No. L-77679. September 30,1987.
* petitioner to pay, jointly and severally with Travellers Insurance and Surety Corporation, to
VICENTE VERGARA, petitioner, vs. THE COURT OF APPE ALS and AM ADEO
AZARCON, respondents.
Torts; Damages; Quasi-delict; Requisites of a quasi-delict— These requisites of a
quasi-delict 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.
Same; Same; Negligence; Common Carriers; Defective brakes cannot be considered
fortuitous in character.—A mishap caused by defective brakes cannot be
considered as fortuitous in character. Certainly, the defects were curable and the
accident preventable.
Same; Same; Same; Presumption of negligence must be overcome by evidence.—
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.
RESOLUTION
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 P 53,024.22.
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.''1
Petitioner 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
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
storewarehouse 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 considered 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.
G.R. No. 118889. March 23, 1998.*
FGU INSURANCE CORPORATION, petitioner, vs. COURT OF APPEALS,
FILCAR TRANSPORT, INC., and FORTUNE INSURANCE CORPORATION,
respondents.
Civil Law; Damages; Quasi-Delict; Requisites to sustain a claim for damages
based on quasi-delict.—To sustain a claim based thereon, the following requisites
must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of the
defendant; and, (c) connection of cause and effect between the fault or negligence
of the defendant and the damage incurred by the plaintiff.
Same; Same; Same; Court agrees with respondent court that petitioner failed to
prove the existence of the second requisite, i.e., fault or negligence of defendant
FILCAR.—We agree with respondent court that petitioner failed to prove the
existence of the second requisite, i.e., fault or negligence of defendant FILCAR,
because only the fault or negligence of Dahl-Jensen was sufficiently established,
not that of FILCAR. It should be noted that the damage caused on the vehicle of
Soriano was brought about by the circumstance that DahlJensen swerved to the
right while the vehicle that he was driving was at the center lane. It is plain that
the negligence was solely attributable to Dahl-Jensen thus making the damage
suffered by the other vehicle his personal liability. Respondent FILCAR did not
have any participation therein.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Carpio, Ferrer & Evangelista Law Offices for petitioner.
Nicolas A. Gerochi, Jr. for Filcar, Transport, Inc.
Santiago, Arevalo, Tomas & Associates for Fortune Insurance Corp.
BELLOSILLO, J.:
For damages suffered by a third party, may an action based on quasi-delict
prosper against a rent-a-car company and, consequently, its insurer for fault or
negligence of the car lessee in driving the rented vehicle?
This was a two-car collision at dawn. At around 3 o’clock of 21 April 1987, two (2) vehicles,
both Mitsubishi Colt Lancers, cruising northward along Epifanio de los Santos Avenue,
Mandaluyong City, figured in a traffic accident. The car bearing Plate No. PDG 435 owned
by Lydia F. Soriano was being driven at the outer lane of the highway by Benjamin
Jacildone, while the other car, with Plate No. PCT 792, owned by respondent FILCAR
Transport, Inc. (FILCAR), and driven by Peter Dahl-Jensen as lessee, was at the center
lane, left of the other vehicle. Upon approaching the corner of Pioneer Street, the car owned
by FILCAR swerved to the right hitting the left side of the car of Soriano. At that time Dahl-
Jensen, a Danish tourist, did not possess a Philippine driver’s license. 1
As a consequence, petitioner FGU Insurance Corporation, in view of its insurance
contract with Soriano, paid the latter P25,382.20. By way of subrogation,2 it sued
Dahl-Jensen and respondent FILCAR as well as respondent Fortune Insurance
delict before the Regional Trial Court of Makati City.
Unfortunately, summons was not served on Dahl-Jensen since he was no longer
staying at his given address; in fact, upon motion of petitioner, he was dropped
from the complaint.
On 30 July 1991 the trial court dismissed the case for failure of petitioner to
substantiate its claim of subrogation.3
On 31 January 1995 respondent Court of Appeals affirmed the ruling of the trial
court although based on another ground, i.e., only the fault or negligence of Dahl-
Jensen was sufficiently proved but not that of respondent FILCAR.4 In other
words, petitioner failed to establish its cause of action for sum of money based on
quasi-delict.
In this appeal, petitioner insists that respondents are liable on the strength of the
ruling in MYC-Agro-Industrial Corporation v. Vda. de Caldo5 that the registered
owner of a vehicle is liable for damages suffered by third persons although the
vehicle is leased to another.
We find no reversible error committed by respondent court in upholding the
dismissal of petitioner’s complaint. The pertinent provision is Art. 2176 of the
Civil Code which states: “Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict x x x x”
To sustain a claim based thereon, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c)
connection of cause and damage incurred by the plaintiff.6
We agree with respondent court that petitioner failed to prove the existence of the
second requisite, i.e., fault or negligence of defendant FILCAR, because only the
fault or negligence of Dahl-Jensen was sufficiently established, not that of
FILCAR. It should be noted that the damage caused on the vehicle of Soriano was
brought about by the circumstance that Dahl-Jensen swerved to the right while
the vehicle that he was driving was at the center lane. It is plain that the
negligence was solely attributable to Dahl-Jensen thus making the damage
suffered by the other vehicle his personal liability. Respondent FILCAR did not
have any participation therein.
Article 2180 of the same Code which deals also with quasidelict provides:
The obligation imposed by article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible. against respondent FORTUNE can neither prosper.

The father and, in case of his death or incapacity, the mother, are responsible for
the damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons
who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the branches
in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
Petitioner’s insistence on MYC-Agro-Industrial Corporation is rooted in a
misapprehension of our ruling therein. In that case, the negligent and reckless
operation of the truck owned by petitioner corporation caused injuries to several
persons and damage to property. Intending to exculpate itself from liability, the
corporation raised the defense that at the time of the collision it had no more
control over the vehicle as it was leased to another; and, that the driver was not
its employee but of the lessee. The trial court was not persuaded as it found that
the true nature of the alleged lease contract was nothing more than a disguise
effected by the corporation to relieve itself of the burdens and responsibilities of
an employer. We upheld this finding and affirmed the declaration of joint and
several liability of the corporation with its driver. WHEREFORE, the petition is
DENIED. The decision of respondent Court of Appeals dated 31 January 1995
sustaining the dismissal of petitioner’s complaint by the trial court is
AFFIRMED. Costs against petitioner.

The State is responsible in like manner when it acts through a special agent; but SO ORDERED.
not when the damage has been caused by the is provided in article 2176 shall be
applicable.
Davide, Jr. (Chairman), Vitug, Panganiban and Quisumbing, JJ., concur.

Lastly, teachers or heads of establishments of arts and trades shall be liable for
Petition denied; Reviewed decision affirmed.
damages caused by their pupils and students or apprentices, so long as they
remain in their custody.
Note.—The existence of a contract between the parties does not bar a finding
of negligence under the principle of quasidelict. (Cipriano vs. Court of Appeals,
The responsibility treated of in this article shall cease when the persons herein
263 SCRA 711 [1996])
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
——o0o——
The liability imposed by Art. 2180 arises by virtue of a presumption juris tantum
of negligence on the part of the persons made responsible thereunder, derived © Copyright 2018 Central Book Supply, Inc. All rights reserved.
from their failure to exercise due care and vigilance over the acts of subordinates
to prevent them from causing damage.7 Yet, as correctly observed by respondent
court, Art. 2180 is hardly applicable because none of the circumstances mentioned
therein obtains in the case under consideration. Respondent FILCAR being
engaged in a rent-a-car business was only the owner of the car leased to Dahl-
Jensen. As such, there was no vinculum juris between them as employer and
employee. Respondent FILCAR cannot in any way be responsible for the negligent
act of Dahl-Jensen, the former not being an employer of the latter.

We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code which
provides: “In motor vehicle mishap, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have by the use of due diligence,
prevented the misfortune x x x x If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable.” Obviously, this provision of Art. 2184 is
neither applicable because of the absence of master-driver relationship between
respondent FILCAR and Dahl-Jensen. Clearly, petitioner has no cause of action
against respondent FILCAR on the basis of quasi-delict; logically, its claim
No. L-24837. June 27, 1968.
JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs, vs. BANK OF
THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as
President of the said Bank, defendants.
Civil law; Tort; Damages; Existence of a contract between the parties is not a bar to
the commission of a, tort by the one against the other.—It has been repeatedly
held: that the existence of a contract between the parties does not bar the
commission of a tort by the one against the other and the consequent recovery 01
damages therefor (Cangco v. Manila Railroad, 38 Phil. 768; Yamada v. Manila
Railroad, 33 Phil. 8; Vasquez v. Borja, 74 Phil. 560). Indeed, this view has been, in
effect, reiterated in a comparatively recent case. Thus, in Air France vs.
Carrascoso, L-21438, Sept. 28, 1966, involving an airplane passenger who, despite
his first-class ticket, had been illegally ousted from his first-class accomodation
and compelled to take a seat in the tourist compartment, was held entitled to
recover damages from the air-carrier, upon the ground of tort on the latter’s part,
for, although the relation between a passenger and a carrier is “contractual both
in origin and nature the act that breaks the contract may also be a tort.”
APPEAL from a judgment of the Court of First Instance of Manila. Montesa, J.
The facts are stated in the opinion of the Court.
Gil B. Galang for plaintiffs.
Aviado & Aranda for defendants.
CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a
decision of the Court of First Instance of Manila dismissing their complaint
against defendants herein, the Bank of the Philippine Islands and Santiago
Freixas.
It appears that Singson, was one of the defendants in Civil Case No. 23906 of the
Court of First Instance, Manila, in which judgment had been rendered sentencing
him and his co-defendants therein, namely, Celso Lobregat and Villa-Abrille &
Co., to pay the sum of P105,539.56 to the plaintiff therein, Philippine Milling Co.
Singson and Lobregat had seasonably appealed from said judgment, but not Villa-
Abrille & Co., as against which said judgment, accordingly, became final and
executory. In due course, a writ of garnishment was subsequently served upon the
Bank of the Philippine Islands—in which the Singsons had a current account—
insofar as Villa-Abrille’s credits against the Bank were concerned. What
happened thereafter is set forth in the decision appealed from, from which we
quote:
“Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all
matters of execution and garnishment, upon reading the name of the plaintiff
herein in the title of the Writ of Garnishment as a party defendant, without
further reading the body of the said garnishment and informing himself that said
garnishment was merely intended for the deposits of defendant Villa-Abrille &
Co., Valentin Teus, Fernando F. de Villa-Abrille and Joaquin Bona, prepared a
letter for the signature of the President of the Bank informing the plaintiff Julian
C. Singson of the garnishment of his deposits by the plaintiff in that case.
Another letter was also prepared and signed by the said President of the Bank for
the Special Sheriff dated April 17, 1963.
“Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the
amount of P383 in favor of B.M. Glass Service dated April 16, 1963 and bearing
No. C-424852, and check No. C-394996 for the amount of P100 in favor of the
Lega Corporation, and drawn against the said Bank, were deposited by the said
drawees with the said bank. Believing that the plaintiff Singson, the drawer of
the check, had no more control over the balance of his deposits in the said bank,
the checks were dishonored and were refused payment by the said bank. After the
first check was returned by the bank to the B.M. Glass Service, the latter wrote
plaintiff Julian C. Singson a letter, dated April 19, 1963, advising him that his
check for P383.00 bearing No. C-424852 was not honored by the bank for the
reason that his account therein had already been garnished. The said B.M. Glass
Service further stated in the said letter that they were constrained to close his
credit account with them. In view thereof, plaintiff Julian C. Singson wrote the
defendant bank a letter on April 19, 1963, claiming that his name was not
included in the Writ of Execution and Notice of Garnishment, which was served
upon the bank. The defendant President Santiago Freixas of the said bank took
steps to verify this information and after having confirmed the same, apologized
to the plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963,
requesting him to disregard their letter of April 17, 1963, and that the action of
garnishment from his account had already been removed. A similar letter was
written by the said official of the bank on April 22, 1963 to the Special Sheriff
informing him that his letter dated April 17, 1963 to the said Special Sheriff was
considered cancelled and that they had already removed the Notice of
Garnishment from plaintiff Singson’s account. Thus, the defendants lost no time
to rectify the mistake that had been inadvertently committed, resulting in the
temporary freezing of the account of the plaintiff with the said bank for a short
time.
x x x x”
On May 8, 1963, the Singsons commenced the present action against the Bank
and its president, Santiago Freixas, for damages1 in consequence of said illegal
freezing of plaintiffs’ account.
After appropriate proceedings, the Court of First Instance of Manila rendered
judgment dismissing the complaint upon the ground that plaintiffs cannot recover
from the defendants upon the basis of a quasi-delict, because the relation between
the parties is contractual in nature; because this case does not fall under Article
2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs have not
established the amount of damages allegedly sustained by them.
The lower court held that plaintiffs’ claim for damages cannot be based upon a
tort or quasi-delict, their relation with the defendants being contractual in
nature. We have repeatedly held, however, that the existence of a contract
between the parties does not bar the commission of a tort by the one against the
order and the consequent recovery of damages therefor.2 Indeed, this view has
been, in effect, reiterated in a comparatively recent case. Thus, in Air France vs.
Carrascoso,3 involving an airplane passenger who, despite his first-class ticket,
had been illegally ousted from his first-class accommodation and compelled to
take a seat in the tourist compartment, was held entitled to recover damages from
the air-carrier, upon the ground of tort on the latter’s part, for, although the
relation between a passenger and a carrier is “contractual both in origin and
nature x x x the act that breaks the contract may also be a tort”.

In view, however, of the facts obtaining in the case at bar, and considering,
particularly, the circumstance that the wrong done to the plaintiffs was remedied
as soon as the President of the bank realized the mistake he and his subordinate
employee had committed, the Court finds that an award of nominal damages—the
amount of which need not be proven4—in the sum of P1,000, in addition to
attorney’s fees in the sum of P500, would suffice to vindicate plaintiff’s rights. 5

WHEREFORE, the judgment appealed from is hereby reversed, and another

one shall be entered sentencing the defendant Bank of the Philippine Islands to
pay to the plaintiffs said sums of P1,000, as nominal damages, and P500, as
attorney’s fees, apart from the costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles,

JJ., concur.

Fernando, J., took no part.

Judgment reversed.

Notes.—The principle in the Singson case, supra, “that the existence of a contract
between the parties does not bar the commission of a tort by the one against the
other and the consequent recovery of damages therefor” modifies in effect the rule
that “liability for quasi-delict arises if no pre-existing contractual relation
between the parties exists (Flores v. Miranda, L-12163, March 4, 1959; Art. 2176,
N.C.C.). Noteworthy to state here is the ruling that the definition of quasi-delict
in Article 2176 of the new Civil Code expressly excludes the cases where there is a
pre-existing contractual relationship between the parties (Verzosa v. Baytan, et al,
L-14092, April 29, 1960). Cf. Annotation entitled “Recovery of Damages Based on
Quasi-delict,” 22 SCRA 567–577.

© Copyright 2018 Central Book Supply, Inc. All rights reserved.

[No. 29356: December 29, 1928]
THE CITY OF MANILA, plaintiff and appellee, vs. THE MANILA ELECTRIC
COMPANY, defendant and appellant.
1.
PLEADING AND PRACTICE; EVIDENCE; ADMISSIBILITY OF A RECORD
IN A CRIMINAL PROCEEDING IN A CIVIL ACTION.—A record in a criminal
action cannot be admitted in a civil action except by way of inducement or to show
a collateral fact. The rule might be different if the party in the civil action had
control over the proceedings in the criminal action as by showing that the party in
the civil action supplied the lawyer for the accused in the criminal action.
2.
CRIMINAL LAW; SUBSIDIARY CIVIL LIABILITY FOR CRIMES;
RELATIONS OF PENAL CODE AND CIVIL CODE.—Where a motorman was
convicted of the crime of damage to property and slight injuries through reckless
imprudence, and was sentenced therefor to pay a fine of ?900, to indemnify the
offended party in the sum of P1,788.27, with subsidiary imprisonment in case of
insolvency, and to pay the costs, and where the offended party was not able to
collect the indemnity from the accused and so began an action to obtain payment
from the master, it is held that the case relates to the Penal Code and not to the
Civil Code, and so should be governed by the provisions of the Penal Code and not
by the provisions of the Civil Code.
3.
ID.; ID.; ID.—The Penal Code authorizes the determination of subsidiary
liability. The Civil Code negatives its applicability by providing that civil
obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. In other words, the Penal Code affirms its
jurisdiction ,while the Civil Code negatives its jurisdiction.
Per JOHNSON, J., concurring:
4.
DAMAGES, CIVIL AND CRIMINAL, RESULTING FROM CRIMES AND
MISDEMEANORS; SHOULD BE SETTLED IN ONE ACTION.—In this
jurisdiction the rule is, that all liabilities, civil and criminal, resulting from the
same crimes and misdemeanors, shall be decided in the same case. No such rule
exists in the United States. The reason for the rule is to avoid the multiplicity of
actions.
APPEAL from a judgment of the Court of First Instance of Manila. Del Rosario, J.
The facts are stated in the opinion of the court.
MALCOLM, J.:
The Manila Electric Company appeals from a judgment of the Court of First
Instance of Manila which condemns it to pay to the City of Manila the sum of
P1,788.27, with legal interest from September 10, 1927, and with costs. While the
case in its superficial aspects has appeared to be a simple one, in its
fundamentals the cause suggests important questions which possibly the parties
have not entirely grasped. By way of preliminary statement, it also remains to be
said that the numerous deliberations of the court on the case have disclosed
conflicting views which it is difficult to reconcile. The present decision, therefore,
will aim to present as best it may, the principles for which a majority of the court
stand, leaving it to the individual member to dissent or otherwise explain his vote
as to him seems fit and proper.
On June 8, 1925, in the City of Manila, there occurred a collision between a street
car of the Manila Electric Company, of which Sixto Eustaquio was the motorman,
and a truck belonging to the City of Manila. As a result of the collision, the truck
was damaged in the sum of P1,788.27. Sixto Eustaquio was prosecuted for the
crime of damage to property and slight injuries through reckless imprudence. He
was convicted by final judgment, and was sentenced to pay a fine of P900, to
indemnify the offended party, the City of Manila, in the sum of P1,788.27, with
subsidiary imprisonment in case of insolvency, and to pay the costs. Not being
able to collect the indemnity from the accused, the City of Manila began an action
to obtain payment from the Manila Electric Company. An allegation of the
complaint was "That the defendant Manila Electric Company as master of the
said agent and servant, Sixto Eustaquio, by virtue of its relations with the latter
and by express provisions of law, is subsidiarily liable to the herein plaintiff for
the sum of P1,788.27, representing the damages caused by its agent and servant,
the said Sixto Eustaquio, in the discharge of his duties as motorman of the
defendant's electric car." The principal special defense set up in the answer to the
complaint was that the defendant had used all the diligence of a good father of a
family to prevent the damage suffered by plaintiff. At the trial, the parties agreed
on certain stipulations and admissions. The Assistant City Fiscal also offered to
present two witnesses, but the trial judge.thought this unnecessary and so took
judicial cognizance of the decision and the record in the criminal case which
convicted the motorman, all against the protest of counsel for the Manila Electric
Company who noted his exceptions. The adverse judgment is now contested on
the ground that the trial court committed two errors, the first in admitting in
evidence the documents marked Exhibits A, B, C, D, E. and F, constituting the
record in the case of the People of the Philippine Islands vs. Sixto Eustaquio; and
the second in not absolving the appellant from the complaint.
I. The first error plainly has merit. As a general rule, a record in a criminal action
cannot be admitted in evidence in a civil action except by way of inducement or to
show a collateral fact. The very obvious reason is that the parties and the issues
in a criminal action and a civil action are not the same. It is rudimentary that due
process must be followed in the trial of all causes. No man or entity may be
condemned without a day in court. (Almeida Chantangco and Lete vs. Abaroa
[1910], 218 U. S., 476; 40 Phil., 1056; Ed. A. Keller ,& Co. vs. Ellerman &
Bucknall Steamship Co. [1918], 38 Phil., 514.)
It needs to be repeated that the Manila Electric Company was not a party at the
trial of the criminal case. There is extant in the record no indication that the
Manila Electric Company had any control over the proceedings in the criminal
case. All that the record in the criminal case showed was that the "abogado
defensor" (Attorney for the defense) was Antonio Carrascoso. All that the record
in the civil case showed was "Comparecieron: * * * Por la entidad demandada The
Manila Electric Co., los abogados señores Antonio T. Carrascoso, jr., y Guillermo
Cabrera" (Appearances: * * * For the defendant Manila Electric Company
attorneys Antonio T. Carrascoso, jr., and Guillermo Cabrera). By a coincidence,
Attorney Carrascoso was both counsel for the defendant in the criminal action
and for the defendant in the civil action. But there is lacking any proof showing
that the Manila Electric Company supplied the lawyer for the accused in the
criminal action and so is concluded by the judgment there rendered. (By way of
parenthesis, it may be said further that the statements just made are offered to
meet the argument advanced during our discussion to the effect that the court
should treat the interests of the Manila Electric Company as involved in both
litigations and should thus consider the company as a real party without right
now to protest against the judgment.)
It is our ruling that prejudicial error was committed in the admission by the trial
court of Exhibits A to P, but that since the plaintiff made the proper offer to
present its witnesses, the case should be remanded for a new trial.
II. It has been suggested that having passed on the first error that would be
sufficient. Theoretically, that is true. Practically, it is a fallacious argument. A
new trial left unguided would immediately raise questions which would need to be
passed upon eventually by this court. Also if the customary defense in civil
actions for damages is to be held sufficient, the new trial would be fruitless and
the appeal might just as well be dismissed now as later, in view of the
stipulations appearing in the record.
We desire to pay our respects to the second error assigned and to the point of
whether or not a case of this character should be governed by the provisions of the
Penal Code or by the provisions of the Civil Code.
The Penal Code authorizes the imposition of subsidiary liability in default of the
persons criminally liable. Article 20 of the Penal Code provides that this
subsidiary liability shall "apply to masters, teachers, persons, and corporations
engaged in any kind of industry for felonies and misdemeanors committed by
their servants, pupils, workmen, apprentices, or employees in the discharge of
their duties." It is under this provision that the City of Manila is attempting to
collect damages from the Manila Electric Company. If the Philippines still lay
beneath the dominion of Spain, the pronouncement of primary and subsidiary
liability would be taken much as a matter of course. (See decisions of the Supreme
Court of Spain of October 10,1884, January 3, 1887, June 15, 1889, March 6,
1897, December 14, 1894, February 19, 1902; 2 Viada Código Penal Comentado,
5th ed., pp. 487-495; 1 Hidalgo Código Penal, pp. 331-334; 1 Groizard Código
Penal, pp. 736-738; Opinion of the Fiscal of the Supreme Court of Justice of Spain
of January 17, 1865, 22 Revista de Legislación y Jurisprudencial, p. 412; Código
Penal of Spain of 1928, art. 78.) The Penal Code then takes cognizance of the Civil
Code when in article 133 it is provided: "Civil liability arising from felonies or
misdemeanors shall be extinguished in the same manner as other obligations, in
accordance with the rules of civil law."
In connection with the Penal Code, there must be taken into view certain
provisions of the Civil Code. Book IV, Title XVI, Chapter II, of the Civil Code
concerns obligations which arise from fault or negligence. It is provided in article
1903 that the obligation imposed for the damage to another caused by fault or
negligence is enforcible against those persons for whom another is responsible.
But it is added that "The liability imposed by this article shall cease in case the
persons subject thereto prove that they exercised all the diligence of a good father
of a family to prevent the damage." Found prior to these articles of the Civil Code
in the Chapter of Title I, Book IV, pertaining to general provisions of obligations,
are articles 1092 and 1093. The first provides: "Civil obligations arising from
crimes or misdemeanors shall be governed by the provisions of the Penal Code."
The last mentioned provides: "Those arising from wrongful or negligent acts or
omissions not punishable by ,law shall be subject to the provisions of Chapter
second of Title sixteen of this book."—-that is among others to the provisions of
article 1903 above-mentioned.
Manresa, speaking of article 1092 of the Civil Code, offers the following comment:
"The Penal Code treats of this matter, first, in Chapter II, Title 2, of Book I,
determining therein who are civilly liable for crimes or misdemeanors and in
what manner, and stating in Title 4. of the same Book the extent and purposes of
said obligations. Said Book I, ends with article 135, which makes express
reference to the civil legislation, which reference, as may be seen, is also made in
other provisions.
"In those mutual references of one legislation to another, there is no doubt as to
the application of one or the other, nor can they be criticized, since they are well
grounded.
"The Civil Code refers to the Penal Code as the rule applicable in the first place,
since the latter determines and punishes the acts giving rise to said obligations,
or creates said obligations, thereby determining their existence and is, therefore,
for that reason of preferential application. But, then, as the Penal Code is
concerned with, and is interested only in determining how the civil obligation it
creates comes into existence and develops under the influence of the illicit
character of the act from which it arises and in the guilt of the subject of said
obligation, as a consequence of said illicit character, it lays down only those rules
inspired by those motives; and once the connection of that obligation with the
criminal liability is established in its provisions, with the consequences that may
be inferred from the fact that the former is based on the latter; and after an effort
has been made, within the sphere of that civil responsibility, toward making the
indemnification coextensive with the effects of the crime, and a special necessity,
which is characteristic of punishment and is the subject matter of the Penal Code,
has been shown in the provisions regulating said liability, the Penal Code, could
not, without going beyond its one sphere, give all the rules relative to said
obligations, nor did it have any necessity for doing so, because once the peculiar
nature of said obligations is saved by its provisions, the essence thereof common
to the other obligations must, as in the latter, be defined by the civil law, which
will thus become an important source, although suppletory, of those derived from
crime.
"The peculiar rules of the Penal Code, as may be seen, are inspired by those
motives which, as we have stated, might make them necessary for said Code to
establish, as distinguished from the criterion of the civil law with regard to
obligations in general. Thus, the fundamental declaration of article 18 gives the
connection of civil obligation with criminal liability and explains the origin of the
former: article 19 solves the doubt which that connection, among certain
liabilities, may create, and determining its limits in the nature and consequences
of the act, it mentions those which are of a civil nature, basing the civil liability
upon principles of justice, and rather upon casualty than upon liability of a
criminal character. The intention to make indemnification proportionate to the
nature and effects of the act, from which the obligation arises, inspires the
provisions contained in articles 121 to 124, both inclusive; the necessity to
distinguish, in order to give the consequences which the crime may produce
within the sphere of civil law, whether or not the persons thereby bound are
guilty, prevails in article 128 and partly in article 122; article 125 gives the
essential difference between the civil obligation and the personal criminal
liability, and dissipates a doubt which, due to the latter's intransmissibility,
might arise as to the former by reason of its accessory character in connection
with the other, and by the intimate connection between both which the crime or
misdemeanor creates and the criminal law declares; the influence of the severity
on the punishment is noted in articles 20 and 21, even though the latter coincide
with the criterion followed in analogous cases by the Civil Code, and already
deviating from the latter's criterion by reason of that severity founded on the
illicit origin of the obligations which it declares, it provides for the latter a
necessary solidarity in article 127; and abandoning also the criterion of the civil
law in article 126, it establishes within that solidarity, not the presumption of
equal division which the latter provides in such a case, but a prudent division
which may, and generally must be, unequal, in order that the influence of the
different participation in the crime or misdemeanor which is the origin of the
former may also reach the Civil obligation.
"In all other respects, and even in some of those same features, either by the
express reference of the articles which provide for them, or by the latter's
influence, the civil obligation shall be subject to the Civil Code, which even in
some of those peculiar rules has supposed a modification in so far as it does not
establish the benefit of exemption to the extent needed for support, as provided
for in the Penal Code.
"While the Civil Code, in its article 1092, simply makes ref erence to the Penal
Code, yet, it is beyond doubt that by this reference it means those rules of a
general nature which regulate the civil liability arising from the particular crimes
or misdemeanors therein mentioned, and that, in connection therewith, they shall
have the preferential application which this article recognizes in favor of the
Penal Code." (8 Manresa Código Civil Español, 3d ed., pp. 28-32.)
The case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), is one of
the widest known authorities on the subject of damages. But that was strictly a
civil action not predicated on or related to a criminal action. It was said:
"Inasmuch as no criminal proceeding had been instituted, growing out of the
accident in question, the provisions of the Penal Code cannot affect this action.
This construction renders it unnecessary to finally determine here whether this
subsidiary civil liability in penal actions has survived the laws that fully
regulated it or has been abrogated by the American civil and criminal procedure
now in force in the Philippines." That such subsidiary civil liability in penal
actions has not been abrogated by later laws, seems fairly well established.
Section 107 of the Code of Criminal Procedure recognizes the rights of persons
injured by the offense to take part in the prosecution of the offense and to recover
damages. It is there provided that "the court upon conviction of the accused may
enter judgment against him for the damages occasioned by his wrongful act."
Authoritative decisions have also leaned in the direction of taking it for granted
that civil liability could be fixed in the criminal action. While the law of criminal
procedure is silent on the subject of subsidiary liability, so far as we can see, there
could exist no good reason for not permitting the action to be carried forward to
the second stage and there to fix subsidiary liability.
With this preliminary point out of the way, there is no escaping the conclusion
that the provisions of the Penal Code govern. The Penal Code in easily
understandable language authorizes the determination of subsidiary liability. The
Civil Code negatives its application by providing that civil obligations arising
from crimes or misdemeanors shall be governed by the provisions of the Penal
Code. The conviction of the motorman was a misdemeanor falling under article
604 of the Penal Code. The act of the motorman was not a wrongful or negligent
act or omission not punishable by law. Accordingly, the civil obligation connected
up with the Penal Code and not with article 1903 of the Civil Code. In other
words, the Penal Code affirms its jurisdiction while the Civil Code negatives its
jurisdiction. This is a case of criminal negligence out of which civil liability arises
and not a case of civil negligence.
The decision of the United States Supreme Court in the case of Almeida
Chantangco and Lete vs. Abaroa, supra, should be read in connection both with
the discussion of the first assignment of error and the question now before us. In
that decision, Mr. Justice Lurton, delivering the opinion of the court, said:
"The case is, however, one which we conceive must be governed by the local law of
the Philippine Islands, and the single question to which we need address
ourselves is as to whether that law was rightly applied by the local tribunals.
"Article 1902 of the Civil Code in force in the Philippine Islands reads thus: 'A
person who, by an act or omission, causes damage to another when there is fault
or negligence, shall be obliged to repair the damage so done.' By articles 1092 and
1093 of the same Code provision is made for the enforcement of civil liability,
varying in character according to the origin of the liability. Thus, article 1092
provides that civil obligations arising from crimes and misdemeanors shall be
governed by the provisions of the Penal Code. On the other hand, article 1093
provides that 'those arising from acts or omissions, in which fault or negligence,
not punished by law, occurs, shall be subject to the provisions of chapter second of
title sixteen of this book.' The action here involved comes directly under article
1092, above set out, and is not an action arising from 'fault or negligence, not
punished by law.' The complaint alleges that the act of burning was 'malicious
and unlawful,' and not that it was the result of any 'fault or negligence.' This was
the construction placed upon the complaint by both the courts below, and is a
construction not challenged here. It follows that we must turn to the Penal Code
to discover when a civil action arises out of a crime or misdemeanor, and the
procedure of the enforcement of such civil liability. Article 17 of the Penal Code
reads as follows: 'Every person criminally liable for a crime or misdemeanor is
also civilly liable.' May this civil liability be enforced without a prior legal
determination of the fact of the defendant's guilt of crime? Does civil liability exist
at all if the defendant has been found not guilty of the acts out of which the civil
liability arises? The opinion of the court below was that a judgment of conviction
was essential to an action for indemnification under the applicable local law. To
this conclusion we assent, upon the following considerations:
"First, by the positive legislation of the Philippine Codes, civil and criminal, a distinction is
drawn between a civil liability which results from the mere negligence of the defendant and
a liability for the civil consequences of a crime by which another has sustained loss or
injury.
"Second, the plain inference from article 17, above set out, is that civil liability springs out
of and is dependent upon facts which, if true, would constitute a crime or misdemeanor.
"Third, the Philippine Code of Procedure plainly contemplates that the civil liability of the
defendant shall be ascertained and declared in the criminal proceedings.
"Thus, section 742 of the Code of Criminal Procedure, after requiring that, in a criminal
proceeding, all of the minor or incidental offenses included in the principal crime shall be
decided, adds: 'All questions relating to the civil liability which may have been the subject-
matter of the charge shall be decided in the sentence.'
"The foregoing considerations eliminate any question of the effect of such a judgment of
acquittal under the principles of the common law and require an affirmance of the judgment
of the court below as properly based upon the applicable substantive law of the Philippine
Islands, which has not been superseded by legislation since the establishment of the present
Philippine Government."
The facts here are distinguishable from those in Chaves and Garcia vs. Manila
Electric Railroad and Light Company ([1915], 31 Phil., 47). In the cited case,
while the motorman was prosecuted and convicted, his sentence included no
imposition of civil liability. So the court correctly held, although without
discussion, that the employer was not liable in damages resulting from the
criminal negligence of his employee, when he has exercised the care of a good
father of a family in selecting said employee.
In the later decision of this court in Francisco vs. Onrubia ( [1924], 46 Phil., 327),
the court gave attention to a similar question. Speaking through Mr. Justice
Villamor, the court reached the following conclusions:
"Article 1902 of the Civil Code has no application in the instant case, first, because said
article presupposes the existence of (f ault or negligence upon which the action is based, and
second, it refers to a fault or negligence not punishable by law, because if the fault or
negligence is punished by law, it ceases to be the quasi crime of negligence having purely
civil effects, and becomes a crime or misdemeanor, according to the gravity of the penalty
imposed by the law, and in that case it comes within the purview of article 1092 of the Civil
Code. Under the facts set forth in the complaint, if there was any fault or negligence on the
part of the defendant, it must necessarily be a fault punishable by law (arts. 568, 590, and
604 of the Penal Code), for through said fault he caused the death of the plaintiff's son.
Homicide through reckless imprudence is punished as a crime, and therefore the provisions
applicable would be those of the Penal Code and the Law of Criminal Procedure above
cited."
Our deduction, therefore, is that the case relates to the Penal Code and not to the
Civil Code. Indeed, as pointed out by the trial judge, any different ruling would
permit the master to escape scot-free by simply alleging and proving that the
master had exercised all diligence in the selection and training of its servants to
prevent the damage, That would be a good defense to a strictly civil action, but
might or might not be to a civil action either a part of or predicated on conviction
for a crime or misdemeanor. (By way of parenthesis, it may be said further that
the statements here made are offered to meet the argument advanced during our
deliberations to the effect that article 1092 of the Civil Code should be
disregarded and codal articles 1093 and 1903 applied.)
In accordance with the foregoing, the judgment appealed from will be set
aside, and the record remanded to the lower court for a new trial. Without special
finding as to costs in this instance, it will be so ordered.
Avanceña, C. J., Street, Villamor, Romualdez, and VillaReal, JJ., concur.
JOHNSON, J., concurring in part, with the following observation:
In this jurisdiction the rule is, that all liabilities, civil and criminal, resulting from crimes
and misdemeanors, shall be decided in the same case. No such rule exists in the United
States. To avoid a multiplicity of actions, therefore, all persons who are civilly and
criminally liable as a result of crimes and misdemeanors, should be cited to appear for the
purpose of making their defense. All such persons are proper parties. There is no reason in
law why there should be more than one action to settle both the criminal and civil liabilities.
JOHNS, J., concurring:
I, concur in the result on the first assignment of error and at this time decline to express
any opinion as to the second.
Ostrand, J., dissents. | Judgment set aside, and record remanded for new trial.
[G.R. No. 7567. November 12, 1912. ]
THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO BARIAS, Defendant-
Appellant.
Bruce, Lawrence, Ross & Block for Appellant.
Solicitor-General Harvey for Appellee.
SYLLABUS
1. NEGLIGENCE DEFINED. — Negligence is "the failure to observe, for the
protection of the interests of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person
suffers injury."
2. ID.; ID. — Silvela’s observation that "if a moment’s attention and reflexion
would have shown a person that the act which he was about to perform was liable
to have the harmful consequences which it had, such person acted with temerity
and may be guilty of imprudencia temeraria," cited with approval.
3. ID.; ID. — "The diligence with which the law requires the individual at all
times to govern his conduct varies with the nature of the situation in which he is
placed and with the importance of the act which he is to perform." (U. S. v. Reyes,
1 Phil. Rep., 375, 377.)
4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF
MOTORMEN. — Held, that a motorman operating a street car on a public street
in a densely populated section of the city of Manila is bound to know and to
recognize that any negligence on his part in observing the track over which he is
running his car may result in fatal accidents. He has no right, when he starts
from a standstill, to assume that the track before his car is clear. It is his duty to
satisfy himself of that fact by keeping a sharp lookout and doing everything in his
power to avoid the danger which is necessarily incident to the operation of heavy
street cars on thoroughfares in populous sections of the city.
5. ID.; ID.; ID. — In the absence of some regulation of his employers, a motorman
who has brought his car to a standstill is not bound to keep his eyes directly to
the front while the car is stopped, but before setting it again in motion, it is his
duty to satisfy himself that the track is clear, and for that purpose to look and to
see the track just in front of his car.
6. ID.; ID.; ID. — The reasons of public policy which impose upon street car
companies and their employees the duty of exercising the utmost degree of
diligence in securing the safety of passengers, apply with equal force to the duty
of avoiding infliction of injuries upon pedestrians and others upon the public
streets and thoroughfares over which such companies are authorized to run their
cars.
7. ID.; ID.; ID. — It is the manifest duty of a motorman operating an electric
street car on a public thoroughfare in as thickly settled district, to satisfy himself
that the track is clear immediately in front of his car before setting it in motion
from a standstill and for that purpose to incline his body slightly forward, if that
be necessary, in order to bring the track immediately in front of his car within his
line of vision.
CARSON, J. :
This is an appeal from a sentence imposed by the Honorable A. S. Crossfield,
judge of the Court of First Instance of Manila, for homicide resulting from
reckless negligence. The information charges:
"That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said
Segundo Barias was a motorman on street car No. 9, run 7, of the Pasay-Cervantes lines of
the Manila Electric Railroad and Light Company, a corporation duly organized and doing
business in the city of Manila, Philippine Islands; as such motorman he was controlling and
operating said street car along Rizal Avenue, formerly Calle Cervantes, of this city, and as
such motorman of said street car he was under obligation to run the same with due care and
diligence to avoid any accident that might occur to vehicles and pedestrians who were
traveling on said Rizal Avenue; said accused, at said time and place, did willfully, with
reckless imprudenced and inexcusable negligence and in violation of the regulations
promulgated to that effect, control and operate said street car, without heeding the
pedestrians crossing Rizal Avenue from one side to the other, thus knocking down and
causing by his carelessness and imprudent negligence that said street car No. 9, operated
and controlled by said accused, as hereinbefore stated, should knock down and pass over the
body and head of one Fermina Jose, a girl 2 years old, who at said time and place was
crossing the said Rizal Avenue, the body of said girl being dragged along the street-car track
on said Rizal Avenue for a long distance, thus crushing and destroying her head and causing
her sudden death as a result of the injury received; that if the acts executed by the accused
had been done with malice, he would be guilty of the serious crime of homicide."
The defendant was a motorman for the Manila Electric Railroad and Light
Company. At about 6 o’clock on the morning of November 2, 1911, he was driving
his car along Rizal Avenue and stopped it near the intersection of that street with
Calle Requesen to take on some passengers. When the car stopped, the defendant
looked backward, presumably to note whether all the passengers were aboard,
and then started his car. At that moment Ferminia Jose, a child about 3 years old,
walked or ran in front of the car. She was knocked down and dragged some little
distance underneath the car, and was left dead upon the track. The motorman
proceeded with his car to the end of the track, some distance from the place of the
accident, and apparently knew nothing of it until his return, when he was
informed of what had happened.
There is no substantial dispute as to the facts. It is true that one witness testified
that the defendant started the car without turning his head, and while he was
still looking backwards and that this testimony was directly contradicted by that
of another witness. But we do not deem it necessary to make an express finding
as to the precise direction in which the defendant’s head was turned at the
moment when he started his car. It is sufficient for the purpose of our decision to
hold, as we do, that the evidence clearly discloses that he started his car from a
standstill without looking over the track immediately in front of the car to satisfy
himself that it was clear. He did not see the child until after he had run his car
over it, and after he had returned to the place where it was found dead, and we
think we are justified in saying that wherever he was looking at the moment
when he started his car, he was not looking at the track immediately in front of
the car, and that he had not satisfied himself that this portion of the track was
clear immediately before putting the car in motion.
The trial court found the defendant guilty of imprudencia temeraria (reckless
negligence) as charged in the information, and sentenced him to one year and one
month of imprisonment in Bilibid Prison, and to pay the costs of the action.
The sole question raised by this appeal is whether the evidence shows such
carelessness or want of ordinary care on the part of the defendant as to amount to
reckless negligence (imprudencia temeraria).
Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be: "The
failure to observe, for the protection of the interests of another person, that degree
of care, precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury.”
In the case of U. S. v. Nava, (1 Phi. Rep., 580), we held that: "Reckless negligence
consists of the failure to take such precautions or advance measures in the
performance of an act as the most common prudence would suggest whereby
injury is caused to persons or to property."
Silvela says in his "Derecho Penal," in speaking of reckless imprudence
(imprudencia temeraria):
"The word ’negligencia’ used in the code, and the term ’imprudencia’ with which this
punishable act is defined, express this idea in such a clear manner that it is not necessary to
enlarge upon it. He who has done everything on his part to prevent his actions from causing
damage to another, although he has not succeeded in doing so, notwithstanding his efforts,
is the victim of an accident, and cannot be considered responsible for the same." (Vol. 2, p.
127 [153].)
"Temerario is, in our opinion, one who omits, with regard to his actions, which are
liable to cause injury to another, that care and diligence, that attention, which
can be required of the least careful, attentive, or diligent. If a moment’s attention
and reflection would have shown a person that the act which he was about to
perform was liable to have the harmful consequence which it had, such person
acted with temerity and may be guilty of ’imprudencia temeraria." It may be that
in practice this idea has been given a greater scope and acts of imprudence which
did not show carelessness as carried to such a high degree, might have been
punished as ’imprudencia temeraria;’ but in our opinion, the proper meaning of
the word does not authorize another interpretation." (Id., p 133 [161].)
Groizard, commenting upon "imprudencia temeraria," on page 389, volume 8, of
his work on the Penal Code, says:
"Prudence is that cardinal virtue which teaches us to discern and distinguish the good from
the bad, in order to adopt or to flee from it. It also means good judgment, temperance, and
moderation in one’s action.’Temerario’ without reflection and without examining the same.
Consequently, he who from lack of good judgment, temperance, or moderation in his action,
exposes himself without reflection and examination to the danger of committing a crime,
must be held responsible under the provision of law aforementioned."
Negligence is want of the care required by the circumstances. It is a relative or
comparative, not an absolute, term and its application depends upon the situation
of the parties and the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary care under the circumstances.
(Ahern v. Oregon Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)
Ordinary care, if the danger is great, may rise to the grade of a very exact and
unchangeable attention. (Parry Mfg. Co. v. Eaton, 41 Ind. App., 81, 1908; 83 N.
E., 510.)
In the case of U. S. v. Reyes (1 Phil. Rep., 375-377), we held that: "The diligence
with which the law requires the individual at all times to govern his conduct
varies with the nature of the situation in which he is placed and with the
importance of the act which he is to perform."
The question to be determined then, is whether, under all the circumstances, and
having in mind the situation of the defendant when he put his car in motion and
ran it over the child, he was guilty of a failure to take such precautions or
advance measures as common prudence would suggest.
The evidence shows that the thoroughfare on which the incident occurred was a
public street in a densely populated section of the city. The hour was six in the
morning, or about the time when the residents of such streets begin to move
about. Under such conditions a motorman of an electric street car was clearly
charged with a high degree of diligence in the performance of his duties. He was
bound to know and to recognize that any negligence on his part in observing the
track over which he was running his car might result in fatal accidents. He had
no right to assume that the track before his car was clear. It was his duty to
satisfy himself of that fact by keeping a sharp lookout, and to do everything in his
power to avoid the danger which is necessarily incident to the operation of heavy
street cars on public thoroughfares in populous sections of the city.
Did he exercise the degree of diligence required of him? We think this question
must be answered in the negative. We do not go so far as to say that having
brought his car to a standstill it was his bounden duty to keep his eyes directed to
the front. Indeed, in the absence of some regulation of his employers, we can well
understand that, at times, it might be highly proper and prudent for him to gland
back before again setting his car in motion, to satisfy himself that he understood
correctly a signal to go forward or that all the passengers had safely alighted or
gotten on board. But we do insist that before setting his car again in motion, it
was his duty to satisfy himself that the track was clear, and, for that purpose, to
look and to see the track just in front of his car. This the defendant did not do,
and the result of his negligence was the death of the child.
In the case of Smith v. St. Paul City Ry. Co., (32 Min., p. 1), the supreme court of
Minnesota, in discussing the diligence required of street railway companies in the
conduct of their business observed that: "The defendant was a carrier of
passengers for hire, owning and controlling the tracks and cars operated thereon.
It is therefore subject to the rules applicable to passenger carriers. (Thompson’s
Carriers, 442; Barrett v. Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) ,
205.) As respects hazards and dangers incident to the business or employment,
the law enjoins upon such carrier the highest degree of care consistent with its
undertaking, and it is responsible for the slightest negligence. (Wilson v.
Northern Pacific R. Co., 26 minn., 278; Warren v. Fitchburg R. Co., 8 Allen, 233;
43 Am. Dec. 354, 356, notes and cases.) . . . The severe rule which enjoins upon
the carrier such extraordinary care and diligence, is intended, for reasons of
public policy, to secure the safe carriage of passengers, in so far as human skill
and foresight can affect such result." The case just cited was a civil case, and the
doctrine therein announced d especial reference to the care which should be
exercised in securing the safety of passengers. But we hold that the reasons of
public policy which imposed upon street car companies and their employees the
duty of exercising the utmost degree of diligence in securing the safety of
passengers, apply with equal force to the duty of avoiding the infliction of injuries
upon pedestrians and others on the public streets and thoroughfares over which
these companies are authorized to run their cars. And while, in a criminal case,
the courts will require proof of the guilt of the company or its employees beyond a
reasonable doubt, nevertheless the care or diligence required of the company and
its employees is the same in both cases, and the only question to be determined is
whether the proof shows beyond a reasonable doubt that the failure to exercise
such care or diligence was the cause of the accident, and that the defendant was
guilty thereof.
Counsel for the defendant insist that the accident might have happened despite
the exercise of the utmost care by the defendant, and they have introduced
photographs into the record for the purpose of proving that while the motorman
was standing in his proper place on the front platform of the car, a child might
have walked up immediately in front of the car, a child might have walked up
immediately in front of the car without coming within the line of his vision.
Examining the photographs, we think that this contention may have some
foundation in fact; but only to this extent, that standing erect, at the position he
would ordinarily assume while the car is in motion, the eye of the average
motorman might just miss seeing the top of the head of a child, about three years
old, standing or walking close up to the front of the car. But it is also very evident
that by inclining the head and shoulders forward very slightly, and glancing in
front of the car, a person in the position of a motorman could not fail to see a child
on the track immediately in front of his car; and we hold that it is the manifest
duty of a motorman, who is about to start his car on a public thoroughfare in a
thickly-settled district, to satisfy himself that the track is clear immediately in
front of his car, a person in the position of a motorman could not fail to see a child
on the track immediately in front of his car; and we hold that it is the manifest
duty of a motorman, who is about to start his car on a public thoroughfare in a
thickly-settled district, to satisfy himself that the track is clear immediately in
front of his car, and to incline his body slightly forward, if that be necessary, in
order to bring the whole track within his line of vision. Of course, this may not be,
and usually is not necessary when the car is in motion, but we think that it is
required by the dictates of the most ordinary prudence in starting from a
standstill.
We are not unmindful of our remarks in the case of U. S. v. Bacho (10 Phil. Rep.,
577), to which our attention is directed by counsel for Appellant. In that case we
said that:
". . . In the general experience of mankind, accidents apparently unavoidable and often
inexplicable are unfortunately too frequent to permit us to conclude that some one must be
criminally liable for negligence in every case where an accident occurs. it is the duty of the
prosecution in each case to prove by competent evidence not only the existence of criminal
negligence, but that the accused was guilty thereof."
Nor do we overlook the ruling in the case of U. S. v. Barnes (12 Phil. Rep., 93), to
which our attention is also invited, wherein we held that the defendant was not
guilty of reckless negligence, where it appeared that he killed another by the
discharge of his gun under such circumstances that he might have been held
guilty of criminally reckless negligence had he had knowledge at that moment
that another person was in such position as to be in danger if the gun should be
discharged. In this latter case the defendant had no reason to anticipate that the
person who was injured was in the line of fire, or that there was any probability
that he or anyone else would place himself in the line of fire. In the case at bar,
however, it was, as we have seen, the manifest duty of the motorman to take
reasonable precautions in starting his car to see that in doing so he was not
endangering the life of any pedestrian, old or young; and to this end it was further
his duty to guard against the reasonable possibility that some one might be on the
evidence showing, is it does, that the child was killed at the moment when the car
was set in motion, we are justified in holding that, had the motorman seen the
child, he could have avoided the accident; the accident was not, therefore,
"unavoidable or inexplicable," and it appearing that the motorman, by the
exercise of ordinary diligence, might have seen the child before he set the car in
motion, his failure to satisfy himself that the track was clear before doing so was
reckless negligence, of which he was properly convicted in the court below.
We think, however, that the penalty should be reduced to that of six months and one day of
prision correccional. Modified by substituting for so much thereof as imposes the penalty of
one year and one month of imprisonment, the penalty of six months and one day of prision
correccional, the judgment of the lower court convicting and sentencing the appellant is
affirmed, with the costs of both instances against him. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur. | Johnson, J., concurs in the result.
Trent, J., dissents.
No. L-44264. September 19, 1988.*
HEDY GAN y YU, petitioner, vs. THE HONORABLE COURT OF APPEALS and
the PEOPLE OF THE PHILIPPINES, respondents.
Criminal Law; Homicide Through Reckless Imprudence; Civil Law; Torts and
Damages; Test for Determining Negligence Resulting in Injury or Damages;
Failure to take precautions to avoid the mischievous results of a person’s course of
action constitutes negligence.—The test for determining whether or not a person is
negligent in doing an act whereby injury or damage results to the person or
property of another is this: Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposes the duty on
the doer to take precaution against its mischievous results and the failure to do so
constitutes negligence.
Same; Same; Same; Same; Same; Same; Emergency Rule, Defined.—A corollary
rule is what is known in the law as the emergency rule. “Under that rule, one who
suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is
not guilty of negligence, if he fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the emergency in which he finds
himself is brought about by his own negligence.
Same; Same; Same; Same; Same; Same; Appellant is not guilty of Homicide Thru
Simple Imprudence, as there was no showing that she had sufficient time to
analyze the situation and ponder on which course of action would result in the
least possible harm.—Applying the above tests to the case at bar, we find the
petitioner not guilty of the crime of Simple Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said: “The accused should have
stepped on the brakes when she saw the car going in the opposite direction
followed by another which overtook the first by passing towards its left. She
should not only have swerved the car she was driving to the right but should have
also tried to stop or lessen her speed so that she would not bump into the
pedestrian who was crossing at the time but also the jeepney which was then
parked along the street.” The course of action suggested by the appellate court
would seem reasonable were it not for the fact that such suggestion did not take
into account the amount of time afforded petitioner to react to the situation she
was in. For it is undeniable that the suggested course of action presupposes
sufficient time for appellant to analyze the situation confronting her and to
ponder on which of the different courses of action would result in the least
possible harm to herself and to others. Due to the lack of eyewitnesses, no
evidence was presented by the prosecution with respect to the relative distances
of petitioner to the parked jeepney and the oncoming overtaking vehicle that
would tend to prove that petitioner did have sufficient time to reflect on the
consequences of her instant decision to swerve her car to the right without
stepping on her brakes.
PETITION to review the judgment of the Court of Appeals.
FERNAN, C.J.:
Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless
Imprudence in Criminal Case No. 10201 of the then Court of First Instance of
Manila, Branch XXII, presided by Judge Federico C. Alikpala. She was sentenced
to an indeterminate penalty of four (4) months and one (1) day of arresto mayor as
minimum and two (2) years, four (4) months and one (1) day of prision
correccional as maximum and was made to indemnify the heirs of the victim the
sum of P12,000.00 without any subsidiary imprisonment in case of insolvency and
to pay the costs. On appeal, the trial court’s decision was modified and petitioner
was convicted only of Homicide thru Simple Imprudence. Still unsatisfied with
the decision of the Court of Appeals,1 petitioner has come to this Court for a
complete reversal of the judgment below.
The facts of the case as found by the appellate court are as follows:
“In the morning of July 4, 1972 at about 8:00 o’clock, the accused Hedy Gan was driving a
Toyota car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of
North Bay Boulevard, there were two vehicles, a truck and a jeepney parked on one side of
the road, one following the other about two to three meters from each other. As the car
driven by the accused approached the place where the two vehicles were parked, there was a
vehicle coming from the opposite direction, followed by another which tried to overtake and
bypass the one in front of it and thereby encroached the lane of the car driven by the
accused. To avoid a head-on collision with the oncoming vehicle, the defendant swerved to
the right and as a consequence, the front bumper of the Toyota Crown Sedan hit an old man
who was about to cross the boulevard from south to north, pinning him against the rear of
the parked jeepney. The force of the impact caused the parked jeepney to move forward
hitting the rear of the parked truck ahead of it. The pedestrian was injured, the Toyota
Sedan was damaged on its front, the jeep suffered damages on its rear and front parts, and
the truck sustained scratches at the wooden portion of its rear. The body of the old man who
was later identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial
Hospital but was (pronounced) dead on arrival.”2
An information for Homicide thru Reckless Imprudence was filed against
petitioner in view of the above incident. She entered a plea of not guilty upon
arraignment and the case was set for trial.
Meanwhile, petitioner sought and was granted a re-investigation by the City
Fiscal, as a result of which the trial fiscal moved for the dismissal of the case
against petitioner during the resumption of hearing on September 7, 1972. The
grounds cited therefor were lack of interest on the part of the complaining witness
to prosecute the case as evidenced by an affidavit of desistance submitted to the
trial court and lack of eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never resolved. The Court instead
ordered the prosecution to present its evidence. After the prosecution rested its
case, the petitioner filed a motion to dismiss the case on the ground of
insufficiency of evidence.
On December 22, 1972, the trial court rendered judgment finding petitioner guilty
beyond reasonable doubt of the offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3,
1976, the Court of Appeals rendered a decision, the dispositive portion of which
reads as follows:
“Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the
crime of homicide thru simple imprudence and, pursuant to paragraph 2, Article 365 of the
Revised Penal Code she is hereby sentenced to the indeterminate penalty of three (3)
months and eleven (11) days of arresto mayor and to indemnify the heirs of Isidoro Casino in
the sum of Twelve Thousand Pesos (P12,000.00) without, however, any subsidiary
imprisonment in case of insolvency, and to pay the costs.”3
Petitioner now appeals to this Court on the following assignments of errors:
I
The Court of Appeals erred in holding that when the petitioner saw a car travelling directly
towards her, she should have stepped on the brakes immediately or in swerving her vehicle
to the right should have also stepped on the brakes or lessened her speed, to avoid the death
of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple
Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in
the sum of P12,000.00.4
We reverse.
The test for determining whether or not a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this:
Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes the duty on the doer to take
precaution against its mischievous results and the failure to do so constitutes
negligence.5
A corollary rule is what is known in the law as the emergency rule. “Under that
rule, one who suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a better method,
unless the emergency in which he finds himself is brought about by his own
negligence.”6
Applying the above test to the case at bar, we find the petitioner not guilty of the
crime of Simple Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said:
“The accused should have stepped on the brakes when she saw the car going in the opposite
direction followed by another which overtook the first by passing towards its left. She should
not only have swerved the car she was driving to the right but should have also tried to stop
or lessen her speed so that she would not bump into the pedestrian who was crossing at the
time but also the jeepney which was then parked along the street.”7
The course of action suggested by the appellate court would seem reasonable were
it not for the fact that such suggestion did not take into account the amount of
time afforded petitioner to react to the situation she was in. For it is undeniable
that the suggested course of action presupposes sufficient time for appellant to
analyze the situation confronting her and to ponder on which of the different
courses of action would result in the least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by the prosecution
with respect to the relative distances of petitioner to the parked jeepney and the
oncoming overtaking vehicle that would tend to prove that petitioner did have
sufficient time to reflect on the consequences of her instant decision to swerve her
car to the right without stepping on her brakes. In fact, the evidence presented by
the prosecution on this point is the petitioner’s statement to the police 8 stating:
“Ang masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan na
aking kasalubong kung kaya ay aking kinabig sa kanan ang aking kotse subalit siya naman biglang
pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa. Iyan ho ang buong
pangyayari nang nasabing aksidente.”9 (italics supplied)
The prosecution having presented this exhibit as its own evidence, we cannot but
deem its veracity to have been admitted by it. Thus, under the circumstances
narrated by petitioner, we find that the appellate court is asking too much from a
mere mortal like the petitioner who in the blink of an eye had to exercise her best
judgment to extricate herself from a difficult and dangerous situation caused by
the driver of the overtaking vehicle. Petitioner certainly could not be expected to
act with all the coolness of a person under normal conditions. 10 The danger
confronting petitioner was real and imminent, threatening her very existence.
She had no opportunity for rational thinking but only enough time to heed the
very powerful instinct of self-preservation.
Also, the respondent court itself pronounced that the petitioner was driving her
car within the legal limits. We therefore rule that the “emergency rule”
enunciated above applies with full force to the case at bar and consequently
absolve petitioner from any criminal negligence in connection with the incident
under consideration.
We further set aside the award of damages to the heirs of the victim, who by
executing a release of the claim due them, had effectively and clearly waived their
right thereto.
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime
of Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded
by the appellate court to the heirs of the victim. SO ORDERED.
Note.—Presumption of negligence must be overcome by evidence. (Vergara vs. CA, 154 SCRA 564.)
G.R. No. 131588. March 27, 2001.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLENN DE LOS
SANTOS, accused-appellant.
Criminal Law; Murder; Penalties; Where the death penalty is involved, the trial
court should be more scrupulous in weighing the evidence.—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. 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.
Same; Same; 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.—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.
Same; Same; Presumption of Innocence.—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 grave responsibility—the Court should adopt the explanation
which is more favorable to the accused.
Same; Same; Motive; 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.—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. Thus, in People v. Godinez, 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.
Same; Same; Same; Rebellion; If there be evidence that the motive of the killing
was in furtherance of a rebellion movement, the accused cannot be convicted of
murder, because if such were the case, the proper charge would be rebellion.—
Neither is there any showing of “a political angle of a leftist-sponsored massacre
of police elements disguised in a vehicular accident.” 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.
Same; Reckless Imprudence; Negligence; 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.—
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.
Same; Same; Same; 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?—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.
Same; Same; Same; Words and Phrases; “Reckless Imprudence,” Explained.—
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.
Same; Same; Same; Where the incident resulting in several deaths and injuries
was not a product of a malicious intent but rather the result of a single act of
reckless driving, the accused should be held guilty of the complex crime of reckless
imprudence resulting in multiple homicide with serious physical injuries and less
serious physical injuries; If a reckless, imprudent, or negligent act results in two or
more grave or less grave felonies, a complex crime is committed.—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). In Reodica v. Court of Appeals, 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, 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,
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.
Same; Same; Same; Slight Physical Injuries; Being light felonies, which are not
covered by Article 48 of the Revised Penal Code, slight physical injuries should be
treated and punished as separate offenses.—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.
Same; Same; Same; Same; Criminal Procedure; 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.—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. 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.
Same; Same; Same; In felonies through imprudence or negligence, modifying
circumstances need not be considered in the imposition of the penalty.—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. 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.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Cagayan de Oro City, Br. 38.
The facts are stated in the opinion of the Court.
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 Lasco
2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito
While 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 Hinlo
2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza
6. Arman Neri Hernaiz
While the following Police Officers I (PO1) sustained minor injuries, to wit:
1. Romanito Andrada 6. Romualdo Cotor Dacera
2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. lordicante Martin Piligro
after 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.1
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.2
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.3
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.4
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.5
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.6 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.7
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.8
GLENN drove slowly because the road was slippery. The vicinity was dark: there was no
moon or star; neither were there lamp-posts. 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.9
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. 10
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. 11
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.12 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. 13
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.14
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.”15
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.”16
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.”17
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.18
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.19
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.20 Thus, in People v. Godinez,21 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.” 22 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.23
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.24
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.25
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).26 In Reodica v. Court of Appeals,27 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,28 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,29 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.30 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. 31
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.32
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 Davide, Jr. (C.J.), Bellosillo, Melo, Vitug, Kapunan, Mendoza,
reckless imprudence resulting in multiple homicide with serious physical injuries Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De
and less serious physical injuries, the penalty would be prision correccional in its Leon, Jr. and Sandoval-Gutierrez, JJ., concur.
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 Puno, J., Abroad on official business.
imposed. For the separate offenses of reckless imprudence resulting in slight
physical injuries, GLENN may be sentenced to suffer, for each count, the penalty
Judgment set aside.
of arresto mayor in its minimum period.

Although it was established through the testimonies of prosecution witness
Lemuel Pangca33 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.
Notes.—A deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence—in criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act done
without malice but with lack of foresight, or with carelessness or negligence, and
which has harmed society or an individual. (People vs. Nepomuceno, Jr., 298
SCRA 450 [1998])
Negligence is a relative or comparative, not an absolute, term and its application
depends upon the situation of the parties and the degree of care and vigilance
which the circumstances reasonably require. (Adzuara vs. Court of Appeals, 301
SCRA 657 [1999])
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights reserved.

As far as the award of damages is concerned, we find a necessity to modify the

same. Conformably with current jurisprudence,34 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.
No. L-65295. March 10,1987.*
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO,
respondents.
Torts; Evidence; Private respondent had no curfew pass during the night the
accident took place. The certification by a major assigned in Pampanga that
respondent has a curfew pass is not credible as it lacks the necessary details.—
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 Campo 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.
Same; Same; Information gathered by a traffic investigator from persons who saw
how the accident took place is admissible as part of the res gestae.—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 which Dionisio was travelling just before impact with the
Phoenix dump truck.
Same; Same; Petitioner's theory that respondent deliberately shut off his
headlights as he turned the intersection where his car later on bumped a parked
dumptruck is more credible than respondent's claim that his car's lights suddenly
turned off.—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.
Same; Same; The fact that a driver smelled of liquor does not necessarily mean he
is drunk.—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. 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.
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.
Same; The theory of petitioners that the negligence of the truck driver in parking
his truck on the street without any early warning devices is merely a passive and
static condition, while the negligence of the car driver in ramming against the
truck was the efficient, intervening cause, is a theory that has already been almost
entirely discredited.—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 Prosser and Keeton make this quite clear: x x x.
Same; The improper parking of truck created an unreasonable risk for anyone
driving on that street for which the truck driver should be held responsible as the
negligence of a car driver bumping that truck was no more than a forseeable
consequence of the risk created by the truck driver.—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 all 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 consequence of the risk created by the negligent manner in 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.
Same; Negligence of car driver who bumps an improperly parked truck is merely
contributory.—We 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).
Same; Doctrine of "last clear chance" is a common-law theory adopted to mitigate
the harshness of the "contributory negligence of the plaintiff rule under which in
common-law countries plaintiff is barred from any recovery, unlike in our system
of law where the Civil Code expressly states that it will merely reduce the amount
to be recovered.—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 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. 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. 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. 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.
Same; Doctrine of last clear chance in common law cannot be applied as a general
rule in negligence cases in our civil law system.—Is 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 plaintiffs 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'
proposition must tend to weaken the very bonds of society.
Same; Employer's failure to exercise vigilance over its employee evident from the
improper parking of the truck on the street at night along employee's residence.—
Petitioner Carbonel's proven negligence creates a presumption of negligence on
the part of his employer Phoenix 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.
Same; Contributory negligence may result in 20% reduction of damages.—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, 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 solidarily 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. We see no sufficient reason for disturbing the
reduced award of damages made by the respondent appellate court.
PETITION for review of the decision of the Intermediate Appellate Court.
The facts are stated in the opinion of the Court.
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 2-½ 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 lef t 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 care 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 P15,000.00 for hospital bills and the
replacement of the lost dentures of plaintiff;
(2)
To pay plaintiff jointly and severally the sum of P150,000.00 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 P100,000.00 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 P10,000.00 as exemplary 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 P4,500.00 due as and for attorney 's
fees; and
(6)
The cost of suit." (Italics 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 P1 5,000.00 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 P1 50,000.00 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;"
and
3.
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 un touched.
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 bef ore 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 fall 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 rule4 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 which 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 bef ore 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 aff ect dif f erent people dif f
erently.
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 Prosser 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 falls
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 all
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 consequence of the risk
created by the negligent manner in 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 Prosser
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 negligent, 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 will 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. x x x 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 of the 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; x x x.
The risk created by the defendant may include the intervention of the foreseeable
negligence of others. x x x [T]he 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. - - -"10
We 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.
Smith11 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.15
Is 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' proposition 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 Phoenix16 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 solidarily 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. Decision modified.
Notes.—In a serious physical injuries case resulting from a collision between two motor
vehicles, the conviction upon a plea of guilt of the driver of one of the vehicles cannot be
used as an argument for the acquittal of the driver of the other vehicle, if there is sufficient
evidence that the latter drove his vehicle in a careless, reckless and imprudent manner
which resulted in serious injuries to the complainant. (People vs. De la Merced, 7 SCRA
291.)
A motor vehicle owner is not an absolute owner against all damages raised by its driver. The
owner's responsibility ceases once it proves that it has observed the diligence of a good
father of a family to prevent the damage. (Ramos vs. Pepsi Cola Bottling Co., 19 SCRA 294.)
[No. 1719. January 23, 1907.]
M. H. RAKES, plaintiff and appellee, vs. THE ATLANTIC, GULF AND PACIFIC
COMPANY, defendant and appellant.
1.
CIVIL LIABILITY FOR DAMAGES.—In order to enforce the liability of an
employer for injuries to his employee, it is not necessary that a criminal action be
first prosecuted against the employer or his representative primarily chargeable
with the accident. No criminal proceeding having been taken, the civil action may
proceed to judgment.
2.
LIABILITY OF EMPLOYER TO WORKMEN.—The responsibility of an
employer to his employee arises out of the contractual relations between them
and is regulated by article 1101 and the following articles of the Civil Code.
3.
FELLOW-SERVANT RULE.—The doctrine known as the "Fellow-servant
rule," exonerating the employer where the injury was incurred through the
negligence of a fellow-servant of the employee injured, is not adopted in
Philippine jurisprudence.
4.
CONTRIBUTORY NEGLIGENCE.—The negligence of the injured person
contributing to his injury but not being one of the determining causes of the
principal accident, does not operate as a bar to recovery, but only in reduction of
his damages. Each party is chargeable with damages in proportion to his fault.
APPEAL from a judgment of the Court of First Instance of Manila.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers
in the employment of the defendant, was at work transporting iron rails from a
barge in the harbor to the company's yard near the Malecon in Manila. Plaintiff
claims that but one hand car was used in this work. The defendant has proved
that there were two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails
projected beyond the cars both in front and behind. The rails lay ujMm two
crosspieces or sills secured to the cars, but without side pieces or guards to
prevent them from slippingoff. According to the testimony of the plaintiff, the men
were worc either in the rear of the car or at its sides. According to that of the
defendant, some of them were also in front, hauling by a rope. At a certain spot at
or near the water's edge the track sagged, the tie broke, the car either canted or
upset, the rails slid off and caught the plaintiff, breaking his leg, which was
afterwards amputated at about the knee.
The first point for the plaintiff to establish was that the accident happened
through the negligence of the defendant. The detailed description by the
defendant's witnesses of the construction and quality of the track proves that it
was up to the general standard of trainways of that character, the foundation
consisting on land of blocks or cross-pieces of wood, 6 by 8 inches thick and from 8
to 10 feet long, laid on the surface of the ground, upon which at a right angle
ivstnl stringers of the same thickness, but from 24 to 30 feet in length. On and
across the stringers and parallel with the blocks were the ties to which the tracks
were fastened. After the road reached the water's edge, the blocks or crosspieces
were replaced with piling, capped by timbers extending from one side to the other.
The tracks were each about 2 feet wide and the two inside rails of the parallel
tracks about 18 inches apart, It was admitted that there were 110 side pieces or
guards on the car; that where the ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. The defendant has not
effectually overcome the plaintiff's proof that the joints between the rails were
immediately above the joints between the underlying stringers.
The cause of the sagging of the track and the breaking of the tie, which was the
immediate occasion of the accident, is not clear in the evidence, but is found by
the trial court and is admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the water of the bay
raised by a recent typhoon. The superintendent of the company attributed it to
the giving way of the block laid in the sand. No effort was made to repair the
injury at the time of the occurrence. According to plaintiff's witnesses, a
depression of the track, varying from one-half inch to one inch and a half, was
thereafter apparent to the eye, and a fellow-workman of the plaintiff swears that
the day before the accident he called the attention of McKenna, the foreman, to it
and asked him to have it repaired. After the accident it was mended by simply
straightening out the crosspiece, resetting the block under the stringer and
renewing the tie, but otherwise leaving the very same timbers as before. It has
not been proved that the company inspected the track after the typhoon or had
any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a
breach of duty on its part in failing either to properly secure the load of iron to the
vehicles transporting it, or to skillfully build the trainway or to maintain it in
proper condition, or to vigilantly inspect and repair the roadway as soon as the
depression in it became visible. It is upon the failure of the defendant to repair
the weakened track, after notice of its condition, that the judge below based his
judgment.
This case presents many important matters for our decision, and first among
them is the standard of duty which we shall establish in our jurisprudence on the
part of employers toward employees.
The lack or the harshness of legal rules on this subject has led many countries to
enact laws designed to put these relations on a fair basis in the form of
compensation or liability laws or the institution of industrial insurance. In the
absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
"Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions
of the Penal Code."
And article 568 of the latter code provides:
"He who shall execute through reckless negligence an act that if done with malice would
constitute a grave crime, shall be punished."
And article 590 provides that the following shall be punished:
"4. Those who by simple imprudence or negligence, without committing any infraction of
regulations, shall cause an injury which, had malice intervened, would have constituted a
crime or misdemeanor."
And finally by articles 19 and 20, the liability of owners and employers for the
faults of their servants and representatives is declared to be civil and subsidiary
in its character.
It is contended by the defendant, as its first defense to the action, that the
necessary conclusion from these collated laws is that the remedy for injuries
through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only subsidiarily
to him. According to this theory the plaintiff should have procured the arrest of
the representative of the company accountable for not repairing the track, and on
his prosecution a suitable fine should have been imposed, payable primarily by
him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject.
Article 1093 of the Civil Code makes obligations arising from faults or negligence
not punished by the law, subject to the provisions of Chapter II of Title XVI.
Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages caused by
the minors who live with them.
* * * * * instituted, growing out of the accident in question, the provisions of the Penal
"Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.
* * * * *
"The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient
to point out that nowhere in our general statutes is the employer penalized for
failure to provide or maintain safe appliances for his workmen. His obligation
therefore is one "not punished by the law" and falls under civil rather than
criminal jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of these scientific
codes, such as is proposed by the defendant, that would rob some of these articles
of effect, would shut out litigants against their will from the civil courts, would
make the assertion of their rights dependent upon the selection for prosecution of
the proper criminal offender, and render recovery doubtful by reason of the strict
rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown
upon their meaning by the provisions of the Law of Criminal Procedure of Spain
(Ley de Enjuiciamiento Criminal), which, though never in actual force in these
Islands, was formerly given a suppletory or explanatory effect. Under article 111
of this law, both classes of action, civil and criminal, might be prosecuted jointly
or separately, but while the penal action was pending the civil was suspended.
According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been
expressly reserved by him for civil proceedings for the future. If the civil action
alone was prosecuted, arising out of a crime that could be enforced only on private
complaint, the penal action thereunder should be extinguished. These provisions
are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the citation of
these articles suffices to show that the civil liability was not intended to be
merged in the criminal nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for a negligent act or
omission, it is not required that the injured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be
regarded as subsidiary in respect of criminal actions against his employees only
while they are in process of prosecution, or in so far as they determine the
existence of the criminal act from which liability arises, and his obligation under
the civil law and its enforcement in the civil courts is not barred thereby unless by
the election of the injured person. Inasmuch as no criminal proceeding had been
Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions has
survived the laws that fully regulated it or has been abrogated by the American
civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of the
words of article 1093, "fault or negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It
has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the
law, the consequences of which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are applicable are understood to be
those not growing out of preexisting duties of the parties to one another. But
where relations already formed give rise to duties, whether springing from
contract or quasi contract, then breaches of those duties are subject to articles
1101, 1103, and 1104 of the same code. A typical application of this distinction
may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out
of the contract of employment, that to the passengers out of the contract for
passage, while that to the injured bystander would originate in the negligent act
itself. This distinction is thus clearly set forth by Manresa in his commentary on
article 1093:
"We see with reference to such obligations, that culpa, or negligence, may be understood in
two different senses; either as culpa, substantive and independent, which 011 account of its
origin arises in an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation which already existed,
which can not be presumed to exist without the other, and which increases the liability
arising from the already existing obligation.
"Of these two species of CII?/MI the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of this
book of the code is devoted to it, it is logical to presume that the reference contained in
article 1093 is limited thereto and that it does not extend to those provisions relating to the
other species of culpa (negligence), the nature of which we will discuss later." (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species
of negligence may be somewhat inexactly described as contractual and extra-
contractual, the latter being the culpa aquiliana of the Roman law and not
entailing so strict an obligation as the former. This terminology is unreservedly
accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II,
No. 12), and the principle stated is supported by decisions of the supreme court of
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No.
151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for
hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish jurisprudence, prior to the adoption of the Working Men's Accident Law
of January 30, 1900, throws uncertain light on the relation between master and
workman. Moved by the quick industrial development of their people, the courts
of France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon,
corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon
yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 1896, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of the
French Code making the possessor of any object answerable for damage done by it
while in his charge. Our law having no counterpart of this article, applicable to
every kind of object, we need consider neither the theory growing out of it nor that
of "professional risk" more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case
in the contractual obligation. This contractual obligation, implied from the
relation and perhaps so inherent in its nature to be invariable by the parties,
binds the employer to provide safe appliances for the use of the employee, thus
closely corresponding to English and American law. On these principles it was the
duty of the defendant to build and to maintain its track in reasonably sound
condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could
not have occurred; cousequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a
risk incident to his employment and, as such, one assumed by hiiu. It is evident
that this can not be the case if the occurrence was due to the failure to repair the
track or to duly inspect it, for the employee is not presumed to have stipulated
that the employer might neglect his legal duty. Nor may it be excused upon the
ground that the negligence leading to the accident was that of a fellow-servant of
the injured man. It is not apparent to us that the intervention of a third person
can relieve the defendant from the performance of its duty nor impose upon the
plaintiff the consequences of an act or omission not his own. Sua cuique culpa
nocet. This doctrine, known as "the fellow-servant rule," we are not disposed to
introduce into our jurisprudence. Adopted in England by Lord Abinger in the case
of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been
effectually abrogated by "the Employers' Liability Acts" and the "Compensation
Compensation Law." The American States which applied it appear to be gradually
getting rid of it; for instance, the New York State legislature of 1906 did away
with it in respect to railroad companies, and had in hand a scheme for its total
abolition. It has never found place in the civil law of continental Europe. (Dalloz,
vol. 30, 1858, Title Responsibilité, 630, and vol. 15, 1895, same title, 804. Also
more recent instances in Fuzier-Herman, Title Responsibilité Civile, 710.)
The French Cour de Cassation clearly laid down the contrary trary principle in its
judgment of June 28,1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the
plaintiff, contributing to the accident, to what extent it existed in fact and what
legal effect is to be given it. In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of
along the boards, either before or behind it.
As to the first point, the depression in the track might indicate either a serious or
a trivial difficulty. There is nothing in the evidence to show that the plaintiff did
or could see the displaced timber underneath the sleeper. The claim that he must
have done so is a conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from the testimony.
While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this
job less than two days. A man may easily walk along a railway without perceiving
a displacement of the underlying timbers. The foreman testified that he knew the
state of the track on the day of the accident and that it was then in good
condition, and one Danridge, a witness for the defendant, Working on the same
job, swore that he never noticed the depression in the track and never saw any
bad place in it. The sagging of the track this plaintiff did perceive, but that was
reported in his hearing to the foreman who neither promised nor refused to repair
it. His lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to constitute negligence,
barring his recovery under the severe American rule. On this point we accept the
conclusion of the trial judge who found as facts that "the plaintiff did not know
the cause of the one rail being lower than the other" and "it does not appear in
this case that the plaintiff knew before the accident occurred that the stringers
and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be
binding upon us, because not "plainly and manifestly against the weight of
evidence," as those words of section 497, paragraph 3 of the Code of Civil
Procedure were interpreted by the Supreme Court of the United States in the De
la Rama case (201 U. S., 303).
In respect of the second charge of m'gligeiur against the plaintiff, the judgment
below is not so specific. While the judge remarks that the evidence does not justify
the finding that the car was pulled by means of a rope attached to the front end or
to the rails upon it, and further that the circumstances in evidence make it clear
that the persons necessary to operate the car could not walk upon the plank
between the rails and that, therefore, it was necessary for the employees moving
it to get hold upon it as best they could, there is no specific finding upon the
instruction given by the defendant to its employees to walk only upon the planks,
nor upon the necessity of the plaintiff putting himself upon the ties at the side in
order to get hold upon the car. Therefore the findings of the judge below leave the
conduct of the plaintiff in walking along the side of the loaded car, upon the open
ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden
to proceed in this way, but were expressly directed by the foreman to do so, both
the officers of the company and three of the workmen testify that there was a
general prohibition frequently made known to all the gang against walking by the
side of the car, and the foreman swears that he repeated the prohibition before
the starting of this particular load. On this contradiction of proof we think that
the preponderance is in favor of the defendant's contention to the extent of the
general order being made known to the workmen. If so, the disobedience of the
plaintiff in placing himself in danger contributed in some degree to the injury as a
proximate, although not as its primary cause. This conclusion presents sharply
the question, What effect is to be given such an act of contributory negligence?
Does it defeat a recovery, according to the American rule, or is it to be taken only
in reduction of damages?
While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own
act contributed to his injury, provided his negligence 'Was slight as compared
with that of the defendant, and some others have accepted the theory of
proportional damages, reducing the award to a plaintiff in proportion to his
responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however
slight, on the part of the person injured which is one of the causes proximately
contributing to his injury, bars his recovery. (English and American Encyclopedia
of law, Titles "Comparative Negligence" and "Contributory Negligence.")
In Grand Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the
Supreme Court of the United States thus authoritatively states the present rule
of law:
"Although the defendant's negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in the
person injured; subject to this qualification, which has grown up in recent years (having
been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence
of the party injured will not defeat the action if it be shown that the defendant might, by the
exercise of reasonable care and prudence, have avoided the consequences of the injured
party's negligence."
There are many cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the
point that he was not negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due to casus fortuitus.
Of the first class is the decision of January 26, 1887 (38 Jurisprudencia Criminal,
No. 70), in which a railway employee, standing on a car, was thrown therefrom
and killed by the shock following the backing up of the engine. It was held that
the management of the train and engine being in conformity with proper rules of
the company, showed no fault on its part.
Of the second class are the decisions of the 15th of January, the 19th of February,
and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the
third class the decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1),
in which the breaking down of plaintiff's dam by the logs of the defendant
impelled against it by the Tajo River, was held due to a freshet as a fortuitous
cause.
The decision of the 7th of March, 1902, 011 which stress has been laid, rested on
two bases, one, that the defendant was not negligent, because expressly relieved
by royal order from the common obligation imposed by the police law of
maintaining a guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in front of a train
running at speed, with the engine whistle blowing was the determining cause of
the accident. It is plain that the train was doing nothing but what it had a right to
do and that the only fault lay with the injured man. His negligence was not
contributory, it was sole, and was of such an efficient nature that without it no
catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that
the plaintiff sustaining damages was not free from contributory negligence; for
instance, the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No.
134), in which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which
contributed to his injury as one of its causes, though not the principal one, and we
are left to seek the theory of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held
that the carelessness of the victim did not civilly relieve the person without whose
fault the accident could not have happened, but that the contributory negligence
of the injured man had the effect only of reducing the damages. The same
principle was applied in the case of Recullet, November 10, 1888, and that of
Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilité
Civile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1896, Title Travail,
363, 364, and vol. 15, 1895, Title Responsibilité, 193, 198).
In the Canadian Province of Quebec, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a
practice in accord with that of France is laid down in many cases collected in the
annotations to article 1053 of the code edited by Beauchamps, 1904. One of these
is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90,
in which the court of King's bench, otherwise known as the court of appeals, the
highest authority in the Dominion of Canada on points of French law, held that
contributory negligence did not exonerate the defendants whose fault had been
the immediate cause of the accident, but entitled him to a reduction of damages.
Other similar cases in the provincial courts have been overruled by appellate
tribunals made up of common law judges drawn from other provinces, who have
preferred to impose uniformly throughout the Dominion the English theory of
contributory negligence. Such decisions throw no light upon the doctrines of the
civil law. Elsewhere we find this practice embodied in legislation; for instance,
section 2 of article 2398 of the Code of Portugal reads as follows:
"lf in the case of damage there was fault or negligence on the part of the person injured or
on the part of some one else, the indemnification shall be reduced in the first case, and in
the second case it shall be apportioned in proportion to such fault or negligence as provided
in paragraphs 1 and 2 of section 2372."
And article 1304 of the Austrian Code provides that the victim who is partly chargeable
with the accident shall stand his damages in proportion to his fault, but when that
proportion is incapable of ascertainment, he shall share the liability equally with the person
principally responsible. The principle of proportional damages appears to be also adopted in
article 51 of the S wiss Code. Even in the United States in admiralty jurisdictions, whose
principles are derived from the civil law, common fault in cases of collision have been
disposed of not on the ground of contributory negligence, but on that of equal loss, the fault
of the one party being offset against that of the other. (Ralli vs. Troop, 157 U. S., 386, p.
406.)
The damage of both being added together and the sum equally divided, a decree is entered
in favor of the vessel sustaining the greater loss against the other for the excess of her
damages over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97.)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The
Spanish Code of Commerce, article 827, makes each vessel liable for its own
damage when both are at fault; this provision restricted to a single class of
maritime accidents, falls far short of a recognition of the principle of contributory
negligence as understood in American law, with which, indeed, it has little in
common. This is plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above
mentioned the civil action of the owner against the person liable for the damage is
reserved, as well as the criminal liability which may appear.?
The rule of the common law, a hard and fast one, not adjustable with respect of
the faults of the parties, appears to have grown out of the original method of trial
by jury, which rendered difficult a nice balancing of responsibilities and which
demanded an inflexible standard as a safeguard against too ready sympathy for
the injured. It was assumed that an exact measure of several concurring faults
was unattainable.
"The reason why, in cases of mutual concurring negligence, neither party can maintain an
action against the other, is, not that the wrong of the one is set off against the wrong of the
other; it is that the law can not measure how much of the damage suffered is attributable to
the plaintiff s own fault. If he were allowed to recover, it might be that he would obtain from
the other party compensation for his own misconduct." (Heil vs. Glanding, 42 Penn. St. Rep.,
493, 499.)
"The parties being mutually in fault, there can be no apportionment of damages. The law
has no scales to determine in such cases whose wrongdoing weighed most in the compound
that occasioned the mischief." Railroad vs. Norton, 24 Penn. St. Rep., 465, 469.)
Experience with jury trials in negligence cases has brought American courts of
review to relax the vigor of the rule by freely exercising the power of setting aside
verdicts deemed excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial revision of damages
by the courts. It appears to us that the control by the court of the subjectmatter
may be secured on a more logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their
respective responsibilities. In the civil-law system this desirable end is not
deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other
countries under the stress and counter stress of novel schemes of legislation, we
find the theory of damages laid down in this judgment the most consistent with
the history and the principles of our law in these Islands and with its logical
development.
Difficulty seems to be apprehended in deciding which acts of the injured party
shall be considered immediate causes of the accident. The test is simple.
Distinction must be made between the accident and the injury, between the event
itself, without which there could have been no accident, and those acts of the
victim not entering into it, independent of it, but contributing to his own proper
hurt. For instance, the cause of the accident under review was the displacement
of the crosspiece or the failure to replace it. This produced the event giving
occasion for damages—that is, the sinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had
the crosspiece been out of place wholly or partly through his act or omission of
duty, that would have been one of the determining causes of the event or accident,
for which he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should pay for
such injury, less a sum deemed a suitable equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court,
fixing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500
dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly
attributable to his negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with costs of both instances, and ten
days hereafter let the case be remanded to the court below for proper action. 80
ordered.
Arellano, C. J., Torres, and Mapa, JJ., concur.
WILLARD, J., with whom concurs CARSON, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own
evidence. He testified, among other things, as follows:
"Q. Now, describe the best you can the character of the track that ran from the place where you loaded
the irons from the barge up to the point where you unloaded them on the ground.—A Well, it was pretty
bad character.
* * * * *
"Q. And you were familiar with the track before that—its construction?—A. Familiar with what?
"Q. Well, you have described it here to the court—A. Oh, yes; I knew the condition of the track.
"Q. You knew its condition as you have described it here at the time you were working around there?—A.
Yes, sir.
* * * * *
"Q. And while operating it from the side it was necessary for you to step from board to board on the cross-
ties which extended out over the stringers?—A. Yes, sir.
"Q. And these were of very irregular shape, were they not?—A. They were in pretty bad condition.
* * * * *
"Q. And it was not safe to walk along on the outside of these crosspieces?—A. It was safe if the car stayed
on the track. We didn't try to hold the load on. We tried to hold the car back, keep it from going too fast,
because we knew the track was in bad condition just here, and going down too fast we would be liable to
run off most any time.
"Q. You knew the track was in bad condition when you got hold?—A. Sure, it was in bad condition.
* * * * *
"Q. And the accident took place at the point where you believed it to be so dangerous?—A. Yes, sir.
"Q. But you knew it was dangerous?—A. Why certainly, anybody could see it; but a workingman had to
work in those days or get arrested for a vag here in Manila."
The court below, while it found that the plaintiff knew in a general way of the bad condition of the track,
found that he was not informed of the exact cause of the accident, namely, the washing away of the large
crosspiece laid upon the ground or placed upon the posts as the foundation upon which the stringers
rested. This finding of fact to my mind is plainly and manifestly against the weight of the evidence. Ellis,
a witness for the plaintiff, testified that on the morning of the accident he called the attention of
McKenna, the foreman, to the defective condition of the track at this precise point where the accident
happened. His testimony in part is as f ollows:
"A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and
that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it it
would hold it. He said, you keep on fishing around here for fish plates and you will be fishing for another
job the first thing you know.' He says, 'You see too much.'
* * * * *
"Q. Who else was present at the time you had this conversation with Mr. McKenna?—A. Well, at that
conversation as far as I can remember, we were all walking down the track and I know that McCoy and
Mr. Rakes was along at the time. I remember them two, but we were all walking down the track in a
bunch, but I disremember them.
* * * * *
"Q. Was that the exact language that you used, that you wanted. some fish plates put on?—A. No, sir; I
told him look at that track. I says get some fish plates. I says if there was any fish plates we would fix
that.
"Q. What did the fish plates have to do with that?—A. It would have strengthened that joint.
"Q. Why didn't you put the 8 by 8 which was washed crossways in place?—A. That would have taken the
raising of the track and digging out along this upright piece and then putting it up again."
The plaintiff himself testified that he was present with Ellis at the time this conversation was had with
McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing
directly over the place where the accident happened later in the day. The accident was caused, as the
court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course
anyone standing on the track at a particular place could see the ground and the entire construction of the
road, including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these
stringers, and the rails placed on the ties. The plaintiff himself must have seen that this 8 by 8 piece of
timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to the
plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were
therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the
posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot to
two feet and a half As has been said, Ellis testified that the reason why they did not put the 8 by 8 back
in its place was because that would have required the raising up of the track and digging out along this
upright piece and then putting it up again. accident occurred, it seems clear that that court in acquitting the railroad company of the complaint filed
by the widow did not violate the provisions of the aforesaid article of the Civil Code.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the exact
condition of the track and was informed and knew of the defect which caused -the accident. There was no
promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he
knew that he would be injured by the falling of the rails from the car when they reached this point in the
track where the two stringers were left without any support at their ends. He either should have refused
to work at all or he should have placed himself behind the car, on the other side of it, or in front of it,
drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover.
It is said, however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability of the
defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.
"For the same reason, although the authority granted to the railroad company to open the grade crossing
without a special guard was nullified by the subsequent promulgation of the railroad police law and the
regulations for the execution of the same, the result would be identieal, leaving one of the grounds upon
which the judgment of acquittal is based, to wit, that the accident was caused by the imprudence of the
injured party himself, unaffected."
It appears that the accident in this case took place at a grade crossing where, according to the claim of
the plaintiff, it was the duty of the railroad company to maintain a guard. It did not do so, and the
plaintiff's deceased husband was injured by a train at this crossing, his negligence contributing to the
injury according to the ruling of the court below. This judgment, then, amounts to a holding that
contributory negligence is a defense according to the law of Spain. (See also judgment of the 21st of
October, 1903, vol. 96, p. 400, Jurisprudencia Civil)

In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contributory negligence on the part of the plaintiff is a defense in this class of
cases is that the negligence of the defendant did not alone cause the accident, If nothing but that
negligence had existed, the accident would not have happened and, as I understand it, in every case in
which contributory negligence is a defense it is made so because the negligence of the plaintiff is the
cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not
have happened, although the defendant was also negligent. In other words, the negligence of the
defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the
Roman law was: "Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire." (Digest, book
50, tit. 17, rule 203.)
The Partidas contain the following provisions:
Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce there
is found a distinct declaration upon it in reference to damages caused by collisions at sea. Article 827 of
the Code of Commerce is as follows:
"If both vessels may be blamed for the collision, each one shall be liable for his own damages, and both
shall be jointly responsible for the loss and damage suffered by their cargoes."
That article is an express recognition of the fact that in collision cases contributory negligence is a
defense.
I do not think that this court is justified in vu*\v of the Roman law, of the provisions of the I'ttrtMnH, of
the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absemr of any
declaration upon the subject in the Civil Code, in saying that it was the intention of the legislature of
Spain to adopt for the Civil Code the rule announced in the majority opinion, a rule diametrically opposed
to that put in force by the Code of Commerce.

"The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another." (Law 25, tit. 5, partida 3 3.)
"And they even said that when a man received an injury through his own negligence, he should blame
himself for it." (Rule 22, tit. 34, partida 7.)
The chief, if not the only, reason stated in the opinion for adopting the rule that contributory negligence
is not a defense seems to be that such is the holding of the later French decisions.
As to whether, if any liability existed in this case, it would be secondary in accordance with the provisions
of the Penal Code, or primary, in accordance with the provisions of the Civil Code, I express no opinion.

"According to ancient sages, when a man received an injury through his own acts, the grievance should
be against himself and not against another." ( Law 2, tit. 7, partida 2.) The judgment should, I think, be reversed and the defendant acquitted of the complaint.

In several cases in the supreme court of Spain the fact has been mentioned that the plaintiff was himself Judgment modified.
guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of February, 1897,
and in the criminal judgments of the 20th of February 1888, the 9th of March, 1876, and the 6th of
October, 1882. These cases do not throw much light upon the subject. The judgment of the 7th of March,
1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court of
Spain said:

"According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury thereby caused there exists the relation of cause
and effect; but if the injury caused should not be the result of acts or omissions of a third party, the latter
has no obligation to repair the same, even though such acts or omissions were imprudent or unlawful,
and much less when it is shown that the immediate cause of the injury was the negligence of the injured
party himself.

"For the reasons above stated, and the court below having found that the death of the deceased was due
to his own imprudence, and not therefore due -to the absence of a guard at the grade crossing where the
[Nos. L-10308 and L-10385-8. April 30, 1957]
MARIA PAZ S. ALBA, ETC., ET AL., petitioners, vs. DR. HoRACIO BULAONG,
ET AL., ETC., respondents.
1.
WORKMEN'S COMPENSATION LAW; INJURED EMPLOYEE MAY NOT
RECOVER TWICE FOR SAME INJURY.—The plain intent of Section 6 of the
Workmen's Compensation Law is that an injured employee shall not receive
payment twice for the same injury (from the third party and from the employer).
2.
ID.; ID.; INJURED EMPLOYEE ENTITLED TO FULL COMPENSATION.—
Where the injured employee is offered, by the third party, compensation which he
deems insufficient, he may reject it and thereafter litigate with such party; or
choose instead to complain against his employer; or accept such insufficient
compensation but expressly reserving at the same time his right to recover
additional damages from his employer. In the latter case the amount received
from the third party shall be deducted from the amount payable by the employer.
PETITION for review by certiorari of a decision of the Workmen's Compensation Commission.
Antonio C. Masaquel and Adaucto P. Ocampo for respondents.
BENGZON, J.:
This is a petition to reverse the decision of the Commissioner of the Workmen's
Compensation Commission in five cases denying the claims for compensation,
against Dr. Horacio Bulaong, of herein petitioners, who were his employees and
dependents of his employees.
On March 12, 1955, petitioners Gregorio de la Cruz, Pedro C. Bulaong and
Pacifico Bulaong were employees of Dr. Horacio Bulaong in his business of
threshing palay. Other employees were Engracio Alba (husband of petitioner
Maria Paz S. Alba) and Vicente A. Sebastian (husband of petitioner Elisea S.
Sebastian). Early in the morning of that day said five employees were, upon
specific orders of Dr. Bulaong, on their way to Barrio Baringan, Malolos, Bulacan,
to thresh palay, riding on a tractor which was pulling a threshing machine.
Suddenly a speeding bus of the Victory Liner Inc. collided with the thresher
which in turn hit the tractor, and as a result those on board were violently thrown
out. Engracio Alba and Vicente Sebastian died; Gregorio de la Cruz, Pedro C.
Bulaong and Pacifico Bulaong sustained physical injuries.
WHEREFORE, five separate claims were filed before the Workmen's Compensation
Commission against the employer Dr. Bulaong. Three defenses were set up by him: (a)
claimants were not his employees, but industrial partners, (b) the injuries were not
sustained in the course of employment and (c) the claims, if any, had been extinguished by
virtue of the monetary settlements which petitioners had concluded with the Victory Liner
Inc.
The referee overruled the defenses, having found the five men to be employees
who had died or were injured in the course of employment. Consequently he
required the employer to make compensation in the amounts specified in his
award. However on appeal, the Workmen's Compensation Commissioner absolved
Dr. Bulaong from all liability, because he found that the claimants had received,
after the mishap, various amounts of money from the owner of the colliding bus,
the Victory Liner Inc., each of them having executed a written release or waiver
in favor of said Liner, the pertinent part of which reads as follows:
"And I likewise freely and completely cede and transfer into said Company (Victory Liner
Inc.) any right given to me by law against any person or company that should be liable for
the said accident except my right to claim against Dr. Horacio Bulaong in accordance with
and under the Workmen's Compensation Act (Rep. Act 772)."
Claimants, the Commissioner declared, had elected to hold the Liner responsible
for the accident, and could not thereafter turn around to recover compensation
from their employer. He cited section 6 of the Workmen's Compensation Law,
which for convenience is quoted:
"SEC. 6. Liability of third parties.—In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it shall be
optional with such injured employee either to claim compensation from his employer, under
this Act, or sue such other person for damages, in accordance with law; and in case
compensation is claimed and allowed in accordance with this Act, the employer who paid
such compensation or was found liable to pay the same, shall succeed the injured employee
to the right of recovering from such person what he paid: Provided, That in case the
employer recovers from such third person damages in excess of those paid or allowed under
this Act, such excess shall be delivered to the injured employee or any other person entitled
thereto, after deduction of the expenses of the employer and the costs of the proceedings.
The sum paid by the employer for compensation or the amount of compensation to which the
employee or his dependents are entitled under the provisions of this Act, shall not be
admissible as evidence in any damage suit or action." (As amended.)
Naturally the argument before this Court dwelt mostly on the interpretation of
the above section,and its application to the circumstances of record. There was no
election, petitioners contend, to recover from the Liner to the exclusion of Dr.
Bulaong, because the document itself signed by petitioners reserved their right to
claim against Dr. Horacio Bulaong under the Workmen's Compensation Act."
Such reservation, counter the respondents, besides being void and against the
law, cannot bind Dr. Bulaong who was not a party to the instrument.
There is no question that the Liner was a "third party" within the meaning of
section 6. There is also no question that petitioner have not sued the Liner for
damages. Wherefore they are not deemed to have made the election specified in
section 6. However, the plain intent of the law is that they shall not receive
payment twice for the same injuries (from the third party and from the employer).
Hence if without suing they receive f ull damages from the third party, they
should be deemed to have practically made the election under the law, and should
be prevented from thereafter suing the employer. Full damages means, of course
what they would have demanded in a suit against the third party or what they
would receive in a compensation as complete settlement. Needless to say, where
the injured employee is offered, by the third party, compensation which he deems
insufficient, he may reject it and thereafter litigate with such third party. Or
choose instead to complain against his employer.
Nevertheless there is nothing in the law to prevent him from accepting such
insufficient compensation but expressly reserving at the same time his right to
recover additional damages from his employer. If the third party agrees to the
reservation, such partial payment may legally be made and accepted. We say "if",
because the reservation necessarily entails some disadvantage to the third party,
inasmuch as pursuant to legal principles when the employer subsequently pays,
he may in turn recover from the third party (See sec. 6). The employer can not
validly object to such reservation by the employee, because in effect the
settlement helps to reduce the amount he will afterwards have to disgorge.
As we see it, the five employees' acceptance of the Victory Liner's offer of
compensation, under the circumstances disclosed by this record, especially the
written acknowledgments, showed they were not content with the amount
received—they did not consider it sufficient—so they reserved their right to
require additional compen-sation from their employer. Hence their action against
Dr. Bulaong is not barred by section 6. He may in turn demand reimbursement
from Victory Liner Inc.
employment, he must pay compensation to be fixed in accordance with law.
Bearing in mind, however, the law's intention not to give double compensation,
the amounts they have received from the Victory Liner shall be deducted from the
sums so determined.
In this connection we notice that the referee who has investigated the matter has
made some calculations of monetary award. However they were not passed upon
by the Commissioner.
Wherefore, for the purpose of ascertaining and awarding such compensation
to petitioners, the record will be remanded to the Workmen's Compensation
Commission for further action in accordance with this opinion. No costs. So
ordered.
Padilla, Reyes, A., Bautista Angelo, Labrador, Concepción, Endencia, and Felix,
//., concur. Montemayor, J., concurs in the result.
Case remanded to Workmen's Compensation Commission for further action.

The implied reservation of Dr. Bulaong's right against Victory Liner Inc. is not ——————————
unprecedented in the realm of jurisprudence. When a promissory note is
dishonored for non-payment, the holder may recover its value either from the © Copyright 2018 Central Book Supply, Inc. All rights reserved.
maker or from the indorser. If he sues the indorser and recovers, the latter may in
turn recoup from the maker. The statute expressly permits him to renounce his
right against the maker and reserve his right to recover from the indorser (Sec.
120 (e) Negotiable Instruments Law). When that happens, the courts say the
indorser's right to recover from the maker is also reserved. (Bootman's Sav. Bank
vs. Johnson, 24 Mo. App. 317; Tolentino Commercial Laws Vol. I (7th Ed.) p.
361.1)

In the situation resulting after the collision, we could regard the five employees,
the Victory Liner and Dr. Bulaong in the same juridical position, respectively, of
holder, maker and indorser. The release with express reservation produced the
implied reservation already stated.

What then, it may be asked, was the advantage accruing to the Liner from the
settlement it had worked to accomplish? For one thing its driver would not be
prosecuted by petitioners; besides earning such driver's gratitude, the Liner
thereby avoided losses in time and services. For another, even if afterwards it
should be liable to the employer for whatever the latter might have to satisfy, the
Liner could expect the settlement between employer and employees to be
reasonable considering their relationship, more reasonable perhaps than a
settlement between itself and the injured employees.

It is therefore our view that the moneys received from Victory Liner Inc. did not
necessarily have the effect of releasing Dr. Bulaong. Inasmuch as the five men
were his employees, and they were injured by reason of and in the course of their
G.R. No. 122039. May 31, 2000.*
VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE
SUNGA and FRANCISCO SALVA, respondents.
Judgments; Res Judicata; The principle of res judicata does not apply where a
party in a pending case was never a party in a previous one.—The argument that
Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the
owner of the truck liable for quasi-delict ignores the fact that she was never a
party to that case and, therefore, the principle of res judicata does not apply. Nor
are the issues in Civil Case No. 3490 and in the present case the same. The issue
in Civil Case No. 3490 was whether Salva and his driver Verena were liable for
quasi-delict for the damage caused to petitioner’s jeepney. On the other hand, the
issue in this case is whether petitioner is liable on his contract of carriage. The
first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has
as its source the negligence of the tortfeasor. The second, breach of contract or
culpa contractual, is premised upon the negligence in the performance of a
contractual obligation.
Common Carriers; Breach of Contract; Quasi-Delicts; Torts; In quasi-delict, the
negligence or fault should be clearly established because it is the basis of the
action, whereas in breach of contract, the action can be prosecuted merely by
proving the existence of the contract and the fact that the obligor, in this case the
common carrier, failed to transport his passenger safely to his destination.—
Consequently, in quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract, the action can
be prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to
his destination. In case of death or injuries to passengers, Art. 1756 of the Civil
Code provides that common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed extraordinary diligence as
defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to
the common carrier the burden of proof.
Same; Same; Same; Same; Doctrine of Proximate Cause; The doctrine of proximate
cause is applicable only in actions for quasi-delicts, not in actions involving breach
of contract.—There is, thus, no basis for the contention that the ruling in Civil
Case No. 3490, finding Salva and his driver Verena liable for the damage to
petitioner’s jeepney, should be binding on Sunga. It is immaterial that the
proximate cause of the collision between the jeepney and the truck was the
negligence of the truck driver. The doctrine of proximate cause is applicable only
in actions for quasi-delict, not in actions involving breach of contract. The doctrine
is a device for imputing liability to a person where there is no relation between
him and another party. In such a case, the obligation is created by law itself. But,
where there is a pre-existing contractual relation between the parties, it is the
parties themselves who create the obligation, and the function of the law is
merely to regulate the relation thus created.
Same; Same; Same; Same; Presumption of Negligence; Upon the happening of the
accident, the presumption of negligence at once arises, and it becomes the duty of a
common carrier to prove that he observed extraordinary diligence in the care of his
passengers.—In the case at bar, upon the happening of the accident, the
presumption of negligence at once arose, and it became the duty of petitioner to
prove that he observed extraordinary diligence in the care of his passengers. Now,
did the driver of jeepney carry Sunga “safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due
regard for all the circumstances” as required by Art. 1755? We do not think so.
Several factors militate against petitioner’s contention.
Same; Same; Fortuitous Event; Words and Phrases; The taking of an “extension
seat” is not an implied assumption of risk on the part of the passenger; A caso
fortuito is an event which could not be foreseen, or which, though foreseen, was
inevitable; Requisites.—We find it hard to give serious thought to petitioner’s
contention that Sunga’s taking an “extension seat” amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the many victims of
the tragedies in our seas should not be compensated merely because those
passengers assumed a greater risk of drowning by boarding an overloaded ferry.
This is also true of petitioner’s contention that the jeepney being bumped while it
was improperly parked constitutes caso fortuito. A caso fortuito is an event which
could not be foreseen, or which, though foreseen, was inevitable. This requires
that the following requirements be present: (a) the cause of the breach is
independent of the debtor’s will; (b) the event is unforeseeable or unavoidable; (c)
the event is such as to render it impossible for the debtor to fulfill his obligation
in a normal manner; and (d) the debtor did not take part in causing the injury to
the creditor. Petitioner should have foreseen the danger of parking his jeepney
with its body protruding two meters into the highway.
Same; Same; Damages; As a general rule, moral damages are not recoverable in
actions for damages predicated on a breach of contract for it is not one of the items
enumerated under Art. 2219 of the Civil Code.—As a general rule, moral damages
are not recoverable in actions for damages predicated on a breach of contract for it
is not one of the items enumerated under Art. 2219 of the Civil Code. As an
exception, such damages are recoverable: (1) in cases in which the mishap results
in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of
the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad
faith, as provided in Art. 2220.
Same; Bad Faith; The common carrier’s admission in open court that his driver
failed to assist the injured passenger in going to a nearby hospital cannot be
construed as an admission of bad faith.—In this case, there is no legal basis for
awarding moral damages since there was no factual finding by the appellate court
that petitioner acted in bad faith in the performance of the contract of carriage.
Sunga’s contention that petitioner’s admission in open court that the driver of the
jeepney failed to assist her in going to a nearby hospital cannot be construed as
an admission of bad faith. The fact that it was the driver of the Isuzu truck who
took her to the hospital does not imply that petitioner was utterly indifferent to
the plight of his injured passenger. If at all, it is merely implied recognition by
Verena that he was the one at fault for the accident.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
MENDOZA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals,
dated March 31, 1991, reversing the contrary decision of the Regional Trial Court,
Branch 36, Dumaguete City, and awarding damages instead to private
respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract
of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o’clock in the morning of August 23, 1989, private respondent Eliza
Jujeurche G. Sunga, then a college freshman majoring in Physical Education at
the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an “extension seat,” a wooden stool
at the back of the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear portion of the jeepney.
As a result, Sunga was injured. She sustained a fracture of the “distal third of the
left tibia-fibula with severe necrosis of the underlying skin.” Closed reduction of
the fracture, long leg circular casting, and case wedging were done under
sedation. Her confinement in the hospital lasted from August 23 to September 7,
1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon,
certified she would remain on a cast for a period of three months and would have
to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the
diligence required of him as a common carrier. Calalas, on the other hand, filed a
third-party complaint against Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against Salva as thirdparty defendant and
absolved Calalas of liability, holding that it was the driver of the Isuzu truck who
was responsible for the accident. It took cognizance of another case (Civil Case
No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which
Branch 37 of the same court held Salva and his driver Verena jointly liable to
Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on
the ground that Sunga’s cause of action was based on a contract of carriage, not
quasi-delict, and that the common carrier failed to exercise the diligence required
under the Civil Code. The appellate court dismissed the thirdparty complaint
against Salva and adjudged Calalas liable for damages to Sunga. The dispositive
portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and
another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-
appellant:
(1)
P50,000.00 as actual and compensatory damages;
(2)
P50,000.00 as moral damages;
(3)
P10,000.00 as attorney’s fees; and
(4)
P1,000.00 as expenses of litigation; and
(5)
to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
that the negligence of Verena was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make the common carrier an
insurer of the safety of its passengers. He contends that the bumping of the
jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails
the award of moral damages to Sunga on the ground that it is not supported by
evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding
the driver and the owner of the truck liable for quasi-delict ignores the fact that
she was never a party to that case and, therefore, the principle of res judicata
does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The
issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable
for quasidelict for the damage caused to petitioner’s jeepney. On the other hand,
the issue in this case is whether petitioner is liable on his contract of carriage.
The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual,
has as its source the negligence of the tortfeasor. The second, breach of contract or
culpa contractual, is premised upon the negligence in the performance of a
contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract, the action can
be prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to
his destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil
Code provides that common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed extraordinary diligence as
defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to
the common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490,
finding Salva and his driver Verena liable for the damage to petitioner’s jeepney,
should be binding on Sunga. It is immaterial that the proximate cause of the
collision between the jeepney and the truck was the negligence of the truck
driver. The doctrine of proximate cause is applicable only in actions for quasi-
delict, not in actions involving breach of contract. The doctrine is a device for
imputing liability to a person where there is no relation between him and another
party. In such a case, the obligation is created by law itself. But, where there is a
pre-existing contractual relation between the parties, it is the parties themselves
who create the obligation, and the function of the law is merely to regulate the
relation thus created. Insofar as contracts of carriage are concerned, some aspects
regulated by the Civil Code are those respecting the diligence required of common
carriers with regard to the safety of passengers as well as the presumption of
negligence in cases of death or injury to passengers. It provides:
ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.
Such extraordinary diligence in the vigilance over the goods is further expressed
in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary
diligence for the safety of the passengers is further set forth in articles 1755 and
1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with due
regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of
negligence at once arose, and it became the duty of petitioner to prove that he
observed extraordinary diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga “safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances” as required by Art. 1755? We do not think
so. Several factors militate against petitioner’s contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its
rear portion being exposed about two meters from the broad shoulders of the
highway, and facing the middle of the highway in a diagonal angle. This is a
violation of the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:
Sec. 54. Obstruction of Traffic.—No person shall drive his motor vehicle in such a manner as
to obstruct or impede the passage of any vehicle, nor, while discharging or taking on
passengers or loading or unloading freight, obstruct the free passage of other vehicles on the
highway.
Second, it is undisputed that petitioner’s driver took in more passengers than the
allowed seating capacity of the jeepney, a violation of §32(a) of the same law. It
provides:
Exceeding registered capacity.—No person operating any motor vehicle shall allow more
passengers or more freight or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an “extension seat” placed her in a peril
greater than that to which the other passengers were exposed. Therefore, not only
was petitioner unable to overcome the presumption of negligence imposed on him
for the injury sustained by Sunga, but also, the evidence shows he was actually
negligent in transporting passengers.
We find it hard to give serious thought to petitioner’s contention that Sunga’s
taking an “extension seat” amounted to an implied assumption of risk. It is akin
to arguing that the injuries to the many victims of the tragedies in our seas
should not be compensated merely because those passengers assumed a greater
risk of drowning by boarding an overloaded ferry. This is also true of petitioner’s
contention that the jeepney being bumped while it was improperly parked
constitutes caso fortuito. A caso fortuito is an event which could not be foreseen,
or which, though foreseen, was inevitable.3 This requires that the following
requirements be present: (a) the cause of the breach is independent of the debtor’s
will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill his obligation in a normal manner;
and (d) the debtor did not take part in causing the injury to the creditor. 4
Petitioner should have foreseen the danger of parking his jeepney with its body
protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is
excessive and without basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that school
year 1989-1990 at the Silliman University, majoring in Physical Education. Because of the
injury, she was not able to enroll in the second semester of that school year. She testified
that she had no more intention of continuing with her schooling, because she could not walk
and decided not to pursue her degree, major in Physical Education “because of my leg which
has a defect already.”
Plaintiff-appellant likewise testified that even while she was under confinement, she cried
in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon
also certified that she has “residual bowing of the fracture side.” She likewise decided not to
further pursue Physical Education as her major subject, because “my left leg x x x has a
defect already.”
Those are her physical pains and moral sufferings, the inevitable bedfellows of negligence is the immediate and proximate cause of the collision. (Austria vs.
the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled Court of Appeals, 327 SCRA 668 [2000])
to recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable. ——o0o——

As a general rule, moral damages are not recoverable in actions for damages © Copyright 2018 Central Book Supply, Inc. All rights reserved.
predicated on a breach of contract for it is not one of the items enumerated under
Art. 2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in
cases in which the mishap results in the death of a passenger, as provided in Art.
1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which
the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6

In this case, there is no legal basis for awarding moral damages since there was
no factual finding by the appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sunga’s contention that petitioner’s
admission in open court that the driver of the jeepney failed to assist her in going
to a nearby hospital cannot be construed as an admission of bad faith. The fact
that it was the driver of the Isuzu truck who took her to the hospital does not
imply that petitioner was utterly indifferent to the plight of his injured passenger.
If at all, it is merely implied recognition by Verena that he was the one at fault for
the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995,
and its resolution, dated September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

Bellosillo (Chairman) and Buena, JJ., concur.

Judgment affirmed with modification.

Notes.—The rules on extraordinary responsibility of common carriers remain

basically unchanged even when the contract is breached by tort although
noncontradictory principles on quasi-delict may then be assimilated as also
forming part of the governing law. (Sabena Belgian World Airlines vs. Court of
Appeals, 255 SCRA 38 [1996])

Proximate cause, which is determined by a mixed consideration of logic,

common sense, policy and precedent, is that cause which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred. (Bank of the
Philippine Islands vs. Court of Appeals, 641 SCRA 326 [2000])

While the driver of an improperly parked vehicle may be liable in case of

collision, the driver of a moving vehicle who had no opportunity to avoid the
collision due to his own making is not relieved of liability, such as when his
G.R. No. 121413. January 29, 2001.*
PHILIPPINE COMMERCIAL INTERNATIONAL BANK (formerly INSULAR BANK OF
ASIA AND AMERICA), petitioner, vs. COURT OF APPEALS and FORD PHILIPPINES,
INC. and CITIBANK, N.A., respondents.
G.R. No. 121479. January 29, 2001.*
FORD PHILIPPINES, INC., petitioner, vs. COURT OF APPEALS and CITIBANK, N.A. and
PHILIPPINE COMMERCIAL INTERNATIONAL BANK, respondents.
G.R. No. 128604. January 29, 2001.*
FORD PHILIPPINES, INC., petitioner, vs. CITIBANK, N.A., PHILIPPINE COMMERCIAL
INTERNATIONAL BANK and THE COURT OF APPEALS, respondents.
Negligence; Torts; Quasi-Delicts; The general rule is that if the master is injured
by the negligence of a third person and by the concurring contributory negligence
of his own servant or agent, the latter’s negligence is imputed to his superior and
will defeat the superior’s action against the third person, assuming, of course that
the contributory negligence was the proximate cause of the injury of which
complaint is made.—On this point, jurisprudence regarding the imputed
negligence of employer in a master-servant relationship is instructive. Since a
master may be held for his servant’s wrongful act, the law imputes to the master
the act of the servant, and if that act is negligent or wrongful and proximately
results in injury to a third person, the negligence or wrongful conduct is the
negligence or wrongful conduct of the master, for which he is liable. The general
rule is that if the master is injured by the negligence of a third person and by the
concurring contributory negligence of his own servant or agent, the latter’s
negligence is imputed to his superior and will defeat the superior’s action against
the third person, assuming, of course that the contributory negligence was the
proximate cause of the injury of which complaint is made.
Same; Same; Same; Words and Phrases; Proximate cause is that which, in the
natural and continuous sequence, unbroken by any efficient, intervening cause,
produces the injury, and without which the result would not have occurred.—
Accordingly, we need to determine whether or not the action of Godofredo Rivera,
Ford’s General Ledger Accountant, and/or Alexis Marindo, his assistant, was the
proximate cause of the loss or damage. As defined, proximate cause is that which,
in the natural and continuous sequence, unbroken by any efficient, intervening
cause produces the injury, and without which the result would not have occurred.
Banks and Banking; Negotiable Instruments; Checks; The mere fact that the
forgery was committed by a drawer-payor’s confidential employee or agent, who by
virtue of his position had unusual facilities for perpetrating the fraud and
imposing the forged paper upon the bank, does not entitle the bank to shift the loss
to the drawer-payor, in the absence of some circumstances raising estoppel against
the drawer.—It appears that although the employees of Ford initiated the
transactions attributable to an organized syndicate, in our view, their actions
were not the proximate cause of encashing the checks payable to the CIR. The
degree of Ford’s negligence, if any, could not be characterized as the proximate
cause of the injury to the parties. The Board of Directors of Ford, we note, did not
confirm the request of Godofredo Rivera to recall Citibank Check No. SN-04867.
Rivera’s instruction to replace the said check with PCIBank’s Manager’s Check
was not in the ordinary course of business which could have prompted PCIBank
to validate the same. As to the preparation of Citibank Checks Nos. SN-10597
and 16508, it was established that these checks were made payable to the CIR.
Both were crossed checks. These checks were apparently turned around by Ford’s
employees, who were acting on their own personal capacity. Given these
circumstances, the mere fact that the forgery was committed by a drawer-payor’s
confidential employee or agent, who by virtue of his position had unusual
facilities for perpetrating the fraud and imposing the forged paper upon the bank,
does not entitle the bank to shift the loss to the drawer-payor, in the absence of
some circumstance raising estoppel against the drawer. This rule likewise applies
to the checks fraudulently negotiated or diverted by the confidential employees
who hold them in their possession.
Same; Checks; Collecting Banks; Taxation; A bank authorized to collect the payment of
taxpayers in behalf of the Bureau of Internal Revenue is duty bound to consult its principal
regarding the unwarranted instructions given by the pay or of its agent.—Citibank Check
No. SN-04867 was deposited at PCIBank through its Ermita Branch. It was coursed
through the ordinary banking transaction, sent to Central Clearing with the indorsement at
the back “all prior indorsements and/or lack of indorsements guaranteed,” and was
presented to Citibank for payment. Thereafter PCIBank, instead of remitting the proceeds
to the CIR, prepared two of its Manager's checks and enabled the syndicate to encash the
same. On record, PCIBank failed to verify the authority of Mr. Rivera to negotiate the
checks. The neglect of PCIBank employees to verify whether his letter requesting for the
replacement of the Citibank Check No. SN-04867 was duly authorized, showed lack of care
and prudence required in the circumstances. Furthermore, it was admitted that PCIBank is
authorized to collect the payment of taxpayers in behalf of the BIR. As an agent of BIR,
PCIBank is duty bound to consult its principal regarding the unwarranted instructions
given by the payor or its agent.
Same; Same; Same; Negotiable Instruments; It is a well-settled rule that the relationship
between the payee or holder of commercial paper and the bank to which it is sent for
collection is, in the absence of an agreement to the contrary, that of principal and agent.—It
is a well-settled rule that the relationship between the payee or holder of commercial paper
and the bank to which it is sent for collection is, in the absence of an agreement to the
contrary, that of principal and agent. A bank which receives such paper for collection is the
agent of the payee or holder.
Same; Same; Same; Even considering arguendo, that the diversion of the amount
of a check payable to the collecting bank in behalf of the designated payee may be
allowed, still such diversion must be properly authorized by the payor.—Even
considering arguendo, that the diversion of the amount of a check payable to the
collecting bank in behalf of the designated payee may be allowed, still such
diversion must be properly authorized by the payor. Otherwise stated, the
diversion can be justified only by proof of authority from the drawer, or that the
drawer has clothed his agent with apparent authority to receive the proceeds of
such check.
Same; Same; Same; Crossed Checks; Words and Phrases; The crossing of the check with the
phrase “Payee’s Account Only,” is a warning that the check should be deposited only in the
account of the payee; It is the collecting bank which is bound to scrutinize the check and to
know its depositors before it could make the clearing indorsement “all prior indorsements
and lor lack ofindorsement guaranteed.”—Indeed, the crossing of the check with the phrase
“Payee’s Account Only,” is a warning that the check should be deposited only in the account
of the CIR. Thus, it is the duty of the collecting bank PCIBank to ascertain that the check be
deposited in payee’s account only. Therefore, it is the collecting bank (PCIBank) which is
bound to scrutinize the check and to know its depositors before it could make the clearing
indorsement “all prior indorsements and/or lack of indorsement guaranteed.”
Same; Same; Same; A bank which cashes a check drawn upon another bank, without
requiring proof as to the identity of persons presenting it, or making inquiries with regard to
them, cannot hold the proceeds against the drawee when the proceeds of the checks were
afterwards diverted to the hands of a third party.—Banking business requires that the one
who first cashes and negotiates the check must take some precautions to learn whether or
not it is genuine. And if the one cashing the check through indifference or other
circumstance assists the forger in committing the fraud, he should not be permitted to
retain the proceeds of the check from the drawee whose sole fault was that it did not
discover the forgery or the defect in the title of the person negotiating the instrument before
paying the check. For this reason, a bank which cashes a check drawn upon another bank,
without requiring proof as to the identity of persons presenting it, or making inquiries with
regard to them, cannot hold the proceeds against the drawee when the proceeds of the
checks were afterwards diverted to the hands of a third party. In such cases the drawee
bank has a right to believe that the cashing bank (or the collecting bank) had, by the usual
proper investigation, satisfied itself of the authenticity of the negotiation of the checks.
Thus, one who encashed a check which had been forged or diverted and in turn received
payment thereon from the drawee, is guilty of negligence which proximately contributed to
the success of the fraud practiced on the drawee bank. The latter may recover from the
holder the money paid on the check.
Same; Same; Torts; As a general rule, a banking corporation is liable for the
wrongful or tortuous acts and declarations of its officers or agents within the
course and scope of their employment—it may be liable for the tortuous acts of its
officers even as regards that species of tort of which malice is an essential
element.—In this case, there was no evidence presented confirming the conscious
participation of PCIBank in the embezzlement. As a general rule, however, a
banking corporation is liable for the wrongful or tortuous acts and declarations of
its officers or agents within the course and scope of their employment. A bank will
be held liable for the negligence of its officers or agents when acting within the
course and scope of their employment. It may be liable for the tortuous acts of its
officers even as regards that species of tort of which malice is an essential
element. In this case, we find a situation where the PCIBank appears also to be
the victim of the scheme hatched by a syndicate in which its own management
employees had participated.
Same; Same; Same; The general rule is that a bank is liable for the fraudulent acts
or representations of an officer or agent acting within the course and apparent
scope of his employment or authority.—A bank holding out its officers and agents
as worthy of confidence will not be permit- ted to profit by the frauds these
officers or agents were enabled to perpetrate in the apparent course of their
employment; nor will it be permitted to shirk its responsibility for such frauds,
even though no benefit may accrue to the bank therefrom. For the general rule is
that a bank is liable for the fraudulent acts or representations of an officer or
agent acting within the course and apparent scope of his employment or
authority. And if an officer or employee of a bank, in his official capacity, receives
money to satisfy an evidence of indebtedness lodged with his bank for collection,
the bank is liable for his misappropriation of such sum.
Same; Same; Same; Negligence; As a business affected with public interest and
because of the nature of its functions, a bank is under obligation to treat the
accounts of its depositors with meticulous care, always having in mind the
fiduciary nature of their relationship.—Citibank should have scrutinized Citibank
Check Numbers SN-10597 and 16508 before paying the amount of the proceeds
thereof to the collecting bank of the BIR. One thing is clear from the record: the
clearing stamps at the back of Citibank Check Nos. SN-10597 and 16508 do not
bear any initials. Citibank failed to notice and verify the absence of the clearing
stamps. Had this been duly examined, the switching of the worthless checks to
Citibank Check Nos. 10597 and 16508 would have been discovered in time. For
this reason, Citibank had indeed failed to perform what was incumbent upon it,
which is to ensure that the amount of the checks should be paid only to its
designated payee. The fact that the drawee bank did not discover the irregularity
seasonably, in our view, constitutes negligence in carrying out the bank’s duty to
its depositors. The point is that as a business affected with public interest and
because of the nature of its functions, the bank is under obligation to treat the
accounts of its depositors with meticulous care, always having in mind the
fiduciary nature of their relationship.
Same; Same; Same; Same; Doctrine of Comparative Negligence; Where both the
collecting and drawee banks failed in their respective obligations and both were
negligent in the selection and supervision of their employees, both are equally
liable for the loss of the proceeds of checks fraudulently encashed.—Thus, invoking
the doctrine of comparative negligence, we are of the view that both PCIBank and
Citibank failed in their respective obligations and both were negligent in the
selection and supervision of their employees resulting in the encashment of
Citibank Check Nos. SN-10597 and 16508. Thus, we are constrained to hold them
equally liable for the loss of the proceeds of said checks issued by Ford in favor of
the CIR.
Same; Same; Same; Same; The banking business is so impressed with public
interest where the trust and confidence of the public in general is of paramount
importance such that the appropriate standard of diligence must be very high, if
not the highest, degree of diligence.—Time and again, we have stressed that
banking business is so impressed with public interest where the trust and
confidence of the public in general is of paramount importance such that the
appropriate standard of diligence must be very high, if not the highest, degree of
diligence. A bank’s liability as obligor is not merely vicarious but primary,
wherein the defense of exercise of due diligence in the selection and supervision of
its employees is of no moment.
Same; Same; Same; Same; Banks are expected to exercise the highest degree of
diligence in the selection and supervision of their employees.—Banks handle daily
transactions involving millions of pesos. By the very nature of their work the
degree of responsibility, care and trustworthiness expected of their employees and
officials is far greater than those of ordinary clerks and employees. Banks are
expected to exercise the highest degree of diligence in the selection and
supervision of their employees.
Same; Same; Same; Prescription; The statute of limitations begins to run when the
bank gives the depositor notice of the payment, and an action upon a check is
ordinarily governed by the statutory period applicable to instruments in writing;
An action upon a written contract must be brought within ten years from the time
the right of action accrues.—The statute of limitations begins to run when the
bank gives the depositor notice of the payment, which is ordinarily when the
check is returned to the alleged drawer as a voucher with a statement of his
account, and an action upon a check is ordinarily governed by the statutory period
applicable to instruments in writing. Our laws on the matter provide that the
action upon a written contract must be brought within ten years from the time
the right of action accrues. Hence, the reckoning time for the prescriptive period
begins when the instrument was issued and the corresponding check was
returned by the bank to its depositor (normally a month thereafter). Applying the
same rule, the cause of action for the recovery of the proceeds of Citibank Check
No. SN-04867 would normally be a month after December 19, 1977, when
Citibank paid the face value of the check in the amount of P4,746,114.41. Since
the original complaint for the cause of action was filed on January 20, 1983,
barely six years had lapsed. Thus, we conclude that Ford’s cause of action to
recover the amount of Citibank Check No. SN-04867 was seasonably filed within
the period provided by law.
Same; Same; Same; Negligence; Failure on the part of the depositor to examine its
passbook, statements of account, and cancelled checks and to give notice within a
reasonable time (or as required by statute) of any discrepancy which it may in the
exercise of due care and diligence find therein, serves to mitigate the banks’
liability by reducing the award of interest from twelve percent (12%) to six percent
(6%) per annum.—We also find that Ford is not completely blameless in its failure
to detect the fraud. Failure on the part of the depositor to examine its passbook,
statements of account, and cancelled checks and to give notice within a
reasonable time (or as required by statute) of any discrepancy which it may in the
exercise of due care and diligence find therein, serves to mitigate the banks’
liability by reducing the award of interest from twelve percent (12%) to six
percent (6%) per annum. As provided in Article 1172 of the Civil Code of the
Philippines, responsibility arising from negligence in the performance of every
kind of obligation is also demandable, but such liability may be regulated by the
courts, according to the circumstances. In quasi-delicts, the contributory
negligence of the plaintiff shall reduce the damages that he may recover.
PETITIONS for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
QUISUMBING, J.:
These consolidated petitions involve several fraudulently negotiated checks.
The original actions a quo were instituted by Ford Philippines to recover from the drawee
bank, CITIBANK, N.A. (Citibank) and collecting bank, Philippine Commercial International
Bank (PCI-Bank) [formerly Insular Bank of Asia and America], the value of several checks
payable to the Commissioner of Internal Revenue, which were embezzled allegedly by an
organized syndicate.
G.R. Nos. 121413 and 121479 are twin petitions for review of the March 27, 1995 Decision 1
of the Court of Appeals in CA-G.R. CV No. 25017, entitled “Ford Philippines, Inc. vs.
Citibank, N.A. and Insular Bank of Asia and America (now Philippine Commercial
International Bank), and the August 8, 1995 Resolution, 2 ordering the collecting bank,
Philippine Commercial International Bank, to pay the amount of Citibank Check No. SN-
04867.
In G.R. No. 128604, petitioner Ford Philippines assails the October 15, 1996 Decision 3 of the
Court of Appeals and its March 5, 1997 Resolution4 in CA-G.R. No. 28430 entitled “Ford
Philippines, Inc. vs. Citibank, N.A. and Philippine Commercial International Bank,”
affirming in toto the judgment of the trial court holding the defendant drawee bank,
Citibank, N.A., solely liable to pay the amount of P12,163,298.10 as damages for the
misapplied proceeds of the plaintiff’s Citibank Check Numbers SN-10597 and 16508.
I. G.R. Nos. 121413 and 121479
The stipulated facts submitted by the parties as accepted by the Court of Appeals
are as follows:
“On October 19, 1977, the plaintiff Ford drew and issued its Citibank Check No. SN-04867
in the amount of P4,746,114.41, in favor of the Commissioner of Internal Revenue as
payment of plaintiff’s percentage or manufacturer’s sales taxes for the third quarter of 1977.
The aforesaid check was deposited with the defendant IBAA (now PCIBank) and was
subsequently cleared at the Central Bank. Upon presentment with the defendant Citibank,
the proceeds of the check was paid to IBAA as collecting or depository bank.
The proceeds of the same Citibank check of the plaintiff was never paid to or received by the
payee thereof, the Commissioner of Internal Revenue.
As a consequence, upon demand of the Bureau and/or Commissioner of Internal Revenue,
the plaintiff was compelled to make a second payment to the Bureau of Internal Revenue of
its percentage/manufacturers’ sales taxes for the third quarter of 1977 and that said second
payment of plaintiff in the amount of P4,746,114.41 was duly received by the Bureau of
Internal Revenue.
It is further admitted by defendant Citibank that during the time of the transactions in
question, plaintiff had been maintaining a checking account with defendant Citibank; that
Citibank Check No. SN-04867 which was drawn and issued by the plaintiff in favor of the
Commissioner of Internal Revenue was a crossed check in that, on its face were two parallel
lines and written in between said lines was the phrase “Payee’s Account Only”; and that
defendant Citibank paid the full face value of the check in the amount of P4,746,114.41 to
the defendant IBAA.
It has been duly established that for the payment of plaintiff’s percentage tax for the last
quarter of 1977, the Bureau of Internal Revenue issued Revenue Tax Receipt No. 18747002,
dated October 20, 1977, designating therein in Muntinlupa, Metro Manila, as the
authorized agent bank of Metrobank, Alabang Branch to receive the tax payment of the
plaintiff.
On December 19, 1977, plaintiff’s Citibank Check No. SN-04867, together with the Revenue
Tax Receipt No. 18747002, was deposited with defendant IBAA, through its Ermita Branch.
The latter accepted the check and sent it to the Central Clearing House for clearing on the
same day, with the indorsement at the back “all prior indorsements and/or lack of
indorsements guaranteed.” Thereafter, defendant IBAA presented the check for payment to
defendant Citibank on same date, December 19, 1977, and the latter paid the face value of
the check in the amount of P4,746,114.41. Consequently, the amount of P4,746,114.41 was
debited in plaintiff’s account with the defendant Citibank and the check was returned to the
plaintiff.
Upon verification, plaintiff discovered that its Citibank Check No. SN-04867 in the amount
of P4,746,114.41 was not paid to the Commissioner of Internal Revenue. Hence, in separate
letters dated October 26, 1979, addressed to the defendants, the plaintiff notified the latter
that in case it will be re-assessed by the BIR for the payment of the taxes covered by the
said checks, then plaintiff shall hold the defendants liable for reimbursement of the face
value of the same. Both defendants denied liability and refused to pay.
In a letter dated February 28, 1980 by the Acting Commissioner of Internal Revenue
addressed to the plaintiff—supposed to be Exhibit “D,” the latter was officially informed,
among others, that its check in the amount of P4,746,114.41 was not paid to the government
or its authorized agent and instead encashed by unauthorized persons, hence, plaintiff has
to pay the said amount within fifteen days from receipt of the letter. Upon advice of the
plaintiff’s lawyers, plaintiff on March 11, 1982, paid to the Bureau of Internal Revenue, the
amount of P4,746,114.41, representing payment of plaintiff’s percentage tax for the third
quarter of 1977.
As a consequence of defendant’s refusal to reimburse plaintiff of the payment it had made
for the second time to the BIR of its percentage taxes, plaintiff filed on January 20, 1983 its
original complaint before this Court.
On December 24, 1985, defendant IBAA was merged with the Philippine Commercial
International Bank (PCIBank) with the latter as the surviving entity.
Defendant Citibank maintains that; the payment it made of plaintiffs Citibank Check No.
SN-04867 in the amount of P4,746,114.41 “was in due course”; it merely relied on the
clearing stamp of the depository/collecting bank, the defendant IBAA that “all prior
indorsements and/or lack of indorsements guaranteed”; and the proximate cause of
plaintiff’s injury is the gross negligence of defendant IBAA in indorsing the plaintiff’s
Citibank check in question.
It is admitted that on December 19, 1977 when the proceeds of plaintiff’s Citibank Check
No. SN-04867 was paid to defendant IBAA as collecting bank, plaintiff was maintaining a
checking account with defendant Citibank.”5
Although it was not among the stipulated facts, an investigation by the National Bureau of
Investigation (NBI) revealed that Citibank Check No. SN-04867 was recalled by Godofredo
Rivera, the General Ledger Accountant of Ford. He purportedly needed to hold back the
check because there was an error in the computation of the tax due to the Bureau of
Internal Revenue (BIR). With Rivera’s instruction, PCIBank replaced the check with two of
its own Manager’s Checks (MCs). Alleged members of a syndicate later deposited the two
MCs with the Pacific Banking Corporation.
Ford, with leave of court, filed a third-party complaint before the trial court impleading
Pacific Banking Corporation (PBC) and Godofredo Rivera, as third party defendants. But
the court dismissed the complaint against PBC for lack of cause of action. The court likewise
dismissed the third-party complaint against Godofredo Rivera because he could not be
served with summons as the NBI declared him as a “fugitive from justice.”
On June 15, 1989, the trial court rendered its decision, as follows:
“Premises considered, judgment is hereby rendered as follows:
1.
Ordering the defendants Citibank and IBAA (now PCI Bank), jointly and severally, to
pay the plaintiff the amount of P4,746,114.41 representing the face value of plaintiff’s
Citibank Check No. SN-04867, with interest thereon at the legal rate starting January 20,
1983, the date when the original complaint was filed until the amount is fully paid, plus
costs;
2.
On defendant Citibank’s cross-claim: ordering the cross-defendant IBAA (now PCI
BANK) to reimburse defendant Citibank for whatever amount the latter has paid or may
pay to the plaintiff in accordance with the next preceding paragraph;
3.
The counterclaims asserted by the defendants against the plaintiff, as well as that
asserted by the cross-defendant against the cross-claimant are dismissed, for lack of merits;
and
4.
With costs against the defendants.
SO ORDERED.”6
Not satisfied with the said decision, both defendants, Citibank and PCIBank, elevated their
respective petitions for review on certiorari to the Court of Appeals. On March 27, 1995, the
appellate court issued its judgment as follows:
“WHEREFORE, in view of the foregoing, the court AFFIRMS the appealed decision with
modifications.
The court hereby renders judgment:
1.
Dismissing the complaint in Civil Case No. 49287 insofar as defendant Citibank N.A. is
concerned;
2.
Ordering the defendant IBAA now PCI Bank to pay the plaintiff the amount of
P4,746,114.41 representing the face value of plaintiff’s Citibank Check No. SN-04867, with
interest thereon at the legal rate starting January 20, 1983, the date when the original
complaint was filed until the amount is fully paid;
3.
Dismissing the counterclaims asserted by the defendants against the plaintiff as well as
that asserted by the cross-defendant against the cross-claimant, for lack of merits.
Costs against the defendant IBAA (now PCI Bank).
IT IS SO ORDERED.”7
PCIBank moved to reconsider the above-quoted decision of the Court of Appeals,
while Ford filed a “Motion for Partial Reconsideration.” Both motions were denied
for lack of merit.
Separately, PCIBank and Ford filed before this Court, petitions for review by
certiorari under Rule 45.
In G.R. No. 121413, PCIBank seeks the reversal of the decision and resolution of
the Twelfth Division of the Court of Appeals contending that it merely acted on
the instruction of Ford and such cause of action had already prescribed.
PCIBank sets forth the following issues for consideration:
I.
Did the respondent court err when, after finding that the petitioner acted on
the check drawn by respondent Ford on the said respondent’s instructions, it
nevertheless found the petitioner liable to the said respondent for the full amount
of the said check.
II.
Did the respondent court err when it did not find prescription in favor of the
petitioner.8
In a counter move, Ford filed its petition docketed as G.R. No. 121479,
questioning the same decision and resolution of the Court of Appeals, and praying
for the reinstatement in toto of the decision of the trial court which found both
PCIBank and Citibank jointly and severally liable for the loss.
In G.R. No. 121479, appellant Ford presents the following propositions for
consideration:
I.
Respondent Citibank is liable to petitioner Ford considering that:
1.
As drawee bank, respondent Citibank owes to petitioner Ford, as the drawer of the
subject check and a depositor of respondent Citibank, an absolute and contractual duty to
pay the proceeds of the subject check only to the payee thereof, the Commissioner of
Internal Revenue.
2.
Respondent Citibank failed to observe its duty as banker with respect to the subject
check, which was crossed and payable to “Payee’s Account Only.”
3.
Respondent Citibank raises an issue for the first time on appeal; thus the same should
not be considered by the Honorable Court.
4.
As correctly held by the trial court, there is no evidence of gross negligence on the part of
petitioner Ford.9
II.
PCIBank is liable to petitioner Ford considering that:
1.
There were no instructions from petitioner Ford to deliver the proceeds of the subject
check to a person other than the payee named therein, the Commissioner of the Bureau of
Internal Revenue; thus, PCIBank’s only obligation is to deliver the proceeds to the
Commissioner of the Bureau of Internal Revenue.10
2.
PCIBank which affixed its indorsement on the subject check (“All prior indorsement
and/or lack of indorsement guaranteed”), is liable as collecting bank.11
3.
PCIBank is barred from raising issues of fact in the instant proceedings. 12
4.
Petitioner Ford’s cause of action had not prescribed.13
II. G.R. No. 128604
The same syndicate apparently embezzled the proceeds of checks intended, this
time, to settle Ford’s percentage taxes appertaining to the second quarter of 1978
and the first quarter of 1979.
The facts as narrated by the Court of Appeals are as follows:
Ford drew Citibank Check No. SN-10597 on July 19, 1978 in the amount of P5,851,706.37
representing the percentage tax due for the second quarter of 1978 payable to the
Commissioner of Internal Revenue. A BIR Revenue Tax Receipt No. 28645385 was issued
for the said purpose.
On April 20, 1979, Ford drew another Citibank Check No. SN-16508 in the amount of
P6,311,591.73, representing the payment of percentage tax for the first quarter of 1979 arid
payable to the Commissioner of Internal Revenue. Again a BIR Revenue Tax Receipt No. A-
1697160 was issued for the said purpose.
Both checks were “crossed checks” and contain two diagonal lines on its upper left corner
between which were written the words “payable to the payee’s account only.”
The checks never reached the payee, CIR. Thus, in a letter dated February 28, 1980, the
BIR, Region 4-B, demanded for the said tax payments the corresponding periods above-
mentioned.
As far as the BIR is concerned, the said two BIR Revenue Tax Receipts were considered
“fake and spurious.” This anomaly was confirmed by the NBI upon the initiative of the BIR.
The findings forced Ford to pay the BIR anew, while an action was filed against Citibank
and PCIBank for the recovery of the amount of Citibank Check Numbers SN-10597 and
16508.
The Regional Trial Court of Makati, Branch 57, which tried the case, made its
findings on the modus operandi of the syndicate, as follows:
“A certain Mr. Godofredo Rivera was employed by the plaintiff FORD as its General Ledger
Accountant. As such, he prepared the plaintiffs check marked Exh. ‘A’ [Citibank Check No.
SN-10597] for payment to the BIR. Instead, however, of delivering the same to the payee, he
passed on the check to a co-conspirator named Remberto Castro who was a promanager of
the San Andres Branch of PCIB.** In connivance with one Winston Dulay, Castro himself
subsequently opened a Checking Account in the name of a fictitious person denominated as
‘Reynaldo Reyes’ in the Meralco Branch of PCIBank where Dulay works as Assistant
Manager.
After an initial deposit of P100.00 to validate the account, Castro deposited a worthless
Bank of America Check in exactly the same amount as the first FORD check (Exh. “A,”
P5,851,706.37) while this worthless check was coursed through PCIB’s main office enroute
to the Central Bank for clearing, replaced this worthless check with FORD’s Exhibit ‘A’ and
accordingly tampered the accompanying documents to cover the replacement. As a result,
Exhibit ‘A’ was cleared by defendant CITIBANK, and the fictitious deposit account of
‘Reynaldo Reyes’ was credited at the PCIB Meralco Branch with the total amount of the
FORD check Exhibit ‘A.’ The same method was again utilized by the syndicate in profiting
from Exh. ‘B’ [Citibank Check No. SN-16508] which was subsequently pilfered by Alexis
Marindo, Rivera’s Assistant at FORD.
From this ‘Reynaldo Reyes’ account, Castro drew various checks distributing the shares of
the other participating conspirators namely (1) CRISANTO BERNABE, the mastermind
who formulated the method for the embezzlement; (2) RODOLFO R. DE LEON a customs
broker who negotiated the initial contact between Bernabe, FORD’s Godofredo Rivera and
PCIB’s Remberto Castro; (3) JUAN CASTILLO who assisted de Leon in the initial
arrangements; (4) GODOFREDO RIVERA, FORD’s accountant who passed on the first
check (Exhibit “A”) to Castro; (5) REMBERTO CASTRO, PCIB’s pro-manager at San Andres
who performed the switching of checks in the clearing process and opened the fictitious
Reynaldo Reyes account at the PCIB Meralco Branch; (6) WINSTON DULAY, PCIB’s
Assistant Manager at its Meralco Branch, who assisted Castro in switching the checks in
the clearing process and facilitated the opening of the fictitious Reynaldo Reyes’ bank
account; (7) ALEXIS MARINDO, Rivera’s Assistant at FORD, who gave the second check
(Exh. “B”) to Castro; (8) ELEUTERIO JIMENEZ, BIR Collection Agent who provided the
fake and spurious revenue tax receipts to make it appear that the BIR had received FORD’s
tax payments.
Several other persons and entities were utilized by the syndicate as conduits in the
disbursements of the proceeds of the two checks, but like the aforementioned participants in
the conspiracy, have not been impleaded in the present case. The manner by which the said
funds were distributed among them are traceable from the record of checks drawn against
the original “Reynaldo Reyes” account and indubitably identify the parties who illegally
benefited therefrom and readily indicate in what amounts they did so.”14
On December 9, 1988, Regional Trial Court of Makati, Branch 57, held drawee-
bank, Citibank, liable for the value of the two checks while absolving PCIBank
from any liability, disposing as follows:
“WHEREFORE, judgment is hereby rendered sentencing defendant CITIBANK to
reimburse plaintiff FORD the total amount of P12,163,298.10 prayed for in its complaint,
with 6% interest thereon from date of first written demand until full payment, plus
P300,000.00 attorney’s fees and expenses of litigation, and to pay the defendant, PCIB (on
its counterclaim to crossclaim) the sum of P300,000.00 as attorney’s fees and costs of
litigation, and pay the costs.
SO ORDERED.”15
Both Ford and Citibank appealed to the Court of Appeals which affirmed, in toto,
the decision of the trial court. Hence, this petition.
Petitioner Ford prays that judgment be rendered setting aside the portion of the
Court of Appeals decision and its resolution dated March 5, 1997, with respect to
the dismissal of the complaint against PCIBank and holding Citibank solely
responsible for the proceeds of Citibank Check Numbers SN-10597 and 16508 fot
P5,851,706.73 and P6,311,591.73 respectively.
Ford avers that the Court of Appeals erred in dismissing the complaint against
defendant PCIBank considering that:
I.
Defendant PCIBank was clearly negligent when it failed to exercise the diligence
required to be exercised by it as a banking institution.
II.
Defendant PCIBank clearly failed to observe the diligence re- quired in the selection and
supervision of its officers and employees.
III.
Defendant PCIBank was, due to its negligence, clearly liable for the loss or damage
resulting to the plaintiff Ford as a consequence of the substitution of the check consistent
with Section 5 of Central Bank Circular No. 580 series of 1977.
IV.
Assuming arguendo that defendant PCIBank did not accept, endorse or negotiate in
due course the subject checks, it is liable, under Article 2154 of the Civil Code, to return the
money which it admits having received, and which was credited to it in its Central Bank
account.16
The main issue presented for our consideration by these petitions could be
simplified as follows: Has petitioner Ford the right to recover from the collecting
bank (PCIBank) and the drawee bank (Citibank) the value of the checks intended
as payment to the Commissioner of Internal Revenue? Or has Ford’s cause of
action already prescribed?
Note that in these cases, the checks were drawn against the drawee bank, but the
title of the person negotiating the same was allegedly defective because the
instrument was obtained by fraud and unlawful means, and the proceeds of the
checks were not remitted to the payee. It was established that instead of paying
the checks to the CIR, for the settlement of the appropriate quarterly percentage
taxes of Ford, the checks were diverted and encashed for the eventual distribution
among the members of the syndicate. As to the unlawful negotiation of the check
the applicable law is Section 55 of the Negotiable Instruments Law (NIL), which
provides:
“When title defective—The title of a person who negotiates an instrument is
defective within the meaning of this Act when he obtained the instrument, or any
signature thereto, by fraud, duress, or force and fear, or other unlawful means, or
for an illegal consideration, or when he negotiates it in breach of faith or under
such circumstances as amount to a fraud.”
Pursuant to this provision, it is vital to show that the negotiation is made by the
perpetrator in breach of faith amounting to fraud. The person negotiating the
checks must have gone beyond the authority given by his principal. If the
principal could prove that there was no negligence in the performance of his
duties, he may set up the personal defense to escape liability and recover from
other parties who, through their own negligence, allowed the commission of the
crime.
In this case, we note that the direct perpetrators of the offense, namely the
embezzlers belonging to a syndicate, are now fugitives from justice. They have,
even if temporarily, escaped liability for the embezzlement of millions of pesos.
We are thus left only with the task of determining who of the present parties
before us must bear the burden of loss of these millions. It all boils down to the
question of liability based on the degree of negligence among the parties
concerned.
Foremost, we must resolve whether the injured party, Ford, is guilty of the
“imputed contributory negligence” that would defeat its claim for reimbursement,
bearing in mind that its employees, Godofredo Rivera and Alexis Marindo, were
among the members of the syndicate.
Citibank points out that Ford allowed its very own employee, Godofredo Rivera, to
negotiate the checks to his co-conspirators, instead of delivering them to the
designated authorized collecting bank (Metrobank-Alabang) of the payee, CIR.
Citibank bewails the fact that Ford was remiss in the supervision and control of
its own employees, inasmuch as it only discovered the syndicate’s activities
through the information given by the payee of the checks after an unreasonable
period of time.
PCIBank also blames Ford of negligence when it allegedly authorized Godofredo
Rivera to divert the proceeds of Citibank Check No. SN-04867, instead of using it
to pay the BIR. As to the subsequent run-around of funds of Citibank Check Nos.
SN-10597 and 16508, PCIBank claims that the proximate cause of the damage to
Ford lies in its own officers and employees who carried out the fraudulent
schemes and the transactions. These circumstances were not checked by other
officers of the company, including its comptroller or internal auditor. PCIBank
contends that the inaction of Ford despite the enormity of the amount involved
was a sheer negligence and stated that, as between two innocent persons, one of
whom must suffer the consequences of a breach of trust, the one who made it
possible, by his act of negligence, must bear the loss.
For its part, Ford denies any negligence in the performance of its duties. It avers
that there was no evidence presented before the trial court showing lack of
diligence on the part of Ford. And, citing the case of Gempesaw vs. Court of
Appeals,17 Ford argues that even if there was a finding therein that the drawer
was negligent, the drawee bank was still ordered to pay damages.
Furthermore, Ford contends that Godofredo Rivera was not authorized to make
any representation in its behalf, specifically, to divert the proceeds of the checks.
It adds that Citibank raised the issue of imputed negligence against Ford for the
first time on appeal. Thus, it should not be considered by this Court.
On this point, jurisprudence regarding the imputed negligence of employer in a
master-servant relationship is instructive. Since a master may be held for his
servant’s wrongful act, the law imputes to the master the act of the servant, and
if that act is negligent or wrongful and proximately results in injury to a third
person, the negligence or wrongful conduct is the negligence or wrongful conduct
of the master, for which he is liable.18 The general rule is that if the master is
injured by the negligence of a third person and by the concurring contributory
negligence of his own servant or agent, the latter’s negligence is imputed to his
superior and will defeat the superior’s action against the third person, assuming,
of course that the contributory negligence was the proximate cause of the injury of
which complaint is made.19
Accordingly, we need to determine whether or not the action of Godofredo Rivera,
Ford’s General Ledger Accountant, and/or Alexis Marindo, his assistant, was the
proximate cause of the loss or damage. As defined, proximate cause is that which,
in the natural and continuous sequence, unbroken by any efficient, intervening
cause produces the injury, and without which the result would not have
occurred.20
It appears that although the employees of Ford initiated the transactions
attributable to an organized syndicate, in our view, their actions were not the
proximate cause of encashing the checks payable to the CIR. The degree of Ford’s
negligence, if any, could not be characterized as the proximate cause of the injury
to the parties.
The Board of Directors of Ford, we note, did not confirm the request of Godofredo
Rivera to recall Citibank Check No. SN-04867. Rivera’s instruction to replace the
said check with PCIBank’s Manager’s Check was not in the ordinary course of
business which could have prompted PCIBank to validate the same.
As to the preparation of Citibank Checks Nos. SN-10597 and 16508, it was
established that these checks were made payable to the CIR. Both were crossed
checks. These checks were apparently turned around by Ford’s employees, who
were acting on their own personal capacity.
Given these circumstances, the mere fact that the forgery was committed by a
drawer-payor’s confidential employee or agent, who by virtue of his position had
unusual facilities for perpetrating the fraud and imposing the forged paper Upon
the bank, does not entitle the bank to shift the loss to the drawer-payor, in the
absence of some circumstance raising estoppel against the drawer.21 This rule
likewise applies to the checks fraudulently negotiated or diverted by the
confidential employees who hold them in their possession.
With respect to the negligence of PCIBank in the payment of the three checks
involved, separately, the trial courts found variations between the negotiation of
Citibank Check No. SN-04867 and the misapplication of total proceeds of Checks
SN-10597 and 16508. Therefore, we have to scrutinize, separately, PCIBank’s
share of negligence when the syndicate achieved its ultimate agenda of stealing
the proceeds of these checks.
G.R. Nos. 121413 and 121479
Citibank Check No. SN-04867 was deposited at PCIBank through its Ermita
Branch. It was coursed through the ordinary banking transaction, sent to Central
Clearing with the indorsement at the back “all prior indorsements and/or lack of
indorsements guaranteed,” and was presented to Citibank for payment.
Thereafter PCIBank, instead of remitting the proceeds to the CIR, prepared two
of its Manager’s checks and enabled the syndicate to encash the same.
On record, PCIBank failed to verify the authority of Mr. Rivera to negotiate the
checks. The neglect of PCIBank employees to verify whether his letter requesting
for the replacement of the Citibank Check No. SN-04867 was duly authorized,
showed lack of care and prudence required in the circumstances.
Furthermore, it was admitted that PCIBank is authorized to collect the payment
of taxpayers in behalf of the BIR. As an agent of BIR, PCIBank is duty bound to
consult its principal regarding the unwarranted instructions given by the payor or
its agent. As aptly stated by the trial court, to wit:
“x x x. Since the questioned crossed check was deposited with IBAA [now PCIBank], which
claimed to be a depository/collecting bank of the BIR, it has the responsibility to make sure
that the check in question is deposited in Payee’s account only.
xxx xxx xxx
As agent of the BIR (the payee of the check), defendant IBAA should receive instructions
only from its principal BIR and not from any other person especially so when that person is
not known to the defendant. It is very imprudent on the part of the defendant IBAA to just
rely on the alleged telephone call of one Godofredo Rivera and in his signature to the
authenticity of such signature considering that the plaintiff is not a client of the defendant
IBAA.”
It is a well-settled rule that the relationship between the payee or holder of
commercial paper and the bank to which it is sent for collection is, in the absence
of an agreement to the contrary, that of principal and agent. 22 A bank which
receives such paper for collection is the agent of the payee or holder.23
Even considering arguendo, that the diversion of the amount of a check payable to
the collecting bank in behalf of the designated payee may be allowed, still such
diversion must be properly authorized by the payor. Otherwise stated, the
diversion can be justified only by proof of authority from the drawer, or that the
drawer has clothed his agent with apparent authority to receive the proceeds of
such check.
Citibank further argues that PCI Bank’s clearing stamp appearing at the back of
the questioned checks stating that ALL PRIOR INDORSEMENTS AND/OR
LACK OF INDORSEMENTS GUARANTEED should render PCIBank liable
because it made it pass through the clearing house and therefore Citibank had no
other option but to pay it. Thus, Citibank asserts that the proximate cause of
Ford’s injury is the gross negligence of PCIBank. Since the questioned crossed
check was deposited with PCIBank, which claimed to be a depository/collecting
bank of the BIR, it had the responsibility to make sure that the check in question
is deposited in Payee’s account only.
Indeed, the crossing of the check with the phrase “Payee’s Account Only,” is a
warning that the check should be deposited only in the account of the CIR. Thus,
it is the duty of the collecting bank PCIBank to ascertain that the check be
deposited in payee’s account only. Therefore, it is the collecting bank (PCIBank)
which is bound to scrutinize the check and to know its depositors before it could
make the clearing indorsement “all prior indorsements and/or lack of indorsement
guaranteed.”
In Banco de Oro Savings and Mortgage Bank vs. Equitable Banking
Corporation,24 we ruled:
“Anent petitioner’s liability on said instruments, this court is in full accord with
the ruling of the PCHC’s Board of Directors that:
‘In presenting the checks for clearing and for payment, the defendant made an express
guarantee on the validity of “all prior endorsements.” Thus, stamped at the back of the
checks are the defendant’s clear warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK
OF ENDORSEMENTS GUARANTEED. Without such warranty, plaintiff would not have
paid on the checks.’
No amount of legal jargon can reverse the clear meaning of defendant’s warranty. As the
warranty has proven to be false and inaccurate, the defendant is liable for any damage
arising out of the falsity of its representation.”25
Lastly, banking business requires that the one who first cashes and negotiates
the check must take some precautions to learn whether or not it is genuine. And if
the one cashing the check through indifference or other circumstance assists the
forger in committing the fraud, he should not be permitted to retain the proceeds
of the check from the drawee whose sole fault was that it did not discover the
forgery or the defect in the title of the person negotiating the instrument before
paying the check. For this reason, a bank which cashes a check drawn upon
another bank, without requiring proof as to the identity of persons presenting it,
or making inquiries with regard to them, cannot hold the proceeds against the
drawee when the proceeds of the checks were afterwards diverted to the hands of
a third party. In such cases the drawee bank has a right to believe that the
cashing bank (or the collecting bank) had, by the usual proper investigation,
satisfied itself of the authenticity of the negotiation of the checks. Thus, one who
encashed a check which had been forged or diverted and in turn received payment
thereon from the drawee, is guilty of negligence which proximately contributed to
the success of the fraud practiced on the drawee bank. The latter may recover
from the holder the money paid on the check.26
Having established that the collecting bank’s negligence is the proximate cause of
the loss, we conclude that PCIBank is liable in the amount corresponding to the
proceeds of Citibank Check No SN-04867.
G.R. No. 128604
The trial court and the Court of Appeals found that PCIBank had no official act in
the ordinary course of business that would attribute to it the case of the
embezzlement of Citibank Check Numbers SN-10597 and 16508, because
PCIBank did not actually receive nor hold the two Ford checks at all. The trial
court held, thus:
“Neither is there any proof that defendant PCIBank contributed any official or conscious
participation in the process of the embezzlement. This Court is convinced that the switching
operation (involving the checks while in transit for “clearing”) were the clandestine or
hidden actuations performed by the members of the syndicate in their own personal, covert
and private capacity and done without the knowledge of the defendant PCIBank. . . .” 27
In this case, there was no evidence presented confirming the conscious
participation of PCIBank in the embezzlement. As a general rule, however, a
banking corporation is liable for the wrongful or tortuous acts and declarations of
its officers or agents within the course and scope of their employment.28 A bank
will be held liable for the negligence of its officers or agents when acting within
the course and scope of their employment. It may be liable for the tortuous acts of
its officers even as regards that species of tort of which malice is an essential
element. In this case, we find a situation where the PCIBank appears also to be
the victim of the scheme hatched by a syndicate in which its own management
employees had participated.
The pro-manager of San Andres Branch of PCIBank, Remberto Castro, received
Citibank Check Numbers SN-10597 and 16508. He passed the checks to a co-
conspirator, an Assistant Manager of PCIBank’s Meralco Branch, who helped
Castro open a Checking account of a fictitious person named “Reynaldo Reyes.”
Castro deposited a worthless Bank of America Check in exactly the same amount
of Ford checks. The syndicate tampered with the checks and succeeded in
replacing the worthless checks and the eventual encashment of Citibank Check
Nos, SN-10597 and 16508. The PCIBank Pro-manager, Castro, and his co-
conspirator Assistant Manager apparently performed their activities using
facilities in their official capacity or authority but for their personal and private
gain or benefit.
A bank holding out its officers and agents as worthy of confidence will not be
permitted to profit by the frauds these officers or agents were enabled to
perpetrate in the apparent course of their employment; nor will it be permitted to
shirk its responsibility for such frauds, even though no benefit may accrue to the
bank therefrom. For the general rule is that a bank is liable for the fraudulent
acts or representations of an officer or agent acting within the course and
apparent scope of his employment or authority.29 And if an officer or employee of
a bank, in his official capacity, receives money to satisfy an evidence of
indebtedness lodged with his bank for collection, the bank is liable for his
misappropriation of such sum.30
Moreover, as correctly pointed out by Ford, Section 531 of Central Bank Circular
No. 580, Series of 1977 provides that any theft affecting items in transit for
clearing, shall be for the account of sending bank, which in this case is PCIBank.
But in this case, responsibility for negligence does not lie on PCIBank’s shoulders
alone.
The evidence on record shows that Citibank as drawee bank was likewise
negligent in the performance of its duties. Citibank failed to establish that its
payment of Ford’s checks were made in due course and legally in order. In its
defense, Citibank claims the genuineness and due execution of said checks,
considering that Citibank (1) has no knowledge of any infirmity in the issuance of
the checks in question (2) coupled by the fact that said checks were sufficiently
funded and (3) the endorsement of the Payee or lack thereof was guaranteed by
PCI Bank (formerly IBAA), thus, it has the obligation to honor and pay the same.
For its part, Ford contends that Citibank as the drawee bank owes to Ford an
absolute and contractual duty to pay the proceeds of the subject check only to the
payee thereof, the CIR. Citing Section 6232 of the Negotiable Instruments Law,
Ford argues that by accepting the instrument, the acceptor which is Citibank
engages that it will pay according to the tenor of its acceptance, and that it will
pay only to the payee, (the CIR), considering the fact that here the check was
crossed with annotation “Payees Account Only.”
As ruled by the Court of Appeals, Citibank must likewise answer for the damages
incurred by Ford on Citibank Checks Numbers SN-10597 and 16508, because of
the contractual relationship existing between the two. Citibank, as the drawee
bank breached its contractual obligation with Ford and such degree of culpability
contributed to the damage caused to the latter. On this score, we agree with the
respondent court’s ruling.
Citibank should have scrutinized Citibank Check Numbers SN-10597 and 16508
before paying the amount of the proceeds thereof to the collecting bank of the
BIR. One thing is clear from the record: the clearing stamps at the back of
Citibank Check Nos. SN-10597 and 16508 do not bear any initials. Citibank failed
to notice and verify the absence of the clearing stamps. Had this been duly
examined, the switching of the worthless checks to Citibank Check Nos. SN-
10597 and 16508 would have been discovered in time. For this reason, Citibank
had indeed failed to perform what was incumbent upon it, which is to ensure that
the amount of the checks should be paid only to its designated payee. The fact
that the drawee bank did not discover the irregularity seasonably, in our view,
constitutes negligence in carrying out the bank’s duty to its depositors. The point
is that as a business affected with public interest and because of the nature of its
functions, the bank is under obligation to treat the accounts of its depositors with
meticulous care, always having in mind the fiduciary nature of their
relationship.33
Thus, invoking the doctrine of comparative negligence, we are of the view that
both PCIBank and Citibank failed in their respective obligations and both were
negligent in the selection and supervision of their employees resulting in the
encashment of Citibank Check Nos. SN-10597 and 16508. Thus, we are
constrained to hold them equally liable for the loss of the proceeds of said checks
issued by Ford in favor of the CIR.
Time and again, we have stressed that banking business is so impressed with
public interest where the trust and confidence of the public in general is of
paramount importance such that the appropriate standard of diligence must be
very high, if not the highest, degree of diligence.34 A bank’s liability as obligor is
not merely vicarious but primary, wherein the defense of exercise of due diligence
in the selection and supervision of its employees is of no moment.35
Banks handle daily transactions involving millions of pesos. 36 By the very nature
of their work the degree of responsibility, care and tnistworthiness expected of
their employees and officials is far greater than those of ordinary clerks and
employees.37 Banks are expected to exercise the highest degree of diligence in the
selection and supervision of their employees.38
On the issue of prescription, PCIBank claims that the action of Ford had
prescribed because of its inability to seek judicial relief seasonably, considering
that the alleged negligent act took place prior to December 19, 1977 but the relief
was sought only in 1983, or seven years thereafter.
The statute of limitations begins to run when the bank gives the depositor notice
of the payment, which is ordinarily when the check is returned to the alleged
drawer as a voucher with a statement of his account,39 and an action upon a check
is ordinarily governed by the statutory period applicable to instruments in
writing.40
Our laws on the matter provide that the action upon a written contract must be
brought within ten years from the time the right of action accrues. 41 Hence, the
reckoning time for the prescriptive period begins when the instrument was issued
and the corresponding check was returned by the bank to its depositor (normally
a month thereafter). Applying the same rule, the cause of action for the recovery
of the proceeds of Citibank Check No. SN-04867 would normally be a month after
December 19, 1977, when Citibank paid the face value of the check in the amount
of P4,746,114.41. Since the original complaint for the cause of action was filed on
January 20, 1983, barely six years had lapsed. Thus, we conclude that Ford’s
cause of action to recover the amount of Citibank Check No. SN-04867 was
seasonably filed within the period provided by law.
Finally, we also find that Ford is not completely blameless in its failure to detect
the fraud. Failure on the part of the depositor to examine its passbook,
statements of account, and cancelled checks and to give notice within a
reasonable time (or as required by statute) of any discrepancy which it may in the
exercise of due care and diligence find therein, serves to mitigate the banks’
liability by reducing the award of interest from twelve percent (12%) to six
percent (6%) per annum. As provided in Article 1172 of the Civil Code of the
Philippines, responsibility arising from negligence in the performance of every
kind of obligation is also demandable, but such liability may be regulated by the
courts, according to the circumstances. In, quasi-delicts, the. contributory
negligence of the plaintiff shall reduce the damages that he may recover. 42
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No.
25017, are AFFIRMED. PCIBank, known formerly as Insular Bank of Asia and America, is declared
solely responsible for the loss of the proceeds of Citibank
Check No. SN-04867 in the amount of P4,746,114.41, which shall be paid together with six percent (6%)
interest thereon to Ford Philippines, Inc. from the date when the original complaint was filed until said
amount is fully paid.
However, the Decision and Resolution of the Court of Appeals in CA-G.R. No. 28430 are
MODIFIED as follows: PCIBank and Citibank are adjudged liable for and must share the loss,
(concerning the proceeds of Citibank Check Numbers SN-10597 and 16508 totalling P12,163,298.10) on a
fifty-fifty ratio, and each bank is ORDERED to pay Ford Philippines, Inc. P6,081,649.05, with six percent
(6%) interest thereon, from the date the complaint was filed until full payment of said amount.
Costs against Philippine Commercial International Bank and Citibank, N.A. SO ORDERED.
Notes.—Issuing a crossed check imposes no legal obligation on the drawee not to honor such a
check. (Gempesaw vs. Court of Appeals, 218 SCRA 682 [19931)
There is no contractual relation created between a drawee bank and the payee as a result of the
payment by the former of the amount of the check. (Security Bank and Trust Company vs. Court of
Appeals, 291 SCRA 33 [1998])

[No. 29462. March 7, 1929]
IGNACIO DEL PRADO, plaintiff and appellee, vs. MANILA ELECTRIC CO.,
defendant and appellant.
1.
CARRIERS; STREET RAILWAY; PASSENGER BOARDING MOVING CAR;
DUTY OF MOTORMAN NOT TO INCREASE RISK.—Though there is no
obligation on the part of a street railway company to stop its cars to take on
intending passengers at other points than those appointed for stoppage,
nevertheless when the motorman sees a person attempting to board the car while
in motion, and at a place not appointed for stopping, he should not do any act to
increase the peril of such person; and if, in violation of this duty, the motorman in
charge of a car prematurely accelerates speed while the intending passenger is in
the act of boarding the car, with the result that he slips and gets his foot crushed
under the wheel of the moving car, the company is civilly liable in damages.
2.
ID.; ID.; ID.; OBLIGATION OF COMPANY TO PASSENGER.—The relation
between a carrier of passengers for hire and its patrons is of a contractual nature;
and the failure upon part of the carrier to use due care in conveying its
passengers safely is a breach of obligation under article 1101, and related
provisions, of the Civil Code. Furthermore, the duty that the carrier of passengers
owes to its patrons extends to persons boarding the. cars as well as to those
alighting theref rom.
3.
MASTER AND SERVANT; NEGLIGENCE OF SERVANT; BREACH OF
CONTRACTUAL DUTY.—The defense indicated in the last paragraph of article
1903 of the Civil Code is not available to the master when his servant is guilty of
a breach of duty under article 1101 and related provisions of said Code.
4.
NEGLIGENCE; CONTRIBUTORY NEGLIGENCE; MITIGATION OF
DAMAGES.—Contributory negligence upon part of a plaintiff, not amounting to
the proximate cause of his injury, is not completely destructive of his right of
action in cases where liability arises from breach of a contractual duty; but such
contributory negligence goes in mitigation of damages, under article 1103 of the
Civil Code.
Per JOHNSON, J., dissenting:
5.
STREET RAILWAY COMPANY, LIABILITY OF, FOR ALLEGED DAMAGES
TO PASSENGERS.—A street railway company should not be held liable for
damages done to a passenger when the motorman managed the car carefully and
with ordinary prudence at the moment of the alleged accident, and when the
passenger acted with imprudence and lack of care in attempting to board a street
car while the same was in motion: There is nothing in the record in the present
case to justify a contribution of damages. One is not entitled to recover damages
for personal injuries which. he himself, through his own negligence, occasioned,
without any negligence, imprudence or malice on the part of the person or entity
charged with causing said damages.
APPEAL from a judgment of the Court of First Instance of Manila. Concepcion, J.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by Ignacio del
Prado to recover damages in the amount of P50,000 for personal injuries alleged
to have been caused by the negligence of the defendant, the Manila Electric
Company, in the operation of one of its street cars in the City of Manila. Upon
hearing the cause the trial court awarded to the plaintiff the sum of ?10,000, as
damages, with costs of suit, and the defendant appealed.
The appellant, the Manila Electric Company, is engaged in operating street cars
in the City -of Manila for the conveyance of passengers; and on the morning of
November 18, 1925, one Teodorico Florenciano, as appellant's motorman, was in
charge of car No. 74 running from east to west on R. Hidalgo Street, the scene of
the accident being at a point near the intersection of said street and Mendoza
Street. After the car had stopped at its appointed place for taking on and letting
off passengers, just east of the intersection, it resumed its course at a moderate
speed under the guidance of the motorman. The car had proceeded only a short
distance, however, when the plaintiff, Ignacio del Prado, ran across the street to
catch the car, his approach being made from the left. The car was of the kind
having entrance and exit at either end, and the movement of the plaintiff was so
timed that he arrived at the front entrance of the car at the moment when the car
was passing.
The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends
to show that the plaintiff, upon approaching the car, raised his hand as an
indication to the motorman of his desire to board the car, in response to which the
motorman eased up a little, without stopping. Upon this the plaintiff seized, with
his left hand, the front perpendicular handpost, at the same time placing his left.
foot upon the platform. However, before the plaintiff's position had become secure,
and even before his raised right foot had reached the platf orm, the motorman
applied the power, with the result that the car gave a slight lurch forward. This
sudden impulse to the car caused the plaintiff 's (f oot to slip, and his hand was
jerked loose from the handpost. He therefore fell to the ground, and his right foot
was caught and crushed by the moving car. The next day the member had to be
amputated in the hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either side with
both right and lef t. hand. The latter statement may possibly be incorrect as
regards the use of his right hand by the plaintiff, but we are of the opinion that
the finding of the trial court to the effect that the motorman slowed up slightly as
the plaintiff was boarding the car and that the plaintiff's fall was due in part at
least to a sudden forward movement at the moment when the plaintiff put his foot
on the platform is supported by the evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff attempting to
board the car; that he did not accelerate the speed of the car as claimed by the
plaintiff's witnesses; and that he in fact knew nothing of the incident until after
the plaintiff had been hurt and some one called to him to stop. We are not
convinced of the complete candor of this statement, for we are unable to see how a
motorman operating this car could have failed to see a person boarding the car
under the circumstances revealed in this case. It must be remembered that the
front handpost which, as all witnesses agree, was grasped by the plaintiff in
attempting to board the car, was immediately on the left side of the motorman.
With respect to the legal aspects of the case we may observe at the outset that
there is no obligation on the part of a street railway company to stop its cars to let
on intending passengers at other points than those appointed for stoppage. In fact
it would be impossible to operate a system of street cars if a company engaged in
this business were required to stop any and everywhere to take on people who are
too indolent, or who imagine themselves to be in too great a hurry, to go to the
proper places for boarding the cars, Nevertheless, although the motorman of this
car was not bound to stop to let the plaintiff on, it was his duty to do no act that
would have the effect of increasing the plaintiff's peril while he was attempting to
board the car. The premature acceleration of the car was, in our opinion, a breach
of this duty.
The relation between a carrier of passengers for hire and its patrons is of a
contractual nature; and a failure on the part of the carrier to use due care in
carrying its passengers safely is a breach of duty (culpa contractual) under
articles 1101, 1103, and 1104 of the Civil Code. Furthermore, the duty that the
carrier of passengers owes to its patrons extends to persons boarding the cars as
well as to those alighting therefrom. The case of Cangco vs. Manila Railroad Co.
(38 Phil., 768), supplies an instance of the violation of this duty with respect to a
passenger who was getting, off of a train. In that case the plaintiff stepped off of a
moving train, while it was slowing down in a station, and at a time when it was
too dark for him to see clearly where he was putting his feet. The employees of the
company had carelessly left watermelons on the platf orm at the place where the
plaintiff alighted, with the result that his feet slipped and he fell under the car,
where his right arm was badly injured. This court held that the railroad company
was liable for breach of positive duty (culpa contractual), and the plaintiff was
awarded damages in the amount of P2,500 for the loss of his arm. In the opinion
in that case the distinction is clearly drawn between a liability for negligence
arising from breach of contractual duty and that arising under articles 1902 and
1903 of the Civil Code (culpa, aquiliana).
The distinction between these two sorts of negligence is important in this
jurisdiction, for the reason that where liability arises from a mere tort (culpa,
aquiliana), not involving a breach of positive obligation, an employer, or master,
may exculpate himself, under the last paragraph of article 1903 of the Civil Code,
by proving that he had exercised due diligence to prevent the damage; whereas
this def ense is not available if the liability of the master arises from a breach of
contractual duty (culpa contractual). In the case before us the company pleaded
as a special defense that it had used all the diligence of a good father of a family
to prevent the damage suffered by the plaintiff; and to establish this contention
the company introduced testimony showing that due care had been used in
training and instructing the motorman in charge of this car in his art. But this
proof is irrelevant in view of the fact that the liability involved was derived from a
breach of obligation under article 1101 of the Civil Code and related provisions.
(Manila Railroad Co. vs. Compañía Trasatlántica and Atlantic, Gulf & Pacific Co.,
38 Phil., 875, 887; De Guia vs. Manila Electric Railroad of Light Co., 40 Phil., 706,
710.)
Another practical difference between liability for negligence arising under article
1902 of the Civil Code and liability arising from negligence in the performance of
a positive duty, under article 1101 and related provisions of the Civil Code, is
that, in dealing with the latter form of negligence, the court is given a discretion
to mitigate liability according to the circumstances of the case (art 1103). No such
general discretion is given by the Code in dealing with liability arising under
article 1902; though possibly the same end is reached by courts in dealing with
the latter form of liability because of the latitude of the considerations pertinent
to cases arising under this article.
As to the contributory negligence of the plaintiff, we are of the opinion that it
should be treated, as in Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359), as a
mitigating circumstance under article 1103 of the Civil Code. It is obvious that
the plaintiff's negligence in attempting to board the moving car was not the
proximate cause of the injury. The direct and proximate cause of the injury was
the act of appellant's motorman in putting on the power prematurely. A person
boarding a moving car must be taken to assume the risk of injury from boarding
the car under the conditions open to his view, but he cannot fairly be held to
assume the risk that the motorman, having the situation in view, will increase his
peril by accelerating the speed of the car bef ore he is planted safely on the platf
orm. Again, the situation before us is one where the negligent act of the
company's servant succeeded the negligent act of the plaintiff, and the negligence
of the company must be considered the proximate cause of the injury. The rule
here applicable seems to be analogous to, if not identical with that which is
sometimes referred to as the doctrine of "the last clear chance." In accordance
with this doctrine, the contributory negligence of the party injured will not defeat
the action if it be shown that the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequences of the negligence of the injured
party (20 R. C. L., p. 139; Carr vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W.,
167). The negligence of the plaintiff was, however, contributory to the accident
and must be considered as a mitigating circumstance.
With respect to the effect of this injury upon the plaintiff's earning power, we note
that, although he lost his foot, he is able to use an artificial member without great
inconvenience and his earning capacity has probably not been reduced by more
than 30 per centum. In view of the precedents found in our decisions with respect
to the damages that ought to be awarded for the loss of a limb, and more
particularly Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359); Cangco vs.
Manila Railroad Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad
and Light Co. (44 Phil, 165), and in view of all the circumstances connected with
the case, we are of the opinion that the plaintiff will be adequately compensated
by an award of P2,500.

It being understood, therefore, that the appealed judgment is modified by

reducing the recovery to the sum of P2,500, the judgment, as thus modified, is
affirmed. So ordered, with costs against the appellant.

Malcolm, Villamor, Ostrand, Romualdez, and Villa-Real, JJ., concur.

JOHNSON, J., with whom concurs JOHNS, J., dissenting:

This appeal presents a hard case, whichever way it is decided.

I read the entire record in this case before it was submitted to the second division
for decision. I. was then the ponente. I. was then convinced, as I. am now, after a
reexamination of the record, that the judgment of the lower court should be
revoked for the following reasons:

(a)
That the motorman managed the car carefully and with ordinary prudence at the
moment the alleged accident occurred;

(b)
That the appellee acted with imprudence and lack of due care in attempting to board a
street car while the same was in motion; and

(c)
That he contributed to his own injury, without any negligence or malice or imprudence
on the part .of the defendant.

There is nothing in the record which even remotely justifies a contribution of

damages between the appellee and the appellant. The appellee should be required
to suffer the damages which he himself, through his own negligence, occasioned,
without any negligence, imprudence or malice on the part of the appellant.

Therefore, the judgment of the court a quo should be revoked, and the appellant
absolved from all liability under the compaint.

Judgment modified.

No. L-47379. May 16,1988 *
NATIONAL POWER CORPORATION, petitioner, vs. HONORABLE COURT OF APPEALS
and ENGINEERING CONSTRUCTION, INC., respondents.
No. L-47481. May 16, 1988.*
ENGINEERING CONSTRUCTION, INC., petitioner, vs. COURT OF APPEALS and
NATIONAL POWER CORPORATION, respondents.
Civil Law; Torts and Damages; Negligence; NPC cannot escape liability because
its negligence was the proximate cause of the loss and damage even though the
typhoon was an act of God.—It is clear from the appellate court’s decision that
based on its findings of fact and that of the trial court’s, petitioner NPC was
undoubtedly negligent because it opened the spillway gates of the Angat Dam
only at the height of typhoon “Welming” when it knew very well that it was safer
to have opened the same gradually and earlier, as it was also undeniable that
NPC knew of the coming typhoon at least four days before it actually struck. And
even though the typhoon was an act of God or what we may call force majeure,
NPC cannot escape liability because its negligence was the proximate cause of the
loss and damage. As we have ruled in Juan F. Nakpil & Sons v. Court of Appeals
(144 SCRA 596, 606–607): Thus, if upon the happening of a fortuitous event or an
act of God, there concurs a corresponding fraud, negligence, delay or violation or
contravention in any manner of the tenor of the obligation as provided for in
Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot
escape liability. The principle embodied in the act of God doctrine strictly requires
that the act must be one occasioned exclusively by the violence of nature and
human agencies are to be excluded from creating or entering into the cause of the
mischief. When the effect, the cause of which is to be considered, is found to be in
part the result of the participation of man, whether it be from active intervention
or neglect, or failure to act, the whole occurrence is thereby humanized, as it was,
and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp.
1174–1175). Thus, it has been held that when the negligence of a person concur s
with an act of God in producing a loss, such person is not exempt from liability by
showing that the immediate cause of the damage was the act of God. To be
exempt from liability for loss because of an act of God, he must be free from any
previous negligence or misconduct by which the loss or damage may have been
occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49
O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam
v. Smith, 45 Phil. 657)."
Same; Same; Same; Same; The question of whether or not there was negligence on
the part of NPC is a question of fact which falls within the jurisdiction of the
CA.—Furthermore, the question of whether or not there was negligence on the
part of NPC is a question of fact which properly falls within the jurisdiction of the
Court of Appeals and will not be disturbed by this Court unless the same is
clearly unfounded, Thus, in Tolentino v. Court of Appeals, (150 SCRA 26, 36) we
ruled: “Moreover, the findings of fact of the Court of Appeals are generally final
and conclusive upon the Supreme Court (Leonardo v. Court of Appeals, 120 SCRA
890 [1983]. In fact it is settled that the Supreme Court is not supposed to weigh
evidence but only to determine its substantially (Nunez v. Sandiganbayan, 100
SCRA 433 [1982] and will generally not disturb said findings of fact when
supported by substantial evidence (Aytona v. Court of appeals, 113 SCRA 575
[1985]; Collector of Customs of Manila v. Intermediate Appellate Court, 137
SCRA 3 [1985]. On the other hand substantial evidence is defined as such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion (Philippine Metal Products, Inc. v. Court of Industrial Relations, 90
SCRA 135 [1979]; Police Commission v. Lood, 127 SCRA 757 [1984]; Canete v.
WCC, 136 SCRA 302 [1985])."
Same; Same; Same; Same; Consequential damages; Court of Ap-peals did not err
in reducing the consequential damages from P333,200.00 to P19,000.00;
Reasons.—Likewise, it did not err in re-ducing the consequential damages from
P333,200.00 to P19,000.00. As shown by the records, while there was no
categorical statement or admission on the part of ECI that it bought a new crane
to replace the damaged one, a sales contract was presented to the effect that the
new crane would be delivered to it by Asian Enterprises within 60 days from the
opening of the letter of credit at the cost of P1 06,336.75. The offer was made by
Asian Enterprises a few days after the flood. As compared to the amount of
P106,336.75 for a brand new crane and paying the alleged amount of P4,000.00 a
day as rental for the use of a temporary crane, which use petitioner ECI alleged to
have lasted for a period of one year, thus, totalling P1 20,000.00, plus the fact that
there was already a sales contract between it and Asian Enterprises, there is no
reason why ECI should opt to rent a temporary crane for a period of one year. The
appellate court also found that the damaged crane was subsequently repaired and
re-activated and the cost of repair was P77,000.00. Therefore, it included the said
amount in the award of compensatory damages, but not the value of the new
crane. We do not find anything erroneous in the decision of the appellate court
that the consequential damages should represent only the service of the
temporary crane for one month. A contrary ruling would result in the unjust
enrichment of ECI.
Same; Same; Same; Same; Exemplary Damages; Appellate court is correct in
eliminating exemplary damages since there was no bad faith and gross negligence
on the part of NPC.—As to the question of exemplary damages, we sustain the
appellate court in eliminating the same since it found that there was no bad faith
on the part of NPC and that neither can the latter’s negligence be considered
gross. In Dee Hua Liong Electrical Equipment Corp. v. Reyes, (145 SCRA 713,
719) we ruled: “Neither may private respondent recover exemplary damages since
he is not entitled to moral or compensatory damages, and again because the
petitioner is not shown to have acted in a wanton, fraudulent, reckless or
oppressive manner (Art. 2234, Civil Code; Yutuk v. Manila Electric Co., 2 SCRA
377; Francisco v. Government Service Insurance System, 7 SCRA 577; Gutierrez
v. Villegas, 8 SCRA 527; Air France v. Carrascoso, 18 SCRA 155; Pan Pacific
(Phil.) v. Phil. Advertising Corp., 23 SCRA 977; Marchan v. Mendoza, 24 SCRA
888)."
PETITIONS to review the decision of the Court of Appeals.
GUTIERREZ, JR, J.:
These consolidated petitions seek to set aside the decision of the respondent Court
of Appeals which adjudged the National Power Corporation liable for damages
against Engineering Construction, Inc. The appellate court, however, reduced the
amount of damages awarded by the trial court. Hence, both parties filed their
respective petitions: the National Power Corporation (NPC) in G.R. No. 47379,
questioning the decision of the Court of Appeals for holding it liable for damages
and the Engineering Construction, Inc. (ECI) in G.R. No. 47481, questioning the
same decision for reducing the consequential damages and attorney’s fees and for
eliminating the exemplary damages.
The facts are succinctly summarized by the respondent Court of Appeals, as
follows:
“On August 4, 1964, plaintiff Engineering Construction, Inc., being a successful bidder,
executed a contract in Manila with the National Waterworks and Sewerage Authority
(NAWASA), whereby the former undertook to furnish all tools, labor, equipment, and
materials (not furnished by Owner), and to construct the proposed 2nd Ipo-Bicti Tunnel,
Intake and Outlet Structures, and Appurtenant Structures, and Appurtenant Features, at
Norzagaray, Bulacan, and to complete said works within eight hundred (800) calendar days
from the date the Contractor receives the formal notice to proceed (Exh. A).
“The project involved two (2) major phases: the first phase comprising the tunnel work
covering a distance of seven (7) kilometers, passing through the mountain, from the Ipo
river, a part of Norzagaray, Bulacan, where the Ipo Dam of the defendant National Power
Corporation is located, to Bicti; the other phase consisting of the outworks at both ends of
the tunnel.
“By September 1967, the plaintiff corporation already had completed the first major phase
of the work, namely, the tunnel excavation work. Some portions of the outworks at the Bicti
site were still under construction. As soon as the plaintiff corporation had finished the
tunnel excavation work at the Bicti site, all the equipment no longer needed there were
transferred to the Ipo site where some projects were yet to be completed.
“The record shows that on November 4, 1967, typhoon ‘Welming’ hit Central Luzon, passing
through defendant’s Angat Hydro-electric Project and Dam at Ipo, Norzagaray, Bulacan.
Strong winds struck the project area, and heavy rains intermittently fell. Due to the heavy
downpour, the water in the reservoir of the Angat Dam was rising perilously at the rate of
sixty (60) centimeters per hour. To prevent an overflow of water from the dam, since the
water level had reached the danger height of 212 meters above sea level, the defendant
corporation caused the opening of the spillway gates.” (pp. 45–46, L-47379 Rollo)
The appellate court sustained the findings of the trial court that the evidence
preponderantly established the fact that due to the negligent manner with which
the spillway gates of the Angat Dam were opened, an extraordinary large volume
of water rushed out of the gates, and hit the installations and construction works
of ECI at the Ipo site with terrific impact, as a result of which the latter’s
stockpile of materials and supplies, camp facilities and permanent structures and
accessories were either washed away, lost or destroyed.
The appellate court further found that:
“It cannot be pretended that there was no negligence or that the appellant exercised
extraordinary care in the opening of the spillway gates of the Angat Dam. Maintainers of
the dam knew very well that it was far more safe to open them gradually. But the spillway
gates were opened only when typhoon Welming was already at its height, in a vain effort to
race against time and prevent the overflow of water from the dam as it ‘was rising
dangerously at the rate of sixty centimeters per hour/ Action could have been taken as early
as November 3, 1967, when the water in the reservoir was still low. At that time, the gates
of the dam could have been opened in a regulated manner. Let it be stressed that the
appellant knew of the coming of the typhoon four days before it actually hit the project
area.” (p. 53, L-47379 Rollo)
As to the award of damages, the appellate court held:
“We come now to the award of damages. The appellee submitted a list of estimated losses
and damages to the tunnel project (Ipo side) caused by the instant flooding of the Angat
River (Exh. J-1). The damages were itemized in four categories, to wit: Camp Facilities—
P55,700.00; Equipment, Parts and Plant—P375,659.51; Materials—P107,175.80; and
Permanent Structures and accessories—P137,250.00, with an aggregate total amount of
P675,785.31. The list is supported by several vouchers which were all submitted as Exhibits
K to M-38-a, N to O, P to U-2 and V to X-60-a (Vide: Folders Nos. 1 to 4). The appellant did
not submit proofs to traverse the aforementioned documentary evidence. We hold that the
lower court did not commit any error in awarding P675,785.31 as actual or compensatory
damages.”
“However, We cannot sustain the award of P333,200.00 as consequential
damages. This amount is broken down as follows: P213,200.00 as and for the
rentals of a crane to temporarily replace the one ‘destroyed beyond repair,’ and
P120,000.00 as one month bonus which the appellee failed to realize in
accordance with the contract which the appellee had with NAWASA. Said rental
of the crane allegedly covered the period of one year at the rate of P40.00 an hour
for 16 hours a day. The evidence, however, shows that the appellee bought a crane
also a crawler type, on November 10, 1967, six (6) days after the incident in
question (Exh. N). And according to the lower court, which finding was never
assailed, the appellee resumed its normal construction work on the Ipo-Bicti
Project after a stoppage of only one month. There is no evidence when the
appellee received the crane from the seller, Asian Enterprise Limited, But there
was an agreement that the shipment of the goods would be effected within 60
days from the opening of the letter of credit (Exh. N). It appearing that the
contract of sale was consummated, We must conclude or at least assume that the
crane was delivered to the appellee within 60 days as stipulated. The appellee
then could have availed of the services of another crane for a period of only one
month (after a work stoppage of one month) at the rate of P40.00 an hour for 16
hours a day or a total of P1 9,200.00 as rental.
“But the value of the new crane cannot be included as part of actual damages because the
old was reactivated after it was repaired. The cost of the repair was P77,000.00 as shown in
item No. 1 under the Equipment, Parts and Plants category (Exh. J-1), which amount of
repair was already included in the actual or compensatory damages.” (pp. 54–56, L-47379,
Rollo)
The appellate court likewise rejected the award of unrealized bonus from
NAWASA in the amount of P120,000.00 (computed at P4,000.00 a day in case
construction is finished before the specified time, i.e., within 800 calendar days),
considering that the incident occurred after more than three (3) years or one
thousand one hundred seventy (1,170) days. The court also eliminated the award
of exemplary damages as there was no gross negligence on the part of NPC and
reduced the amount of attorney’s fees from P50,000.00 to P30,000.00.
In these consolidated petitions, NPC assails the appellate court’s decision as
being erroneous on the ground that the destruction and loss of the ECI’s
equipment and facilities were due to force majeure. It argues that the rapid rise of
the water level in the reservoir of its Angat Dam due to heavy rains brought
about by the typhoon was an extraordinary occurrence that could not have been
foreseen, and thus, the subsequent release of water through the spillway gates
and its resultant effect, if any, on ECI’s equipment and facilities may rightly be
attributed to force majeure.
On the other hand, ECI assails the reduction of the consequential damages from
P333,200.00 to P19,000.00 on the grounds that the appellate court had no basis in
concluding that ECI acquired a new Crawler-type crane and therefore, it only can
claim rentals for the temporary use of the leased crane for a period of one month;
and that the award of P4,000.00 a day or P120,000.00 a month bonus is justified
since the period limitation on ECI’s contract with NAWASA had dual effects, ie.,
bonus for earlier completion and liquidated damages for delayed performance;
and in either case at the rate of P4,000.00 daily. Thus, since NPC’s negligence
compelled work stoppage for a period of one month, the said award of P120,000.00
is justified. ECI further assailes the reduction of attorney’s fees and the total
elimination of exemplary damages.
Both petitions are without merit.
It is clear from the appellate court’s decision that based on its findings of fact and
that of the trial court’s, petitioner NPC was undoubtedly negligent because it
opened the spillway gates of the Angat Dam only at the height of typhoon
“Welming” when it knew very well that it was safer to have opened the same
gradually and earlier, as it was also undeniable that NPC knew of the coming
typhoon at least four days before it actually struck. And even though the typhoon
was an act of God or what we may call force majeure, NPC cannot escape liability
because its negligence was the proximate cause of the loss and damage. As we
have ruled in Juan F. Nakpil & Sons v. Court of Appeals, (144 SCRA 596, 606–
607):
“Thus, if upon the happening of a fortuitous event or an act of God, there concurs a
corresponding fraud, negligence, delay or violation or contravention in any manner of the
tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss
or damage, the obligor cannot escape liability.
“The principle embodied in the act of God doctrine strictly requires that the act must be one
occasioned exclusively by the violence of nature and human agencies are to be excluded from
creating or entering into the cause of the mischief. When the effect, the cause of which is to
be considered, is found to be in part the result of the participation of man, whether it be
from active intervention or neglect, or failure to act, the whole occurrence is thereby
humanized, as it was, and removed from the rules applicable to the acts of God. (1 Corpus
Juris, pp. 1174–1175).
“Thus, it has been held that when the negligence of a person concurs with an act of God in
producing a loss, such person is not exempt from liability by showing that the immediate
cause of the damage was the act of God. To be exempt from liability for loss because of an
act of God, he must be free from any previous negligence or misconduct by which the loss or
damage may have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker
v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604;
Lasam v. Smith, 45 Phil. 657)."
Furthermore, the question of whether or not there was negligence on the part of
NPC is a question of fact which properly falls within the jurisdiction of the Court
of Appeals and will not be disturbed by this Court unless the same is clearly
unfounded. Thus, in Tolentino v. Court of Appeals, (150 SCRA 26, 36) we ruled:
“Moreover, the findings of fact of the Court of Appeals are generally final and conclusive
upon the Supreme Court (Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In fact it is
settled that the Supreme Court is not supposed to weigh evidence but only to determine its
substantially (Nunez v. Sandiganbayan, 100 SCRA 433 [1982] and will generally not disturb
said findings of fact when supported by substantial evidence (Aytona v. Court of Appeals,
113 SCRA 575 [1985]; Collector of Customs of Manila v. Intermediate Appellate Court, 137
SCRA 3 [1985]. On the other hand substantial evidence is defined as such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion (Philippine Metal
Products, Inc. v. Court of Industrial Relations, 90 SCRA 135 [1979]; Police Commission v.
Lood, 127 SCRA 757 [1984]; Canete v. WCC, 136 SCRA 302 [1985])."
Therefore, the respondent Court of Appeals did not err in holding the NPC liable
for damages.
Likewise, it did not err in reducing the consequential damages from P333,200.00
to P19,000.00. As shown by the records, while there was no categorical statement
or admission on the part of ECI that it bought a new crane to replace the
damaged one, a sales contract was presented to the effect that the new crane
would be delivered to it by Asian Enterprises within 60 days from the opening of
the letter of credit at the cost of P106,336.75. The offer was made by Asian
Enterprises a few days after the flood. As compared to the amount of P1 06,336.75
for a brand new crane and paying the alleged amount of P4,000.00 a day as rental
for the use of a temporary crane, which use petitioner ECI alleged to have lasted
for a period of one year, thus, totalling P120,000.00, plus the fact that there was
already a sales contract between it and Asian Enterprises, there is no reason why
ECI should opt to rent a temporary crane for a period of one year. The appellate
court also found that the damaged crane was subsequently repaired and
reactivated and the cost of repair was P77,000.00. Therefore, it included the said
amount in the award of of compensatory damages, but not the value of the new
crane. We do not find anything erroneous in the decision of the appellate court
that the consequential damages should represent only the service of the
temporary crane for one month. A contrary ruling would result in the unjust
enrichment of ECI.

The P120,000.00 bonus was also properly eliminated as the same was granted by
the trial court on the premise that it represented ECI’s lost opportunity “to earn
the one month bonus from NAWASA x x x.” As stated earlier, the loss or damage
to ECI’s equipment and facilities occurred long after the stipulated deadline to
finish the construction. No bonus, therefore, could have been possibly earned by
ECI at that point in time. The supposed liquidated damages for failure to finish
the project within the stipulated period or the opposite of the claim for bonus is
not clearly presented in the records of these petitions. It is not shown that
NAWASA imposed them.

As to the question of exemplary damages, we sustain the appellate court in

eliminating the same since it found that there was no bad faith on the part of
NPC and that neither can the latter’s negligence be considered gross. In Dee Hua
Liong Electrical Equipment Corp. v. Reyes, (145 SCRA 713, 719) we ruled:

“Neither may private respondent recover exemplary damages since he is not entitled to
moral or compensatory damages, and again because the petitioner is not shown to have
acted in a wanton, fraudulent, reckless or oppressive manner (Art. 2234, Civil Code; Yutuk
v. Manila Electric Co., 2 SCRA 377; Francisco v. Government Service Insurance System, 7
SCRA 577; Gutierrez v. Villegas, 8 SCRA 527; Air France v. Carrascoso, 18 SCRA 155; Pan
Pacific (Phil.) v. Phil. Advertising Corp., 23 SCRA 977; Marchan v. Mendoza, 24 SCRA
888)."

We also affirm the reduction of attorney’s fees from P50,000.00 to P30,000.00.

There are no compelling reasons why we should set aside the appellate court’s
finding that the latter amount suffices for the services rendered by ECI’s counsel. ‘

WHEREFORE, the petitions in G.R. No. 47379 and G.R. No. 47481 are both
DISMISSED for LACK OF MERIT. The decision appealed from is AFFIRMED.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortés, JJ., concur.

Petitions dismissed. Decision affirmed.

Note.—No exemplary damages where there is no evidence of other party

having acted in wanton, fraudulent or reckless or oppressive manner. (Dee Hua
Liong Electric Equipment Corporation vs. Reyes, 145 SCRA 713).

G.R. No. 101683. February 23, 1995.*
LBC 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.
Negligence; Damages; Doctrine of Last Clear Chance; Essence of.—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 the supervening negligence
of, or bar a defense against 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.
Same; Same; Same; Court agrees 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.—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.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
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 settle, 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 Jamie Tano and LBC Air Cargo, Inc. to jointly and
severally pay the plaintiff Patrocinia Monterola the following amounts:
"To SHERWIN MONTEROLA:
1. "1.
Indemnity for the death of Rogelio Monterola—P50,000.00
2. "2.
For Moral damages—20,000.00
3. 'To PATROCINIA GRONDIANO Y MONTEROLA:
4. "3.
Actual damages—P7,361.00
5. "4.
Hospitals & Burial Expenses—15,000.00
6. "5.
Attorney's Fees and Expenses of Litigation—10,000.00
"Plus the costs.
"Actual payment of the aforementioned amounts should, however, be reduced by twenty
(20%) per cent."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.
"x x x xxx xxx
"Q 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 x x x 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 directive 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.
"x x x xxx x x x.
"Tano'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. E1), for the 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
the supervening negligence of, or bar a defense against 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.

Feliciano (Chairman), Romero, Melo and Francisco, JJ., concur.

Judgment affirmed.

Note.—View that the law imposes the duty on the doer to take precaution
against its mischievous results and the failure to do so constitutes negligence. (St.
Francis High School vs. Court of Appeals, 194 SCRA 341 [1991])

G.R. No. 45985. May 18, 1990.*
CHINA AIR LINES, LTD., petitioner, vs. COURT OF APPEALS, JOSE
PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU,
respondents.
G.R. No. 46036. May 18, 1990.*
PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners, vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES, LTD.,
respondents.
Actions; Torts; Contracts; Common Carriers; An airline passenger cannot file an
action for quasi-delict and then change his theory to breach of contract.—It,
therefore, becomes evident that respondent Pagsibigan, having sensed that he can
not hold CAL liable on a quasidelict, decided on appeal to instead make a sinistral
detour, so to speak, by claiming that his action against CAL is based on a breach
of contract of carriage. We can not permit respondent Pagsibigan to change his
theory at this stage; it would be unfair to the adverse party who would have no
more opportunity to present further evidence, material to the new theory, which
it could have done had it been aware earlier of the new theory at the time of the
hearing before the trial court.
Same; Same; Same; Same; Airline cannot be held liable for negligence of employee
of its ticketing agent (another airline).—There is indeed no basis whatsoever to
hold CAL liable on a quasi-delict or culpa aquiliana. As hereinbefore stated, the
court a quo absolved CAL of any liability for fault or negligence. This finding was
shared by respondent court when it concluded that defendant CAL did not
contribute to the negligence committed by therein defendants-appellants PAL and
Roberto Espiritu. Respondent Pagsibigan insists that CAL was barred from
proving that it observed due diligence in the selection and supervision of its
employees. This argument is obviously misplaced. CAL is not the employer of
PAL or Espiritu. In Duavit vs. The Hon. Court of Appeals, et al., we have stressed
the need of first establishing the existence of an employer-employee relationship
before an employer may be vicariously liable under Article 2180 of the Civil Code.
Same; Same; Same; Same; Agency; As employer, PAL is liable for negligence of its
employee even if PAL was acting as ticketing agent of CAL.—With respect to PAL
and Espiritu, they disclaim any liability on the theory that the former is merely
an agent of CAL and that the suit should have been directed against CAL alone.
There is no question that the contractual relation between both air lines is one of
agency. Suffice it to say, however, that in an action premised on the employee’s
negligence, whereby respondent Pagsibigan seeks recovery for the resulting
damages from both PAL and Espiritu without qualification, what is sought to be
imposed is the direct and primary liability of PAL as an employer under said
Article 2180.
Same; Same; Same; Same; Same.—PAL’s main defense is that it is only an agent.
As a general proposition, an agent who duly acts as such is not personally liable
to third persons. However, there are admitted exceptions, as in this case where
the agent is being sued for damages arising from a tort committed by his
employee.
Same; Same; Employer must rebut presumption of negligence of its employee.—
Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan
under Article 2176 of the Civil Code. For the failure of PAL to rebut the legal
presumption of negligence in the selection and supervision of its employee, it is
also primarily liable under Article 2180 of the same code which explicitly provides
that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
Same; Amount of damages may be reduced to reasonable level.—WHEREFORE,
the decision of respondent Court of Appeals is MODIFIED accordingly. China Air
Lines, Ltd. is hereby absolved from liability. Philippine Air Lines, Inc. and
Roberto Espiritu are declared jointly and severally liable to pay the sum of
P10,000.00 by way of nominal damages, without prejudice to the right of
Philippine Air Lines, Inc. to recover from Roberto Espiritu reimbursement of the
damages that it may pay respondent Jose Pagsibigan.
PETITIONS to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in
G.R. No. 46036.
Syquia Law Offices for Jose Pagsibigan .
REGALADO, J.:
These consolidated petitions seek the review of the decision of respondent court in
CA-G.R. No. 53023-R entitled “Jose E. Pagsibigan, Plaintiff-Appellant, vs.
Philippine Air Lines, Inc. and Roberto Espiritu, Defendants-Appellants; China
Air Lines, Ltd., Defendant-Appellee,”1 the dispositive portion of which declares:
“WHEREFORE, except for a modification of the judgment in the sense that the award of
P20,000.00 in favor of the plaintiff shall be in the concept of nominal damages instead of
exemplary damages, and that defendant China Air Lines, Ltd. shall likewise be liable with
its two co-defendants in a joint and solidary capacity, the judgment appealed from is hereby
affirmed in all other respects, without costs.”2
The challenged decision of respondent court contains a synthesis of the facts that
spawned these cases and the judgment of the court a quo which it affirmed with
modifications, thus:
“On June 4, 1968, plaintiff Jose E. Pagsibigan, then vice-president and general manager of
Rentokil (Phils.) Inc., a local firm dealing in insecticides, pesticides and related services
appurtenant thereto, purchased a plane ticket for a Manila-Taipei-Hongkong-Manila flight
from the Transaire Travel Agency. The said agency, through its Cecille Baron, contacted the
Manila Hotel branch of defendant Philippine Air Lines which at that time was a sales and
ticketing agent of defendant China Air Lines. On June 6, 1968, PAL, through its ticketing
clerk defendant Roberto Espiritu, cut and issued CAL Ticket No. 017991 for a Manila-
Taipei-Hongkong-Manila flight. According to the plane ticket, the plaintiff was booked on
CAL CI Flight No. 812 to depart from Manila for Taipei on June 10, 1968 at 1720 hours
(5:20 p.m.), Exhibit A.
“On June 10, 1968, one hour before the scheduled time of the flight as stated in
his ticket, the plaintiff arrived at the airport to check in for CI Flight No. 812.
Upon arriving at the airport, the plaintiff was informed that the plane he was
supposed to take for Taipei had left at 10:20 in the morning of that day. The PAL
employees at the airport made appropriate arrangements for the plaintiff to take
PAL’s flight to Taipei the following day, June 11, 1968. The plaintiff took said
flight and arrived in Taipei around noontime of the said date.
“On July 8, 1968, the plaintiff, through counsel, made formal demand on
defendant PAL for moral damages in not less than P125,000.00 for what the
plaintiff allegedly suffered as a result of his failure to take the flight as stated in
his plane ticket. (Exhibit E) After a series of negotiations among the plaintiff,
PAL and CAL failed to reach an amicable settlement, the plaintiff instituted this
action in the Court of First Instance of Rizal on September 22, 1969. In his
complaint, plaintiff prays for the recovery of P125,000.00 as moral damages and
P25,000.00 for and as attorney’s fees. The moral damages allegedly arose from the
gross negligence of defendant Roberto Espiritu in stating on the plane ticket that
the time of departure was 1720 hours, instead of 1020 hours which was the
correct time of departure in the revised summer schedule of CAL. Plaintiff claims
that by reason of his failure to take the plane, he suffered besmirched reputation,
embarrassment, mental anguish, wounded feelings and sleepless nights,
inasmuch as when he went to the airport, he was accompanied by his business
associates, close friends and relatives. He further averred that his trip to Taipei
was for the purpose of conferring with a certain Peng Siong Lim, president of the
Union Taiwan Chemical Corporation, scheduled at 9:00 a.m. on June 11, 1968.
“Defendant Philippine Air Lines alleges in its answer that the departure time
indicated by Espiritu in the ticket was furnished and confirmed by the
reservation office of defendant China Air Lines. It further avers that CAL had not
informed PAL’s Manila Hotel Branch of the revised schedule of its flight, nor
provided it with revised timetable; that when the travel agency sought to
purchase the ticket for the plaintiff on CAL CI Flight No. 812 for June 10, 1968,
Espiritu who was then the ticketing clerk on duty, checked with the reservation
office of CAL on the availability of space, the date and the time of said flight; that
CAL’s Dory Chan informed Espiritu that the departure time of Flight No. 812 on
June 10, 1968 was at 5:20 in the afternoon of said date. PAL asserted a cross-
claim against CAL for attorney’s fees and for reimbursement of whatever amount
the court may adjudge PAL to be liable to the plaintiff. Defendant Espiritu
adopted the defenses of his co-defendant PAL.
“Defendant China Air Lines, for its part, disclaims liability for the negligence and
incompetence of the employees of PAL. It avers that it had revised its schedule
since April 1, 1968, the same to be effective on April 20, 1968, and the said
revised schedule was adopted only after proper petition with and approval of the
Civil Aeronautics Board of which all airlines, including defendant PAL, were
notified; that both printed copies of the international timetable and of the
mimeographed notices of the official schedule and flight departure schedules were
distributed to all its sales agents, including PAL; that after the effectivity of the
new time schedules, PAL’s Manila Hotel office had been issuing and selling
tickets based on the revised time schedule; and that, assuming that the plaintiff
is entitled to recover damages, the liability is on PAL and not on CAL. A cross-
claim was likewise asserted by CAL against its co-defendant PAL.
“After due trial, the Court a quo rendered judgment laying the blame for the
erroneous entry in the ticket as to the time of departure to defendant Roberto
Espiritu, ticketing agent of defendant PAL, and that no employee of CAL
contributed to such erroneous entry. It was further ruled that the plaintiff had no
reason to claim moral damages but may be entitled to recover exemplary
damages. The dispositive portion of the decision makes the following adjudication:
‘WHEREFORE, premises considered, judgment is hereby rendered sentencing the
defendants Philippine Air Lines, Inc. and Roberto Espiritu, to pay to plaintiff Jose
Pagsibigan jointly and severally, by way of exemplary damages, the sum of Twenty
Thousand Pesos (P20,000.00) plus Two Thousand Pesos (P2,000.00) as reimbursement for
attorney’s fees and the costs.
‘The complaint is dismissed with respect to the defendant China Air Lines, Ltd. The cross-
claim filed by defendant PAL and Espiritu against defendant CAL as well as the cross-claim
filed by the defendant CAL against defendant PAL and Espiritu are also hereby dismissed.’
”3
From said decision of the court below, all the parties, except China Air Lines, Ltd.
appealed to respondent court which, however, sustained the ruling of the trial
court denying Pagsibigan’s claim for moral damages. It concluded that Roberto
Espiritu did not act with malice or in bad faith in making a wrong entry of the
time of departure on the ticket, and that the mistake committed by Espiritu
appears to be an honest one done in good faith.
Respondent court also ruled out the claim for exemplary damages for lack of legal
basis. Nonetheless, as earlier noted, it awarded Pagsibigan P20,000.00 as nominal
damages, under Article 2221 of the Civil Code, for the vindication of a legal wrong
committed against him.
As regards the liability of the parties, respondent court held:
“There can be little question as to the liability of PAL and Espiritu for the damage caused to
the plaintiff due to the erroneous entry in the plane ticket made by the latter. They seek to
justify the erroneous statement as to the time of departure on the ground that such was the
time given by Dory Chan to Espiritu when the latter called up for the reservation in favor of
plaintiff. Aside from the fact that Dory Chan had vigorously disclaimed having given such
information to Espiritu, We are convinced that, as the trial court had found, CAL had no
share in the error committed by Espiritu in indicating the time of departure of Flight No.
812. PAL had shown through the testimony of Carmen Ibazeta Gallaga, ticket
representative of PAL at the Manila Hotel Office, that they received circulars and
timetables of airlines in the PAL main office. It further appears that on two occasions,
defendant PAL cut and issued tickets for CAL based on the new schedule even before June
10, 1968. As a matter of fact, the other entries of time departures in the ticket issued to the
plaintiff are in accordance with the revised schedule, and that the only error therein was
with respect to the departure from Manila on June 10, 1968.
“However, in proving that the fault lied with Espiritu, defendant CAL derives no solace nor
gains an advantage. It may not claim exemption from liability by reason thereof. Espiritu
was an employee of PAL and whatever negligence was committed by him is attributable to
PAL. It is an admitted fact that PAL is an authorized agent of CAL. In this relationship, the
responsibility of defendant PAL for the tortious act of its agent or representative is
inescapable. x x x
xxx
“A similar principle is recognized in our Civil Code in its Art. 2180 x x x. Unlike in the
doctrine of respondeat superior, however, the Civil Code permits the employer to escape this
liability upon proof of having observed all the diligence of a good father of a family to
prevent the damage. We find the evidence of defendant CAL to be insufficient to overcome the
presumption of negligence on its part for the act done by defendant Roberto Espiritu. (Italics
supplied)
“The liability for the damage sustained by the plaintiff should, therefore, be borne by all of
the defendants in a joint and solidary capacity (Art. 2194). The liability of an employer
under Art. 2180 is primary and direct. x x x
xxx
“It appearing that defendant CAL, as employer or principal, did not contribute to the
negligence committed by defendants PAL and Roberto Espiritu, its liability to the plaintiff
could be passed on to said defendants. Defendant CAL, however, did not take an appeal and
did not, therefore, take exception to the dismissal of its cross-claim against defendants PAL
and Espiritu. This serves as an obstacle for a rendition of judgment favorable to CAL on its
said counterclaim.”4
In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air
Lines, Ltd. (CAL) relied on the following grounds:
1.
A principal can not be held liable, much less solidarily, for the negligence of the sub-
agent, where the former never participated in, ratified or authorized the latter’s act or
omission.
2.
Dismissal of the cross-claim of petitioner against the private respondents Philippine Air
Lines, Inc. and Roberto Espiritu will not prevent the release of the petitioner from liability
to the private respondent Pagsibigan.
3.
The award of damages was unwarranted both legally and factually.5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu
made the following submissions in G.R. No. L-46036, to wit:
1.
The respondent Court of Appeals erred in not holding that respondent China Air Lines,
Ltd., being the principal, is solely liable to respondent Pagsibigan.
2.
The respondent Court of Appeals erred in awarding respondent Pagsibigan the sum of
P20,000.00 as nominal damages.6
In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that
CAL’s liability is based on breach of contract of transportation which was the
proximate result of the negligence and/or error committed by PAL and Espiritu;
that even assuming that CAL has no share in the negligence of PAL and Espiritu,
the liability of CAL does not cease upon proof that it exercised all the diligence of
a good father of a family in the selection and supervision of its employees.
Traversing such contentions, CAL argues that it can not be made liable under
Article 2180 of the Civil Code because of the absence of employer-employee
relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL
is liable under Article 1909 of the said code which holds an agent responsible not
only for fraud but also for negligence which shall be judged with more or less rigor
by the courts, according to whether the agency was or was not for a compensation.
PAL, however, maintains that for lack of privity with Pagsibigan, the suit for
breach of contract should have been directed against CAL.
What surfaces as a procedural maneuver taken by respondent Pagsibigan in the
course of the proceedings in these cases has confused the real issues in the
controversy subject of both petitions before us.
Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the
same time, that is, to enforce the civil liability of CAL for breach of contract and,
likewise, to recover from PAL and Espiritu for tort or culpa aquiliana. What he
has overlooked is the proscription against double recovery under Article 2177 of
the Civil Code which, while not preventing recourse to any appropriate remedy,
prevents double relief for a single wrong.
To avoid inequitable effects under such confluence of remedies, the true nature of
the action instituted by respondent Pagsibigan must be determined. A careful
perusal of the complaint of respondent Pagsibigan will readily disclose that the
allegations thereof clearly and unmistakably make out a case for a quasi-delict in
this wise:
“4. That at all pertinent times particularly in June of 1968, defendant China Air Lines Ltd.
has been operating regular scheduled flights to and from Manila, and has offered
accommodations thereon through, among others, defendant PAL as its authorized sales
agent and/or ticketing agent, such that China Airlines Ltd. is here impleaded as being the
principal of defendant PAL;
“5. That at all pertinent times, particularly in June of 1968, defendant Roberto Espiritu has
been in the employ of defendant PAL at its sales counter at the PAL Manila Hotel branch
office and is here impleaded as defendant as being the proximate malfeasor in this cause of
action;
“12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10, 1968, as
set forth in his ticket (Annex ‘A’) solely and exclusively by reason of gross incompetence and
inexcusable negligence amounting to bad faith of defendant PAL—acting, through its sales
representative, the defendant Roberto Espiritu, of its Manila Hotel branch office—in the
discharge of its duties as sales agent and/or ticketing agent for defendant China Airlines
Ltd. as principal.
“13. That as a direct result of culpable incompetence and negligence of defendant Roberto
Espiritu as sales representative of defendant PAL, plaintiff was unable to attend to
previously scheduled business commitments in Taipei x x x resulting in direct and indirect
prejudice to plaintiff that has yet to be fully assessed;” (Italics supplied)7
Had the intention of respondent Pagsibigan been to maintain an action based on
breach of contract of carriage, he could have sued CAL alone considering that
PAL is not a real party to the contract. Moreover, in cases of such nature, the
aggrieved party does not have to prove that the common carrier was at fault or
was negligent. All he has to prove is the existence of the contract and the fact of
its non-performance by the carrier.8
The records disclose that the trial court delved much into the issues of who was at
fault, and its decision is primarily anchored on its factual findings regarding the
civil liability arising from culpa aquiliana of the erring party, to this effect:
“Plaintiff said that the erroneous entry in his ticket which made it appear that his
CAL flight of June 10, 1968 was to be at 5:20 in the afternoon was due to the fault
or negligence of PAL’s Roberto Espiritu, a co-defendant herein, as well as the
employees of the defendant CAL. In making CAL co-responsible, plaintiff appears
to rely on the doctrine that the principal is responsible for the act of an agent
done within the scope of the agency.
“There is no proof extant that any of the employees of CAL had contributed to the
erroneous entry in plaintiff’s CAL ticket for Taipei which placed his time of
departure to 5:20 o’clock in the afternoon of June 10, 1968. Only defendant
Roberto Espiritu appears to be solely and exclusively responsible for such error
and therefor the conclusion becomes inevitable that CAL must be absolved from
any blame because defendant Roberto Espiritu who committed the error is not an
employee or agent of the defendant CAL.”9
It, therefore, becomes evident that respondent Pagsibigan, having sensed that he
can not hold CAL liable on a quasi-delict, decided on appeal to instead make a
sinistral detour, so to speak, by claiming that his action against CAL is based on a
breach of contract of carriage.
We can not permit respondent Pagsibigan to change his theory at this stage; it
would be unfair to the adverse party who would have no more opportunity to
present further evidence, material to the new theory, which it could have done
had it been aware earlier of the new theory at the time of the hearing before the
trial court.10
There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa
aquiliana. As hereinbefore stated, the court a quo absolved CAL of any liability
for fault or negligence. This finding was shared by respondent court when it
concluded that defendant CAL did not contribute to the negligence committed by
therein defendants-appellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving that it observed
due diligence in the selection and supervision of its employees. This argument is
obviously misplaced. CAL is not the employer of PAL or Espiritu. In Duavit vs.
The Hon. Court of Appeals, et al.,11 we have stressed the need of first establishing
the existence of an employer-employee relationship before an employer may be
vicariously liable under Article 2180 of the Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on the theory that
the former is merely an agent of CAL and that the suit should have been directed
against CAL alone. There is no question that the contractual relation between
both air lines is one of agency. Suffice it to say, however, that in an action
premised on the employee’s negligence, whereby respondent Pagsibigan seeks
recovery for the resulting damages from both PAL and Espiritu without
qualification, what is sought to be imposed is the direct and primary liability of
PAL as an employer under said Article 2180.
When an injury is caused by the negligence of an employee, there instantly arises
a presumption of law that there was negligence on the part of the employer either
in the selection of the employee or in the supervision over him after such
selection. The presumption, however, may be rebutted by a clear showing on the
part of the employer that it has exercised the care and diligence of a good father of
a family in the selection and supervision of his employee.12
Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is
imperative that PAL must adduce sufficient proof that it exercised such degree of
care. PAL failed to overcome the presumption. As found by respondent court, CAL
had revised its schedule of flights since April 1, 1968; that after the Civil
Aeronautics Board had approved the revised schedule of flights, PAL was duly
informed thereof and, in fact, PAL’s Manila Hotel branch office had been issuing
and selling tickets based on the revised time schedule before June 10, 1968.
PAL’s main defense is that it is only an agent. As a general proposition, an agent
who duly acts as such is not personally liable to third persons. However, there are
admitted exceptions, as in this case where the agent is being sued for damages
arising from a tort committed by his employee.
The respondent court found that the mistake committed by Espiritu was done in
good faith. While there is no evidence that he acted with malice, we can not
entirely condone his actuations. As an employee of PAL, the nature of his
functions requires him to observe for the protection of the interests of another
person that degree of care, precaution and vigilance which the circumstances
justly demand. He committed a clear neglect of duty.
Notes.—The actual owner of a passenger jeep is solidarily liable with the
registered owner in a civil action on quasi-delict. (Jereos vs. Court of Appeals, 117
SCRA 395.)
The liability of the employer under Art. 2180 of the new Civil Code is direct
and immediate and not conditioned on a prior showing of negligence of the
employer. (Kapalaran Bus Line vs. Coronado, 176 SCRA 792.)
———o0o———
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Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan

under Article 2176 of the Civil Code. For the failure of PAL to rebut the legal
presumption of negligence in the selection and supervision of its employee, it is
also primarily liable under Article 2180 of the same code which explicitly provides
that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

Under the aforesaid provision, all that is required is that the employee, by his
negligence, committed a quasi-delict which caused damage to another, and this
suffices to hold the employer primarily and solidarily responsible for the tortious
act of the employee. PAL, however, can demand from Espiritu reimbursement of
the amount which it will have to pay the offended party’s claim.13

On the issue of damages, we agree, except as to the amount, that nominal

damages may be awarded to respondent Pagsibigan to vindicate the legal wrong
committed against him. It appearing that the wrong committed was immediately
rectified when PAL promptly booked him for the next morning’s flight to Taipei
where he arrived before noon of June 11, 1968 and was able to attend his
scheduled conference, and considering the concept and purpose of nominal
damages, the award of P20,000.00 must accordingly be reduced to an amount
equal or at least commensurate to the injury sustained.

WHEREFORE, the decision of respondent Court of Appeals is MODIFIED

accordingly. China Air Lines, Ltd. is hereby absolved from liability. Philippine Air
Lines, Inc. and Roberto Espiritu are declared jointly and severally liable to pay
the sum of P10,000.00 by way of nominal damages, without prejudice to the right
of Philippine Air Lines, Inc. to recover from Roberto Espiritu reimbursement of
the damages that it may pay respondent Jose Pagsibigan.

SO ORDERED.

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

Decision modified.

G.R. No. 91378. June 9, 1992.*
FIRST MALAYAN LEASING AND FINANCE CORPORATION, petitioner, vs.
THE HON. COURT OF APPEALS, CRISOSTOMO B. VITUG and ESTATE OF
VICENTE TRINIDAD, Represented by Widow GLORIA D. TRINIDAD,
respondents.
Damages; Common Carriers; Registered vehicle owner liable to third persons for
damages, regardless of who actual owner is.—This Court has consistently ruled
that regardless of who the actual owner of a motor vehicle might be, the
registered owner is the operator of the same with respect to the public and third
persons, and as such, directly and primarily responsible for the consequences of
its operation. In contemplation of law, the owner/operator of record is the
employer of the driver, the actual operator and employer being considered merely
as his agent (MYC-Agro-Industrial Corporation vs. Vda. de Caldo, 132 SCRA 10,
citing Vargas vs. Langcay, 6 SCRA 174; Tamayo vs. Aguino, 105 Phil. 949).
PETITION for review on certiorari of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
GRIÑO-AQUINO, J.:
This case brings to the fore the importance of motor vehicle registration in
determining who should be liable for the death or injuries suffered by passengers
or third persons as a consequence of the operation of a motor vehicle.
On June 26, 1984, Crisostomo B. Vitug filed Civil Case No. 84-25186 in the
Regional Trial Court of Manila, Branch XLIII, against the defendant. First
Malayan Leasing and Finance Corporation (FMLFC for short), to recover
damages for physical injuries, loss of personal effects, and the wreck of his car as
a result of a three-vehicle collision on December 14, 1983, involving his car,
another car, and an Isuzu cargo truck registered in the name of FMLFC and
driven by one Crispin Sicat.
The evidence shows that while Vitug's car was at a full stop at the intersection of
New York Street and Epifanio delos Santos Avenue (EDSA) in Cubao, Quezon
City, northwardbound, the on-coming Isuzu cargo truck bumped a Ford Granada
car behind him with such force that the Ford car was thrown on top of Vitug's car
crushing its roof. The cargo truck thereafter struck Vitug's car in the rear causing
the gas tank to explode and setting the car ablaze.
Stunned by the impact, Vitug was fortunately extricated from his car by solicitous
bystanders before the vehicle exploded. However, two of his passengers were
burned to death. Vitug's car, valued at P70,000, was a total loss.
When he regained consciousness in the hospital, Vitug discovered that he had lost
various personal articles valued at P48,950, namely a necklace with a diamond
pendant, a GP watch, a pair of Christian Dior eyeglasses, a gold Cross pen and a
pair of Bally shoes. Vitug also suffered injuries producing recurring pains in his
neck and back. Upon his physician's advice, he received further medical
treatment in the United States which cost him US$2,373.64 for his first trip, and
US$5,596.64 for the second.
At the time of the accident on December 14, 1983, the Isuzu cargo truck was
registered in the name of the First Malayan Leasing and Finance Corporation
(FMLFC).
However, FMLFC denied any liability, alleging that it was not the owner of the
truck, neither the employer of the driver Crispin Sicat, because it had sold the
truck to Vicente Trinidad on September 24,1980, after the latter had paid all his
monthly amortizations under the financing lease agreement between FMLFC and
Trinidad.
On FMLFC's motion, the lower court granted FMLFC's leave to file a third-party
complaint against Trinidad and admitted the third-party complaint filed
therewith.
Answering the third-party complaint, the Estate of Vicente Trinidad admitted
that the truck was operated by the deceased during his lifetime. Nevertheless, it
raised the defense that the estate of Vicente Trinidad was no longer existing
because the same had long been settled and partitioned extrajudicially by his
heirs.
On August 25, 1986, the trial court rendered a decision sentencing FMLFC to pay
Vitug the sum of P 133,950 with interest at the legal rate from the filing of the
complaint until fully paid, plus the sum of P10,000 as attorneys fees and costs.
FMLFC appealed in due time to the Court of Appeals which rendered a decision
on November 27, 1989 modifying the appealed judgment by ordering the third-
party defendant-appellee (Estate of Vicente Trinidad) to indemnify the appellant,
FMLFC, for whatever amount the latter may pay Vitug under the judgment. In
all other respects, the trial court's decision was affirmed.
FMLFC has filed this petition for review on certiorari praying that the decision of
the appellate court be reversed and set aside.
On February 14, 1990, the Court dismissed the petition for insufficiency in form
and substance, having failed to comply with the Rules of Court and Circular 1-88
requiring the submission of: (1) proof of service of the petition on the adverse
party, and (2) a certified true copy of the decision of the Court of Appeals.
Moreover, the petition was filed late on February 1, 1990, the due date being
January 27, 1990.
The petitioner filed a motion for reconsideration. On April 16, 1990, we granted
the same and reinstated the petition, Without giving it due date course, we
required the respondents to comment.
After deliberating on the petition, the comments of the private respondents, and
the petitioner's reply thereto, we find the petition to be bereft of merit, hence,
resolved to deny it.
In order for a transfer of ownership of a motor vehicle to be valid against third
persons, it must be recorded in the Land Transportation Office. For, although
valid between the parties, the sale cannot affect third persons who rely on the
public registration of the motor vehicle as conclusive evidence of ownership. In
law, FMLFC was the owner and operator of the Isuzu cargo truck, hence, fully
liable to third parties injured by its operation due to the fault or negligence of the
driver thereof.

In the first place, the factual finding of the trial court and the Court of Appeals WHEREFORE, the petition for review is DENIED for lack of merit. Costs
that the Isuzu vehicle which figured in the mishap was still registered in the against the petitioner.
name of FMLFC at the time of the accident, is not reviewable by this Court in a
petition for certiorari under Rule 45 of Rules of Court. SO ORDERED.

This Court has consistently ruled that regardless of who the actual owner of a Cruz (Chairman), Medialdea and Bellosillo, JJ., concur.
motor vehicle might be, the registered owner is the operator of the same with
respect to the public and third persons, and as such, directly and primarily Petition denied.
responsible for the consequences of its operation. In contemplation of law, the
owner/operator of record is the employer of the driver, the actual operator and
employer being considered merely as his agent (MYC-Agro-Industrial Corporation Note.—The registered owner or operator of record is the one liable for
damages caused by a vehicle regardless of any alleged sale or lease made thereon
vs. Vda. de Caldo, 132 SCRA 10, citing Vargas vs. Langcay, 6 SCRA 174; Tamayo
vs. Aguino, 105 Phil. 949). (MYC Agro-Industrial Corporation vs. Vda. de Caldo, 132 SCRA 10).

"We believe that it is immaterial whether or not the driver was actually employed
by the operator of record. It is even not necessary to prove who the actual owner
of the vehicle and the employer of the driver is. Granting that, in this case, the
father of the driver is the actual owner and that he is the actual employer,
following the wellsettled principle that the operator of record continues to be the
operator of the vehicle in contemplation of law, as regards the public and third
persons, and as such is responsible for the consequences incident to its operation,
we must hold and consider such owner-operator of record as the employer, in
contemplation of law, of the driver. And, to give effect to this policy of law as
enunciated in the above cited decisions of this Court, we must now extend the
same and consider the actual operator and employer as the agent of the operator
of record." (Vargas vs. Langcay, 6 SCRA 178; citing Montoya vs. Ignacio, G.R. No.
L-5868, Dec. 29, 1953; Timbol vs. Osias, G.R. No. L-7547, April 30, 1955; Vda. de
Medina vs. Cresencia, G.R. No. L-8194, July 11, 1956; Necesito vs. Paras, G.R.
No. L-10605, June 30, 1955.)

"x x x Were the registered owner allowed to evade responsibility by proving who
the supposed transferee or owner is, it would be easy for him by collusion with
others or otherwise, to escape said responsibility and transfer the same to an
indefinite person, or to one who possesses no property with which to respond
financially for the damage or injury done," (Erezo vs. Jepte, 102 Phil. 103.)

"x x x The registered owner or operator of record is the one liable for damages
caused by a vehicle regardless of any alleged sale or lease made thereon." (MYC-
Agro-Industrial Corp. vs. Vda. de Caldo, 132 SCRA 11.)

No. L-30212. September 30, 1987.*
BIENVENIDO GELISAN, petitioner, vs. BENITO ALDAY, respondent.
Civil Law; Transportation; Motor Vehicles; Damages; A registered owner of a
public service vehicle is responsible for damages that may arise from consequences
incident to its operation or that may be caused to any of the passengers therein—
The Court has invariably held in several decisions that the registered owner of a
public service vehicle is responsible for damages that may arise from
consequences incident to its operation or that may be caused to any of the
passengers therein.
Same; Same; Same; Same; Franchise; If the properties covered by a franchise is
transferred or leased to another without the requisite approval of the Public
Service Commission, the transfer is not binding upon the public and third
persons.—The claim of the petitioner that he is not liable in view of the lease
contract executed by and between him and Roberto Espiritu which exempts him
from liability to third persons, cannot be sustained because it appears that the
lease contract, adverted to, had not been approved by the Public Service
Commission. It is settled in our jurisprudence that if the property covered by a
franchise is transferred or leased to another without obtaining the requisite
approval, the transfer is not binding upon the public and third persons.
Same; Same; Same; Same; Same; Same; Rationale for the rule.—We also find no
merit in the petitioner's argument that the rule requiring the previous approval
by the Public Service Commission of the transfer or lease of the motor vehicle,
may be applied only in cases where there is no positive identification of the owner
or driver, or where there are very scant means of identification, but not in those
instances where the person responsible for damages has been fixed or determined
beforehand, as in the case at bar. The reason for the rule we reiterate in the
present case, was explained by the Court in Montoya vs. Ignacio, thus: The law
really requires the approval of the Public Service Commission in order that a
franchise, or any privilege pertaining thereto, may be sold or leased without
infringing the certificate issued to the grantee. The reason is obvious. Since a
franchise is personal in nature any transfer or lease thereof should be notified to
the Public Service Commission so that the latter may take proper safeguards to
protect the interest of the public. In fact, the law requires that, before the
approval is granted, there should be a public hearing, with notice to all interested
parties, in order that the Commission may determine if there are good and
reasonable grounds justifying the transfer or lease of the property covered by the
franchise, or if the sale or lease is detrimental to public interest, Such being the
reason and philosophy behind this requirement, it follows that if the property
covered by the franchise is transferred, or leased to another without obtaining the
requisite approval, the transfer is not binding against the Public Service
Commission and in contemplation of law the grantee continues to be responsible
under the franchise in relation to the Commission and to the Public.
Same; Same; Same; Same; Registered owner has the right to be indemnified for the
amount he may be required to pay as damages for the injury caused to a third
person, since the lease contract although not effective against the public is valid
and binding between the contracting parties.—Bienvenido Gelisan, the registered
owner, is not however without recourse. He has a right to be indemnified by
Roberto Espiritu for the amount that he may be required to pay as damages for
the injury caused to Benito Alday, since the lease contract in question, although
not effective against the public for not having been approved by the Public Service
Commission, is valid and binding between the contracting parties.
Same; Same; Same; Same; Registered owner/operator of a public service vehicle, is
jointly and severally liable with the driver for damages incurred by passengers or
third persons as a consequence of injuries sustained in the operation of said
vehicle.—We also find no merit in the petitioner's contention that his liability is
only subsidiary. The Court has consistently considered the registered
owner/operator of a public service vehicle to be jointly and severally liable with
the driver for damages incurred by passengers or third persons as a consequence
of injuries sustained in the operation of said vehicles.
PETITION for certiorari to review the judgment of the Court of Appeals.
The facts are stated in the opinion of the Court.
PADILLA, J.:
Review on certiorari of the judgment** rendered by the Court of Appeals, dated 11
October 1968, as amended by its resolution, dated 11 February 1969, in CA-G.R.
No, 32670-R, entitled: "Benito Alday, plaintiff-appellant, vs, Roberto Espiritu and
Bienvenido Gelisan, defendants-appellees," which ordered the herein petitioner
Bienvenido Gelisan to pay, jointly and severally, with Roberto Espiritu, the
respondent Benito Alday the amount of P5,397.30, with. legal interest thereon
from the filing of the complaint, and the costs of suit; and for the said Roberto
Espiritu to pay or refund the petitioner Bienvenido Gelisan whatever amount the
latter may have paid to the respondent Benito Alday by virtue of the judgment.
The uncontroverted facts of the case are, as follows:
"Defendant Bienvenido Gelisan is the owner of a freight truck bearing plate No. TH-2377.
On January 31, 1962, defendant Bienvenido Gelisan and Roberto Espiritu entered into a
contract marked Exhibit 3-Gelisan under which Espiritu hired the same freight truck of
Gelisan for the purpose of hauling rice, sugar, flour and fertilizer at an agreed price of
P18.00 per trip within the limits of the City of Manila provided the loads shall not exceed
200 sacks. It is also agreed that Espiritu shall bear and pay all losses and damages
attending the carriage of the goods to be hauled by him. The track was taken by a driver of
Roberto Espiritu on February 1,1962. Plaintiff Benito Alday, a trucking operator, and who
owns about 15 freight trucks, had known the defendant Roberto Espiritu since 1948 as a
truck operator. Plaintiff had a contract to haul the fertilizers of the Atlas Fertilizer
Corporation from Pier 4, North Harbor, to its Warehouse in Mandaluyong. Alday met
Espiritu at the gate of Pier 4 and the latter offered the use of his truck with the driver and
helper at 9 centavos per bag of fertilizer. The offer was accepted by plaintiff Alday and he
instructed his checker Celso Henson to let Roberto Espiritu haul the fertilizer. Espiritu
made two hauls of 200 bags of fertilizer per trip. The fertilizer was delivered to the driver
and helper of Espiritu with the necessary way bill receipts, Exhibits A and B. Espiritu,
however, did not deliver the fertilizer to the Atlas Fertilizer bodega at Mandaluyong. The
signatures appearing in the way bill receipts Exhibits A and B of the Alday Transportation
admittedly not the signature of any representative or employee of the Atlas Fertilizer
Corporation. Roberto Espiritu could not be found, and plaintiff reported the loss to the
Manila Police Department. Roberto Espiritu was later arrested and booked for theft. x x x
"Subsequently, plaintiff Alday saw the truck in question on Sto. Cristo St. and he notified
the Manila Police Department, and it was impounded by the police, It was claimed by
Bienvenido Gelisan from the Police Department after he had been notified by his employees
that the truck had been impounded by the police; but as he could not produce at the time
the registration papers, the police would not release the truck to Gelisan. As a result of the
impounding of the truck according to Gelisan, x x x and that for the release of the truck he
paid the premium of P300 to the surety company."1
Benito Alday was compelled to pay the value of the 400 bags of fertilizer, in the
amount of P5,397.33, to Atlas Fertilizer Corporation so that, on 12 February
1962, he (Alday) filed a complaint against Roberto Espiritu and Bienvenido
Gelisan with the Court of First Instance of Manila, docketed therein as Civil Case
No. 49603, for the recovery of damages suffered by him thru the criminal acts
committed by the defendants.
The defendant, Roberto Espiritu failed to file an answer and was, accordingly,
declared in default.
The defendant, Bienvenido Gelisan, upon the other hand, disowned responsibility.
He claimed that he had no contractual relations with the plaintiff Benito Alday as
regards the hauling and/or delivery of the 400 bags of fertilizer mentioned in the
complaint; that the alleged misappropriation or nondelivery by defendant Roberto
Espiritu of plaintiff's 400 bags of fertilizer, was entirely beyond his (Gelisan's)
control and knowledge, and which fact became known to him, for the first time. on
8 February 1962 when his freight truck, with plate No. TH-2377, was impounded
by the Manila Police Department, at the instance of the plaintiff; and that in his
written contract of hire with Roberto Espiritu, it was expressly provided that the
latter will bear and pay all losses and damages attending the carriage of goods to
be hauled by said Roberto Espiritu.
After trial, the Court of First Instance of Manila ruled that Roberto Espiritu alone
was liable to Benito Alday, since Bienvenido Gelisan was not privy to the contract
between Espiritu and Alday. The dispositive portion of the decision reads, as
follows:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendant Roberto Espiritu for the sum of P6,000 with interest at the legal rate from the
time of the filing of the complaint, and the costs of the suit Plantiff's complaint is dismissed
with respect to defendant Bienvenido Gelisan, and judgment is rendered in favor of
defendant Bienvenido Gelisan and against the plaintiff for the sum of P350."2
On appeal, however, the Court of Appeals, citing the case of Montoya vs. Ignacio,3
found that Bienvenido Gelisan is likewise liable for being the registered owner of
the truck; and that the lease contract, executed by and between Bienvenido
Gelisan and Roberto Espiritu, is not binding upon Benito Alday for not having
been previously approved by the Public Service Commission. Accordingly, it
sentenced Bienvenido Gelisan to pay, jointly and severally with Roberto Espiritu,
Benito Alday the amount of P5,397.30, with legal interest thereon from the filing
of the complaint; and to pay the costs. Roberto Espiritu, in turn, was ordered to
pay or refund Bienvenido Gelisan whatever amount the latter may have paid to
Benito Alday by virtue of the judgment.4
Hence, the present recourse by Bienvenido Gelisan.
The petition is without merit.
The judgment rendered by the Court of Appeals, which is sought to be reviewed,
is in accord with the facts and the law on the case and we find no cogent reason to
disturb the same. The Court has invariably held in several decisions that the
registered owner of a public service vehicle is responsible for damages that may
arise from consequences incident to its operation or that may be caused to any of
the passengers therein,5 The claim of the petitioner that he is not liable in view of
the lease contract executed by and between him and Roberto Espiritu which
exempts him from liability to third persons, cannot be sustained because it
appears that the lease contract, adverted to, had not been approved by the Public
Service Commission. It is settled in our jurisprudence that if the property covered
by a franchise is transferred or leased to another without obtaining the requisite
approval, the transfer is not binding upon the public and third persons.6
We also find no merit in the petitioner's argument that the rule requiring the
previous approval by the Public Service Commission of the transfer or lease of the
motor vehicle, may be applied only in cases where there is no positive
identification of the owner or driver, or where there are very scant means of
identification, but not in those instances where the person responsible for
damages has been fixed or determined beforehand, as in the case at bar. The
reason for the rule we reiterate in the present case, was explained by the Court in
Montoya vs. Ignacio,7 thus:
"There is merit in this contention. The law really requires the approval of the Public Service
Commission in order that a franchise. or any privilege pertaining thereto, may be sold or
leased without infringing the certificate issued to the grantee. The reason is obvious. Since a
franchise is personal in nature any transfer or lease thereof should be notified to the Public
Service Commission so that the latter may take proper safeguards to protect the interest of
the public. In fact, the law requires that, before the approval is granted, there should be a
public hearing, with notice to all interested parties, in order that the Commission may
determine if there are good and reasonable grounds justifying the transfer or lease of the Petition denied
property covered by the franchise, or if the sale or lease is detrimental to public interest.
Such being the reason and philosophy behind this re quirement, it follows that if the
property covered by the franchise is transferred, or leased to another without obtaining the Notes.—In proceedings for granting of certificate of public convenience, the
requisite approval, the transfer is not binding against the Public Service Commission and in application must not only be published in newspaper, but also notice must be
contemplation of law the grantee continues to be responsible under the franchise in relation individually given to affected parties. (Cordero vs. Public Service Commission, 121
to the Commission and to the Public. Since the lease of the jeepney in question was made SCRA 769.)
without such approval, the only conclusion that can be drawn is that Marcelino Ignacio still
continues to be its operator in contemplation of law, and as such is responsible for the
consequences incident to its operation, one of them being the collision under consideration." Civil liability of bus owner for death caused by his driver, subsidiary, and
insurance proceeds paid to heir of victim by insurance credited in favor of erring
driver. (De Caliston vs. Court of Appeals, 122 SCRA 958.)
Bienvenido Gelisan, the registered owner, is not however without recourse. He
has a right to be indemnified by Roberto Espiritu for the amount that he may be
required to pay as damages for the injury caused to Benito Alday, since the lease , Inc. All rights reserved.
contract in question, although not effective against the public for not having been
approved by the Public Service Commission, is valid and binding between the
contracting parties.8

We also find no merit in the petitioner's contention that his liability is only
subsidiary. The Court has consistently considered the registered owner/operator
of a public service vehicle to be jointly and severally liable with the driver for
damages incurred by passengers or third persons as a consequence of injuries
sustained in the operation of said vehicles. Thus, in the case of Vargas vs.
Langcay,9 the Court said:

"We hold that the Court of Appeals erred in considering appellant-petitioner Diwata Vargas
only subsidiarily liable under Article 103 of the Revised Penal Code. This court, in previous
decisions, has always considered the registered owner/operator of a passenger vehicle,
jointly and severally liable with the driver, for damages incurred by passengers or third
persons as a consequence of injuries (or death) sustained in the operation of said vehicles.
(Montoya vs. Ignacio, 94 Phil., 182; Timbol vs. Osias, G.R. No. L-7547, April 30,1955; Vda.
de Medina vs. Cresencia, 99 Phil., 506; Necesito vs. Paras, 104 Phil., 75; Erezo vs. Jepte, 102
Phil, 103; Tamayo vs. Aquino and Rayos vs. Tamayo, 105 Phil., 949; 56 Off. Gaz. [36] 5617.)
In the case of Erezo vs. Jepte, Supra, We held:

"* * * In synthesis, we hold that the registered owner, the defendant-appellant herein, is
primarily responsible for the damage caused * * *" (Italics ours)

In the case of Tamayo vs. Aquino, supra, We said:

"* * * As Tamayo is the registered owner of the truck, his responsibility to the public or to
any passenger riding in the vehicle or truck must be direct* * * (Italics ours)

WHEREFORE, the petition is hereby DENIED. With costs against the petitioner.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.