of the Regional Trial Court of Makati, Branch 62, in Civil Case No. 16062. The trial court found herein petitioners

liable for the death of Florentina Sabalburo in a vehicular accident involving a passenger bus owned by petitioner Metro Manila

Transit Corporation (MMTC) and driven by petitioner Apolinario Ajoc, and ordered them to pay damages to private respondents.

The factual backdrop of this case, as found by the Court of Appeals, is as follows:

The eyewitness account of plaintiffs witness, Maria Zenaida Baylon, tends to show that in the afternoon of December 24, 1986 , she

her daughter Maria Zenia and the victim, Florentina Sabalburo, were on their way to Baclaran to buy foodstuffs for their Noche

Buena. For some time, they stood on the island at the intersection of St. Andrews Street[2] and Domestic Road, [Pasay City]

waiting for the traffic light to change so they could cross to the other side of St. Andrews Street where they intended to take a


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ride for Baclaran. When the traffic light turned red and the vehicles along St. Andrews Street had stopped, the three of them

stepped off the island. Just as they started to cross the street, she (Baylon) saw an MMTC bus coming from their right (Tramo)

which was moving at a fast speed. The next moment, the left front portion of the bus hit the victim on the right side of her head

The impact was of such force that the victims right ear was slashed off and she thereupon fell on the cement and became

unconscious. The victim was brought by the bus driver, Apolinario Ajoc and the bus conductress to the San Juan de Dios Hospita

where she was given medical attention. Florentina Sabalburo never regained consciousness and it was on January 3, 1987 that she

succumbed to her injuries.[3]

On February 16, 1987, private respondents filed a complaint[4] for damages against MMTC and its driver, Ajoc, with the Regional

Trial Court of Makati. Docketed as Civil Case No. 16062, the complaint essentially alleged that Ajoc drove the MMTC bus in awanton and reckless manner, in gross violation of traffic rules and regulations, without due regard for the safety of others, thus

causing the untimely death of the victim.

Petitioners denied the material allegations of the complaint, disclaimed any liability for the incident, and insisted that the accident

was solely due to the victims own negligence. The appellate court summed up their version of the incident as follows:

That at the time material to this case, bus no. 033, with defendant Ajoc driving, then bound towards the direction of Baclaran

proper, was slowly accelerating speed on the outer right lane of the road, in response to the go signal of the traffic light situated

in the intersection of Domestic Road [and Andrew Avenue], while the vehicles on the inner right lane which were going to turn

left towards Domestic Road were at a stop position, the deceased FLORENTINA G. SABALBURO, whose stationary position was

then covered from Ajocs peripheral vision by a big truck then bound to MIA Road [that] was at a stop position, suddenly, without

regard to her own safety and in total defiance of traffic signs designed to protect pedestrian[s], suddenly darted across the road;

Ajoc, thus caught by surprise, tried to prevent impact by releasing his accelerator pedal and applying his brakes but the time lag

between the deceaseds negligent act and Ajocs prudent and diligent reaction to the former made the impact a certainty.[5]

As special and affirmative defenses, petitioners also claimed that:

(1) MMTC hires its drivers, conductors and other employees only after they have successfully passed rigid and extensive theoretica

and practical examinations designed to determine their skills and competenceand imposes upon its drivers the duty to undergo

regular seminars in defensive driving techniques and road safety habits;*6+

(2) MMTC had taken every human care and foresight possible in carrying their passengers safely to their respective place (si c) o

destination as well as in avoiding harm to the life and limbs or risk against pedestrians so that they not be held liable;*7+ and

(3) *T+he buses of the defendant corporation, including its bus no. 033 were all properly maintainedbefore the buses left t he

garage for their respective routes on that particular day, as in all other days, they were rigidly inspected and examined and properlycertified as roadworthy.*8+

The trial court found private respondents version more credible and on August 12, 1993, decided the case as follows: WHEREFORE

premises considered, judgment is hereby rendered in favor of the plaintiff and against defendants as follows:

1. Ordering defendants to jointly and severally pay plaintiff Martin Sabalburo actual damages in the sum of P63,943.88 representing the unpaid expenses of plaintiff

in connection with the death of Florentina Sabalburo;

2. Ordering defendants to jointly and severally pay plaintiffs the sum of P180,000.00 for the loss of the earning capacity of the deceased for a period of ten (10) years;

3. Ordering defendants to jointly and severally pay plaintiff Martin Sabalburo the amount of P500,000.00 as moral damages;

4. Ordering defendants to jointly and severally pay plaintiff Martin Sabalburo the sum of P50,000.00 as exemplary damages;

5. Ordering defendants *to+ jointly and severally pay plaintiff Martin Sabalburo the sum of P50,000.00 as attorneys fees;

6. Ordering defendants jointly and severally to pay plaintiffs the costs of this suit.

Petitioners seasonably appealed to the Court of Appeals, which docketed their appeal as CA-G.R. CV No. 45002. Before the appellate

court, petitioners insisted that the accident was solely the fault of the victim since she suddenly crossed a very busy street with

complete disregard for her safety and in violation of traffic rules and regulations designed to protect pedestrians . As earlie

stated, the appellate court, in CA-G.R. CV No. 45002, affirmed the trial courts decision, thus:

IN JUDGMENT, we hold that the appeal interposed by appellants is not meritorious and the judgment of the lower court which we

find to be in accordance with law and the evidence is therefore AFFIRMED in toto. Costs against appellants.


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SO ORDERED.[10] Petitioners then moved for reconsideration, but the appellate court denied their motion in its resolution of

December 10, 1999.[11] Hence, the present petition.

Petitioners submit as sole issue for our resolution the following:

WHETHER OR NOT ARTICLE 2179[12] AS AN EXCEPTION TO ARTICLE 2176[13] OF THE CIVIL CODE IS APPLICABLE IN THE INSTANT

CASE.

Petitioners insist that a closer look at the facts established by the trial court would show that the incident happened at around 3:30

in the afternoon of December 24, 1986 or barely eight (8) hours before Christmas Eve. Thus, the victims thoughts were naturallydirected towards the Noche Buena. The victim then crossed busy Andrew Avenue for the purpose of getting a ride to Baclaran to

buy food for the Christmas Eve celebration. Since her thoughts were on the Christmas Eve feast, she crossed where there was no

pedestrian lane and while the green light for vehicular traffic was on . Petitioner MMTC submits that petitioner Ajoc cannot be

charged with negligence considering that he cannot see what is in the mind of a pedestrian. Considering that the victims own

negligence was the direct and proximate cause of her injuries and untimely demis e, it was error for the Court of Appeals not to

have applied Article 2179 of the Civil Code to the instant case.

Petitioners claim that at the time of the incident, the victims mind was preoccupied with the preparations for the Noche Bu ena, is

naught but pure conjecture and speculation, with nary a scintilla of proof to support it, according to respondents. Both the trial and

appellate courts established that the immediate and proximate cause of the victims death was the negligent and careless driv ing

by petitioner Ajoc. Therefore, the full force of Article 2176 of the Civil Code applies, concluded respondents.

In asking us to apply Article 2179 of the Civil Code, we note that petitioners are asking us to make a finding that the victi ms own

negligence was the direct and proximate cause of her death. This we cannot do. The issue of whether a person is negligent or not i

a question of fact.[14] The Supreme Court is not a trier of facts,[15] although it has the power and authority to review and reverse

the factual findings of lower courts where these do not conform to the evidence[16] or where the courts below came up with

contradictory factual findings.[17]

We have thoroughly perused the records of this case, and nowhere do we find evidence to support petitioners claim that the

victim was so engrossed in thinking about Noche Buena while crossing a busy street. Petitioners stance regarding the victims

alleged negligence is non sequitur. It simply does not follow that one who is run over by a vehicle on Christmas Eve (or any othe

holiday for that matter) is negligent because his thoughts were on the holiday festivities.

Instead, the records support private respondents claim that the MMTC bus was being driven carelessly. As found by the trial cour

and affirmed by the Court of Appeals, the victim and her companions were standing on the island of Andrew Avenue, waiting fothe traffic light to change so they could cross. Upon seeing the red light, the victim and her companions started to cross. It was

then when petitioner Ajoc, who was trying to beat the red light, hit the victim. As the court a quo noted, Ajocs claim that he

failed to see the victim and her companions proves his recklessness and lack of caution in driving his vehicle.*18+ Findings of fact o

the trial court, especially when affirmed by the Court of Appeals, are binding and conclusive on the Supreme Court.[19] More so, as

in this case, where petitioners have not adequately shown that the courts below overlooked or disregarded certain facts or

circumstances of such import as would have altered the outcome of the case. Contrary to petitioners insistence, the applicable law

in this case is Article 2176 of the Civil Code and not Article 2179.

Petitioner MMTC next contends that the Court of Appeals erred in finding it solidarily liable for damages with its driver/employee,

Ajoc, pursuant to the relevant paragraphs of Article 2180[20] of the Civil Code. It argues that the act of Ajoc in bringing the victim

to a hospital reflects MMTCs diligence in the selection and supervision of its drivers, particularly with regard to safety m easures

Hence, having exercised the diligence of a good father of a family in the selection and supervision of its employees to prevent

damage, MMTC should not be held vicariously liable.

It should be stressed, however, that whenever an employees negligence causes damage or injury to another, there instantly

arises a presumption juris tantum that there was negligence on the part of the employer, either in the selection of the employee

(culpa in eligiendo) or the supervision over him after the selection (culpa in vigilando).[21 ] Hence, to escape solidary liability for a

quasi-delict committed by his employee, an employer must rebut the presumption by presenting convincing proof that in the

selection and supervision of his employee, he has exercised the care and diligence of a good father of a family.[22] In the present

case, petitioner MMTC failed to rebut the presumption of negligence on its part.

The claim that Ajocs act of bringing the victim to the nearest medical facility shows adequate supervision by MMTC over its

employees deserves but scant consideration. For one, the act was after the fact of negligence on Ajocs part. For another, the


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evidence on record shows that Ajocs act was neither voluntary nor spontaneous; he had to be prevailed upon by the victims

companions to render assistance to his victim.[23] Moreover, the evidence to show that MMTC had exercised due diligence in the

selection and supervision of its employees consisted merely of the pertinent guidelines for the screening and selection of its

drivers, as well as periodic seminars on road safety. As found by the trial court, and affirmed by the appellate court, petitione

MMTC failed to show that its driver, Ajoc, had actually undergone such screening or had attended said seminars. As previously

held, *t+he mere formulation of various company policies on safety without showing that they were being complied with is not

sufficient to exempt (an employer) from liability arising from negligence of its employees. 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.*24+ In this case, MMTC has made no satisfactory showing that it had paid more than lip service to its guidelines and

policies in hiring and supervision. Its failure to do so cannot but warrant the proper sanctions from this Court, considering thatMMTC is a government-owned public utility organized for the public welfare. Having failed to rebut the presumption of negligence

on its part, MMTC is primarily and directly liable for the damages caused by its employee, the erring driver, Ajoc, pursuant to

Article 2180 of the Civil Code, which provides as follows:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions-, but also for those o

persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who

live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their

company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the

service of the branches in which the latter are employed or on the occasion of their functions.

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.

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the

official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or

apprentices, so long as they remain in their custody.

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 owners of public utilities fall within the scope of this article.[25] As earlier stated , MMTC is a public utility, organized and

owned by the government for public transport service. Hence, its liability to private respondents, for the negligent and reckless

acts of its driver, Ajoc, under Article 2180 of the Civil Code is both manifest and clear. WHEREFORE, the instant petition is

DISMISSED. The assailed decision of the Court of Appeals in CA-G.R. CV No. 45002 is AFFIRMED. Costs against petitioners. SO

ORDERED.Bellosillo, (Chairman), Mendoza, and Corona, JJ., concur.

[G.R. No. 148737. June 16, 2004]

ERNESTO PLEYTO and PHILIPPINE RABBIT BUS LINES, INC., petitioners, vs. MARIA D. LOMBOY and CARMELA LOMBOY

respondents.

D E C I S I O N

QUISUMBING, J.:

For review on certiorari is the Decision[1] dated October 31, 2000 of the Court of Appeals in CA-G.R. CV No. 61300, which affirmed

with modification the Decision[2] dated June 26, 1998 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No.

95-00724-D. The RTC ordered herein petitioners to solidarily pay damages to respondents. Petitioners likewise assail the

Resolution[3] dated June 21, 2001 of the appellate court, which denied their Motion for Reconsideration.

Petitioner Philippine Rabbit Bus Lines, Inc. (PRBL), with principal office at Tarlac City, Tarlac, is a public carrier, engaged in carrying

passengers and goods for a fare. It serviced various routes in Central and Northern Luzon. Petitioner Ernesto Pleyto was a bus

driver employed by PRBL at the time of the incident in question.


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Respondent Maria D. Lomboy of Calasiao, Pangasinan, is the surviving spouse of the late Ricardo Lomboy, who died in Pasolingan

Gerona, Tarlac, in a vehicular accident at around 11:30 a.m. of May 16, 1995 . The accident was a head-on collision between the

PRBL bus driven by petitioner Pleyto and the car where Ricardo was a passenger. Respondent Carmela Lomboy is the eldest

daughter of Ricardo and Maria Lomboy. Carmela suffered injuries requiring hospitalization in the same accident which resulted in

her fathers death.

On November 29, 1995, herein respondents, as pauper-litigants, filed an action for damages against PRBL and its driver, Pleyto

with the RTC of Dagupan City. In their complaint, which was docketed as Civil Case No. 95-00724-D, the Lomboys prayed that they

be indemnified for the untimely death of Ricardo Lomboy, his lost earnings, the medical and hospitalization expenses of Carmelaand moral damages.

The facts, established during trial and affirmed by the appellate court, are as follows:

At approximately 11:30 a.m. of May 16, 1995, PRBL Bus No. 1539, with Plate No. CVD 556, driven by petitioner Pleyto, was traveling

along MacArthur Highway in Gerona, Tarlac bound for Vigan, Ilocos Sur. It was drizzling that morning and the macadam road was

wet. Right in front of the bus, headed north, was the tricycle with Plate No. CX 7844, owned and driven by one Rodolfo Esguerra.

According to Rolly Orpilla, a witness and one of the bus passengers, Pleyto tried to overtake Esguerras tricycle but hit it inst ead

Pleyto then swerved into the left opposite lane. Coming down the lane, some fifty meters away, was a southbound Mitsubishi

Lancer car, with Plate No. PRS 941, driven by Arnulfo Asuncion. The car was headed for Manila with some passengers. Seated

beside Arnulfo was his brother-in-law, Ricardo Lomboy, while in the back seat were Ricardos 18-year old daughter Carmela and her

friend, one Rhino Daba. PRBL Bus No. 1539 smashed head-on the car, killing Arnulfo and Ricardo instantly. Carmela and Rhino

suffered injuries, but only Carmela required hospitalization.

In their Answer, petitioners PRBL and Ernesto Pleyto both claimed that the bus was running slowly at the time of the accident

They pointed out that Bus No. 1539 had been inspected by driver Pleyto and examined by a mechanic prior to the trip, in accordance

with the companys standard operating procedure. It was found in good working condition. Pleyto claimed that while cruising along

the highway at Gerona, Tarlac, he noticed Esguerras tricycle and followed it at a safe distance after he was unable to overtake it

Suddenly and without warning, the tricycle stopped in the middle of the road. Pleyto stepped on the brakes and the bus lost

speed. But, since it skidded towards the direction of the tricycle, he swerved the bus to the other lane to avoid hitting it, only to

collide with the Manila-bound Mitsubishi car.

On June 26, 1998, the trial court decided Civil Case No. 95-00724-D as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendants ordering thedefendants to pay solidarily the plaintiffs the following amounts:

1) P50,000.00 as indemnification for the death of Ricardo Lomboy;

2) P1,642,521.00 for lost earnings of Ricardo Lomboy;

3) P59,550.00as actual damages for the funeral, wake, religious services and prayer for the soul of the departed;

4) P52,000.00 for the medical treatment and medicine of Carmela Lomboy;

5) P500,000.00 as moral damages for the wife and children excluding Carmela Lomboy;

6) P50,000.00 as moral damages for Carmela Lomboy; and

7) To pay costs.

The filing fee the plaintiffs should have paid is hereby ordered to be paid by the plaintiffs to the Clerk of Court of this Court upon

satisfaction of the foregoing amounts to the plaintiffs by the defendants.

In ruling for respondents, the RTC found Pleyto negligent and lacking in precaution when he overtook the tricycle with complete

disregard of the approaching car in the other lane. It found the testimony of Rolly Orpi

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