Torts Cases Dec 1

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. No. L-12219 March 15, 1918AMADO PICART, plaintiff-appellant, vs.FRANK SMITH, JR., defendant-appellee.Alejo Mabanag for appellant.G. E. Campbell for appellee.STREET, J.:In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road.The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in the case we believe that when the accident occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days.The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid

the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm.It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair

nevertheless the amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now before us, where the defendant was actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur. Johnson, J., reserves his vote.

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

EN BANC[G.R. No. 131588. March 27, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLENN DE LOS SANTOS, accused-appellant.D E C I S I O N

DAVIDE, JR., C.J.:One may perhaps easily recall the gruesome and tragic event in Cagayan de Oro City, reported over print and

broadcast media, which claimed the lives of several members of the Philippine National Police (PNP) who were undergoing an “endurance run” as part of the Special Counter Insurgency Operation Unit Training. Not much effort was spared for the search of the one responsible therefor, as herein accused-appellant Glenn de los Santos (hereafter GLENN) immediately surrendered to local authorities. GLENN was then charged with the crimes of Multiple Murder, Multiple Frustrated Murder, and Multiple Attempted Murder in an information filed with the Regional Trial Court of Cagayan de Oro City. The information reads as follows:That on or about October 05, 1995, in the early morning, at Maitum Highway, within Barangay Puerto, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, taking advantage of his driven motor vehicle, an Isuzu Elf, and with treachery, did then and there willfully, unlawfully and feloniously kill and inflict mortal wounds from … behind in a sudden and unexpected manner with the use of said vehicle … members of the Philippine National Police (PNP), undergoing a Special Training Course (Scout Class 07-95), wearing black T-shirts and black short pants, performing an “Endurance Run” of 35 kilometers coming from their camp in Manolo Fortich, Bukidnon, heading to Regional Training Headquarters in Camp Alagar, Cagayan de Oro City, running in a column of 3, with a distance of two feet, more or less, from one trainee to another, thus forming a [sic] three lines, with a length of more or less 50 meters from the 1st man to the last man, unable to defend themselves, because the accused ran or moved his driven vehicle on the direction of the backs of the PNP joggers in spite of the continuous warning signals made by six of the joggers, namely: PO1 Allan Tabacon Espana, Waldon Sinda Sacro, Lemuel Ybanez Pangca, Artemio Jamil Villaflor, Nardo Omasas Collantes and Joselito Buyser Escartin, who were at the rear echelon of said run, acting as guards, by continuously waving their hands at the accused for him to take the left lane of the highway, going to the City proper, from a distance of 100 meters away from the jogger’s rear portion, but which accused failed and refused to heed; instead, he proceeded to operate his driven vehicle (an Isuzu Elf) on high speed directly towards the joggers, thus forcing the rear guard[s] to throw themselves to [a] nearby canal, to avoid injuries, then hitting, bumping, or ramming the first four (4) victims, causing the bodies to be thrown towards the windshields of said Isuzu Elf, breaking said windshield, and upon being aware that bodies of the victims flew on the windshield of his driven vehicle, instead of applying his brake, continued to travel on a high speed, this time putting off its headlights, thus hitting the succeeding joggers on said 1st line, as a result thereof the following were killed on the spot:1. Vincent Labis Rosal 7. Antonio Flores Lasco2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas3. Jose Arden M. Atisa 9. Roberto Cabussao Loren4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo6. Arnulfo Limbago Jacutin 12. Rolando Paremcio PancitoWhile another trainee/victim, Antonio Palomino Mino, died few days after the incident, while the following eleven (11) other trainee/victims were seriously wounded, the accused thus performing all the acts of execution which would produce the crime of Murder as a consequence but nevertheless did not produce it by reason of some cause other than said accused’s spontaneous desistance, that is, by the timely and able medical assistance rendered on the following victims which prevented their death, to wit:1. Rey Go Boquis 7. Melchor Hinlo2. Rene Tuako Calabria 8. Noel Ganzan Oclarit3. Nonata Ibarra Erno 9. Charito Penza Gepala4. Rey Tamayo Estofil 10. Victor Malicse Olavo5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza6. Arman Neri HernaizWhile the following Police Officers I (POI) sustained minor injuries, to wit:1. Romanito Andrada 6. Romualdo Cotor Dacera2. Richard Canoy Caday 7. Ramil Rivas Gaisano

3. Rey Cayusa 8. Dibangkita Magandang4. Avelino Chua 9. Martin Olivero Pelarion5. Henry Gadis Coubeta 10. Flordicante Martin Piligroafter which said accused thereafter escaped from the scene of the incident, leaving behind the victims afore-enumerated helpless.Contrary to Article 248, in relation to Article 6 of the Revised Penal Code.

The evidence for the prosecution disclose that the Special Counter Insurgency Operation Unit Training held at Camp Damilag, Manolo Fortich, Bukidnon, started on 1 September 1995 and was to end on 15 October 1995. The last phase of the training was the “endurance run” from said Camp to Camp Alagar, Cagayan de Oro City. The run on 5 October 1995 started at 2:20 a.m. The PNP trainees were divided into three columns: the first and second of which had 22 trainees each, and the third had 21. The trainees were wearing black T-shirts, black short pants, and green and black combat shoes. At the start of the run, a Hummer vehicle tailed the jogging trainees. When they reached Alae, the driver of the Hummer vehicle was instructed to dispatch advanced security at strategic locations in Carmen Hill. Since the jogging trainees were occupying the right lane of the highway, two rear security guards were assigned to each rear column. Their duty was to jog backwards facing the oncoming vehicles and give hand signals for other vehicles to take the left lane.[if !supportFootnotes][1][endif]

Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that they were assigned as rear guards of the first column. They recalled that from Alae to Maitum Highway, Puerto, Cagayan de Oro City, about 20 vehicles passed them, all of which slowed down and took the left portion of the road when signaled to do so. [if !

supportFootnotes][2][endif]

While they were negotiating Maitum Highway, they saw an Isuzu Elf truck coming at high speed towards them. The vehicle lights were in the high beam. At a distance of 100 meters, the rear security guards started waving their hands for the vehicle to take the other side of the road, but the vehicle just kept its speed, apparently ignoring their signals and coming closer and closer to them. Realizing that the vehicle would hit them, the rear guards told their co-trainees to “retract.” The guards forthwith jumped in different directions. Lemuel and Weldon saw their co-trainees being hit by the said vehicle, falling like dominoes one after the other. Some were thrown, and others were overrun by the vehicle. The driver did not reduce his speed even after hitting the first and second columns. The guards then stopped oncoming vehicles to prevent their comrades from being hit again.[if !supportFootnotes][3][endif]

The trial court judge, together with the City Prosecutor, GLENN and his counsel, conducted an ocular inspection of the place where the incident happened. They then proceeded to inspect the Isuzu Elf at the police station. The City Prosecutor manifested, thus:The vehicle which we are now inspecting at the police station is the same vehicle which [was] involved in the October 5, 1995 incident, an Isuzu Elf vehicle colored light blue with strips painting along the side colored orange and yellow as well as in front. We further manifest that … the windshield was totally damaged and 2/3 portion of the front just below the windshield was heavily dented as a consequence of the impact. The lower portion was likewise damaged more particularly in the radiator guard. The bumper of said vehicle was likewise heavily damaged in fact there is a cut of the plastic used as a bumper; that the right side of the headlight was likewise totally damaged. The front signal light, right side was likewise damaged. The side mirror was likewise totally damaged. The height of the truck from the ground to the lower portion of the windshield is 5 ft. and the height of the truck on the front level is 5 ft.[if !supportFootnotes][4][endif]

PO3 Jose Cabugwas testified that he was assigned at the Investigation Division at Precinct 6, Cagayan de Oro City, and that at 4 a.m. of 5 October 1995, several members of the PNP came to their station and reported that they had been bumped by a certain vehicle. Immediately after receiving the report, he and two other policemen proceeded to the traffic scene to conduct an ocular inspection. Only bloodstains and broken particles of the hit-and-run vehicle remained on the highway. They did not see any brake marks on the highway, which led him to conclude that the brakes of the vehicle had not been applied. The policemen measured the bloodstains and found them to be 70 ft. long.[if !supportFootnotes][5][endif]

GLENN’s version of the events that transpired that evening is as follows:At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting Galindez and the latter’s fellow

band members to provide them with transportation, if possible an Isuzu Forward, that would bring their band instruments, band utilities and band members from Macasandig and Corrales, Cagayan de Oro City, to Balingoan. From there, they were supposed to be taken to Mambajao, Camiguin, to participate in the San Miguel-sponsored “Sabado Nights” of the Lanzones Festival from 5-7 October 1995. It was the thirteenth time that Enting had asked

such a favor from him.[if !supportFootnotes][6][endif] Since the arrangement was to fetch Galindez and his group at 4:00 a.m. of 5 October 1995, GLENN immediately went to Cugman, Cagayan de Oro City, to get his Isuzu Elf truck. After which, he proceeded back to his house at Bugo, Cagayan de Oro City, and told his wife that he would go to Bukidnon to get his aunt’s Isuzu Forward truck because the twenty band members and nine utilities and band instruments could not be accommodated in the Isuzu Elf truck. Three of his friends asked to go along, namely, Roldan Paltonag, Andot Peña, and a certain Akut.[if !supportFootnotes][7][endif]

After leaving GLENN’s house, the group decided to stop at Celebrity Plaza Restaurant. GLENN saw his “kumpare” Danilo Cosin and the latter’s wife, and joined them at the table. GLENN finished three bottles of pale pilsen beer. When the Cosin spouses left, GLENN joined his travelling companions at their table. The group left at 12:00 midnight for Bukidnon. The environment was dark and foggy, with occasional rains. It took them sometime looking for the Isuzu Forward truck. Finally, they saw the truck in Agusan Canyon. Much to their disappointment, the said truck had mechanical problems. Hence, GLENN decided to go back to Cagayan de Oro City to tell Enting that they would use the Isuzu Elf truck instead.[if !supportFootnotes][8][endif]

GLENN drove slowly because the road was slippery. The vicinity was dark: there was no moon or star; neither were there lampposts. From the Alae junction, he and his companions used the national highway, traversing the right lane going to Cagayan de Oro City. At the vicinity of Mambatangan junction, as the Elf was negotiating a left curve going slightly downward, GLENN saw a very bright and glaring light coming from the opposite direction of the national highway. GLENN blinked his headlights as a signal for the other driver to switch his headlights from bright to dim. GLENN switched his own lights from bright to dim and reduced his speed from 80 to 60 kilometers per hour. It was only when the vehicles were at a distance of 10 to 15 meters from each other that the other car’s headlights were switched from bright to dim. As a result, GLENN found it extremely hard to adjust from high brightness to sudden darkness.[if !supportFootnotes][9][endif]

It was while the truck was still cruising at a speed of 60 km./hr., and immediately after passing the oncoming vehicle, that GLENN suddenly heard and felt bumping thuds. At the sound of the first bumping thuds, GLENN put his right foot on the brake pedal. But the impact was so sudden that he was astonished and afraid. He was trembling and could not see what were being bumped. At the succeeding bumping thuds, he was not able to pump the brake, nor did he notice that his foot was pushing the pedal. He returned to his senses only when one of his companions woke up and said to him: “Gard, it seems we bumped on something. Just relax, we might all die.” Due to its momentum, the Elf continued on its track and was able to stop only when it was already very near the next curve. [if !


GLENN could not distinguish in the darkness what he had hit, especially since the right headlights of the truck had been busted upon the first bumping thuds. In his confusion and fear, he immediately proceeded home. GLENN did not report the incident to the Puerto Police Station because he was not aware of what exactly he had hit. It was only when he reached his house that he noticed that the grill of the truck was broken; the side mirror and round mirror, missing; and the windshield, splintered. Two hours later, he heard on Bombo Radyo that an accident had occurred, and he realized that it was the PNP group that he had hit. GLENN surrendered that same day to Governor Emano.[if !supportFootnotes][11][endif]

The defense also presented Crescente Galindez, as well as Shirley Almazan of the PAG-ASA Office, Cagayan de Oro City. The former testified that when he went to GLENN’s house at about 10:00 p.m. of 4 October 1995, there was heavy rain; and at 12:00 midnight, the rain was moderate. He corroborated GLENN’s testimony that he (Crescente) went to GLENN’s house that evening in order to hire a truck that would bring the band instruments, band utilities and band members from Cagayan de Oro to Camiguin for the Lanzones Festival. [if !

supportFootnotes][12][endif] Almazan, on the other hand, testified that based on an observed weather report within the vicinity of Cagayan de Oro City, there was rain from 8:00 p.m. of October 1995 to 2:00 a.m. the next day; and the sky was overcast from 11:00 p.m. of 4 October 1995 to 5:00 a.m. of 5 October 1995. What she meant by “overcast” is that there was no break in the sky; and, definitely, the moon and stars could not be seen.[if !supportFootnotes][13][endif]

The prosecution presented rebuttal witness Danilo Olarita whose house was just 100 meters away from the place where the incident occurred. He testified that he was awakened on that fateful night by a series of loud thuds. Thereafter, a man came to his house and asked for a glass of water, claiming to have been hit by a vehicle. Danilo further stated that the weather at the time was fair, and that the soil was dry and not muddy.[if !supportFootnotes][14][endif]

In its decision of 26 August 1997, the trial court convicted GLENN of the complex crime of multiple murder, multiple frustrated murder and multiple attempted murder, with the use of motor vehicle as the qualifying circumstance. It sentenced him to suffer the penalty of death and ordered him to indemnify each group of the heirs

of the deceased in the amount of P75,000; each of the victims of frustrated murder in the amount of P30,000; and each of the victims of attempted murder in the amount of P10,000.

Hence, this automatic review, wherein GLENN contends that the trial court erred (a) in finding that he caused the Isuzu Elf truck to hit the trainees even after seeing the rear guards waving and the PNP trainees jogging; (b) in finding that he caused the truck to run even faster after noticing the first thuds; and (c) in finding that he could still have avoided the accident from a distance of 150 meters, despite the bright and glaring light from the oncoming vehicle.

In convicting GLENN, the trial court found that “the accused out of mischief and dare-devilness [sic], in the exhilaration of the night breeze and having dr[u]nk at least three bottles of beer earlier, merely wanted to scare the rear guard[s] and see them scamper away as they saw him and his vehicle coming at them to ram them down.” [if !


Likewise, the OSG posits that “the evil motive of the appellant in injuring the jogging trainees was probably brought by the fact that he had dr[u]nk a total of three (3) bottles of beer earlier before the incident.” [if !supportFootnotes][16]

[endif]

Not to be outdone, the defense also advances another speculation, i.e., “the possibility that [GLENN] could have fallen asleep out of sheer fatigue in that unholy hour of 3:30 in the early morning, and thus was not able to stop his Isuzu Elf truck when the bumping thuds were occurring in rapid succession; and after he was able to wake up upon hearing the shout of his companions, it was already too late, as the bumping thuds had already occurred.” [if !


Considering that death penalty is involved, the trial court should have been more scrupulous in weighing the evidence. If we are to subscribe to the trial court’s finding that GLENN must have merely wanted to scare the rear guards, then intent to kill was wanting. In the absence of a criminal intent, he cannot be held liable for an intentional felony. All reasonable doubt intended to demonstrate negligence, and not criminal intent, should be indulged. [if !


From the convergence of circumstances, we are inclined to believe that the tragic event was more a product of reckless imprudence than of a malicious intent on GLENN’s part.

First, as testified to by prosecution rebuttal witness Danilo Olarita, the place of the incident was “very dark,” as there was no moon. And according to PAG-ASA’s observed weather report within the vicinity of Cagayan de Oro City covering a radius of 50 kilometers, at the time the event took place, the sky was overcast, i.e., there was absolutely no break in the thick clouds covering the celestial dome globe; hence, there was no way for the moon and stars to be seen. Neither were there lampposts that illuminated the highway.

Second, the jogging trainees and the rear guards were all wearing black T-shirts, black short pants, and black and green combat shoes, which made them hard to make out on that dark and cloudy night. The rear guards had neither reflectorized vests or gloves nor flashlights in giving hand signals.

Third, GLENN was driving on the proper side of the road, the right lane. On the other hand, the jogging trainees were occupying the wrong lane, the same lane as GLENN’s vehicle was traversing. Worse, they were facing the same direction as GLENN’s truck such that their backs were turned towards the oncoming vehicles from behind.

Fourth, no convincing evidence was presented to rebut GLENN’s testimony that he had been momentarily blinded by the very bright and glaring lights of the oncoming vehicle at the opposite direction as his truck rounded the curve. He must have been still reeling from the blinding effect of the lights coming from the other vehicle when he plowed into the group of police trainees.

Indeed, as pointed out by appellant, instinct tells one ‘to stop or swerve to a safe place the moment he sees a cow, dog, or cat on the road, in order to avoid bumping or killing the same”; and more so if the one on the road is a person. It would therefore be inconceivable for GLENN, then a young college graduate with a pregnant wife and three very young children who were dependent on him for support, to have deliberately hit the group with his truck.

The conclusion of the trial court and the OSG that GLENN intentionally rammed and hit the jogging trainees was premised on the assumption that despite the first bumping thuds, he continued to accelerate his vehicle instead of applying his brakes, as shown by the absence of brake marks or skid marks along the traffic scene.

For its part, the defense attributed the continuous movement of GLENN’s vehicle to the confluence of the following factors:1. The Isuzu Elf truck, a huge vehicle, was moving fast that even if the brakes were applied the truck would have still proceeded further on account of its momentum, albeit at a reduced speed, and would have stopped only after a

certain distance.2. The national highway, from Alae to Puerto, Cagayan de Oro City, was made of fine and smooth asphalt, free from obstructions on the road such as potholes or excavations. Moreover, the highway was going a little bit downward, more particularly from the first curve to the place of incident. Hence, it was easier and faster to traverse a distance of “20 to 25 meters which was the approximate aggregate distance” from the first elements up to the 22nd or 23rd elements of the columns.3. The weight of each of the trainees (the average of which could be 50 kilograms only) could hardly make an impact on the 3,900 kilograms truck, which was moving at a speed ranging from 60 to 70 kilometers per hour.4. Considering that the width of the truck from the right to the left tires was wide and the under chassis was elevated, the truck could just pass over two persons lying flat on the ground without its rubber tires running over the bodies. Thus, GLENN would not notice any destabilization of the rubber tires.5. Since the police trainees were jogging in the same direction as the truck was proceeding, the forward movements constituted a force parallel to the momentum of the forward-moving truck such that there was even much lesser force resisting the said ongoing momentum.

It is a well-entrenched rule that if the inculpatory facts are capable of two or more explanations -- one consistent with the innocence or lesser degree of liability of the accused, and the other consistent with his guilt or graver responsibility -- the Court should adopt the explanation which is more favorable to the accused. [if !supportFootnotes]

[19][endif]

We are convinced that the incident, tragic though it was in light of the number of persons killed and seriously injured, was an accident and not an intentional felony. It is significant to note that there is no shred of evidence that GLENN had an axe to grind against the police trainees that would drive him into deliberately hitting them with intent to kill.

Although proof of motive is not indispensable to a conviction especially where the assailant is positively identified, such proof is, nonetheless, important in determining which of two conflicting theories of the incident is more likely to be true.[if !supportFootnotes][20][endif] Thus, in People v. Godinez,[if !supportFootnotes][21][endif] this Court said that the existence of a motive on the part of the accused becomes decisive in determining the probability or credibility of his version that the shooting was purely accidental.

Neither is there any showing of “a political angle of a leftist-sponsored massacre of police elements disguised in a vehicular accident.”[if !supportFootnotes][22][endif] Even if there be such evidence, i.e., that the motive of the killing was in furtherance of a rebellion movement, GLENN cannot be convicted because if such were the case, the proper charge would be rebellion, and not murder.[if !supportFootnotes][23][endif]

GLENN’s offense is in failing to apply the brakes, or to swerve his vehicle to the left or to a safe place the moment he heard and felt the first bumping thuds. Had he done so, many trainees would have been spared.

We have once said:A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, and those of his fellow-beings, would ever be exposed to all manner of danger and injury.[if !supportFootnotes][24][endif]

The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this prevision, is always necessary before negligence can be held to exist.[if !supportFootnotes][25][endif]

GLENN showed an inexcusable lack of precaution. Article 365 of the Revised Penal Code states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration (1) his employment or occupation; (2) his degree of intelligence; (4) his physical condition; and (3) other circumstances regarding persons, time and place.

GLENN, being then a young college graduate and an experienced driver, should have known to apply the brakes or swerve to a safe place immediately upon hearing the first bumping thuds to avoid further hitting the other trainees. By his own testimony, it was established that the road was slippery and slightly going downward; and,

worse, the place of the incident was foggy and dark. He should have observed due care in accordance with the conduct of a reasonably prudent man, such as by slackening his speed, applying his brakes, or turning to the left side even if it would mean entering the opposite lane (there being no evidence that a vehicle was coming from the opposite direction). It is highly probable that he was driving at high speed at the time. And even if he was driving within the speed limits, this did not mean that he was exercising due care under the existing circumstances and conditions at the time.

Considering that the incident was not a product of a malicious intent but rather the result of a single act of reckless driving, GLENN should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries.

Article 48 of the Revised Penal Code provides that when the single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Since Article 48 speaks of felonies, it is applicable to crimes through negligence in view of the definition of felonies in Article 3 as “acts or omissions punishable by law” committed either by means of deceit (dolo) or fault (culpa).[if !supportFootnotes][26][endif] In Reodica v. Court of Appeals,[if !supportFootnotes][27][endif] we ruled that if a reckless, imprudent, or negligent act results in two or more grave or less grave felonies, a complex crime is committed. Thus, in Lapuz v. Court of Appeals,[if !supportFootnotes][28][endif]

the accused was convicted, in conformity with Article 48 of the Revised Penal Code, of the complex crime of “homicide with serious physical injuries and damage to property through reckless imprudence,” and was sentenced to a single penalty of imprisonment, instead of the two penalties imposed by the trial court. Also, in Soriao v. Court of Appeals,[if !supportFootnotes][29][endif] the accused was convicted of the complex crime of “multiple homicide with damage to property through reckless imprudence” for causing a motor boat to capsize, thereby drowning to death its twenty-eight passengers.

The slight physical injuries caused by GLENN to the ten other victims through reckless imprudence, would, had they been intentional, have constituted light felonies. Being light felonies, which are not covered by Article 48, they should be treated and punished as separate offenses. Separate informations should have, therefore, been filed.

It must be noted that only one information (for multiple murder, multiple frustrated murder and multiple attempted murder) was filed with the trial court. However, nothing appears in the record that GLENN objected to the multiplicity of the information in a motion to quash before his arraignment. Hence, he is deemed to have waived such defect.[if !supportFootnotes][30][endif] Under Section 3, Rule 120 of the Rules of Court, when two or more offenses are charged in a single complaint or information and the accused fails to object to it before trial, the court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each of them.

Now, we come to the penalty. Under Article 365 of the Revised Penal Code, any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; and if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. The last paragraph thereof provides that the penalty next higher in degree shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in his hand to give. This failure to render assistance to the victim, therefore, constitutes a qualifying circumstance because the presence thereof raises the penalty by one degree. [if !

supportFootnotes][31][endif] Moreover, the fifth paragraph thereof provides that in the imposition of the penalty, the court shall exercise its sound discretion without regard to the rules prescribed in Article 64. Elsewise stated, in felonies through imprudence or negligence, modifying circumstances need not be considered in the imposition of the penalty. [if !


In the case at bar, it has been alleged in the information and proved during the trial that GLENN “escaped from the scene of the incident, leaving behind the victims.” It being crystal clear that GLENN failed to render aid to the victims, the penalty provided for under Article 365 shall be raised by one degree. Hence, for reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries, the penalty would be prision correccional in its maximum period to prision mayor in its medium period. Applying Article 48, the maximum of said penalty, which is prision mayor in its medium period, should be imposed. For the separate offenses of reckless imprudence resulting in slight physical injuries, GLENN may be sentenced to suffer, for each count, the penalty of arresto mayor in its minimum period.

Although it was established through the testimonies of prosecution witness Lemuel Pangca[if !supportFootnotes][33]

[endif] and of GLENN that the latter surrendered to Governor Emano of Misamis Oriental, such mitigating circumstance need not be considered pursuant to the aforestated fifth paragraph of Article 365.

Under the Indeterminate Sentence Law, GLENN may be sentenced to suffer an indeterminate penalty whose minimum is within the range of the penalty next lower in degree to that prescribed for the offense, and whose maximum is that which could properly be imposed taking into account the modifying circumstances. Hence, for the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries, qualified by his failure to render assistance to the victims, he may be sentenced to suffer an indeterminate penalty ranging from arresto mayor in its maximum period to prision correccional in its medium period, as minimum, to prision mayor in its medium period, as maximum. As to the crimes of reckless imprudence resulting in slight physical injuries, since the maximum term for each count is only two months the Indeterminate Sentence Law will not apply.

As far as the award of damages is concerned, we find a necessity to modify the same. Conformably with current jurisprudence,[if !supportFootnotes][34][endif] we reduce the trial court’s award of death indemnity from P75,000 to P50,000 for each group of heirs of the trainees killed. Likewise, for lack of factual basis, we delete the awards of P30,000 to each of those who suffered serious physical injuries and of P10,000 to each of those who suffered minor physical injuries.WHEREFORE, the decision of the Regional Trial Court, Branch 38, Cagayan de Oro City, is hereby SET ASIDE, and another one is rendered holding herein accused-appellant GLENN DE LOS SANTOS guilty beyond reasonable doubt of (1) the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries, and sentencing him to suffer an indeterminate penalty of four (4) years of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum; and (2) ten (10) counts of reckless imprudence resulting in slight physical injuries and sentencing him, for each count, to the penalty of two (2) months of arresto mayor. Furthermore, the awards of death indemnity for each group of heirs of the trainees killed are reduced to P50,000; and the awards in favor of the other victims are deleted. Costs against accused-appellant.

SO ORDERED.Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes,

Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.Puno, J., abroad on official business.

THIRD DIVISION[A.M. No. 01-1463. March 20, 2001]

EVELYN ACUÑA, complainant, vs. RODOLFO A. ALCANTARA, Sheriff IV, Regional Trial Court, Branch 50, Villasis, Pangasinan, respondent.

D E C I S I O NVITUG, J.:

In a verified letter-complaint, dated 27 October 1998, complainant Evelyn Acuña charged Rodolfo A. Alcantara, Sheriff IV of the Regional Trial Court of Villasis, Pangasinan, Branch 50, with negligence and manifest partiality relative to his conduct in Civil Case No. V-0413 (“Mrs. Gloria R. Ocampo vs. Mrs. Evelyn Acuña”) for “recovery of sum of money with prayer for preliminary attachment.” The trial court, on 23 December 1997, granted the preliminary attachment prayed for by plaintiff Ocampo. The writ was thereupon issued on the two flatboats of herein complainant Acuña.

Complainant averred that, in implementing the writ, respondent sheriff had failed to take the necessary precautions in protecting the attached property. Respondent entrusted the flatboats to a relative of plaintiff Ocampo under whose care one of the flatboats submerged. Later, the flatboats were turned over by respondent to the Philippine Coast Guard of Sual, Pangasinan, in which custody the flatboats were totally damaged due to several typhoons that visited the area.

Respondent explained, when required to comment, that when he implemented the writ of attachment, the flatboats were not seaworthy. Initially, he sought the assistance of the Philippine Coast Guard of Sual, Pangasinan, in safekeeping the flatboats but the Coast Guard refused to accept such custody without a court order. Meanwhile, respondent was constrained to dock the flatboats at the Sual port, tied them to a bamboo post and entrusted them to a son of plaintiff Ocampo although the keys were kept by the latter. Sometime in May, 1998, after being informed that one of the flatboats had sunk, he asked for a court order to have the Philippine Coast Guard take possession of the flatboats. The court directed accordingly. Respondent implemented the order of the trial court, dated 05 June 1998, by hiring men at his own expense to lift the submerged flatboat and by depositing the two flatboats with the Philippine Coast Guard in Sual, Pangasinan. On 18 September 1998, respondent received a request from the Philippine Coast Guard to transfer the flatboats to a safer place to prevent them from further deteriorating. Before he could act on the request, however, typhoons “Gading,” “Illiang” and “Loleng” struck the place and destroyed the flatboats.

Respondent admitted having initially turned over the custody of the boats to the son of the plaintiff but that he did so only because the Philippine Coast Guard had then refused to render assistance to him; otherwise, he contended, he had taken all the necessary measures to protect the attached property.

The case was referred by the Court to the Office of the Court Administrator (“OCA”) for evaluation, report and recommendation. Eventually, the OCA came out with its evaluation, report and recommendation; it said:“The complaint is partly meritorious.“In Tantingco vs. Aguilar (81 SCRA 599, 604) this Court held that:“‘Having taken possession of the property under the writ of attachment, it was respondent’s duty to protect the property from damages or loss. The respondent was bound to exercise ordinary and reasonable care for the preservation of the properties.’“More to the point is the case of National Bureau of Investigation vs. Tuliao (270 SCRA 351, 356). In this case, this Court citing the case of Walker vs. McMicking (14 Phil. 688, 673) said:“‘xxx A verbal declaration of seizure or service of a writ of attachment is not sufficient. There must be an actual taking of possession and placing of the attached property under the control of the officer or someone representing him. (Hallester vs. Goodale, 8 Cann., 332, 21 Am. Dec., 674; Jones vs. Hoard, 99 Ga., 451, 59 Am. St. Rep., 231)‘We believe that xxx to constitute a valid levy or attachment, the officer levying it must take actual possession of the property attached as far as xxx practicable (under the circumstances). He must put himself in a position to, and must assert and, in fact, enforce a dominion over the property adverse to and exclusive of the attachment debtor and such property must be in his substantial presence and possession (Corniff vs. Cock, 95 Ga., 61, 51 Am. St. Rep. 55, 61) Of course, this does not mean that the attaching officer may not, under an arrangement satisfactory to himself, put anyone in possession of the property for the purpose of guarding it, but he can not in any way relieve himself from liability to the parties interested in said attachment.’“Applying the above-quoted principle to the instant case, it is apparent that respondent was negligent in taking care of the boats because he turned over possession thereof to the son of the plaintiff. His reason that the Coast Guard

did not accept the boats because he had no court order can not exonerate him. In view of the Coast Guard’s refusal, what respondent should have done under the circumstances was to assign a disinterested party, at the expense of the plaintiff, to take care of the boats. Even then, this error could have been rectified if respondent immediately asked the court for an order to transfer custody of the boats to the Coast Guard. Respondent did this only when one of the boats had already sunk. We, however, believe that this is the only extent of respondent’s liability. Respondent was able to eventually transfer the possession of the boats to the Coast Guard in whose custody the boats were totally destroyed by storms. The loss of the boats cannot thus be blamed entirely on respondent but it can not be denied that his initial action may have contributed to the deterioration of the sea-worthiness of the boats.”

The OCA recommended that respondent be FINED in the amount of P5,000.00 for negligence in the performance of his duties.

The Court adopts the recommendation of the Office of the Court Administrator.The OCA did not err in holding that respondent sheriff was guilty of negligence. The refusal of the

Philippine Coast guard to initially take custody of the flatboats should have prompted him to forthwith ask the trial court for an order to have the custody of the flatboats transferred to the Philippine Coast Guard. He delayed in seeking for such a court order. But while respondent failed to thusly implement the writ of preliminary attachment and to safekeep the property in his custody,[if !supportFootnotes][1][endif] it would appear that he exerted efforts to protect the flatboats. The eventual deterioration and loss of the boats had, in fact, been caused by calamities beyond his control. Given the circumstances, by and large extant from the records of the case, the Court deems it appropriate to impose on respondent a fine but on the reduced amount of from P5,000.00 recommended by the OCA to P3,000.00.WHEREFORE, the Court, finding Rodolfo A. Alcantara, Sheriff IV of the Regional Trial Court of Villasis, Pangasinan, Branch 50, guilty of simple negligence, hereby imposes upon him a FINE of THREE THOUSAND (P3,000.00) PESOS but warns that a repetition of the same or like infraction will be dealt with severely.

SO ORDERED.Melo (Chairman), Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

THIRD DIVISION[G.R. No. 143133. June 5, 2002]

BELGIAN OVERSEAS CHARTERING AND SHIPPING N.V. and JARDINE DAVIES TRANSPORT SERVICES, INC., petitioners, vs. PHILIPPINE FIRST INSURANCE CO., INC., respondent.

D E C I S I O NPANGANIBAN, J.:

Proof of the delivery of goods in good order to a common carrier and of their arrival in bad order at their destination constitutes prima facie fault or negligence on the part of the carrier. If no adequate explanation is given as to how the loss, the destruction or the deterioration of the goods happened, the carrier shall be held liable therefor.Statement of the Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the July 15, 1998 Decision[if !supportFootnotes][1][endif] and the May 2, 2000 Resolution[if !supportFootnotes][2][endif] of the Court of Appeals[if !supportFootnotes]

[3][endif] (CA) in CA-GR CV No. 53571. The decretal portion of the Decision reads as follows:“WHEREFORE, in the light of the foregoing disquisition, the decision appealed from is hereby REVERSED and SET ASIDE. Defendants-appellees are ORDERED to jointly and severally pay plaintiffs-appellants the following:‘1) FOUR Hundred Fifty One Thousand Twenty-Seven Pesos and 32/100 (P451,027.32) as actual damages, representing the value of the damaged cargo, plus interest at the legal rate from the time of filing of the complaint on July 25, 1991, until fully paid;‘2) Attorney’s fees amounting to 20% of the claim; and‘3) Costs of suit.’”[if !supportFootnotes][4][endif]

The assailed Resolution denied petitioner’s Motion for Reconsideration.The CA reversed the Decision of the Regional Trial Court (RTC) of Makati City (Branch 134), which had

disposed as follows:“WHEREFORE, in view of the foregoing, judgment is hereby rendered, dismissing the complaint, as well as defendant’s counterclaim.”[if !supportFootnotes][5][endif]

The FactsThe factual antecedents of the case are summarized by the Court of Appeals in this wise:

“On June 13, 1990, CMC Trading A.G. shipped on board the MN ‘Anangel Sky’ at Hamburg, Germany 242 coils of various Prime Cold Rolled Steel sheets for transportation to Manila consigned to the Philippine Steel Trading Corporation. On July 28, 1990, MN Anangel Sky arrived at the port of Manila and, within the subsequent days, discharged the subject cargo. Four (4) coils were found to be in bad order B.O. Tally sheet No. 154974. Finding the four (4) coils in their damaged state to be unfit for the intended purpose, the consignee Philippine Steel Trading Corporation declared the same as total loss.“Despite receipt of a formal demand, defendants-appellees refused to submit to the consignee’s claim. Consequently, plaintiff-appellant paid the consignee five hundred six thousand eighty six & 50/100 pesos (P506,086.50), and was subrogated to the latter’s rights and causes of action against defendants-appellees. Subsequently, plaintiff-appellant instituted this complaint for recovery of the amount paid by them, to the consignee as insured.“Impugning the propriety of the suit against them, defendants-appellees imputed that the damage and/or loss was due to pre-shipment damage, to the inherent nature, vice or defect of the goods, or to perils, danger and accidents of the sea, or to insufficiency of packing thereof, or to the act or omission of the shipper of the goods or their representatives. In addition thereto, defendants-appellees argued that their liability, if there be any, should not exceed the limitations of liability provided for in the bill of lading and other pertinent laws. Finally, defendants-appellees averred that, in any event, they exercised due diligence and foresight required by law to prevent any damage/loss to said shipment.”[if !supportFootnotes][6][endif]

Ruling of the Trial CourtThe RTC dismissed the Complaint because respondent had failed to prove its claims with the quantum of

proof required by law.[if !supportFootnotes][7][endif]

It likewise debunked petitioners’ counterclaim, because respondent’s suit was not manifestly frivolous or primarily intended to harass them.[if !supportFootnotes][8][endif]

Ruling of the Court of AppealsIn reversing the trial court, the CA ruled that petitioners were liable for the loss or the damage of the goods

shipped, because they had failed to overcome the presumption of negligence imposed on common carriers.

The CA further held as inadequately proven petitioners’ claim that the loss or the deterioration of the goods was due to pre-shipment damage.[if !supportFootnotes][9][endif] It likewise opined that the notation “metal envelopes rust stained and slightly dented” placed on the Bill of Lading had not been the proximate cause of the damage to the four (4) coils.[if !supportFootnotes][10][endif]

As to the extent of petitioners’ liability, the CA held that the package limitation under COGSA was not applicable, because the words “L/C No. 90/02447” indicated that a higher valuation of the cargo had been declared by the shipper. The CA, however, affirmed the award of attorney’s fees.

Hence, this Petition.[if !supportFootnotes][11][endif]

IssuesIn their Memorandum, petitioners raise the following issues for the Court’s consideration:

I“Whether or not plaintiff by presenting only one witness who has never seen the subject shipment and whose testimony is purely hearsay is sufficient to pave the way for the applicability of Article 1735 of the Civil Code;II“Whether or not the consignee/plaintiff filed the required notice of loss within the time required by law;III“Whether or not a notation in the bill of lading at the time of loading is sufficient to show pre-shipment damage and to exempt herein defendants from liability;IV“Whether or not the “PACKAGE LIMITATION” of liability under Section 4 (5) of COGSA is applicable to the case at bar.”[if !supportFootnotes][12][endif]

In sum, the issues boil down to three:1. Whether petitioners have overcome the presumption of negligence of a common carrier2. Whether the notice of loss was timely filed3. Whether the package limitation of liability is applicable

This Court’s RulingThe Petition is partly meritorious.

First Issue:Proof of Negligence

Petitioners contend that the presumption of fault imposed on common carriers should not be applied on the basis of the lone testimony offered by private respondent. The contention is untenable.

Well-settled is the rule that common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence and vigilance with respect to the safety of the goods and the passengers they transport.[if !supportFootnotes][13][endif] Thus, common carriers are required to render service with the greatest skill and foresight and “to use all reason[a]ble means to ascertain the nature and characteristics of the goods tendered for shipment, and to exercise due care in the handling and stowage, including such methods as their nature requires.”[if !supportFootnotes][14][endif] The extraordinary responsibility lasts from the time the goods are unconditionally placed in the possession of and received for transportation by the carrier until they are delivered, actually or constructively, to the consignee or to the person who has a right to receive them.[if !supportFootnotes][15][endif]

This strict requirement is justified by the fact that, without a hand or a voice in the preparation of such contract, the riding public enters into a contract of transportation with common carriers.[if !supportFootnotes][16][endif] Even if it wants to, it cannot submit its own stipulations for their approval.[if !supportFootnotes][17][endif] Hence, it merely adheres to the agreement prepared by them.

Owing to this high degree of diligence required of them, common carriers, as a general rule, are presumed to have been at fault or negligent if the goods they transported deteriorated or got lost or destroyed. [if !supportFootnotes][18][endif]

That is, unless they prove that they exercised extraordinary diligence in transporting the goods. [if !supportFootnotes][19][endif] In order to avoid responsibility for any loss or damage, therefore, they have the burden of proving that they observed such diligence.[if !supportFootnotes][20][endif]

However, the presumption of fault or negligence will not arise [if !supportFootnotes][21][endif] if the loss is due to any of the following causes: (1) flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) an act of the public enemy in war, whether international or civil; (3) an act or omission of the shipper or owner of the goods; (4) the character of the goods or defects in the packing or the container; or (5) an order or act of competent public authority.[if !supportFootnotes][22][endif] This is a closed list. If the cause of destruction, loss or deterioration is other than the

enumerated circumstances, then the carrier is liable therefor.[if !supportFootnotes][23][endif]

Corollary to the foregoing, mere proof of delivery of the goods in good order to a common carrier and of their arrival in bad order at their destination constitutes a prima facie case of fault or negligence against the carrier. If no adequate explanation is given as to how the deterioration, the loss or the destruction of the goods happened, the transporter shall be held responsible.[if !supportFootnotes][24][endif]

That petitioners failed to rebut the prima facie presumption of negligence is revealed in the case at bar by a review of the records and more so by the evidence adduced by respondent.[if !supportFootnotes][25][endif]

First, as stated in the Bill of Lading, petitioners received the subject shipment in good order and condition in Hamburg, Germany.[if !supportFootnotes][26][endif]

Second, prior to the unloading of the cargo, an Inspection Report[if !supportFootnotes][27][endif] prepared and signed by representatives of both parties showed the steel bands broken, the metal envelopes rust-stained and heavily buckled, and the contents thereof exposed and rusty.Third, Bad Order Tally Sheet No. 154979[if !supportFootnotes][28][endif] issued by Jardine Davies Transport Services, Inc., stated that the four coils were in bad order and condition. Normally, a request for a bad order survey is made in case there is an apparent or a presumed loss or damage.[if !supportFootnotes][29][endif]

Fourth, the Certificate of Analysis[if !supportFootnotes][30][endif] stated that, based on the sample submitted and tested, the steel sheets found in bad order were wet with fresh water.Fifth, petitioners -- in a letter[if !supportFootnotes][31][endif] addressed to the Philippine Steel Coating Corporation and dated October 12, 1990 -- admitted that they were aware of the condition of the four coils found in bad order and condition.

These facts were confirmed by Ruperto Esmerio, head checker of BM Santos Checkers Agency. Pertinent portions of his testimony are reproduce hereunder:“Q. Mr. Esmerio, you mentioned that you are a Head Checker. Will you inform the Honorable Court with what company you are connected?A. BM Santos Checkers Agency, sir.Q. How is BM Santos Checkers Agency related or connected with defendant Jardine Davies Transport Services?A. It is the company who contracts the checkers, sir.Q. You mentioned that you are a Head Checker, will you inform this Honorable Court your duties and responsibilities?A. I am the representative of BM Santos on board the vessel, sir, to supervise the discharge of cargoes.

x x x x x x x x xQ. On or about August 1, 1990, were you still connected or employed with BM Santos as a Head Checker?A. Yes, sir.Q. And, on or about that date, do you recall having attended the discharging and inspection of cold steel sheets in coil on board the MV/AN ANGEL SKY?A. Yes, sir, I was there.

x x x x x x x x xQ. Based on your inspection since you were also present at that time, will you inform this Honorable Court the condition or the appearance of the bad order cargoes that were unloaded from the MV/ANANGEL SKY?ATTY. MACAMAY:Objection, Your Honor, I think the document itself reflects the condition of the cold steel sheets and the best evidence is the document itself, Your Honor that shows the condition of the steel sheets.COURT: Let the witness answer.A. The scrap of the cargoes is broken already and the rope is loosen and the cargoes are dent on the sides.”[if !


All these conclusively prove the fact of shipment in good order and condition and the consequent damage to the four coils while in the possession of petitioner,[if !supportFootnotes][33][endif] who notably failed to explain why.[if !


Further, petitioners failed to prove that they observed the extraordinary diligence and precaution which the law requires a common carrier to know and to follow, to avoid damage to or destruction of the goods entrusted to it for safe carriage and delivery.[if !supportFootnotes][35][endif]

True, the words “metal envelopes rust stained and slightly dented” were noted on the Bill of Lading;

however, there is no showing that petitioners exercised due diligence to forestall or lessen the loss. [if !supportFootnotes][36]

[endif] Having been in the service for several years, the master of the vessel should have known at the outset that metal envelopes in the said state would eventually deteriorate when not properly stored while in transit. [if !supportFootnotes][37][endif]

Equipped with the proper knowledge of the nature of steel sheets in coils and of the proper way of transporting them, the master of the vessel and his crew should have undertaken precautionary measures to avoid possible deterioration of the cargo. But none of these measures was taken.[if !supportFootnotes][38][endif] Having failed to discharge the burden of proving that they have exercised the extraordinary diligence required by law, petitioners cannot escape liability for the damage to the four coils.[if !supportFootnotes][39][endif]

In their attempt to escape liability, petitioners further contend that they are exempted from liability under Article 1734(4) of the Civil Code. They cite the notation “metal envelopes rust stained and slightly dented” printed on the Bill of Lading as evidence that the character of the goods or defect in the packing or the containers was the proximate cause of the damage. We are not convinced.

From the evidence on record, it cannot be reasonably concluded that the damage to the four coils was due to the condition noted on the Bill of Lading.[if !supportFootnotes][40][endif] The aforecited exception refers to cases when goods are lost or damaged while in transit as a result of the natural decay of perishable goods or the fermentation or evaporation of substances liable therefor, the necessary and natural wear of goods in transport, defects in packages in which they are shipped, or the natural propensities of animals.[if !supportFootnotes][41][endif] None of these is present in the instant case.

Further, even if the fact of improper packing was known to the carrier or its crew or was apparent upon ordinary observation, it is not relieved of liability for loss or injury resulting therefrom, once it accepts the goods notwithstanding such condition.[if !supportFootnotes][42][endif] Thus, petitioners have not successfully proven the application of any of the aforecited exceptions in the present case.[if !supportFootnotes][43][endif]

Second Issue:Notice of Loss

Petitioners claim that pursuant to Section 3, paragraph 6 of the Carriage of Goods by Sea Act [if !supportFootnotes][44]

[endif] (COGSA), respondent should have filed its Notice of Loss within three days from delivery. They assert that the cargo was discharged on July 31, 1990, but that respondent filed its Notice of Claim only on September 18, 1990. [if !


We are not persuaded. First, the above-cited provision of COGSA provides that the notice of claim need not be given if the state of the goods, at the time of their receipt, has been the subject of a joint inspection or survey. As stated earlier, prior to unloading the cargo, an Inspection Report [if !supportFootnotes][46][endif] as to the condition of the goods was prepared and signed by representatives of both parties.[if !supportFootnotes][47][endif]

Second, as stated in the same provision, a failure to file a notice of claim within three days will not bar recovery if it is nonetheless filed within one year.[if !supportFootnotes][48][endif] This one-year prescriptive period also applies to the shipper, the consignee, the insurer of the goods or any legal holder of the bill of lading.[if !supportFootnotes][49][endif]

In Loadstar Shipping Co., Inc. v. Court of Appeals,[if !supportFootnotes][50][endif] we ruled that a claim is not barred by prescription as long as the one-year period has not lapsed. Thus, in the words of the ponente, Chief Justice Hilario G. Davide Jr.:“Inasmuch as the neither the Civil Code nor the Code of Commerce states a specific prescriptive period on the matter, the Carriage of Goods by Sea Act (COGSA)--which provides for a one-year period of limitation on claims for loss of, or damage to, cargoes sustained during transit--may be applied suppletorily to the case at bar.”

In the present case, the cargo was discharged on July 31, 1990, while the Complaint [if !supportFootnotes][51][endif] was filed by respondent on July 25, 1991, within the one-year prescriptive period.Third Issue:

Package LimitationAssuming arguendo they are liable for respondent’s claims, petitioners contend that their liability should be

limited to US$500 per package as provided in the Bill of Lading and by Section 4(5) [if !supportFootnotes][52][endif] of COGSA.[if !supportFootnotes][53][endif]

On the other hand, respondent argues that Section 4(5) of COGSA is inapplicable, because the value of the subject shipment was declared by petitioners beforehand, as evidenced by the reference to and the insertion of the Letter of Credit or “L/C No. 90/02447” in the said Bill of Lading.[if !supportFootnotes][54][endif]

A bill of lading serves two functions. First, it is a receipt for the goods shipped.[if !supportFootnotes][55][endif] Second, it is a contract by which three parties -- namely, the shipper, the carrier, and the consignee -- undertake specific

responsibilities and assume stipulated obligations.[if !supportFootnotes][56][endif] In a nutshell, the acceptance of the bill of lading by the shipper and the consignee, with full knowledge of its contents, gives rise to the presumption that it constituted a perfected and binding contract.[if !supportFootnotes][57][endif]

Further, a stipulation in the bill of lading limiting to a certain sum the common carrier’s liability for loss or destruction of a cargo -- unless the shipper or owner declares a greater value [if !supportFootnotes][58][endif] -- is sanctioned by law.[if !supportFootnotes][59][endif] There are, however, two conditions to be satisfied: (1) the contract is reasonable and just under the circumstances, and (2) it has been fairly and freely agreed upon by the parties. [if !supportFootnotes][60][endif] The rationale for, this rule is to bind the shippers by their agreement to the value (maximum valuation) of their goods. [if !


It is to be noted, however, that the Civil Code does not limit the liability of the common carrier to a fixed amount per package.[if !supportFootnotes][62][endif] In all matters not regulated by the Civil Code, the right and the obligations of common carriers shall be governed by the Code of Commerce and special laws. [if !supportFootnotes][63][endif] Thus, the COGSA, which is suppletory to the provisions of the Civil Code, supplements the latter by establishing a statutory provision limiting the carrier’s liability in the absence of a shipper’s declaration of a higher value in the bill of lading.[if !supportFootnotes][64][endif] The provisions on limited liability are as much a part of the bill of lading as though physically in it and as though placed there by agreement of the parties.[if !supportFootnotes][65][endif]

In the case before us, there was no stipulation in the Bill of Lading [if !supportFootnotes][66][endif] limiting the carrier’s liability. Neither did the shipper declare a higher valuation of the goods to be shipped. This fact notwithstanding, the insertion of the words “L/C No. 90/02447 cannot be the basis for petitioners’ liability.First, a notation in the Bill of Lading which indicated the amount of the Letter of Credit obtained by the shipper for the importation of steel sheets did not effect a declaration of the value of the goods as required by the bill.[if !

supportFootnotes][67][endif] That notation was made only for the convenience of the shipper and the bank processing the Letter of Credit.[if !supportFootnotes][68][endif]

Second, in Keng Hua Paper Products v. Court of Appeals,[if !supportFootnotes][69][endif] we held that a bill of lading was separate from the Other Letter of Credit arrangements. We ruled thus:“(T)he contract of carriage, as stipulated in the bill of lading in the present case, must be treated independently of the contract of sale between the seller and the buyer, and the contract of issuance of a letter of credit between the amount of goods described in the commercial invoice in the contract of sale and the amount allowed in the letter of credit will not affect the validity and enforceability of the contract of carriage as embodied in the bill of lading. As the bank cannot be expected to look beyond the documents presented to it by the seller pursuant to the letter of credit, neither can the carrier be expected to go beyond the representations of the shipper in the bill of lading and to verify their accuracy vis-à-vis the commercial invoice and the letter of credit. Thus, the discrepancy between the amount of goods indicated in the invoice and the amount in the bill of lading cannot negate petitioner’s obligation to private respondent arising from the contract of transportation.”[if !supportFootnotes][70][endif]

In the light of the foregoing, petitioners’ liability should be computed based on US$500 per package and not on the per metric ton price declared in the Letter of Credit.[if !supportFootnotes][71][endif] In Eastern Shipping Lines, Inc. v. Intermediate Appellate Court[if !supportFootnotes][72][endif] we explained the meaning of package:“When what would ordinarily be considered packages are shipped in a container supplied by the carrier and the number of such units is disclosed in the shipping documents, each of those units and not the container constitutes the ‘package’ referred to in the liability limitation provision of Carriage of Goods by Sea Act.”

Considering, therefore, the ruling in Eastern Shipping Lines and the fact that the Bill of Lading clearly disclosed the contents of the containers, the number of units, as well as the nature of the steel sheets, the four damaged coils should be considered as the shipping unit subject to the US$500 limitation.WHEREFORE, the Petition is partly granted and the assailed Decision MODIFIED. Petitioners’ liability is reduced to US$2,000 plus interest at the legal rate of six percent from the time of the filing of the Complaint on July 25, 1991 until the finality of this Decision, and 12 percent thereafter until fully paid. No pronouncement as to costs.

SO ORDERED.Sandoval-Gutierrez, and Carpio, JJ., concur.

Puno, J., (Chairman), abroad, on official leave.


ManilaSECOND DIVISION

G.R. No. 76093 March 21, 1989AIR FRANCE, petitioner, vs.THE COURT OF APPEALS AND NARCISO O. MORALES, respondents.Siguion Reyna, Montecillo & Ongsiako for petitioner.Morales & Joyas Law Office for private respondent. PADILLA, J.:This is a petition for review on certiorari of the decision ** of the Court of Appeals, dated 1986, in CA-G.R. CV No. 69875, entitled "Narciso Morales vs. Air France," dismissing herein petitioner's appeal from the adverse ruling of the trial court (Branch 33, CFI of Rizal, Kalookan City) *** and the latter's denial of its motion for reconsideration. The respondent Court of Appeals likewise denied petitioner's motion for reconsideration of its decision in a resolution dated 25 September 1986.In reviewing the records, we find:Sometime in October 1977, private respondent Narciso Morales thru his representative, Ms. Janet Tolentino, purchased an airline ticket from Aspac Management Corporation, petitioner's General Sales Agent in Makati, for P 9,426.00 plus P 1,413.90 travel tax, of which P 413.90 were later refunded to Ms. Tolentino.The itinerary covered by the ticket included several cities, with certain segments thereof restricted by markings of "non endorsable' and 'valid on AF (meaning Air France) only', as herein specified:CARRIER EXPRESSITINERARY SPECIFIED RESTRICTIONSNew York/Paris Air France NONENDORSABLE VALID ON AF ONLYParis/Stockholm Air France NONENDORSABLE VALID ON AF ONLYStockholm/Copenhagen NoneCopenhagen/London NoneLondon/Amsterdam NoneAmsterdam/Hamburg NoneHumburg/Frankfurt NoneFrankfurt/Paris Air France NONENDORSABLE VALID ON AF ONLYParis/Geneva Air France NONENDORSABLE VALID ON AF ONLYGeneva/Madrid NoneMadrid/Nice Air France NONENDORSABLE VALID ON AF ONLYNice/Rome Air France NONENDORSABLE VALID ON AF ONLYRome/Athens NoneAthens/Tel Aviv NoneTel Avive/Bangkok Air France NONENDORSABLE VALID ON AF ONLYBangkok/Manila Air France NONENDORSABLE VALID ON AF ONLY 1While in New York, U.S.A. on 3 November 1977, private respondent Morales obtained three (3) medical certificates (Exhibits G, G-1, G-2) attesting to ear an infection which necessitated medical treatment. From New York, he flew to Paris, Stockholm and then Copenhagen where he made representations with petitioner's office to shorten his trip by deleting some of the cities in the itinerary. Respondent Morales was informed that, as a matter of procedure, confirmation of petitioner's office in Manila (as ticketing office) must be secured before shortening of the route (already paid for). Air France in Amsterdam telexed AF Manila requesting for rerouting of the passenger to Amsterdam, Hamburg, Geneva, Rome, Hongkong, Manila. 2As there was no immediate response to the telex, respondent proceeded to Hamburg where he was informed of AF Manila's negative reply. After reiterating his need to flying home on a shorter route due to his ear infection, and presentation of supporting medical certificates, again, the airline office made the

necessary request to Manila on 23 November 1977 for a Hamburg, Paris, Geneva, Rome, Paris, Hongkong and Manila route. Still, the request was denied. Despite respondent as protest and offer to pay any fare difference, petitioner did not relent in its position. Respondent, therefore, had to buy an entirely new set of tickets, paying 1,914 German marks for the homeward route, namely:Itinerary Carrier Date ReservationHamburg/Frankfurt LH 26 Nov. OK (Lufthansa)Frankfurt/Geneva SR 26 Nov. OK (Swissair)Geneva/Rome AZ 29 Nov. OK (Alitalia)Rome/Hongkong BA 02 Dec. OK (British Airways)Hongkong/Manila PR Open Open (Philippine Airlines) 3Upon arrival in Manila, respondent sent a letter-complaint to Air France dated 20 December 1977 thru Aspac Management Corporation. Respondent Morales was advised to surrender the unused flight coupons for a refund of its value, but he kept the same and, instead, filed a complaint for breach of contract of carriage and damages.CFI Judge Marcelino Sayo found Air France in evident bad faith for violation of the contract of carriage, aggravated by the threatening attitude of its employees in Hamburg. Considering the social and economic standing of respondent, who is chairman of the board of directors of a multi-million corporation and a member of several civic and business organizations, an award of moral and exemplary damages, in addition to the actual damages incurred, was deemed proper under the circumstances. The dispositive part of the CFI decision states:WHEREFORE, this Court hereby renders judgment for the plaintiff and orders the defendant to pay to the plaintiff the sum of 1,914 German Marks, in its equivalent in Philippine Peso, as actual damages, the sum of P 1,000,000.00 as moral damages, and the further sum of P 800,000.00 as exemplary damages, with legal interest thereon from date of the filing of the complaint until fully paid, plus the sum equal to 20% thereof as attorney's fees, with costs against the plaintiff. 4On appeal to the Court of Appeals, the award of damages was modified as follows:ACCORDINGLY, the judgment appealed from is hereby modified so that it will read as follows: Judgment is hereby rendered in favor of the plaintiff against the defendant ordering ther defendant to pay to said plaintiff the following.(1) 1,914 German Marks in its equivalent in Philippine peso at prevailing rate of exchange as actual damages, with legal interest thereon from the date of the filing of the complaint until fully paid;(2) P 500,000.00, as moral damages;(3) P 150,000.00, as exemplary damages; and(4) 5% of the amount of actual, moral and exemplary damages which are recoverable, as attorney's fees. 5Questioning the factual findings of the respondent court, petitioner comes to this court for review citing three (3) errors:1. The conclusion that there is a breach of contract is premised on a misapprehension of facts.2. Failure to apply the doctrine of avoidable consequence in the present case.3. Award of exorbitant damages and attorney's fees.After considering respondent's comment, the Court resolved to give due courses to the petition, and required the parties to file their respective memoranda. Complying with the resolution of 26 October 1987, private respondent filed his reply memorandum on 17 December 1987. This is the last pleading on record.While this Court is not a trier of facts, yet, when the findings of respondent court are without citation of specific evidence on which they are based, there is sufficient reason for the Court to review the appellate court's decision. 6The respondent court's ruling that there was breach of contract of carriage is premised on petitioner's refusal to re-route respondent and, in effect, requiring him to purchase a new set of tickets. Petitioner refutes this conclusion, claiming that the original ticket was discounted and non-endorsable on certain segments. Eventually respondent flew on his chosen route with different airlines.Under the factual milieu, was there really a breach of contract of carriage on the part of the petitioner, as to justify the award to private respondent of actual, moral and exemplary damages? We find none.International Air Transportation Association (IATA) Resolution No. 275 e, 2., special note reads: "Where a

fare is restricted and such restrictions are not clearly evident from the required entries on the ticket, such restrictions may be written, stamped or reprinted in plain language in the Endorsement/Restrictions" box of the applicable flight coupon(s); or attached thereto by use of an appropriate notice." 7 Voluntary changes to tickets, 8 while allowable, are also covered by (IATA) Resolution No. 1013, Art. II, which provides: "1. changes to the ticket requested by the passenger will be subject to carriers regulations.Private respondent wanted a rerouting to Hamburg, Geneva, Rome, Hongkong and Manilas 9 which shortened the original itinerary on the ticket issued by AF Manila through ASPAC, its general sales agent. Considering the original restrictions on the ticket, it was not unreasonable for Air France to deny the request.Besides, a recurring ear infection was pleaded as reason necessitating urgent return to Manila. Assuming arguendo a worsening pain or discomfort, private respondent appears to have still proceeded to four (4) other cities covering a period of at least six (6) days and leaving open his date of departure from Hongkong to Manila.10 And, even if he claimed to have undergone medical examination upon arrival in Manila, no medical certificate was presented. He failed to even remember his date of arrival in Manila.With a claim for a large amount of damages, the Court finds it unsual for respondent, a lawyer, to easily forget vital information to substantiate his plea. It is also essential before an award of damages that the claimant must satisfactorily prove during the trial the existence of the factual basis of the damages and its causal connection to defendant's acts.11In KLM Royal Dutch Airlines v. CA, 12 the Court observed-.... As noted by the Court of Appeals that condition was printed in letters so small that one would have to use a magnifying glass to read the words. Under the circumstances, it would be unfair and inequitable to charge the respondents with automatic knowledge or notice of the said condition so as to preclude any doubt that it was fairly and freely agreed upon by the respondents when they accepted the passage tickets issued to them by the KLM. As the airline which issued those tickets with the knowledge that the respondents would be flown on the various legs of their journey by different air carriers, the KLM was chargeable with the duty and responsibility of specifically informing the respondents of conditions prescribed in their tickets or in the very least, to ascertain that the respondent read them before they accepted their passage tickets. A thorough search of the records, however, inexplicably fails to show that any effort was exerted by the KLM officials or employees to discharge in a proper manner this responsibility to the respondents. Consequently, We hold that the respondents cannot be bound by the provision in question by which KLM unilaterally assumed the role of a mere ticket-issuing agent for other airlines and limited its liability only to untoward occurrences on its own lines. (Emphasis supplied)Unlike in the KLM case where the breach of contract was aggravated by the discourteous and arbitrary conduct of an official of the Aer Lingus which the KLM had engaged to transport the respondents, here. Air France employees in Hamburg informed private respondent that his tickets were partly stamped "non-endorsable" and "valid on Air France only."13 Mere refusal to accede to the passenger's wishes does not necessarily translate into damages in the absence of bad faith.14 To our mind, respondent has failed to show wanton, malevolent or reckless misconduct imputable to petitioner in its refusal to re-route.Air France Manila acted upon the advise of ASPAC in denying private respondent's request. There was no evident bad faith when it followed the advise not to authorize rerouting.15 At worst, the situation can be considered a case of inadvertence on the part of ASPAC in not explaining the non-endorsable character of the ticket. Of importance, however, is the fact that private respondent is a lawyer, and the restriction box 16 clearly indicated the non-endorsable character of the ticket.Omissions by ordinary passengers may be condoned but more is expected of members of the bar who cannot feign ignorance of such limitations and restrictions. An award of moral and exemplary damages cannot be sustained under the circumstances, but petitioner has to refund the unused coupons in the Air France ticket to the private respondent.WHEREFORE, the judgement appealed from is REVERSED and SET ASIDE. Petitioner is ordered, however, to refund to private respondent the value of the unused coupons in the passenger's ticket issued to him by the petitioner. No costs.SO ORDERED.Melencio-Herrera, (Chairperson), Paras, Sarmiento and Regalado JJ., concur:


ManilaTHIRD DIVISION

G.R. No. 47258 July 13, 1989ANTONIO R. BANZON and ROSA BALMACEDA, petitioners, vs.COURT OF APPEALS, MAXIMO R. STA. MARIA and VALERIANA R. STA. MARIA, respondents.Bausa, Ampil & Suarez for petitioners.Rosendo Tansinsin for respondents. FERNAN, C.J.:In this petition for review on certiorari, We affirm the decision of the Court of Appeals 1 dated July 16,1976 in CA-G.R. No. 54075-R, entitled "Antonio Banzon, et al., Plaintiffs-Appellees, versus Maximo R. Sta. Maria, et al., Defendants- Appellants" absolving herein private respondents Maximo R. Sta. Maria and Valeriana R. Sta. Maria from any liability arising from petitioners' complaint.The antecedents are accurately narrated in the decision of the trial court 2 as follows:Sometime in the year 1952, defendant Maximo R. Sta. Maria, obtained several crop loans from PNB. For these loans, Associated acted as surety for defendant Maximo R. Sta. Maria by filing surety bonds in favor of PNB to guarantee and answer for the prompt and faithful repayment of said loans. In turn, plaintiff Antonio R. Banzon and one Emilio R. Naval acted as indemnitors of Associated in the indemnity agreements, obligating themselves to indemnify and hold it harmless from any liabilities.It further appears, however, that defendant Maximo R. Sta. Maria failed to pay his crop loan obligations in favor of PNB when the same fell due, and accordingly, the bank demanded payment thereof from Associated as surety. Instead of paying the bank, Associated filed a complaint dated November 19, 1956 in the Court of First Instance of Manila against Maximo R. Sta. Maria and indemnitors Banzon and Naval, claiming that the outstanding obligation of defendant Maximo R. Sta. Maria with PNB, as guaranteed by it, amounted to P6,100.00, P9,346.44 and P14,807.52, or an aggregate total of P30,257.86 exclusive of interests. The case was docketed as Civil Case No. 31237 of the said court. On December 11, 1957, a judgment was rendered by said Court sentencing the aforesaid defendants therein to pay jointly and severally unto plaintiff for the benefit of the Philippine National Bank the amounts mentioned above, with interests thereon at 12% per annum, P593.76 for premiums and documentary stamps due and 15% attorney's fees — the 15% and the interest to be paid for the benefit only of the plaintiff. (Exhibit "C" and Exhibit "2")The abovementioned decision in Civil Case No. 31237 became final and executory, and thus, the corresponding writ of execution was issued and the properties of plaintiff Antonio R. Banzon covered by TCT Nos. 39685 and 53759 Registry of Deeds of Rizal, now Caloocan City, were levied and later on sold in execution, with Associated, the judgment creditor, as the highest bidder for the total sum of P44,000.00. On June 27, 1957, the corresponding certificate of sale was issued and the same was duly registered on June 30, 1959. The redemption period having expired, the judgment creditor, the Associated, obtained in due time the final certificate of sale which was likewise duly registered. Demands were made upon plaintiff Antonio R, Banzon to deliver to Associated the owner's duplicates of TCT Nos. 39685 and 53759 but the latter failed to do so. Consequently, Associated filed against Banzon in the Court of First Instance of Rizal in Case No. 3885 G.L.R.O. Rec. No. 11267, a petition for an order directing Banzon to produce and surrender his owner's duplicates of TCT Nos. 39685 and 53759 to the Register of Deeds of Rizal, for cancellation, and for the latter to subsequently issue new titles in the name of Associated. This petition was vigorously opposed by Banzon based on legal grounds. The Court, in Case No. 3885, issued an order granting the relief prayed for, directing Banzon to surrender the owner's duplicates of TCT Nos. 39685 and 53759. Banzon appealed (G.R. No. L- 23971, 26 SCRA 268) and sought reversal of said order, but the Supreme Court in its decision of November 29, 1968 affirmed the lower court's decision.The record shows that sometime in 1965, even before ownership over the aforementioned two (2) parcels

of land belonging to the Banzons could be consolidated in the name of Associated, the spouses Pedro Cardenas and Leonila Baluyot were able to execute upon and buy one of the said two parcels of land (that covered by TCT No. 39685-Rizal, Lot 6, Block 176 of subdivision plan Psd-2896, G.L.R.O. Rec. No. 11267) to satisfy a judgment debt of Associated in favor of the Cardenas spouses. Parenthetically, that Judgment was in favor of the Cardenas spouses as judgment creditors-plaintiffs against Victoria Vda. de Tengco and Pablo Tuazon, judgment-debtors-defendants in Civil Case No. 36194, CFI of Manila and Associated issued a counter- bond in behalf of said defendants to cover Cardenas' judgment.Cardenas, being the lone bidder in the auction sale for execution of his judgment for P 5,100.00 against Associated, was awarded the property in full satisfaction of his judgment, and eventually succeeded in cancelling Banzon's title and in having a new one (TCT No. 8567-Caloocan City) issued in his name. The Cardenas spouses in due time filed with the Court of First Instance of Rizal, Caloocan City, Branch XII, Reg. Case No. C-211, (LRC Case No. 11267) entitled 'Pedro Cardenas et al., petitioner vs. Antonio Banzon, et al., respondents, for the purpose of securing possession from the Banzons of the lot covered by TCT No. 8567. Accordingly, a writ of possession was issued in said case on May 21, 1965, but its enforcement was suspended in view of the filing with the same court of Civil Case No. C-531 entitled 'Antonio Banzon, et al., vs. Pedro Cardenas and Leonila Baluyot, Associated Insurance and Surety Co., Inc. and Benito Macrohon.' However, in Civil Case No. 531, the court dismissed Banzons' complaint on August 6, 1969, and upheld the validity and legality of the transfer of the property in question to the Cardenas spouses. As a result, Cardenas filed on October 13,1969, a motion in Case No. C-211 for the issuance of an alias writ of possession which was granted on October 23,1969. The Banzons, however refused to vacate the premises and to remove the improvements thereon. Because of this, an order was issued on December 9, 1969 for the issuance of a writ of demolition, but its enforcement was not carried out for the reason that a temporary restraining order, later changed to a writ of preliminary injunction, was issued by the Court of Appeals on December 13,1969 in CA-G.R. No. 44391-R 'Antonio Banzon and Rosa Balmaceda, petitioners v. Hon. Fernando Cruz and spouses Pedro Cardenas and Leonila Baluyot, respondents', in view of the filing by the Banzons with the said appellate court of a petition for injunction.On February 28, 1970, the Court of Appeals dismissed the petition filed in CA-G.R. No. 44391-R. Cardenas thereafter filed a motion for the enforcement of the order of demolition and writ of possession previously issued in Reg. Case No. C- 211. On March 13,1970, Judge Fernando A. Cruz, of the CFI of Rizal, Caloocan City, Branch XII issued an order granting the aforesaid motion. On March 16,1970, the Sheriff of Caloocan City gave the Banzons until March 20, 1970 to vacate and deliver possession of the parcel of land covered by TCT No. 8567, and to remove the improvements thereon. The Banzons elevated the matter to the Supreme Court on March 20, 1970 by way of a petition for injunction (G.R. No. L-31789,45 SCRA 475).The Supreme Court, on March 24, 1970, restrained respondents (Hon. Fernando Cruz, Cardenas spouses and Associated) and their representatives from enforcing the writ of possession and order of demolition and respondent Associated from disposing of its rights and interests over the two lots in question. Cardenas spouses in due time filed their answer, alleging among other things, that ownership of Lot 6, Block 176, covered by TCT No. 8567 had already absolutely and irrevocably vested in them and that there was no longer anything to be restrained considering that per Sheriffs return on March 23, 1970, he had enforced on said date the writ of possession and order of demolition, and had demolished all the improvements erected on the premises. It appears that, in reality, a special deputy sheriff of Rizal succeeded in demolishing Banzon's building erected on the lot in question notwithstanding the fact that said Sheriff was duly informed by Banzon of the existence of a restraining order. After accomplishing the demolition work, the Sheriff and his men left the premises.In the final analysis, the Supreme Court, in G.R. No. L-31789, June 29,1972, decided as follows:WHEREFORE, the petition for a permanent injunction, during the pendency of Civil Case No. 79244 of the Court of First Instance of Manila against the disposition in any manner of the two parcels of land subject of said case other than their reconveyance to petitioners as the true and rightful owners thereof as expressly recognized by the insurance commissioner as liquidator of associated is hereby granted. In lieu of the permanent injunction against enforcement of respondent court's order dated March 13, 1970 in Case No. C-211 thereof ordering the delivery of possession of the property covered by TCT No. 8567 to respondents Cardenas and demolition of petitioners Banzons' improvements thereon (which were prematurely carried out by respondent court's sheriff on March 23, 1970) a writ of mandatory injunction

commanding respondent court to forthwith restore the status ante quo and the property and enjoyment of the fruits and rentals thereof under the terms and conditions stated in the next preceding paragraph is hereby issued, which shall be immediately executory upon promulgation of this decision. With costs against respondents Pedro Cardenas and Leonila Baluyot.This decision is without prejudice to such civil and criminal liability as the officers of the defunct Associated Insurance & Surety Co., Inc., may have incurred by virtue of their acts of commission and omission which have resulted in grave prejudice and damage to petitioners as well as the public interests, as in the suppression from and non-surrender to the Insurance Commissioner as liquidator of the records of the relevant antecedent cases, and in the possible misrepresentation to the courts therein that Associated had duly discharged to the bank its liability as surety and could therefore lawfully levy on the properties of Banzon as indemnitor, which would have resulted in respondents' unjust enrichment at Banzon's expense. The Insurance Commissioner is directed to conduct the corresponding investigation for the purpose of filing such criminal and other appropriate actions as may be warranted against the responsible parties. So Ordered.' (45 SCRA 507-508) 3

This is the fourth time that this case has reached the Supreme Court. The first was in G.R. No. L-23971 — Associated Insurance & Surety Co., Inc. v. Banzon; 4 the second in G.R. No. L -24765 — PNB v. Sta. Maria et al.; 5 and the third in G.R. No. L-31789-Banzon v. Cruz. 6

The facts therefore, have been well established and the resolutions of issues raised have reached finality.Among others, it has been finally settled in Banzon v. Cruz, supra, that Associated in proceeding against the indemnitor Banzon before proceeding against the principal debtor acted prematurely and it is now holding in trust by force of Article 1456 of the Civil Code, the two lots of Banzon it has wrongfully levied upon in execution and which it is legally bound to return to Banzon, their true and rightful owner.At any rate, on March 4,1971, pending resolution of G.R. No. L- 31789, petitioners spouses Antonio Banzon and Rosa Balmaceda filed before the then Court of First Instance of Rizal, Caloocan City, a complaint 7 against therein private respondents Maximo and Valeriana Sta. Maria for actual and moral damages in the total amount of P251,750.00 allegedly arising from the deprivation of their property due to the Sta. Marias' failure and refusal to pay their plain, valid and just obligations with the PNB.In due course, judgment was rendered by the trial court on July 14,1973, the dispositive portion of which reads as follows:FOR ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered in favor of the plaintiffs and against the defendants MAXIMO R. STA. MARIA AND VALERIANA R. STA. MARIA, ordering them to pay jointly and severally to plaintiffs the following amounts:(1) P6,750.00 as actual and compensatory damages which the plaintiffs are obligated to Atty. Feliberto V. Castillo by way of attorney's fees;(2) P10,000.00 as actual damages by way of reimbursement of attorney's fees paid by plaintiffs to Atty. Arsenio O. de Leon;(3) P150,000.00 corresponding to the fair value of the lot evidenced by TCT No. 8567-Caloocan City acquired by the Cardenas spouses if in the meantime, it has passed into the hands of an innocent purchaser for value and recovery thereof by plaintiffs become impossible;(4) P10,000.00 as actual damages representing the fair value of the house of the plaintiffs which was demolished from their lot located at Caloocan City evidenced by TCT No. 39685 (now TCT No. 8567), plus the unrealized income thereon at the rate of P200.00 per month from April, 1970 until fully paid;(5) P50,000.00 as and by way of moral damages; and(6) P15,000.00 as attorney's fees incident to the handling of this case, plus costs of the action.SO ORDERED. 8

On appeal, however, by herein private respondents, the Court of Appeals reversed the trial court's decision, thus:WHEREFORE, in view of the foregoing, this Court hereby reverses and sets aside the appealed decision of the court a quo, and renders this judgment absolving the defendants-appellants from any liability arising from plaintiffs- appellees' Complaint.No pronouncement as to costs.SO ORDERED. 9

Both parties moved for a reconsideration, but were denied the relief sought. Consequently, the spouses

Banzon filed the instant petition for review on certiorari, raising as issues the following:1. Whether or not respondent court committed error in sustaining the affirmative/special defense of respondent Valeriana R. Sta. Maria to the effect that the complaint states no cause of action; and in ruling that the cause of action is barred by prior judgment and/or estoppel and laches;2. Whether or not respondent court erred in basing its decision solely on the judgment of the Supreme Court in an earlier case, Banzon vs. Cruz, G.R. No. L-31789 promulgated on June 29,1972. 10

The main issue in this case is whether or not respondent Maximo and Valeriana Sta. Maria are liable to the petitioners for the prejudice and damages the latter suffered in this case.Petitioners contend that the appellate court erred in disposing of the case on the basis alone of the decision of this Court in Banzon vs. Cruz, G.R. No. L-31789, June 29, 1972 (45 SCRA 475) when the evidence on record and the law show that there are valid causes of action against private respondents as the latter are "guilty of bad faith and with a common plan or design to place Antonio R. Banzon in a bad predicament." They stress that had the private respondents been candid and truthful and not try to avoid their just and valid obligations to the PNB when they had sufficient properties to answer therefor, the Banzons' properties would not have been levied upon and sold in execution. 11

As earlier indicated, we affirm.No error was committed by the appellate court in basing its decision upon this Court's findings in Banzon vs. Cruz, supra. Said decision was offered as evidence by both parties; as Exhibit "P" for petitioners as plaintiffs therein 12 and as Exhibit "16" for private respondents as defendants. 13 In fact, the decision under consideration was utilized by the lower court in arriving at its findings of facts, thus:From the mass of evidence adduced by the parties, and after taking into consideration the pleadings respectively submitted by their counsels as well as the pertinent Supreme Court decisions reported in 26 SCRA 268, 29 SCRA 303, and 45 SCRA 475, the following facts stand out clear in the records of the case. 14

What appears to us as error is the trial court's conclusion that private respondents are responsible for the prejudice caused petitioners. This conclusion is in opposition to our clear and unequivocal pronouncement in said Banzon vs. Cruz case that the wrongful taking of petitioners' two lots was the direct result of three premature acts, to wit: 1) the action of Associated Insurance and Surety, Inc. against petitioner Banzon; 2) the execution of the 1957 judgment in Civil Case No. 31237; 3) the act of the Sheriff of Caloocan City in demolishing the improvements on one of the lots. These acts do not fall under any of the situations provided for in Article 2071 of the Civil Code wherein the guarantor even before paying may proceed against the principal debtors. Otherwise stated, as a general rule, the guarantor must first pay the outstanding amounts due before it can exact payment from the principal debtor. Hence, since Associated had not paid nor compelled private respondent to pay the bank, it had no right in law or equity to so execute the judgment against Banzon as indemnitor. Coming back to the issue, the appellate court exhibited a higher degree of perception when it held:In the first place, it was well established that it was not the defendants who started the series of litigations but the Associated. Instead of fulfilling its obligations to discharge, as a surety, the Sta. Marias' indebtedness, Associated instituted the premature court action against its indemnitors, including Sta. Maria. This premature action of the Associated consequently resulted in the levy and sale of the two lots thereby depriving plaintiffs of their property. 15

On the other hand, it is a settled principle that moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission. 16

While Ideally this debacle could have been avoided by private respondents' payment of their obligations to PNB, such fact of non-payment alone, without Associated's premature action and subsequent fraudulent acts, could not possibly have resulted in the prejudice and damage complained of. Thus, while private respondents' non-payment was admittedly the remote cause or the factor which set in motion the ensuing events, Associated's premature action and execution were the immediate and direct causes of the damage and prejudice suffered by petitioners. In other words, active supervening events, consisting of said premature and fraudulent acts of the Associated Insurance and Surety, Inc. had broken the causal connection between the fact of non-payment and the damage suffered by petitioners, so that their claim should be directed not against private respondents but against Associated. Parenthetically, this right of action against Associated had been reserved in petitioners' favor in the Banzon vs. Cruz case.

We are convinced that the failure of private respondents to pay their obligations with the PNB was not attended by bad faith or wilfull intent to cause injury to petitioners. For as found in Banzon vs. Cruz, supra:... It should be noted therefore, that the debtor Sta. Maria had been making payments all along to the bank on account of his crop loans so much so that by 1963, the total principal due and amount outstanding thereon amounted only to P15,446.44. This amounts to practically one-half of the advance judgment for the total amount of P30,257.86, excluding interests, obtained by Associated six (6) years earlier in 1957 against Banzon 'for the benefit of the Philippine National Bank allegedly as the amount due from Sta. Maria and which Associated as surety would have to pay the bank, and which as it turns out, Associated never paid to the bank. 17

Consequently, Associated, in not discharging its liability notwithstanding that it had already executed its 1957 judgment against Banzon as indemnitor and taken in execution Banzon's two properties committed rank fraud.Moreover, under the Civil Code, the damages for which a defendant may be held liable are those which are the natural and probable consequences of the act or omission complained of. 18 As above explained, the prejudice caused petitioners cannot be said to be the natural and probable consequence of private respondents' mere failure to pay their crop loans as such prejudice arose due to active supervening forces or events.There is no denying that the damage and prejudice suffered by petitioners is too high a price to pay for an act of benevolence. By now, however, they should have obtained adequate relief in accordance with our ruling in Banzon v. Cruz, supra, the pertinent portion of which bears reiterating:In the case at bar, with the insurance commissioner as liquidator of Associated, recognizing through the Solicitor General that the Banzons' two lots wrongfully taken from them by Associated's premature actions should be reconveyed to them, there is established a clear and indubitable showing on the record that the petitioners are entitled to a writ of restoring the status quo ante. A mandatory writ shall therefore issue commanding respondent court to forthwith restore petitioners to their possession of Lot 6, Block 176, covered by TCT 8567 from which they have been removed by enforcement of said respondent court's enjoined order of demolition and writ of possession dated March 13, 1970, Annex "F" of the petition. As to petitioners' building thereon claimed to be worth Pl0,000.00 (but countered by Cardenas to be a mere 'barong-barong'), respondent court shall at Banzon's petition cause respondents Cardenases to restore the demolished building or pay Banzon the determined value thereof. As to the fruits of possession of the land, with Cardenas acknowledging that he has been leasing the same to a third person at P200.00 a month, respondents Cardenases shall forthwith pay to petitioners Banzons the whole amount of rentals so received by them to the time that possession of the lot is effectively restored to petitioners. By the very nature of this mandatory writ, the same shall be immediately executory upon promulgation of this decision. 19

WHEREFORE, the instant petition for review is hereby DENIED. No pronouncement as to costs.SO ORDERED.Gutierrez, Jr., Bidin and Cortes, JJ., concur.Feliciano, J., is on leave.

SECOND DIVISION[G.R. No. 119092. December 10, 1998]

SANITARY STEAM LAUNDRY, INC., petitioner, vs. THE COURT OF APPEALS, NICANOR BERNABE III, JOSEFINA BERNABE, in their individual capacities and as HEIRS OF JASON BERNABE, JOHN JOSEPH BERNABE, VICTOR IGNACIO, JULIETA ENRIQUEZ and RAMON ENRIQUEZ, RENE TABLANTE, LEOMAR MACASPAC, JR., CHARITO ESTOLANO, NENITA SALUNOY, in their

individual capacities and as HEIRS OF DALMACIO SALUNOY, respondents.D E C I S I O N

MENDOZA, J.:This case involves a collision between a Mercedes Benz panel truck of petitioner Sanitary Steam Laundry

and a Cimarron which caused the death of three persons and the injuries of several others. The accident took place at the Aguinaldo Highway in Imus, Cavite on August 31, 1980. All the victims were riding in the Cimarron. One of those who died was the driver. The Regional Trial Court of Makati found petitioner’s driver to be responsible for the vehicular accident and accordingly held petitioner liable to private respondents for P472,262.30 in damages and attorney’s fees. Its decision was affirmed in toto by the Court of Appeals. It is here for a review of the appellate court’s decision.

The passengers of the Cimarron were mostly employees of the Project Management Consultants, Inc. (PMCI). They had just visited the construction site of a company project at Lian, Batangas. The other passengers were family members and friends whom they invited to an excursion to the beach after the visit to the construction site. The group stayed at Lian beach until 5:30 p.m., when they decided to go back to Manila.

The Cimarron, with Plate No. 840-4J, was owned by Salvador Salenga, father of one of the employees of PMCI. Driving the vehicle was Rolando Hernandez. It appears that at about 8:00 p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite on its way back to Manila, the Cimarron was hit on its front portion by petitioner’s panel truck, bearing Plate No. 581 XM, which was traveling in the opposite direction. The panel truck was on its way to petitioner’s plant in Dasmariñas, Cavite after delivering some linen to the Makati Medical Center. The driver, Herman Hernandez, claimed that a jeepney in front of him suddenly stopped. He said he stepped on the brakes to avoid hitting the jeepney and that this caused his vehicle to swerve to the left and encroach on a portion of the opposite lane. As a result, his panel truck collided with the Cimarron on the north-bound lane.

The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely, Jason Bernabe and Dalmacio Salunoy, died. Several of the other passengers of the Cimarron were injured and taken to various hospitals.

On December 4, 1980, private respondents filed this civil case for damages before the then Court of First Instance of Rizal, Pasig Branch, against petitioner.

On November 23, 1990, the Regional Trial Court of Makati, to which the case was transferred following the reorganization of the judiciary, rendered judgment for private respondents. The dispositive portion of its decision reads:It is for the reasons stated above that the court is persuaded to award the damages incurred by the plaintiffs as proved in the trial as follows:Actual or compensatory expenses:a. Charito Estolano P35,813.87 (Exh. J)b. Nicanor Bernabe III 20,024.94 & Josefina C. Bernabe c. Julieta, Ailyn & 45,830.45 (Exh. QQ) Josefina Enriquez and Josefina Valeirod. Leonor Macaspac 2,740.00e. Victor Rey Ignacio 14,820.64 (Exh. EEE)f. Rene Tablante 10,032.40 (Exh. QQQ)g. Nenita Salonoy, widow; 20,000.00 and Manilyn, childrenMoral damages should also be awarded as follows:For the injuries sustained by:a. Charito Estolano P10,000.00 (Exh. F)

b. Julieta P. Enriquez 15,000.00 (Exh. MM)c. Ailyn C. Enriquez 8,000.00 (Exh. NN)d. Josefina R. Enriquez 10,000.00 (Exh. OO)e. Josefina P. Valerio 2,000.00 (Exh. PP)f. Nenita Salonoy 20,000.00 (Exh. DD)g. Nicanor Bernabe III 8,000.00 (Exh. Q)h. Josephine Bernabe 2,000.00 (Exh. R)i. John Joseph Bernabe 10,000.00j. Manilyn G. Salonoy 10,000.00 (Exh. EE)k. Jack Salonoy 10,000.00 (Exh. JJ)l. Leonor C. Macaspac 2,000.00 (Exh. AAA)m. Victor Ignacio 8,000.00 (Exh. DDD)n. Rene Tablanta 8,000.00 (Exh. FFF)and finally the heirs of Jason Bernabe should be awarded the sum of P50,000.00 for the latter’s death. The heirs of Dalmacio Salunoy should be given the sum of P100,000.00 for moral damages and unearned income.The foregoing considered, judgment is rendered in favor of plaintiffs ordering defendant to pay the amounts aforecited and to pay the further sum of P50,000.00 for attorney’s fees and the costs.SO ORDERED.

As already stated, the Court of Appeals, to which the decision of the trial court was appealed, affirmed the decision on January 26, 1995. Hence, this appeal. First. Petitioner contends that the driver of the Cimarron was guilty of contributory negligence and, therefore, its liability should be mitigated, if not totally extinguished. It claims that the driver of the Cimarron was guilty of violation of traffic rules and regulations at the time of the mishap. Hence, in accordance with Art. 2185 of the Civil Code, he was presumed to be negligent.

According to petitioner, the negligence consisted of the following:1. The Cimarron was overloaded because there were from 20 to 25 passengers inside when the passenger capacity of the vehicle was only 17.2. The front seat of the Cimarron was occupied by four adults, including the driver.3. The Cimarron had only one headlight on (its right headlight) as its left headlight was not functioning.

Petitioner cites Art. III, §2 of R.A. No. 4136, known as the Land Transportation and Traffic Code, which provides that “No person operating any vehicle shall allow more passengers or more freight or cargo in his vehicle than its registered carry capacity” and Art. IV, §3(e) which states that “Every motor vehicle of more than one meter of projected width, while in use on any public highway shall bear two headlights... which not later than one-half hour after sunset and until at least one-half hour before sunrise and whenever weather conditions so require, shall both be lighted.”

Petitioner asserts that the fact that its panel truck encroached on a portion of the lane of the Cimarron does not show that its driver was negligent. Petitioner cites the case of Bayasen v. Court of Appeals,[if !supportFootnotes][1][endif]

which allegedly held that the sudden swerving of a vehicle caused by its driver stepping on the brakes is not negligence per se. Petitioner further claims that even if petitioner’s swerving to the lane of respondents were considered proof of negligence, this fact would not negate the presumption of negligence on the part of the other driver arising from his violations of traffic rules and regulations.

Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court,[if !supportFootnotes][2][endif] in which a driver who invaded the opposite lane and caused a collision between his car and a truck coming from the opposite lane, was exonerated based on the doctrine of last clear chance, which states that a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent, is solely responsible for the consequences of the accident.

Petitioner contends that the ruling in that case should be applied to the present case. According to petitioner, although the driver of the panel truck was initially negligent, the driver of the Cimarron had the last opportunity to avoid the accident. However, because of his negligence (i.e., the aforementioned violations of traffic rules and regulations such as the use of only one headlight at night and the overcrowding at the front seat of the vehicle), he was not able to avoid a collision with the panel truck.

We find the foregoing contention to be without merit.First of all, it has not been shown how the alleged negligence of the Cimarron driver contributed to the

collision between the vehicles. Indeed, petitioner has the burden of showing a causal connection between the injury received and the violation of the Land Transportation and Traffic Code. He must show that the violation of the statute was the proximate or legal cause of the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without legal consequence unless it is a contributing cause of the injury.[if !supportFootnotes][3][endif] Petitioner says that “driving an overloaded vehicle with only one functioning headlight during nighttime certainly increases the risk of accident,” [if !supportFootnotes][4][endif] that because the Cimarron had only one headlight, there was “decreased visibility,” and that the fact that the vehicle was overloaded and its front seat overcrowded “decreased [its] maneuverability.” [if !supportFootnotes][5][endif] However, mere allegations such as these are not sufficient to discharge its burden of proving clearly that such alleged negligence was the contributing cause of the injury.

Furthermore, based on the evidence in this case, there was no way either driver could have avoided the collision. The panel truck driver testified:[if !supportFootnotes][6][endif]

Q. You stated you were following a jeepney along the highway in Imus, Cavite, what happened afterwards, if any?A. The passenger jeepney I was following made a sudden stop so I stepped on the brakes.Q. Upon stepping on your brakes, what happened if any?A. The Mercedes Benz (panel) suddenly swerved to the left, sir.Q. How big was the swerving to the left?A. The distance which my vehicle swerved beyond the middle line or center line to the left was about this distance, sir (witness demonstrating by using both hands the distance).ATTY. ALILING: Can we stipulate that it is 1 foot, Your Honor.ATTY. GONZALES: A little more, 1 1/2 feet.ATTY. ALILING: 1 1/4 feet.ATTY. GONZALES: Between 1 1/4 and 1 1/2 feet.The panel truck driver’s testimony is consistent with the testimonies of private respondents that the panel truck went out of control and simply smashed into the Cimarron in which they were riding. Thus, Nicanor Bernabe III testified:[if !supportFootnotes][7][endif]

Q: And did you see how the accident happened?A: I just saw a glare of light. That is all and then the impact.Q: Where did you see that glare of light?A: Coming in front ahead of us.Q: When you say ahead of you, was it . . . ?A: Towards us. . . . .Q: And from what did those glare of light come from?A: Based on information I received, the light came from the headlights of a certain panel owned by Sanitary Steam Laundry, Inc. . . . .Q: You said that the lights were going towards you. Now, at what pace did these lights come toward you?A: Fast pace.”

Charito Estolano, another passenger who was seated in front of the Cimarron, similarly testified that they just saw the panel truck hurtling toward them. She said:[if !supportFootnotes][8][endif]

Q Now, you said earlier that you were involved in an accident. What was that accident?A An approaching vehicle hit us.Q Now, why do you know that there was the approaching vehicle?A There was a light which glared us and I knew that it came from a vehicle. We were blinded.Q Where was this vehicle headed for?A Headed for Cavite.Q Coming from?A Coming from Manila, I think.

Q So that, actually, in relation to your vehicle, it was coming from the opposite direction?A Yes, sir.Q Now, you said that the light headed towards your vehicle. On which side of the highway was your Tamaraw vehicle travelling at that time?A We were on the right lane.Q Did you actually see this light from the vehicle coming from the opposite direction heading towards your vehicle?A Yes, sir.Q And what happened after that?A After that, there was an impact.Q All right. Will you tell the Court which bumped which?A We were bumped by the vehicle which was coming from the opposite direction.

The foregoing testimonies show that the driver of the panel truck lost control of his vehicle and bumped the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it would have been bumped just the same because the driver of the panel truck could not stop despite the fact that he applied the brakes. Petitioner’s contention that because of “decreased visibility,” caused by the fact that the Cimarron allegedly had only one headlight on, its driver failed to see the Cimarron is without any basis in fact. Only its driver claimed that the Cimarron had only one headlight on. The police investigator did not state in his report or in his testimony that the Cimarron had only one headlight on. Nor is there any basis in fact for petitioner’s contention that because of overcrowding in the front seat of the Cimarron there was “decreased maneuverability” which prevented the Cimarron driver from avoiding the panel truck. There is absolutely no basis for this claim. There is nothing in the testimonies of the passengers of the Cimarron, particularly Charito Estolano, who was seated in front, which suggest that the driver had no elbow room for maneuvering the vehicle. To the contrary, from the testimony of some of the witnesses,[if !supportFootnotes][9][endif] it appears that the driver of the Cimarron tried to avoid the collision but because of the emergency created by the speeding panel truck coming from the opposite direction he was not able to fully move his Cimarron away from the path of the oncoming vehicle. We are convinced that no “maneuvering” which the Cimarron driver could have done would have avoided a collision with the panel truck, given the suddenness of the events. Clearly, the overcrowding in the front seat was immaterial.

All these point to the fact that the proximate cause of the accident was the negligence of petitioner’s driver. As the trial court noted, the swerving of petitioner’s panel truck to the opposite lane could mean not only that petitioner’s driver was running the vehicle at a very high speed but that he was tailgating the passenger jeepney ahead of it as well.

Petitioner’s driver claimed that the distance between the panel truck and the passenger jeepney in front was about 12 meters.[if !supportFootnotes][10][endif] If this was so, he would have had no difficulty bringing his panel truck to a stop. It is very probable that the driver did not really apply his brakes (which is why there were no skid marks) but that finding the jeepney in front of him to be in close proximity, he tried to avoid hitting it by swerving his vehicle to the left. In the process, however, he invaded a portion of the opposite lane and consequently hit the Cimarron. Indeed, the panel truck driver testified that his vehicle was running at the speed of 60 miles per hour. [if !supportFootnotes][11]

[endif] He tried to correct himself when asked by petitioner’s counsel whether the panel truck speedometer indicated miles or kilometers by saying that the speedometer measured kilometers and not miles, but on cross examination his testimony got muddled.[if !supportFootnotes][12][endif]

Be that as it may, whether the driver meant 60 miles per hour (which could be 96.77 kilometers per hour) or 60 kilometers per hour, the fact remains that the panel truck was overspeeding because the maximum allowable speed for trucks and buses on open country roads, such as the Aguinaldo Highway in Imus, Cavite, is only 50 kilometers per hour.[if !supportFootnotes][13][endif]

The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no swerving of the vehicle in that case but skidding, and it was caused by the fact that the road was wet and slippery. In this case, the road was dry and safe. There was no reason for the vehicle to swerve because of road condition. The only explanation for this occurrence was human error.

Petitioner’s reliance on the McKee case is also misplaced. In that case, the driver of the vehicle at fault, a truck, had an opportunity to avoid the collision but he ignored the signals from the other vehicle, a car, to slow down and allow it to safely pass the bridge. In this case, there was no such opportunity given the Cimarron on the night of

the mishap. Everything happened so quickly that before the passengers of the Cimarron knew it, the vehicle had been bumped by the truck.Second. On its liability as employer of the negligent driver, petitioner contends that the non-submission of the NBI clearance and police clearance of its driver does not mean that it failed to exercise the diligence of a good father of the family in the selection and supervision of its employees. It argues that there is no law requiring employees to submit NBI and police clearance prior to their employment. Hence, petitioner’s failure to require submission of these documents does not mean that it did not exercise due diligence in the selection and supervision of its employees. On the other hand, it asserts that its employment of Herman Hernandez as a driver means that he had passed the screening tests of the company, including submission of the aforementioned documents. Petitioner maintains that the presumption is that the said driver submitted NBI and police clearance.

Petitioner likewise contends that the Court of Appeal’s position that it failed to exercise due diligence in the selection and supervision of its employees by not requiring its prospective employees to undergo psychological and physical tests before employment has no basis in law because there is no law requiring such tests prior to hiring employees.

The petitioner’s contention has no merit. The Court of Appeals did not say that petitioner’s failure to submit NBI and police clearances of its driver was proof that petitioner failed to exercise due diligence in the selection of its employees. What the Court of Appeals said was that petitioner’s policy of requiring prospective employees to submit NBI and police clearance and to have at least two (2) years experience as driver prior to employment was not enough to prove the exercise of due diligence and that even this policy petitioner failed to prove by its failure to present the driver’s NBI and police records during the trial.

With respect to the requirement of passing psychological and physical tests prior to his employment, although no law requires it, such circumstance would certainly be a reliable indicator of the exercise of due diligence. As the trial court said:[if !supportFootnotes][14][endif]

. . . No tests of skill, physical as well as mental and emotional, were conducted on their would-be employees. No on-the-job training and seminars reminding employees, especially drivers, of road courtesies and road rules and regulations were done. There were no instructions given to defendant’s drivers as to how to react in cases of emergency nor what to do after an emergency occurs. There was even failure on the part of defendant to present its concerned employee’s 204 file. All these could only mean failure on the part of defendant to exercise the diligence required of it of a good father of a family in the selection and supervision of its employees.Indeed, driving exacts a more than usual toll on the senses.[if !supportFootnotes][15][endif] Accordingly, it behooves employers to exert extra care in the selection and supervision of their employees. They must go beyond the minimum requirements fixed by law. In this case, David Bautista, the office manager of petitioner in its Dasmariñas plant, said that petitioner has a policy of requiring job applicants to submit clearances from the police and the NBI. In the case of applicants for the position of driver they are required to have at least two (2) years driving experience and to be holders of a professional driver’s license for at least two years. But the supposed company policies on employment were not in writing. Nor did Bautista show in what manner he supervised the drivers to ensure that they drove their vehicles in a safe way. Third. With respect to the question of damages, we find no reversible error committed in the award of actual damages to private respondents. To justify an award of actual damages, there must be competent proof of the actual amount of loss. Credence can be given only to claims which are duly supported by receipts.[if !supportFootnotes][16][endif] Here, the actual damages claimed by private respondents were duly supported by receipts and appear to have been really incurred.

As to the moral damages awarded, we find them to be reasonable and necessary in view of the circumstances of this case. Moral damages are awarded to allow the victims to obtain means, diversion, or amusement to alleviate the moral suffering they had undergone due to the defendant’s culpable action. [if !supportFootnotes][17][endif] In this case, private respondents doubtless suffered some ordeal because some of them lost their loved ones, while others lost their future. Within the meaning of Art. 2217 of the Civil Code, they suffered sleepless nights, mental anguish, serious anxiety, and wounded feelings. An award of moral damages in their favor is thus justified.

The award of P50,000.00 to the heirs of Jason Bernabe as death indemnity is likewise in accordance with law.[if !supportFootnotes][18][endif] However, the award of P100,000 to the heirs of Dalmacio Salunoy, denominated in the decision of the trial court as “moral damages and unearned income” cannot be upheld. The heirs were already included among those awarded moral damages. Marilyn Salunoy was ordered to be paid P10,000, Jack Salunoy, P10,000, and their mother Nenita Salunoy, P20,000, as moral damages. The amount of P100,000 was presumably

awarded primarily for loss of earning capacity but even then the amount must be modified. In accordance with our cases[if !supportFootnotes][19][endif] on this question, the formula for determining the life expectancy of Dalmacio Salunoy must be determined by applying the formula 2/3 multiplied by (80 minus the age of the deceased). Since Salunoy was 46 years of age at the time of his death, as stated in his death certificate, then his life expectancy was 22.6 years, or up to 68 years old.

Next, his net earnings must be computed. At the time of his death, Dalmacio Salunoy was earning more than P900.00 a month as bookkeeper at the PMCI so that his annual gross earnings was about P11,000.00. From this amount, about 50% should be deducted as reasonable and necessary living expenses because it seems his wife occasionally finds work and thus helps in the household expenses.Based on the foregoing, his net earning capacity was P124,300.00 computed as follows:[if !supportFootnotes][20][endif]

net earning lifecapacity (x) = expectancy x [Gross annual income less reasonable & necessary living expenses]x = [2 (80-46)] x [P11,000 - P5,500] 3 = 22.6 x 5,500 = P124,300.00

In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death indemnity.Finally, the award of attorney’s fees should be disallowed as the trial court did not give any justification for

granting it in its decision. It is now settled that awards of attorney’s fees must be based on findings of fact and law, stated in the decision of the trial court.[if !supportFootnotes][21][endif]

WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the award of P100,000.00 denominated “for moral damages and unearned income” is deleted, and in lieu thereof the amount of P124,300.00 for loss of earning capacity and the further amount of P50,000.00 for death indemnity are awarded to the heirs of Dalmacio Salunoy and the award of P50,000.00 for attorney’s fees is disallowed. In all other respects the appealed decision is AFFIRMED.

SO ORDERED.Bellosillo (Chairman), Puno, and Martinez, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

DECISION

February 18, 1915G.R. No. L-9356C. S. GILCHRIST, plaintiff-appellee,vs.E. A. CUDDY, ET AL., defendants. JOSE FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants.C. Lozano for appellants. Bruce, Lawrence, Ross and Block for appellee.TRENT, J.:An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of the Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for damages against the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction.Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of May, 1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain cinematograph film called "Zigomar" in compliance with an alleged contract which had been entered into between these two parties, and at the time an ex parte preliminary injunction was issued restraining the appellants from receiving and exhibiting in their theater the Zigomar until further orders of the court. On the 26th of that month the appellants appeared and moved the court to dissolve the preliminary injunction. When the case was called for trial on August 6, the appellee moved for the dismissal of the complaint "for the reason that there is no further necessity for the maintenance of the injunction." The motion was granted without objection as to Cuddy and denied as to the appellants in order to give them an opportunity to prove that the injunction were wrongfully issued and the amount of damages suffered by reason thereof.The pertinent part of the trial court's findings of fact in this case is as follows:It appears in this case that Cuddy was the owner of the film Zigomar and that on the 24th of April he rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the 26th of May, the week beginning that day. A few days prior to this Cuddy sent the money back to Gilchrist, which he had forwarded to him in Manila, saying that he had made other arrangements with his film. The other arrangements was the rental to these defendants Espejo and his partner for P350 for the week and the injunction was asked by Gilchrist against these parties from showing it for the week beginning the 26th of May.It appears from the testimony in this case, conclusively, that Cuddy willfully violated his contract, he being the owner of the picture, with Gilchrist because the defendants had offered him more for the same period. Mr. Espejo at the trial on the permanent injunction on the 26th of May admitted that he knew that Cuddy was the owner of the film. He was trying to get it through his agents Pathe Brothers in Manila. He is the agent of the same concern in Iloilo. There is in evidence in this case on the trial today as well as on the 26th of May, letters showing that the Pathe Brothers in Manila advised this man on two different occasions not to contend for this film Zigomar because the rental price was prohibitive and assured him also that he could not get the film for about six weeks. The last of these letters was written on the 26th of April, which showed conclusively that he knew they had to get this film from Cuddy and from this letter that the agent in Manila could not get it, but he made Cuddy an offer himself and Cuddy accepted it because he was paying about three times as much as he had contracted with Gilchrist for. Therefore, in the opinion of this court, the defendants failed signally to show the injunction against the defendant was wrongfully procured.The appellants duly excepted to the order of the court denying their motion for new trial on the ground that the evidence was insufficient to justify the decision rendered. There is lacking from the record before us the deposition of the defendant Cuddy, which apparently throws light upon a contract entered into between him and the plaintiff Gilchrist. The contents of this deposition are discussed at length in the brief of the appellants and an endeavor is made to show that no such contract was entered into. The trial court, which had this deposition before it, found that there was a contract between Cuddy and Gilchrist. Not having the deposition in question before us, it is impossible to say how strongly it militates against this findings of fact. By a series of decisions we have construed section 143

and 497 (2) of the Code of Civil Procedure to require the production of all the evidence in this court. This is the duty of the appellant and, upon his failure to perform it, we decline to proceed with a review of the evidence. In such cases we rely entirely upon the pleadings and the findings of fact of the trial court and examine only such assigned errors as raise questions of law. (Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324; Valle vs. Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs. Smith, Bell & Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen & Co. vs. Matson, Lord & Belser Co., 19 Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep., 161; Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs. Chaves, 20 Phil. Rep., 147; Mans vs. Garry, 20 Phil. Rep., 134.) It is true that some of the more recent of these cases make exceptions to the general rule. Thus, in Olsen & Co. vs. Matson, Lord & Belser Co., (19 Phil. Rep., 102), that portion of the evidence before us tended to show that grave injustice might result from a strict reliance upon the findings of fact contained in the judgment appealed from. We, therefore, gave the appellant an opportunity to explain the omission. But we required that such explanation must show a satisfactory reason for the omission, and that the missing portion of the evidence must be submitted within sixty days or cause shown for failing to do so. The other cases making exceptions to the rule are based upon peculiar circumstances which will seldom arise in practice and need not here be set forth, for the reason that they are wholly inapplicable to the present case. The appellants would be entitled to indulgence only under the doctrine of the Olsen case. But from that portion of the record before us, we are not inclined to believe that the missing deposition would be sufficient to justify us in reversing the findings of fact of the trial court that the contract in question had been made. There is in the record not only the positive and detailed testimony of Gilchrist to this effect, but there is also a letter of apology from Cuddy to Gilchrist in which the former enters into a lengthy explanation of his reasons for leasing the film to another party. The latter could only have been called forth by a broken contract with Gilchrist to lease the film to him. We, therefore, fail to find any reason for overlooking the omission of the defendants to bring up the missing portion of the evidence and, adhering to the general rule above referred to, proceed to examine the questions of law raised by the appellants.From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the owner of the "Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance with the terms of the contract entered into between Cuddy and Gilchrist the former leased to the latter the "Zigomar" for exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913; and that Cuddy willfully violate his contract in order that he might accept the appellant's offer of P350 for the film for the same period. Did the appellants know that they were inducing Cuddy to violate his contract with a third party when they induced him to accept the P350? Espejo admitted that he knew that Cuddy was the owner of the film. He received a letter from his agents in Manila dated April 26, assuring him that he could not get the film for about six weeks. The arrangement between Cuddy and the appellants for the exhibition of the film by the latter on the 26th of May were perfected after April 26, so that the six weeks would include and extend beyond May 26. The appellants must necessarily have known at the time they made their offer to Cuddy that the latter had booked or contracted the film for six weeks from April 26. Therefore, the inevitable conclusion is that the appellants knowingly induced Cuddy to violate his contract with another person. But there is no specific finding that the appellants knew the identity of the other party. So we must assume that they did not know that Gilchrist was the person who had contracted for the film.The appellants take the position that if the preliminary injunction had not been issued against them they could have exhibited the film in their theater for a number of days beginning May 26, and could have also subleased it to other theater owners in the nearby towns and, by so doing, could have cleared, during the life of their contract with Cuddy, the amount claimed as damages. Taking this view of the case, it will be unnecessary for us to inquire whether the mandatory injunction against Cuddy was properly issued or not. No question is raised with reference to the issuance of that injunction.The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be fully recognized and admitted by all. That Cuddy was liable in an action for damages for the breach of that contract, there can be no doubt. Were the appellants likewise liable for interfering with the contract between Gilchrist and Cuddy, they not knowing at the time the identity of one of the contracting parties? The appellants claim that they had a right to do what they did. The ground upon which the appellants base this contention is, that there was no valid and binding contract between Cuddy and Gilchrist and that, therefore, they had a right to compete with Gilchrist for the lease of the film, the right to compete being a justification for their acts. If there had been no contract between Cuddy and Gilchrist this defense would be tenable, but the mere right to compete could not justify the appellants in intentionally inducing Cuddy to take away the appellee's contractual rights.Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy the fruits and

advantages of his own enterprise, industry, skill and credit. He has no right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with."In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: "I think the plaintiff has a cause of action against the defendants, unless the court is satisfied that, when they interfered with the contractual rights of plaintiff, the defendants had a sufficient justification for their interference; . . . for it is not a justification that `they acted bona fide in the best interests of the society of masons,' i. e., in their own interests. Nor is it enough that `they were not actuated by improper motives.' I think their sufficient justification for interference with plaintiff's right must be an equal or superior right in themselves, and that no one can legally excuse himself to a man, of whose contract he has procured the breach, on the ground that he acted on a wrong understanding of his own rights, or without malice, or bona fide, or in the best interests of himself, or even that he acted as an altruist, seeking only good of another and careless of his own advantage." (Quoted with approval in Beekman vs. Marsters, 195 Mass., 205.)It is said that the ground on which the liability of a third party for interfering with a contract between others rests, is that the interference was malicious. The contrary view, however, is taken by the Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U. S., 1). The only motive for interference by the third party in that case was the desire to make a profit to the injury of one of the parties of the contract. There was no malice in the case beyond the desire to make an unlawful gain to the detriment of one of the contracting parties.In the case at bar the only motive for the interference with the Gilchrist - Cuddy contract on the part of the appellants was a desire to make a profit by exhibiting the film in their theater. There was no malice beyond this desire; but this fact does not relieve them of the legal liability for interfering with that contract and causing its breach. It is, therefore, clear, under the above authorities, that they were liable to Gilchrist for the damages caused by their acts, unless they are relieved from such liability by reason of the fact that they did not know at the time the identity of the original lessee (Gilchrist) of the film.The liability of the appellants arises from unlawful acts and not from contractual obligations, as they were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the action of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of the Civil Code. Article 1902 of that code provides that a person who, by act or omission, causes damages to another when there is fault or negligence, shall be obliged to repair the damage do done. There is nothing in this article which requires as a condition precedent to the liability of a tort-feasor that he must know the identity of a person to whom he causes damages. In fact, the chapter wherein this article is found clearly shows that no such knowledge is required in order that the injured party may recover for the damage suffered.But the fact that the appellants' interference with the Gilchrist contract was actionable did not of itself entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must be justified under section 164 of the Code of Civil Procedure, which specifies the circumstance under which an injunction may issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil. Rep., 273):An injunction is a "special remedy" adopted in that code (Act No. 190 ) from American practice, and originally borrowed from English legal procedure, which was there issued by the authority and under the seal of a court of equity, and limited, as in order cases where equitable relief is sought, to cases where there is no "plain, adequate, and complete remedy at law," which "will not be granted while the rights between the parties are undetermined, except in extraordinary cases where material and irreparable injury will be done," which cannot be compensated in damages, and where there will be no adequate remedy, and which will not, as a rule, be granted, to take property out of the possession of one party and put it into that of another whose title has not been established by law.We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil., Rep., 444), and we take this occasion of again affirming it, believing, as we do, that the indiscriminate use of injunctions should be discouraged.Does the fact that the appellants did not know at the time the identity of the original lessee of the film militate against Gilchrist's right to a preliminary injunction, although the appellant's incurred civil liability for damages for such interference? In the examination of the adjudicated cases, where in injunctions have been issued to restrain wrongful interference with contracts by strangers to such contracts, we have been unable to find any case where this precise question was involved, as in all of those cases which we have examined, the identity of both of the contracting parties was known to the tort-feasors. We might say, however, that this fact does not seem to have a controlling feature in those cases. There is nothing in section 164 of the Code of Civil Procedure which indicates,

even remotely, that before an injunction may issue restraining the wrongful interference with contrast by strangers, the strangers must know the identity of both parties. It would seem that this is not essential, as injunctions frequently issue against municipal corporations, public service corporations, public officers, and others to restrain the commission of acts which would tend to injuriously affect the rights of person whose identity the respondents could not possibly have known beforehand. This court has held that in a proper case injunction will issue at the instance of a private citizen to restrain ultra vires acts of public officials. (Severino vs. Governor-General, 16 Phil. Rep., 366.) So we proceed to the determination of the main question of whether or not the preliminary injunction ought to have been issued in this case.As a rule, injunctions are denied to those who have an adequate remedy at law. Where the choice is between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will not permit the use of the latter. (In re Debs, 158 U. S., 564.) If the injury is irreparable, the ordinary process is inadequate. In Wahle vs. Reinbach (76 Ill., 322), the supreme court of Illinois approved a definition of the term "irreparable injury" in the following language: "By `irreparable injury' is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the one hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law." (Quoted with approval in Nashville R. R. Co. vs. McConnell, 82 Fed., 65.)The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy and Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it is conceded the appellants were at liberty to complete by all fair does not deter the application of remarked in the case of the "ticket scalpers" (82 Fed., 65), the novelty of the facts does not deter the application of equitable principles. This court takes judicial notice of the general character of a cinematograph or motion-picture theater. It is a quite modern form of the play house, wherein, by means of an apparatus known as a cinematograph or cinematograph, a series of views representing closely successive phases of a moving object, are exhibited in rapid sequence, giving a picture which, owing to the persistence of vision, appears to the observer to be in continuous motion. (The Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have lent themselves to the art of the photographer in this manner have increased enormously in recent years, as well as have the places where such exhibition are given. The attendance, and, consequently, the receipts, at one of these cinematograph or motion-picture theaters depends in no small degree upon the excellence of the photographs, and it is quite common for the proprietor of the theater to secure an especially attractive exhibit as his "feature film" and advertise it as such in order to attract the public. This feature film is depended upon to secure a larger attendance that if its place on the program were filled by other films of mediocre quality. It is evident that the failure to exhibit the feature film will reduce the receipts of the theater.Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that the appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. It is quite apparent that to estimate with any decree of accuracy the damages which Gilchrist would likely suffer from such an event would be quite difficult if not impossible. If he allowed the appellants to exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to witness the production would have been already satisfied. In this extremity, the appellee applied for and was granted, as we have indicated, a mandatory injunction against Cuddy requiring him to deliver the Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining them from exhibiting that film in their theater during the weeks he (Gilchrist) had a right to exhibit it. These injunction saved the plaintiff harmless from damages due to the unwarranted interference of the defendants, as well as the difficult task which would have been set for the court of estimating them in case the appellants had been allowed to carry out their illegal plans. As to whether or not the mandatory injunction should have been issued, we are not, as we have said, called upon to determine. So far as the preliminary injunction issued against the appellants is concerned, which prohibited them from exhibiting the Zigomar during the week which Gilchrist desired to exhibit it, we are of the opinion that the circumstances justified the issuance of that injunction in the discretion of the court.We are not lacking in authority to support our conclusion that the court was justified in issuing the preliminary injunction against the appellants. Upon the precise question as to whether injunction will issue to restrain wrongful interference with contracts by strangers to such contracts, it may be said that courts in the United States have usually granted such relief where the profits of the injured person are derived from his contractual relations with a large and indefinite number of individuals, thus reducing him to the necessity of proving in an action against the tort-feasor that the latter was responsible in each case for the broken contract, or else obliging him to institute individual suits

against each contracting party and so exposing him to a multiplicity of suits. Sperry & Hutchinson Co. vs. Mechanics' Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co. (161 Fed., 219); Sperry & Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases wherein the respondents were inducing retail merchants to break their contracts with the company for the sale of the latters' trading stamps. Injunction issued in each case restraining the respondents from interfering with such contracts.In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things, said: "One who wrongfully interferes in a contract between others, and, for the purpose of gain to himself induces one of the parties to break it, is liable to the party injured thereby; and his continued interference may be ground for an injunction where the injuries resulting will be irreparable."In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the respondents were interfering in a contract for prison labor, and the result would be, if they were successful, the shutting down of the petitioner's plant for an indefinite time. The court held that although there was no contention that the respondents were insolvent, the trial court did not abuse its discretion in granting a preliminary injunction against the respondents.In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract whereby he was made their exclusive agent for the New England States to solicit patronage for the hotel. The defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him to act also as their agent in the New England States. The court held that an action for damages would not have afforded the plaintiff adequate relief, and that an injunction was proper compelling the defendant to desist from further interference with the plaintiff's exclusive contract with the hotel company.In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed., 553), the court, while admitting that there are some authorities to the contrary, held that the current authority in the United States and England is that:The violation of a legal right committed knowingly is a cause of action, and that it is a violation of a legal right to interfere with contractual relations recognized by law, if there be no sufficient justification for the interference. (Quinn vs. Leatham, supra, 510; Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55; Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y., 82; 23 Am. Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L. Ed., 171; Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.] 201; 122 Am. St. Rep., 232; South Wales Miners' Fed. vs. Glamorgan Coal Co., Appeal Cases, 1905, p. 239.)See also Nims on Unfair Business Competition, pp. 351- 371.In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a wrongful interference with contract by strangers to such contracts where the legal remedy is insufficient and the resulting injury is irreparable. And where there is a malicious interference with lawful and valid contracts a permanent injunction will ordinarily issue without proof of express malice. So, an injunction may be issued where the complainant to break their contracts with him by agreeing to indemnify who breaks his contracts of employment may be adjoined from including other employees to break their contracts and enter into new contracts with a new employer of the servant who first broke his contract. But the remedy by injunction cannot be used to restrain a legitimate competition, though such competition would involve the violation of a contract. Nor will equity ordinarily enjoin employees who have quit the service of their employer from attempting by proper argument to persuade others from taking their places so long as they do not resort to force or intimidations on obstruct the public thoroughfares."Beekman vs. Marster, supra, is practically on all fours with the case at bar in that there was only one contract in question and the profits of the injured person depended upon the patronage of the public. Hamby & Toomer vs. Georgia Iron & Coal Co., supra, is also similar to the case at bar in that there was only one contract, the interference of which was stopped by injunction.For the foregoing reasons the judgment is affirmed, with costs, against the appellants.Arellano, C.J., Torres, Carson and Araullo, JJ., concur.

Separate Opinions

MORELAND, J., concurring:The court seems to be of the opinion that the action is one for a permanent injunction; whereas, under my view of the case, it is one for specific performance. The facts are simple. C. S. Gilchrist, the plaintiff, proprietor of the Eagle

Theater of Iloilo, contracted with E. A. Cuddy, one of the defendants, of Manila, for a film entitled "Zigomar or Eelskin, 3d series," to be exhibited in his theater in Iloilo during the week beginning May 26, 1913. Later, the defendants Espejo and Zaldarriaga, who were also operating a theater in Iloilo, representing Pathe Freres, also obtained from Cuddy a contract for the exhibition of the film aforesaid in their theater in Iloilo during the same week.The plaintiff commenced this action against Cuddy and the defendants Espejo and Zaldarriaga for the specific performance of the contract with Cuddy. The complaint prays "that the court, by a mandatory injunction, order Cuddy to deliver, on the 24th of May, 1913, in accordance with the aforesaid contract, the said film 'Zigomar, 3d series, or Eelskin,' to the plaintiff Gilchrist, in accordance with the terms of the agreement, so that plaintiff can exhibit the same during the last week beginning May 26, 1913, in the Eagle Theater, in Iloilo; that the court issue a preliminary injunction against the defendants Espejo and Zaldarriaga prohibiting them from receiving, exhibiting, or using said film in Iloilo during the last week of May, 1913, or at any other time prior to the delivery to the plaintiff; that, on the trial, said injunction be made perpetual and that Cuddy be ordered and commanded to specifically perform his contract with the plaintiff."On the filing of the complaint the plaintiff made an application for a mandatory injunction compelling the defendant Cuddy to deliver to plaintiff the film in question by mailing it to him from Manila on the 24th of May so that it would reach Iloilo for exhibition on the 26th; and for a preliminary restraining order against the order two defendants prohibiting them from receiving or exhibiting the said film prior to its exhibition by plaintiff.The court, on this application, entered an order which provided that Cuddy should "not send said film 'Zigomar, 3d series, or Eelskin,' to the defendants Espejo and Zaldarriaga and that he should send it to the plaintiff, Gilchrist, on the 24th day of May, 1913, in the mail for Iloilo," This order was duly served on the defendants, including Cuddy, in whose possession the film still was, and, in compliance therewith Cuddy mailed the film to the plaintiff at Iloilo on the 24th of May. The latter duly received it and exhibited it without molestation during the week beginning the 26th of May in accordance with the contract which he claimed to have made with Cuddy.The defendants Espejo and Zaldarriaga having received due notice of the issuance of the mandatory injunction and restraining order of the 22d of May, appeared before the court on the 26th of May and moved that the court vacate so much of the order as prohibited them from receiving and exhibiting the film. In other words, while the order of the 22d of May was composed of two parts, one a mandatory order for immediate specific performance of the plaintiff's contract with the defendant Cuddy, and the other a preliminary restraining order directed to Espejo and Zaldarriaga prohibiting them from receiving and exhibiting the film during the week beginning the 26th of May, their motion of the 26th of May referred exclusively to the injunction against them and touched in no way that portion of the order which required the immediate performance by Cuddy of his contract with Gilchrist. Indeed, the defendants Espejo and Zaldarriaga did not even except to the order requiring Cuddy to specifically perform his agreement with the plaintiff nor did they in any way make an objection to or show their disapproval of it. It was not excepted to or appealed from and is not before this court for review.The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from receiving the film was denied on the 26th of May. After the termination of the week beginning May 26th, and after the exhibition of the film by the plaintiff in accordance with the alleged contract with Cuddy, the plaintiff came into court and moved that, in view of the fact that he had already obtained all that he desired to obtain or could obtain by his action, namely, the exhibition of the film in question during the week beginning May 26th, there was no reason for continuing it and moved for its dismissal. To this motion Cuddy consented and the action was dismissed as to him. But the other defendants objected to the dismissal of the action on the ground that they desired to present to the court evidence showing the damages which they had suffered by reason of the issuance of the preliminary injunction prohibiting them from receiving and exhibiting the film in question during the week beginning May 26. The court sustained their objection and declined to dismiss the action as to them, and, on the 8th of August, heard the evidence as to damages. He denied defendants the relief asked for and dismissed their claim for damages. They thereupon took an appeal from that order, and that is the appeal which we have now before us and which is the subject of the opinion of the court with which I am concurring.We thus have this strange condition:An action for specific performance of a contract to deliver a film for exhibition during a given time. A preliminary mandatory injunction ordering the delivery of the film in accordance with the contract. The delivery of the film in accordance with the preliminary mandatory injunction. The actual exhibition of the film during the time specified in the contract. No objection to the issuance of the mandatory injunction, to the delivery of the film, or to the ground

that the plaintiff had obtained full relief by means of the so-called preliminary remedy by virtue of which the contract was actually specifically performed before the action was tried. No objection or exception to the order requiring the specific performance of the contract.Under such conditions it is possible for the defendant Espejo and Zaldarriaga to secure damages for the wrongful issuance of the preliminary injunction directed against them even though it be admitted that it was erroneously issued and that there was no ground therefor whatever? It seems to me that it is not. At the time this action was begun the film, as we have seen, was in the possession of Cuddy and, while in his possession, he complied with a command of the court to deliver it to plaintiff. In pursuance of that command he delivered it to plaintiff, who used it during the time specified in his contract with Cuddy; or, in other words, he made such use of it as he desired and then returned it to Cuddy. This order and the delivery of the film under it were made in an action in which the defendants Espejo and Zaldarriaga were parties, without objection on their part and without objection or exception to the order. The film having been delivered to defendants' competitor, the plaintiff, under a decree of the court to which they made no objection and took no exception and from which they have not appealed, what injury can they show by reason of the injunction restraining them from making use of the film? If they themselves, by their conduct, permitted the plaintiff to make it impossible for them to gain possession of the film and to use it, then the preliminary injunction produced no injury for the reason that no harm can result from restraining a party from doing a thing which, without such restraint, it would be impossible for him to do. Moreover, the order for the delivery of the film to plaintiff was a complete determination of the rights of the parties to the film which, while the court had no right to make, nevertheless, was valid and binding on all the parties, none of them objecting or taking exception thereto. Being a complete determination of the rights of the parties to the action, it should have been the first point attacked by the defendants, as it foreclosed them completely and, if left in force, eliminating every defense. This order was made on May 22d and was not excepted to or appealed from. On the 8th of August following the defendants appealed from the order dismissing their claim to damages but the order for the delivery of the film to plaintiff was final at that time and is now conclusive on this court.Section 143 of the Code of Civil Procedure, providing for appeals by bill of exceptions, provides that "upon the rendition of final judgment disposing of the action, either party shall have the right to perfect a bill of exceptions for a review by the Supreme Court of all rulings, orders, and judgment made in the action, to which the party has duly excepted at the time of making such ruling, order, or judgment." While the order for the delivery of the film to plaintiff was in one sense a preliminary order, it was in reality a final determination of the rights of the parties to the film, as it ordered the delivery thereof to plaintiff for his use. If it had been duly excepted to, its validity could have been attacked in an appeal from the final judgment thereafter entered in the action. Not having been excepted to as required by the section just referred to, it became final and conclusive on all the parties to the action, and when, on the 8th day of August following, the defendants presented their claim for damages based on the alleged wrongful issuance of a temporary restraining order, the whole foundation of their claim had disappeared by virtue of the fact that the execution of the order of the 22d of May had left nothing for them to litigate. The trial court, on the 8th of August, would have been fully justified in refusing to hear the defendants on their claim for damages. Their right thereto had been adjudicated on the 22d of May and that adjudication had been duly put into execution without protest, objection or exception, and was, therefore, final and conclusive on them on the 8th of August.I have presented this concurring opinion in an attempt to prevent confusion, if any, which might arise from the theory on which the court decides this case. It seems to me impossible that the action can be one for a permanent injunction. The very nature of the case demonstrates that a permanent injunction is out of the question. The only thing that plaintiff desired was to be permitted to use the film for the week beginning the 26th of May. With the termination of that week his rights expired. After that time Cuddy was perfectly free to turn the film over to the defendants Espejo and Zaldarriaga for exhibition at any time. An injunction permanently prohibiting the defendants from exhibiting the film in Iloilo would have been unjustifiable, as it was something that plaintiff did not ask and did not want; and would have been an invasion of the rights of Cuddy as, after the termination of the week beginning May 26, he was at liberty, under his contract with plaintiff, to rent the film to the defendants Espejo and Zaldarriaga and permit its exhibition in Iloilo at any time. The plaintiff never asked to have defendants permanently enjoined from exhibiting the film in Iloilo and no party to the action has suggested such thing.The action is one for specific performance purely; and while the court granted plaintiff rights which should have been granted only after a trial of the action, nevertheless, such right having been granted before trial and none of the defendants having made objection or taken exception thereto, and the order granting them having become final, such order became a final determination of the action, by reason of the nature of the action itself, the rights of the parties

became thereby finally determined and the defendants Espejo and Zaldarriaga, being parties to the action, were precluded from further litigation relative to the subject matter of the controversy.No damages are claimed by reason of the issuance of the mandatory injunction under which the film was delivered to plaintiff and used by him during the week beginning the 26th of May. While the opinion says in the first paragraph that the action is "for damages against the plaintiff for the alleged wrongful issuance of a mandatory and preliminary injunction," the opinion also says in a latter portion that "It will be unnecessary for us to inquire whether the mandatory injunction against Cuddy was properly issued or not. No question is raised with reference to the issuance of that injunction;" and still later it is also stated that "as to whether or not the mandatory injunction should have been issued, we are not, as we have said, called upon to determine." I repeat that no objection was made by the defendants to the issuance of the mandatory injunction, no exception was taken to the order on which it was issued and no appeal has been taken therefrom. That order is now final and conclusive and was at the time this appeal was taken. That being so, the rights of the defendants were foreclosed thereby. The defendants Espejo and Zaldarriaga cannot now be heard to say that they were damaged by the issuance of the preliminary restraining injunction issued on the same day as the mandatory injunction.From what has been said it is clear, it seems to me, that the question of a breach of contract by inducement, which is substantially the only question discussed and decided, is not in the case in reality and, in my judgment, should not be touched upon. Courts will not proceed with a litigation and discuss and decided question which might possibly be involved in the case when it clearly appears that there remains nothing about which to litigate, the whole subject matter of the original action having been settled and the parties having no real controversy to present. At the time the defendants Espejo and Zaldarriaga offered their claim for damages arising out of the wrongful issuance of the restraining order, there was nothing between them and the plaintiff to litigate, the rightfulness of plaintiff's demand having already been finally adjudicated and determined in the same action.


ManilaSECOND DIVISION

G.R. No. 77679 September 30, 1987VICENTE VERGARA, petitioner, vs.THE COURT OF APPEALS and AMADEO AZARCON, respondents.R E S O L U T I O N PADILLA, J.:An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private respondent against petitioner. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on" the store-residence of the private respondent, causing damages thereto which were inventoried and assessed at P53,024.22.In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte operated said cargo truck in a very diligent (and) careful manner; that the steering wheel refused to respond to his effort and as a result of a blown-out tire and despite application of his brakes, the said cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident was an act of God for which he cannot be held liable." 1Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation, alleging that said cargo truck involved in the vehicular accident, belonging to the petitioner, was insured by the third party defendant insurance company. Petitioner asked that the latter be ordered to pay him whatever amount he may be ordered by the court to pay to the private respondent.The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals, the latter court affirmed in toto the decision of the trial court, which ordered Petitioner to pay, jointly and severally with Travellers Insurance and Surety Corporation, to the private, respondent the following: (a) P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third party complaint, the insurance company was sentenced to pay to the petitioner the following: (a) P50,000.00 for third party liability under its comprehensive accident insurance policy; and (b) P3,000.00 for and as attorney's fees.Hence, this petition for review on certiorari.Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not tenable. It was established by competent evidence that the requisites of a quasi-delict are present in the case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose acts he must respond, was guilty; and (3) the connection of cause and effect between such negligence and the damages.It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner. The issue of whether or not this act or omission can be considered as a "negligent" act or omission was passed upon by the trial court. The findings of said court, affirmed by the respondent court, which we are not prepared to now disturb, show that the fact of occurrence of the "vehicular accident" was sufficiently established by the policy report and the testimony of Patrolman Masiclat. And the fact of negligence may be deduced from the surrounding circumstances thereof. According to the police report, "the cargo truck was travelling on the right side of the road going to Manila and then it crossed to the center line and went to the left side of the highway; it then bumped a tricycle; and then another bicycle; and then said cargo truck rammed the store warehouse of the plaintiff." 2

According to the driver of the cargo truck, he applied the brakes but the latter did not work due to mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes can not be consideration as fortuitous in character. Certainly, the defects were curable and the accident preventable.Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of negligence on his part in the selection and supervision of his driver.

Based on the foregoing finding by the respondent Court that there was negligence on the part of the petitioner, the petitioner's contention that the respondent court erred in awarding private respondent actual, moral and exemplary damages as well as attorney's fees and costs, is untenable.ACCORDINGLY, the petition is DENIED.SO ORDERED.Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.


ManilaFIRST DIVISION

G.R. No. L-65295 March 10, 1987PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, vs.THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents. FELICIANO, J:In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo Dionisio was on his way home — he lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation. During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures.Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due rare in the selection and supervision of the dump truck driver.The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter:(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the replacement of the lost dentures of plaintiff;(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income for plaintiff brought about the accident in controversy and which is the result of the negligence of the defendants;(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man; mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation, feeling of economic insecurity, and the untold sorrows and frustration in life experienced by plaintiff and his family since the accident in controversy up to the present time;(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard of defendants to settle amicably this case with the plaintiff before the filing of this case in court for a smaller amount.(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees; and(6) The cost of suit. (Emphasis supplied)Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476

affirmed the decision of the trial court but modified the award of damages to the following extent:1. The award of P15,000.00 as compensatory damages was reduced to P6,460.71, the latter being the only amount that the appellate court found the plaintiff to have proved as actually sustained by him;2. The award of P150,000.00 as loss of expected income was reduced to P100,000.00, basically because Dionisio had voluntarily resigned his job such that, in the opinion of the appellate court, his loss of income "was not solely attributable to the accident in question;" and3. The award of P100,000.00 as moral damages was held by the appellate court as excessive and unconscionable and hence reduced to P50,000.00.The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs remained untouched.This decision of the Intermediate Appellate Court is now before us on a petition for review.Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further mention of it. We have examined the record both before the trial court and the Intermediate Appellate Court and we find that both parties had placed into the record sufficient evidence on the basis of which the trial court and the appellate court could have and should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without having to remand it back to the trial court after eleven years, compels us to address directly the contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident.As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatment immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them along with the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out his

headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass.On the second issue — whether or not Dionisio was speeding home that night — both the trial court and the appellate court were completely silent.The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accident almost immediately after it occurred, the police station where he was based being barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per hour and had just crossed the intersection of General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just before the collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of the recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through official information and had not been given by the informants pursuant to any duty to do so. Private respondent's objection fails to take account of the fact that the testimony of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as to render inoperative the normal reflective thought processes of the observer and hence made as a spontaneous reaction to the occurrence or event, and not the result of reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump truck.A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off his headlights even before he reached the intersection so as not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered by private respondent Dionisio — i.e., that he had his headlights on but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at "bright" split seconds before contact with the dump truck.A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. 7 This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8 There simply is not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affect different people differently.The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane.Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal

and proximate cause of the accident and of Dionisio's injuries was the wrongful — or negligent manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence.The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in various jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition" which the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and Keeton make this quite clear:Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm and the existing "conditions" upon which that cause operated. If the defendant has created only a passive static condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. The defendant who spills gasoline about the premises creates a "condition," but the act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has created, the defendant will not escape responsibility. Even the lapse of a considerable time during which the "condition" remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who fans into it a month afterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between "cause" and "condition" which is important but the nature of the risk and the character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in an probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause. What the Petitioners describe as an "intervening cause" was no more than a foreseeable consequent manner which the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor and Keeton:Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligence among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and customary wind arising later wig spread it beyond the defendant's own property, and therefore to take precautions to prevent that event. The person who leaves the combustible or explosive material exposed in a public place may foresee the risk of fire from some independent source. ... In all of these cases there is an intervening cause combining with the defendant's

conduct to produce the result and in each case the defendant's negligence consists in failure to protect the plaintiff against that very risk.Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope original risk, and hence of the defendant's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility.Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on the road or a railroad track should foresee that a vehicle or a train will run into it; ...The risk created by the defendant may include the intervention of the foreseeable negligence of others. ... [The standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is negligently driven; and one who parks an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. --- 10We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines).Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners' pro-position must

tend to weaken the very bonds of society.Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix.Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court.WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20% of such amount. Costs against the petitioners.SO ORDERED.

THIRD DIVISION

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

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

Efren N. Ambrosio & Associates for petitioner PNEI.

Emiliano S. Micu for Respondents.

SYLLABUS

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

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

3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY AVAILABLE MEANS. — This doctrine of last chance has no application to a case where a person is to act instantaneously, and if the injury cannot be avoided by using all means available after the peril is or should have been discovered.

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

5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. — A finding of negligence on the part of the driver establishes a presumption that the employer has been negligent and the latter has the burden of proof that it has exercised due negligence not only in the selection of its employees but also in adequately supervising their work.

6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES. — Plaintiff’s failure to present documentary evidence to support their claim for damages for loss of earning capacity of the deceased victim does not bar recovery of the damages, if such loss may be based sufficiently on their testimonies.

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

D E C I S I O N

CORTES, J.:

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

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

At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the highway going to Malalam River. Upon reaching the highway, the jeepney turned right and proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the jeepney’s lane while negotiating a curve, and collided with it.

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

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

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

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

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the total amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven (P2,304,647.00) as damages, plus 10% thereof as attorney’s fees and costs to Maricar Baesa in Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two Thousand Six Hundred Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as attorney’s fees

and costs to Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were consolidated and the Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay the total amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven Pesos (P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorney’s fees to Maricar Baesa, and the total amount of Three Hundred Forty-Four Thousand Pesos (P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorney’s fees to Fe Ico and her children, and to pay the costs in both cases. The dispositive portion of the assailed decision reads as follows:chanrob1es virtual 1aw library

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

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

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

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

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

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

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

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

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

H) As moral damages — P50,000.00;

I) As attorney’s fees — P20,000.00;

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

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

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

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

D) As payment for the jeepney — P20,000.00;

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

F) And for attorney’s fees — P10,000.00;

and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and

the medical expenses in the sum of P3,273.55, should be deducted from the award in her favor.chanrobles virtual lawlibrary

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

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

I

Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance" against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the driver of the passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:chanrob1es virtual 1aw library

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

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

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

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

The above contention of petitioner is manifestly devoid of merit.

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

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

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

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

Considering the foregoing, the Court finds that the negligence of petitioner’s driver in encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing the jeepney coming from the opposite direction was the sole

and proximate cause of the accident without which the collision would not have occurred. There was no supervening or intervening negligence on the part of the jeepney driver which would have made the prior negligence of petitioner’s driver a mere remote cause of the accident.

II

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

On this point, the Court quotes with approval the following findings of the trial court which was adopted by the Court of Appeals in its challenged decision:chanrob1es virtual 1aw library

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

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

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption of negligence on the part of petitioner and the burden of proving that it

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

III

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

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

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

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

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

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

SO ORDERED.

Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.Republic of the Philippines

SUPREME COURTManilaFIRST DIVISIONG.R. No. 70493 May 18, 1989GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM and PAUL ZACARIAS y INFANTE, petitioners, vs.INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO, Minors ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE CORAZON, JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented by their mother, CECILIA A. VDA. DE CALIBO, respondents.Rufino Mayor and Isidro M. Ampig for petitioners.Manuel L. Hontanosas for private respondents. NARVASA, J.:There is a two-fold message in this judgment that bears stating at the outset. The first, an obvious one, is that it is the objective facts established by proofs presented in a controversy that determine the verdict, not the plight of the persons involved, no matter how deserving of sympathy and commiseration because, for example, an accident of which they are the innocent victims has brought them to. reduced circumstances or otherwise tragically altered their lives. The second is that the doctrine laid done many, many years ago in Picart vs. Smith 1 continues to be good law to this day.The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the Trial Court as follows: 2

Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the wheel, as it approached from the South Lizada Bridge going towards the direction of Davao City at about 1:45 in the afternoon of July 4,1979. At about

that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven by defendant Paul Zacarias y Infants, coming from the opposite direction of Davao City and bound for Glan, South Cotabato, had just crossed said bridge. At about 59 yards after crossing the bridge, the cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and Patos sustained physical injuries. Zacarias was unhurt. As a result of the impact, the left side of the truck was slightly damaged while the left side of the jeep, including its fender and hood, was extensively damaged. After the impact, the jeep fell and rested on its right side on the asphalted road a few meters to the rear of the truck, while the truck stopped on its wheels on the road.On November 27, 1979, the instant case for damages was filed by the surviving spouse and children of the late Engineer Calibo who are residents of Tagbilaran City against the driver and owners of the cargo truck.For failure to file its answer to the third party complaint, third party defendant, which insured the cargo truck involved, was declared in default.The case filed by the heirs of Engineer Calibo his widow and minor children, private respondents herein was docketed asCivil Case No. 3283 of the Court of First Instance of Bohol. 3 Named defendants in the complaint were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners of the Glan People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." 4 The defendants' answer however alleged that the lumber and hardware business was exclusively owned by George Y. Lim, this being evidenced by the Certificate of Registration issued by the Bureau of Domestic Trade; Fabio S. Agad was not a co-owner thereof but "merely employed by . . . George Y. Lim as bookkeeper"; and Felix Lim had no connection whatever with said business, "he being a child only eight (8) years of age." 5

"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the Court reached the conclusion "that the plaintiffs failed to establish by preponderance of evidence the negligence, and thus the liability, of the defendants." Accordingly, the Court dismissed the complaint (and defendants' counterclaim) "for insufficiency of evidence." Likewise dismissed was third-party complaint presented by the defendants against the insurer of the truck. The circumstances leading to the Court's conclusion just mentioned, are detailed in the Court's decision, as follows:1. Moments before its collission with the truck being operated by Zacarias, the jeep of the deceased Calibo was "zigzagging." 6

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

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

4. That there were skid marks left by the truck's tires at the scene, and none by the jeep, demonstrates that the driver of the truck had applied the brakes and the jeep's driver had not; and that the jeep had on impact fallen on its right side is indication that it was running at high speed. Under the circumstances, according to the Court, given "the curvature of the road and the descending grade of the jeep's lane, it was negligence on the part of the driver of the jeep, Engr. Calibo, for not reducing his speed upon sight of the truck and failing to apply the brakes as he got within collision range with the truck."5. Even if it be considered that there was some antecedent negligence on the part of Zacarias shortly before the collision, in that he had caused his truck to run some 25 centimeters to the left of the center of the road, Engr. Calibo had the last clear chance of avoiding the accident because he still had ample room in his own lane to steer clear of the truck, or he could simply have braked to a full stop.The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs' appeal, l0 reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis of the following circumstances, to wit:1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the collision occurred,' and

although Zacarias saw the jeep from a distance of about 150 meters, he "did not drive his truck back to his lane in order to avoid collision with the oncoming jeep . . .;" 11 what is worse, "the truck driver suddenly applied his brakes even as he knew that he was still within the lane of the jeep;" 12 had both vehicles stayed in their respective lanes, the collision would never have occurred, they would have passed "along side each other safely;" 13

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

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

The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of negligence on the part of his employer, and their liability is both primary and solidary." It therefore ordered "the defendants jointly and solidarily to indemnify the plaintiffs the following amounts:(1) P30,000.00 for the death of Orlando Calibo;(2) P378,000.00 for the loss of earning capacity of the deceased(3) P15,000.00 for attorney's fees;(4) Cost of suit. 16

The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this Court on certiorari and pray for a reversal of the judgment of the Intermediate Appellate Court which, it is claimed, ignored or ran counter to the established facts. A review of the record confirms the merit of this assertion and persuades this Court that said judgment indeed disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment, consequently, will have to be reversed.The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep when the collision occurred" is a loose one, based on nothing more than the showing that at the time of the accident, the truck driven by Zacarias had edged over the painted center line of the road into the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by the uncontradicted evidence, the actual center line of the road was not that indicated by the painted stripe but, according to measurements made and testified by Patrolman Juanita Dimaano, one of the two officers who investigated the accident, correctly lay thirty-six (36) centimeters farther to the left of the truck's side of said stripe.The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to the effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide, and that of the truck three (3) meters and three (3) centimeters, measured from the center stripe to the corresponding side lines or outer edges of the road. 17 The total width of the road being, therefore, six (6) meters and seventy-eight (78) centimeters, the true center line equidistant from both side lines would divide the road into two lanes each three (meters) and thirty-nine (39) centimeters wide. Thus, although it was not disputed that the truck overrode the painted stripe by twenty-five (25) centimeters, it was still at least eleven (11) centimeters away from its side of the true center line of the road and well inside its own lane when the accident occurred. By this same reckoning, since it was unquestionably the jeep that rammed into the stopped truck, it may also be deduced that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane of the truck by at least the same 11-centimeter width of space.Not only was the truck's lane, measured from the incorrectly located center stripe uncomfortably narrow, given that vehicle's width of two (2) meters and forty-six (46) centimeters; the adjacent road shoulder was also virtually impassable, being about three (3) inches lower than the paved surface of the road and "soft--not firm enough to offer traction for safe passage — besides which, it sloped gradually down to a three foot-deep ravine with a river below. 18 The truck's lane as erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance from the edge of the road and the dangerous shoulder and little room for maneuver, in case this was made necessary by traffic contingencies or road conditions, if it always kept to said lane. It being also shown that the accident happened at or near the point of the truck's approach to a curve, 19 which called for extra precautions against driving too near the shoulder, it could hardly be accounted negligent on the part of its driver to intrude temporarily, and by only as small as a twenty-five centimeter wide space (less than ten inches), into the opposite lane in order to insure his vehicle's safety. This, even supposing that said maneuver was in fact an intrusion into the opposite lane, which was not the case at all as just pointed out.Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in applying his

brakes instead of getting back inside his lane upon qqqespying the approaching jeep. Being well within his own lane, as has already been explained, he had no duty to swerve out of the jeep's way as said Court would have had him do. And even supposing that he was in fact partly inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters away cannot be considered an unsafe or imprudent action, there also being uncontradicted evidence that the jeep was "zigzagging" 20 and hence no way of telling in which direction it would go as it approached the truck.Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no driver's license at the time. The traffic accident report attests to the proven fact that Zacarias voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had been renewed just the day before the accident, on July 3, 1979. 21 The Court was apparently misled by the circumstance that when said driver was first asked to show his license by the investigators at the scene of the collision, he had first inadvertently produced the license of a fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked Zacarias to bring it back to him in Glan, Cotabato. 22

The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a few significant indicators that it was rather Engineer Calibo's negligence that was the proximate cause of the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and later confirmed in his written statement at the police headquarters 23 that the jeep had been "zigzagging," which is to say that it was travelling or being driven erratically at the time. The other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident had remarked on the jeep's "zigzagging." 24 There is moreover more than a suggestion that Calibo had been drinking shortly before the accident. The decision of the Trial Court adverts to further testimony of Esparcia to the effect that three of Calibo's companions at the beach party he was driving home from when the collision occurred, who, having left ahead of him went to the scene when they heard about the accident, had said that there had been a drinking spree at the party and, referring to Calibo, had remarked: "Sabi na huag nang mag drive . . . . pumipilit," (loosely translated, "He was advised not to drive, but he insisted.")It was Calibo whose driver's license could not be found on his person at the scene of the accident, and was reported by his companions in the jeep as having been lost with his wallet at said scene, according to the traffic accident report, Exhibit "J". Said license unexplainedly found its way into the record some two years later.Reference has already been made to the finding of the Trial Court that while Zacarias readily submitted to interrogation and gave a detailed statement to the police investigators immediately after the accident, Calibo's two companions in the jeep and supposed eyewitnesses, Agripino Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who, together with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal case against Zacarias. 25

Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming some antecedent negligence on the part of Zacarias in failing to keep within his designated lane, incorrectly demarcated as it was, the physical facts, either expressly found by the Intermediate Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve the latter of any actionable responsibility for the accident under the rule of the last clear chance.Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately thirty kilometers per hour. 26 The private respondents have admitted that the truck was already at a full stop when the jeep plowed into it. And they have not seen fit to deny or impugn petitioners' imputation that they also admitted the truck had been brought to a stop while the jeep was still thirty meters away. 27 From these facts the logical conclusion emerges that the driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep away from the truck, either of which he had sufficient time to do while running at a speed of only thirty kilometers per hour. In those circumstances, his duty was to seize that opportunity of avoidance, not merely rely on a supposed right to expect, as the Appellate Court would have it, the truck to swerve and leave him a clear path.The doctrine of the last clear chance provides as valid and complete a defense to accident liability today as it did when invoked and applied in the 1918 case of Picart vs. Smith, supra, which involved a similar state of facts. Of those facts, which should be familiar to every student of law, it is only necessary to recall

the summary made in the syllabus of this Court's decision that:(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he improperly pulled his horse over to the railing on the right. The driver of the automobile, however guided his car toward the plaintiff without diminution of speed until he was only few feet away. He then turned to the right but passed so closely to the horse that the latter being frightened, jumped around and was killed by the passing car. . . . .Plaintiff Picart was thrown off his horse and suffered contusions which required several days of medical attention. He sued the defendant Smith for the value of his animal, medical expenses and damage to his apparel and obtained judgment from this Court which, while finding that there was negligence on the part of both parties, held that that of the defendant was the immediate and determining cause of the accident and that of the plaintiff ". . . the more remote factor in the case":It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-petitioner) George Lim, an inquiry into whether or not the evidence supports the latter's additional defense of due diligence in the selection and supervision of said driver is no longer necessary and wig not be undertaken. The fact is that there is such evidence in the record which has not been controverted.It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded in its appealed decision, as alleged owners, with petitioner George Lim, of Glan People's Lumber and Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only the certificate of registration issued by the Bureau of Domestic Trade identifying Glan People's Lumber and Hardware as a business name registered by George Lim, 28 but also unimpugned allegations into the petitioners' answer to the complaint that Pablo S. Agad was only an employee of George Lim and that Felix Lim, then a child of only eight (8) years, was in no way connected with the business.In conclusion, it must also be stated that there is no doubt of this Court's power to review the assailed decision of the Intermediate Appellate Court under the authority of precedents recognizing exceptions to the familiar rule binding it to observe and respect the latter's findings of fact. Many of those exceptions may be cited to support the review here undertaken, but only the most obvious — that said findings directly conflict with those of the Trial Court — will suffice. 29 In the opinion of this Court and after a careful review of the record, the evidence singularly fails to support the findings of the Intermediate Appellate Court which, for all that appears, seem to have been prompted rather by sympathy for the heirs of the deceased Engineer Calibo than by an objective appraisal of the proofs and a correct application of the law to the established facts. Compassion for the plight of those whom an accident has robbed of the love and support of a husband and father is an entirely natural and understandable sentiment. It should not, however, be allowed to stand in the way of, much less to influence, a just verdict in a suit at law.WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby REVERSED, and the complaint against herein petitioners in Civil Case No. 3283 of the Court of First Instance of Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.SO ORDERED.


ManilaTHIRD DIVISION

G.R. No. 101683 February 23, 1995LBC AIR CARGO, INC. FERNANDO M. YU and JAIME TANO, petitioners, vs.HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y OYON-OYON, represented by PATROCENIA GRONDIANO y MONTEROLA, and PATROCENIA GRONDIANO y MONTEROLA, respondents. VITUG, J.:In this petition for review, the application of the doctrines of "proximate cause" and "last clear chance" is, once again, being put to test. The petition questions the decision of the Court of Appeals, dated 18 July 1991, which has reversed that of the trial court.The case arose from a vehicular collision which occurred at about 11:30 in the morning of 15 November 1987. Rogelio Monterola, a licensed driver, was traveling on board his Suzuki motorcycle towards Mangagoy on the right lane along a dusty national road in Bislig, Surigao del Sur. At about the same time, a cargo van of the LBC Air Cargo Incorporated, driven by defendant Jaime Tano, Jr., was coming from the opposite direction on its way to the Bislig Airport. On board were passengers Fernando Yu, Manager of LBC Air Cargo, and his son who was seated beside Tano. When Tano was approaching the vicinity of the airport road entrance on his left, he saw two vehicles racing against each other from the opposite direction. Tano stopped his vehicle and waited for the two racing vehicles to pass by. The stirred cloud of dust made visibility extremely bad. Instead of waiting for the dust to settled, Tano started to make a sharp left turn towards the airport road. When he was about to reach the center of the right lane, the motorcycle driven by Monterola suddenly emerged from the dust and smashed head-on against the right side of the LBC van. Monterola died from the severe injuries he sustained.A criminal case for "homicide thru reckless imprudence" was filed against Tano. A civil suit was likewise instituted by the heirs of deceased Monterola against Tano, along with Fernando Yu and LBC Air Cargo Incorporated, for the recovery of damages. The two cases were tried jointly by the Regional Trial Court, Branch 29, of Surigao del Sur.On 29 July 1990, the trial court dismissed both cases on the ground that the proximate cause of the "accident" was the negligence of deceased Rogelio Monterola.Private respondent appealed the dismissal of the civil case to the Court of Appeals. On 18 July 1991, the appellate court reversed the court a quo. It held:WHEREFORE, the judgment appealed from is REVERSED, and another one is hereby rendered ordering the defendants Jaime Tano and LBC Air Cargo, Inc. to jointly and severally pay the plaintiff Patrocinia Monterola the following amounts:To SHERWIN MONTEROLA:1. Indemnity for the death ofRogelio Monterola P50,000.002. For Moral damages P20,000.00To PATROCINIA GRONDIANO Y MONTEROLA:3. Actual Damages P7,361.004. Hospitals & Burial Expenses 15,000.005. Attorneys' Fees and expensesof Litigation 10,000.00Plus the costs.Actual payment of the aforementioned amounts should however be reduced to twenty (20%) percent. 1

In the instant petition for review, petitioners contend that —1. The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the driving of his vehicle and in failing to give a signal to approaching vehicles of his intention to make a left turn.

2. The Court of Appeals erred in not finding that the proximate cause of the accident was the victim's negligence in the driving of his motorcycle in a very fast speed and thus hitting the petitioner's cargo van. 2

The issues raised are thus essentially factual. The intrinsic merit of, as well as cogency in, the detailed analyses made by the Court of Appeals in arriving at its findings is at once apparent. Said the appellate court:That visibility was poor when Jaime Tano made a left turn was admitted by the latter.Q When these two vehicles passed by your parked vehicle, as you said, there were clouds of dust, did I get you right?A Yes sir, the road was dusty.Q So much so that you could no longer see the vehicles from the opposite direction following these vehicles?A It is not clear, sir, so I even turned on my left signal and the headlight.Q What do you mean by it was not clear, you could not see the incoming vehicles?A I could not see because of the cloud of dust.Q And it was at this juncture, when you were to follow your theory, when you started your LBC van again and swerved to the left leading to the Bislig airport?A I did not enter immediately the airport, I waited the dust to clear a little before I drove.xxx xxx xxxQ In other words when you said that it was slightly clear, you would like to tell the Honorable Court that you could only clearly see big vehicles . . . but not small vehicles like a motorcycle?A I could see clearly big vehicles but not small vehicles like a motorcycle.Q Like the motorcycle of Rogelio Monterola?A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp. 26-30) (p. 15, Appellant's brief).Tano should not have made a left turn under the conditions admitted by him. Under the Land Transportation and Traffic Code, the driver of any vehicle upon a highway, before starting, stopping or turning from a direct line, is called upon to first see that such movement can be made in safety, and whenever the operation of any other vehicle approaching may be affected by such movement, shall give a signal plainly visible to the driver of such other vehicles of the intention to make such movement (Sec. 44, R.A. 4136, as amended). This means that before a driver turns from a direct line, in this case to the left, the driver must first see to it that there are no approaching vehicles and, if there are, to make the turn only if it can be made in safety, or at the very least give a signal that is plainly visible to the driver of such other vehicle. Tano did neither in this case, for he recklessly made a left turn even as visibility was still very poor, and thus failed to see the approaching motorcycle and warn the latter, of his intention to make a left turn. This is plain and simple negligence.In thus making the left turn, he placed his vehicle directly at the path of the motorcycle which, unaware of Tano's intention to make a left turn, smashed at Tano's vehicle. It was Tano's negligence that created the risk or the condition of danger that set into operation the event that led to the smashedup and untimely death of Rogelio Monterola.Rogelio Monterola's motorcycle would not have hit the cargo van had Tano, in operating it, not recklessly turned left when visibility was still poor, and instead observed the direct line of the Land Transportation Code that before doing so, he should first see to it that such movement can be made in safety, and that whenever any other vehicle approaching may be affected by such movement, should give a signal plainly visible to the driver of such other vehicle of the intention to make such movement.That Rogelio Monterola was running fast despite poor visibility as evidenced by the magnitude of the damage to the vehicles is no defense. His negligence would at most be contributory (Article 2179, N.C.C.). Having negligently created the condition of danger, defendants may not avoid liability by pointing to the negligence of the former.xxx xxx xxxTano's proven negligence created a presumption of negligence on the part of his employer, the LBC Air Cargo Corporation, in supervising its employees properly and adequately (Phoenix Construction, Inc. vs. Intermediate Appellate Court, supra), which may only be destroyed by proof of due diligence in the selection and supervision of his employees to prevent the damage (Article 2180, N.C.C.). No such defense was interposed by defendants in their answer.

We, however, fail to see Fernando Yu's liability as Manager of LBC-Mangagoy Branch Office, there being no employer-employee relationship between him and Jaime Tano who is a driver of the LBC Air Cargo Inc. It was held in Philippine Rabbit Bus Lines Inc. et al. vs. Phil. American Forwarders, Inc., 63 SCRA 231, that the term "Manager" in Article 2180 is used in the sense of "employer." Hence, no tortuous or quasi-delictual liability can be fastened on Fernando Yu as branch manager of LBC Air Cargo Inc.Now for the amount of damages. Aside from the indemnity for death which has been pegged at P50,000.00 (Resolution En Banc, August 30, 1990, cited in People vs. Sazon, 189 SCRA 700), the evidence disclose that as a result of the accident, Rogelio Monterola's motorcycle was damaged, the repair cost of which amounted to P7,361.00 (Exh. E-1), for hospitalization, wake and burial expenses, plaintiff spent P15,000.00. There is likewise no question that by reason of Rogelio Monterola's untimely death, his only child 14 years old Sherwin Monterola, suffered mental anguish, fright, serious anxiety, wounded feelings and moral shock that entitles him to moral damages which we hereby fix at P20,000.00. Because of defendants' refusal to indemnify the plaintiff for his father's death, the latter was compelled to litigate and engage the services of counsel. He is therefore entitled to an additional amount of P10,000.00 for attorney's fees and expenses of litigation.Considering, however, the contributory negligence of Rogelio Monterola in driving at a fast clip despite the fact that the road was dusty, we reduce the aggregate amount of damages to which the plaintiff is entitled by twenty per cent (Phoenix Construction Inc. vs. Intermediate Appellate Court, Supra). 3

From every indication, the proximate cause of the accident was the negligence of Tano who, despite extremely poor visibility, hastily executed a left turn (towards the Bislig airport road entrance) without first waiting for the dust to settle. It was this negligent act of Tano, which had placed his vehicle (LBC van) directly on the path of the motorcycle coming from the opposite direction, that almost instantaneously caused the collision to occur. Simple prudence required him not to attempt to cross the other lane until after it would have been safe from and clear of any oncoming vehicle.Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at times, as "supervening negligence" or as "discovered peril"). The doctrine, in essence, is to the effect that where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof (see Picart vs. Smith, 37 Phil. 809). Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for supervening negligence of, or bar a defense against the liability sought by, another if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence (Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs. Intermediate Appellate Court, 173 SCRA 464).In the case at bench, the victim was traveling along the lane where he was rightly supposed to be. The incident occurred in an instant. No appreciable time had elapsed, from the moment Tano swerved to his left to the actual impact; that could have afforded the victim a last clear opportunity to avoid the collision.It is true however, that the deceased was not all that free from negligence in evidently speeding too closely behind the vehicle he was following. We, therefore, agree with the appellate court that there indeed was contributory negligence on the victim's part that could warrant a mitigation of petitioners liability for damages.WHEREFORE, the appealed decision is AFFIRMED. Costs against petitioners.SO ORDERED.

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