Contents

Barredo vs Garcia....................................................................................................... 1
Mendoza vs La Mallorca............................................................................................ 29
Virata vs Ochoa........................................................................................................ 33
Layugan vs IAC........................................................................................................ 36
Picart vs Smith......................................................................................................... 47
Phil Hawk vs Vivian Lee............................................................................................ 52
Phoenix vs IAC......................................................................................................... 68

Barredo vs Garcia
G.R. No. L-48006 July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

BOCOBO, J.:

This case comes up from the Court of Appeals which held the petitioner
herein, Fausto Barredo, liable in damages for the death of Faustino Garcia
caused by the negligence of Pedro Fontanilla, a taxi driver employed by said
Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between
Malabon and Navotas, Province of Rizal, there was a head-on collision
between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a
carretela guided by Pedro Dimapalis. The carretela was overturned, and one
of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from
which he died two days later. A criminal action was filed against Fontanilla in
the Court of First Instance of Rizal, and he was convicted and sentenced to
an indeterminate sentence of one year and one day to two years of prision
correccional. The court in the criminal case granted the petition that the

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right to bring a separate civil action be reserved. The Court of Appeals
affirmed the sentence of the lower court in the criminal case. Severino
Garcia and Timotea Almario, parents of the deceased on March 7, 1939,
brought an action in the Court of First Instance of Manila against Fausto
Barredo as the sole proprietor of the Malate Taxicab and employer of Pedro
Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest from the date
of the complaint. This decision was modified by the Court of Appeals by
reducing the damages to P1,000 with legal interest from the time the action
was instituted. It is undisputed that Fontanilla 's negligence was the cause of
the mishap, as he was driving on the wrong side of the road, and at high
speed. As to Barredo's responsibility, the Court of Appeals found:

... It is admitted that defendant is Fontanilla's employer. There is proof

that he exercised the diligence of a good father of a family to prevent
damage. (See p. 22, appellant's brief.) In fact it is shown he was
careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) violation
which appeared in the records of the Bureau of Public Works available
to be public and to himself. Therefore, he must indemnify plaintiffs
under the provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is
governed by the Revised Penal Code; hence, his liability is only subsidiary,
and as there has been no civil action against Pedro Fontanilla, the person
criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:

... The Court of Appeals holds that the petitioner is being sued for his
failure to exercise all the diligence of a good father of a family in the
selection and supervision of Pedro Fontanilla to prevent damages
suffered by the respondents. In other words, The Court of Appeals
insists on applying in the case article 1903 of the Civil Code. Article
1903 of the Civil Code is found in Chapter II, Title 16, Book IV of the
Civil Code. This fact makes said article to a civil liability arising from a
crime as in the case at bar simply because Chapter II of Title 16 of
Book IV of the Civil Code, in the precise words of article 1903 of the
Civil Code itself, is applicable only to "those (obligations) arising from
wrongful or negligent acts or commission not punishable by law.

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The gist of the decision of the Court of Appeals is expressed thus:

... We cannot agree to the defendant's contention. The liability sought

to be imposed upon him in this action is not a civil obligation arising
from a felony or a misdemeanor (the crime of Pedro Fontanilla,), but
an obligation imposed in article 1903 of the Civil Code by reason of his
negligence in the selection or supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs may bring this
separate civil action against Fausto Barredo, thus making him primarily and
directly, responsible under article 1903 of the Civil Code as an employer of
Pedro Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is
only subsidiary, according to said Penal code, but Fontanilla has not been
sued in a civil action and his property has not been exhausted. To decide the
main issue, we must cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos, or crimes under the
Penal Code and fault or negligence under articles 1902-1910 of the Civil
Code. This should be done, because justice may be lost in a labyrinth, unless
principles and remedies are distinctly envisaged. Fortunately, we are aided in
our inquiry by the luminous presentation of the perplexing subject by
renown jurists and we are likewise guided by the decisions of this Court in
previous cases as well as by the solemn clarity of the consideration in
several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is

a separate legal institution under the Civil Code with a substantivity all its
own, and individuality that is entirely apart and independent from delict or
crime. Upon this principle and on the wording and spirit article 1903 of the
Civil Code, the primary and direct responsibility of employers may be safely
anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as
follows:

CIVIL CODE

3
ART. 1089 Obligations arise from law, from contracts and quasi-
contracts, and from acts and omissions which are unlawful or in which
any kind of fault or negligence intervenes.

xxx xxx xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors

shall be governed by the provisions of the Penal Code.

ART. 1093. Those which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervenes shall be subject
to the provisions of Chapter II, Title XVI of this book.

xxx xxx xxx

ART 1902. Any person who by an act or omission causes damage to

another by his fault or negligence shall be liable for the damage so
done.

ART. 1903. The obligation imposed by the next preceding article is

enforcible, not only for personal acts and omissions, but also for those
of persons for whom another is responsible.

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

Guardians are liable for damages done by minors or incapacitated

persons subject to their authority and living with them.

Owners or directors of an establishment or business are equally liable

for any damages caused by their employees while engaged in the
branch of the service in which employed, or on occasion of the
performance of their duties.

The State is subject to the same liability when it acts through a special
agent, but not if the damage shall have been caused by the official
upon whom properly devolved the duty of doing the act performed, in
which case the provisions of the next preceding article shall be
applicable.

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

The liability imposed by this article shall cease in case the persons
mentioned therein prove that they are exercised all the diligence of a
good father of a family to prevent the damage.

ART. 1904. Any person who pays for damage caused by his employees
may recover from the latter what he may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. Every person

criminally liable for a felony is also civilly liable.

ART. 101. Rules regarding civil liability in certain cases. The

exemption from criminal liability established in subdivisions 1, 2, 3, 5,
and 6 of article 12 and in subdivision 4 of article 11 of this Code does
not include exemption from civil liability, which shall be enforced to the
following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability

for acts committed by any imbecile or insane person, and by a person
under nine years of age, or by one over nine but under fifteen years of
age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor

under his authority, legal guardianship, or control, or if such person be
insolvent, said insane, imbecile, or minor shall respond with their own
property, excepting property exempt from execution, in accordance
with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person

for whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.

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The courts shall determine, in their sound discretion, the proportionate
amount for which each one shall be liable.

When the respective shares can not be equitably determined, even

approximately, or when the liability also attaches to the Government, or to
the majority of the inhabitants of the town, and, in all events, whenever the
damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or
regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons
using violence or causing the fear shall be primarily liable and secondarily,
or, if there be no such persons, those doing the act shall be liable, saving
always to the latter that part of their property exempt from execution.

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and

proprietors of establishment. In default of persons criminally liable,
innkeepers, tavern keepers, and any other persons or corporation shall
be civilly liable for crimes committed in their establishments, in all
cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their
employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken
by robbery or theft within their houses lodging therein, or the person,
or for the payment of the value thereof, provided that such guests
shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and
shall furthermore have followed the directions which such innkeeper or
his representative may have given them with respect to the care of
and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation against or intimidation of
persons unless committed by the innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. The subsidiary

liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

6
 xxx xxx xxx

ART. 365. Imprudence and negligence. 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 minimum period; if it
would have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an

act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum periods; if it
would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed."

It will thus be seen that while the terms of articles 1902 of the Civil Code
seem to be broad enough to cover the driver's negligence in the instant
case, nevertheless article 1093 limits cuasi-delitos to acts or omissions "not
punishable by law." But inasmuch as article 365 of the Revised Penal Code
punishes not only reckless but even simple imprudence or negligence, the
fault or negligence under article 1902 of the Civil Code has apparently been
crowded out. It is this overlapping that makes the "confusion worse
confounded." However, a closer study shows that such a concurrence of
scope in regard to negligent acts does not destroy the distinction between
the civil liability arising from a crime and the responsibility for cuasi-delitos
or culpa extra-contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100 of the Revised
Penal Code, or create an action for cuasi-delito or culpa extra-
contractual under articles 1902-1910 of the Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and

unmistakable. This legal institution is of ancient lineage, one of its early
ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal
terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or negligence
under the Civil Code; for instance, Law 6, Title 15, of Partida 7, says:
"Tenudo es de fazer emienda, porque, como quier que el non fizo a
sabiendas en dao al otro, pero acaescio por su culpa."

7
The distinctive nature of cuasi-delitos survives in the Civil Code. According to
article 1089, one of the five sources of obligations is this legal institution
of cuasi-delito or culpa extra-contractual: "los actos . . . en que intervenga
cualquier genero de culpa o negligencia." Then article 1093 provides that
this kind of obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-0910. This portion of the Civil Code is exclusively
devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of
private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act,
while the Civil Code, by means of indemnification, merely repairs the
damage.

3. That delicts are not as broad as quasi-delicts, because the former are
punished only if there is a penal law clearly covering them, while the
latter, cuasi-delitos, include all acts in which "any king of fault or negligence
intervenes." However, it should be noted that not all violations of the penal
law produce civil responsibility, such as begging in contravention of
ordinances, violation of the game laws, infraction of the rules of traffic when
nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil,"
Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of
quasi-delicts and the employer's primary and direct liability under article
1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia

Juridica Espaola" (Vol. XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos

aspectos y comprende a diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en ningun casl lleva
aparejada responsabilidad criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito o falta."

8
 The juridical concept of civil responsibility has various aspects and
comprises different persons. Thus, there is a civil responsibility,
properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necessary consequence of the
penal liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There

had been a collision between two trains belonging respectively to the
Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the
latter had been prosecuted in a criminal case, in which the company had
been made a party as subsidiarily responsible in civil damages. The
employee had been acquitted in the criminal case, and the employer, the
Ferrocarril del Norte, had also been exonerated. The question asked was
whether the Ferrocarril Cantabrico could still bring a civil action for damages
against the Ferrocarril del Norte. Maura's opinion was in the affirmative,
stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):

Quedando las cosas asi, a proposito de la realidad pura y neta de

los hechos, todavia menos parece sostenible que exista cosa
juzgada acerca de la obligacion civil de indemnizar los quebrantos y
menoscabos inferidos por el choque de los trenes. El titulo en que se
funda la accion para demandar el resarcimiento, no puede confundirse
con las responsabilidades civiles nacidas de delito, siquiera exista en
este, sea el cual sea, una culpa rodeada de notas agravatorias que
motivan sanciones penales, mas o menos severas. La lesion causada
por delito o falta en los derechos civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual la pena misma ataen al
orden publico; por tal motivo vienen encomendadas, de ordinario, al
Ministerio Fiscal; y claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa procurar el ya
conseguido desagravio; pero esta eventual coincidencia de los efectos,
no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que

no vendrian a cuento y que tiene otro regimen), dimanan, segun el
articulo 1902 del Codigo Civil, de toda accion u omision, causante de
daos o perjuicios, en que intervenga culpa o negligencia. Es trivial
que acciones semejantes son ejercitadas ante los Tribunales de lo civil

9
cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los
asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos
al espiritu y a los fines sociales y politicos del mismo, desenvuelven y
ordenan la materia de responsabilidades civiles nacidas de delito, en
terminos separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedentes legislativos del Corpus
Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la
de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso
y es necesaria una de las diferenciaciones que en el tal paralelo se
notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo

las responsabilidades civiles, entre los que sean por diversos conceptos
culpables del delito o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los delincuentes; pero
con caracter subsidiario, o sea, segun el texto literal, en defecto de los
que sean responsables criminalmente. No coincide en ello el Codigo
Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo
anterior es exigible, no solo por los actos y omisiones propios, sino por
los de aquellas personas de quienes se debe responder; personas en la
enumeracion de las cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con
ocasion de sus funciones. Por esto acontece, y se observa en la
jurisprudencia, que las empresas, despues de intervenir en las causas
criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y
aisladamente, cuando se trata de la obligacion, ante los tribunales
civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando

verdadero postulado de nuestro regimen judicial la separacion entre
justicia punitiva y tribunales de lo civil, de suerte que tienen unos y
otros normas de fondo en distintos cuerpos legales, y diferentes
modos de proceder, habiendose, por aadidura, abstenido de asistir al
juicio criminal la Compaia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de indemnizacion por
los daos y perjuicios que le irrogo el choque, no estuvo sub
judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun

10
cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas
arriba, que tal accion quedaba legitimamente reservada para despues
del proceso; pero al declararse que no existio delito, ni responsabilidad
dimanada de delito, materia unica sobre que tenian jurisdiccion
aquellos juzgadores, se redobla el motivo para la obligacion civil ex
lege, y se patentiza mas y mas que la accion para pedir su
cumplimiento permanece incolume, extraa a la cosa juzgada.

As things are, apropos of the reality pure and simple of the facts, it
seems less tenable that there should be res judicata with regard to the
civil obligation for damages on account of the losses caused by the
collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a
crime, because there exists in the latter, whatever each nature,
a culpasurrounded with aggravating aspects which give rise to penal
measures that are more or less severe. The injury caused by a felony
or misdemeanor upon civil rights requires restitutions, reparations, or
indemnifications which, like the penalty itself, affect public order; for
this reason, they are ordinarily entrusted to the office of the
prosecuting attorney; and it is clear that if by this means the losses
and damages are repaired, the injured party no longer desires to seek
another relief; but this coincidence of effects does not eliminate the
peculiar nature of civil actions to ask for indemnity.

Such civil actions in the present case (without referring to contractual

faults which are not pertinent and belong to another scope) are
derived, according to article 1902 of the Civil Code, from every act or
omission causing losses and damages in which culpa or negligence
intervenes. It is unimportant that such actions are every day filed
before the civil courts without the criminal courts interfering therewith.
Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind
the spirit and the social and political purposes of that Code, develop
and regulate the matter of civil responsibilities arising from a crime,
separately from the regime under common law, of culpa which is
known as aquiliana, in accordance with legislative precedent of
the Corpus Juris. It would be unwarranted to make a detailed
comparison between the former provisions and that regarding the
obligation to indemnify on account of civil culpa; but it is pertinent and
necessary to point out to one of such differences.

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Articles 20 and 21 of the Penal Code, after distriburing in their own
way the civil responsibilities among those who, for different reasons,
are guilty of felony or misdemeanor, make such civil responsibilities
applicable to enterprises and establishments for which the guilty
parties render service, but with subsidiary character, that is to say,
according to the wording of the Penal Code, in default of those who
are criminally responsible. In this regard, the Civil Code does not
coincide because article 1903 says: "The obligation imposed by the
next preceding article is demandable, not only for personal acts and
omissions, but also for those of persons for whom another is
responsible." Among the persons enumerated are the subordinates and
employees of establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this reason that it
happens, and it is so observed in judicial decisions, that the companies
or enterprises, after taking part in the criminal cases because of their
subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to the obligation, before
the civil courts.

Seeing that the title of this obligation is different, and the separation
between punitive justice and the civil courts being a true postulate of
our judicial system, so that they have different fundamental norms in
different codes, as well as different modes of procedure, and inasmuch
as the Compaa del Ferrocarril Cantabrico has abstained from taking
part in the criminal case and has reserved the right to exercise its
actions, it seems undeniable that the action for indemnification for the
losses and damages caused to it by the collision was not sub
judice before the Tribunal del Jurado, nor was it the subject of a
sentence, but it remained intact when the decision of March 21 was
rendered. Even if the verdict had not been that of acquittal, it has
already been shown that such action had been legitimately reserved till
after the criminal prosecution; but because of the declaration of the
non-existence of the felony and the non-existence of the responsibility
arising from the crime, which was the sole subject matter upon which
the Tribunal del Juradohad jurisdiction, there is greater reason for the
civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata.

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Laurent, a jurist who has written a monumental work on the French Civil
Code, on which the Spanish Civil Code is largely based and whose provisions
on cuasi-delito or culpa extra-contractual are similar to those of the Spanish
Civil Code, says, referring to article 1384 of the French Civil Code which
corresponds to article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for
another), without including the author of the act. The action against
the principal is accessory in the sense that it implies the existence of a
prejudicial act committed by the employee, but it is not subsidiary in
the sense that it can not be instituted till after the judgment against
the author of the act or at least, that it is subsidiary to the principal
action; the action for responsibility (of the employer) is in itself a
principal action. (Laurent, Principles of French Civil Law, Spanish
translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429,
430), declares that the responsibility of the employer is principal and not
subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las

acciones u omisiones de aquellas personas por las que se debe
responder, es subsidiaria? es principal? Para contestar a esta pregunta
es necesario saber, en primer lugar, en que se funda el precepto legal.
Es que realmente se impone una responsabilidad por una falta ajena?
Asi parece a primera vista; pero semejante afirmacion seria contraria a
la justicia y a la maxima universal, segun la que las faltas son
personales, y cada uno responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con ocasion de un delito o
culpa, pero no por causa de ellos, sino por causa del causi delito, esto
es, de la imprudencia o de la negligencia del padre, del tutor, del
dueo o director del establecimiento, del maestro, etc. Cuando
cualquiera de las personas que enumera el articulo citado (menores de
edad, incapacitados, dependientes, aprendices) causan un dao, la ley
presume que el padre, el tutor, el maestro, etc., han cometido una
falta de negligencia para prevenir o evitar el dao. Esta falta es la que
la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino
en la apariencia; en realidad la responsabilidad se exige por un hecho

13
 propio. La idea de que esa responsabilidad sea subsidiaria es, por lo
tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the

acts or omissions of those persons for who one is responsible,
subsidiary or principal? In order to answer this question it is necessary
to know, in the first place, on what the legal provision is based. Is it
true that there is a responsibility for the fault of another person? It
seems so at first sight; but such assertion would be contrary to justice
and to the universal maxim that all faults are personal, and that
everyone is liable for those faults that can be imputed to him. The
responsibility in question is imposed on the occasion of a crime or
fault, but not because of the same, but because of the cuasi-delito,
that is to say, the imprudence or negligence of the father, guardian,
proprietor or manager of the establishment, of the teacher, etc.
Whenever anyone of the persons enumerated in the article referred to
(minors, incapacitated persons, employees, apprentices) causes any
damage, the law presumes that the father, guardian, teacher, etc.
have committed an act of negligence in not preventing or avoiding the
damage. It is this fault that is condemned by the law. It is, therefore,
only apparent that there is a responsibility for the act of another; in
reality the responsibility exacted is for one's own act. The idea that
such responsibility is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al

Codigo Civil Espaol," says in Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su

propia culpa, doctrina del articulo 1902; mas por excepcion, se
responde de la ajena respecto de aquellas personas con las que media
algun nexo o vinculo, que motiva o razona la responsabilidad. Esta
responsabilidad, es directa o es subsidiaria? En el orden penal, el
Codigo de esta clase distingue entre menores e incapacitados y los
demas, declarando directa la primera (articulo 19) y subsidiaria la
segunda (articulos 20 y 21); pero en el orden civil, en el caso del
articulo 1903, ha de entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."

14
 That is to say, one is not responsible for the acts of others, because
one is liable only for his own faults, this being the doctrine of article
1902; but, by exception, one is liable for the acts of those persons
with whom there is a bond or tie which gives rise to the responsibility.
Is this responsibility direct or subsidiary? In the order of the penal law,
the Penal Code distinguishes between minors and incapacitated
persons on the one hand, and other persons on the other, declaring
that the responsibility for the former is direct (article 19), and for the
latter, subsidiary (articles 20 and 21); but in the scheme of the civil
law, in the case of article 1903, the responsibility should be
understood as direct, according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of those persons for
whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court
has upheld the principles above set forth: that a quasi-delict or culpa extra-
contractual is a separate and distinct legal institution, independent from the
civil responsibility arising from criminal liability, and that an employer is,
under article 1903 of the Civil Code, primarily and directly responsible for
the negligent acts of his employee.

One of the most important of those Spanish decisions is that of October 21,
1910. In that case, Ramon Lafuente died as the result of having been run
over by a street car owned by the "compaia Electric Madrilea de Traccion."
The conductor was prosecuted in a criminal case but he was acquitted.
Thereupon, the widow filed a civil action against the street car company,
paying for damages in the amount of 15,000 pesetas. The lower court
awarded damages; so the company appealed to the Supreme Tribunal,
alleging violation of articles 1902 and 1903 of the Civil Code because by final
judgment the non-existence of fault or negligence had been declared. The
Supreme Court of Spain dismissed the appeal, saying:

Considerando que el primer motivo del recurso se funda en el

equivocado supuesto de que el Tribunal a quo, al condonar a la
compaia Electrica Madrilea al pago del dao causado con la muerte
de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos
de la sentencia absolutoria deictada en la causa criminal que se siguio
por el mismo hecho, cuando es lo cierto que de este han conocido las
dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal

15
declrao dentro de los limites de su competencia que el hecho de que
se trata no era constitutivo de delito por no haber mediado descuido o
negligencia graves, lo que no excluye, siendo este el unico fundamento
del fallo absolutorio, el concurso de la culpa o negligencia no
califacadas, fuente de obligaciones civiles segun el articulo 1902 del
Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los
Directores de establecimientos o empresas por los daos causados por
sus dependientes en determinadas condiciones, es manifesto que la de
lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compaia recurrente a la indemnizacion del dao
causado por uno de sus empleados, lejos de infringer los mencionados
textos, en relacion con el articulo 116 de la Ley de Enjuciamiento
Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones
ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo
recaido en la causa.

Considering that the first ground of the appeal is based on the

mistaken supposition that the trial court, in sentencing the Compaia
Madrilea to the payment of the damage caused by the death of
Ramon Lafuente Izquierdo, disregards the value and juridical effects of
the sentence of acquittal rendered in the criminal case instituted on
account of the same act, when it is a fact that the two jurisdictions had
taken cognizance of the same act in its different aspects, and as the
criminal jurisdiction declared within the limits of its authority that the
act in question did not constitute a felony because there was no grave
carelessness or negligence, and this being the only basis of acquittal, it
does no exclude the co-existence of fault or negligence which is not
qualified, and is a source of civil obligations according to article 1902
of the Civil Code, affecting, in accordance with article 1903, among
other persons, the managers of establishments or enterprises by
reason of the damages caused by employees under certain conditions,
it is manifest that the civil jurisdiccion in taking cognizance of the
same act in this latter aspect and in ordering the company, appellant
herein, to pay an indemnity for the damage caused by one of its
employees, far from violating said legal provisions, in relation with
article 116 of the Law of Criminal Procedure, strictly followed the
same, without invading attributes which are beyond its own

16
 jurisdiction, and without in any way contradicting the decision in that
cause. (Emphasis supplied.)

It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or
with the street car company. This is precisely what happens in the present
case: the driver, Fontanilla, has not been sued in a civil action, either alone
or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence,
but the Supreme Tribunal of Spain said that this did not exclude the co-
existence of fault or negligence, which is not qualified, on the part of the
conductor, under article 1902 of the Civil Code. In the present case, the taxi
driver was found guilty of criminal negligence, so that if he had even sued
for his civil responsibility arising from the crime, he would have been held
primarily liable for civil damages, and Barredo would have been held
subsidiarily liable for the same. But the plaintiffs are directly suing Barredo,
on his primary responsibility because of his own presumed negligence
which he did not overcome under article 1903. Thus, there were two
liabilities of Barredo: first, the subsidiary one because of the civil liability of
the taxi driver arising from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under article 1903. The plaintiffs
were free to choose which course to take, and they preferred the second
remedy. In so doing, they were acting within their rights. It might be
observed in passing, that the plaintiff choose the more expeditious and
effective method of relief, because Fontanilla was either in prison, or had just
been released, and besides, he was probably without property which might
be seized in enforcing any judgment against him for damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the
employer was held liable civilly, notwithstanding the acquittal of the
employee (the conductor) in a previous criminal case, with greater reason
should Barredo, the employer in the case at bar, be held liable for damages
in a civil suit filed against him because his taxi driver had been convicted.
The degree of negligence of the conductor in the Spanish case cited was less
than that of the taxi driver, Fontanilla, because the former was acquitted in
the previous criminal case while the latter was found guilty of criminal

17
negligence and was sentenced to an indeterminate sentence of one year and
one day to two years of prision correccional.

(See also Sentence of February 19, 1902, which is similar to the one above
quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an
action was brought against a railroad company for damages because the
station agent, employed by the company, had unjustly and fraudulently,
refused to deliver certain articles consigned to the plaintiff. The Supreme
Court of Spain held that this action was properly under article 1902 of the
Civil Code, the court saying:

Considerando que la sentencia discutida reconoce, en virtud de los

hechos que consigna con relacion a las pruebas del pleito: 1., que las
expediciones facturadas por la compaia ferroviaria a la consignacion
del actor de las vasijas vacias que en su demanda relacionan tenian
como fin el que este las devolviera a sus remitentes con vinos y
alcoholes; 2., que llegadas a su destino tales mercanias no se
quisieron entregar a dicho consignatario por el jefe de la estacion sin
motivo justificado y con intencion dolosa, y 3., que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le
originaron daos y perjuicios en cantidad de bastante importancia
como expendedor al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir los pedidos
que se le habian hecho por los remitentes en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro
motivos que integran este recurso, porque la demanda inicial del pleito
a que se contrae no contiene accion que nazca del incumplimiento del
contrato de transporte, toda vez que no se funda en el retraso de la
llegada de las mercancias ni de ningun otro vinculo contractual entre
las partes contendientes, careciendo, por tanto, de aplicacion el
articulo 371 del Codigo de Comercio, en que principalmente descansa
el fallo recurrido, sino que se limita a pedir la reparaction de los daos
y perjuicios producidos en el patrimonio del actor por la injustificada y
dolosa negativa del porteador a la entrega de las mercancias a su
nombre consignadas, segun lo reconoce la sentencia, y cuya
responsabilidad esta claramente sancionada en el articulo 1902 del

18
 Codigo Civil, que obliga por el siguiente a la Compaia demandada
como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the

facts which it declares, in relation to the evidence in the case: (1) that
the invoice issued by the railroad company in favor of the plaintiff
contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that
when the said merchandise reached their destination, their delivery to
the consignee was refused by the station agent without justification
and with fraudulent intent, and (3) that the lack of delivery of these
goods when they were demanded by the plaintiff caused him losses
and damages of considerable importance, as he was a wholesale
vendor of wines and liquors and he failed to realize the profits when he
was unable to fill the orders sent to him by the consignors of the
receptacles:

Considering that upon this basis there is need of upholding the four
assignments of error, as the original complaint did not contain any
cause of action arising from non-fulfillment of a contract of
transportation, because the action was not based on the delay of the
goods nor on any contractual relation between the parties litigant and,
therefore, article 371 of the Code of Commerce, on which the decision
appealed from is based, is not applicable; but it limits to asking for
reparation for losses and damages produced on the patrimony of the
plaintiff on account of the unjustified and fraudulent refusal of the
carrier to deliver the goods consigned to the plaintiff as stated by the
sentence, and the carrier's responsibility is clearly laid down in article
1902 of the Civil Code which binds, in virtue of the next article, the
defendant company, because the latter is connected with the person
who caused the damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)

The above case is pertinent because it shows that the same act may come
under both the Penal Code and the Civil Code. In that case, the action of the
agent was unjustified and fraudulent and therefore could have been the
subject of a criminal action. And yet, it was held to be also a proper subject

19
of a civil action under article 1902 of the Civil Code. It is also to be noted
that it was the employer and not the employee who was being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359,
362-365 [year 1907]), the trial court awarded damages to the plaintiff, a
laborer of the defendant, because the latter had negligently failed to repair a
tramway in consequence of which the rails slid off while iron was being
transported, and caught the plaintiff whose leg was broken. This Court held:

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 preceeding 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.

xxx xxx xxx

20
 "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.

xxx xxx xxx

"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
laws' 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.

21
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 instituted, growing our of the accident in question, the provisions
of the Penal 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 1902
and 1093. More than this, however, it cannot be said to fall within the
class of acts unpunished by the law, the consequence 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 pre-existing 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

22
 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.

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of
9-year-old child Salvador Bona brought a civil action against Moreta to
recover damages resulting from the death of the child, who had been run
over by an automobile driven and managed by the defendant. The trial court
rendered judgment requiring the defendant to pay the plaintiff the sum of
P1,000 as indemnity: This Court in affirming the judgment, said in part:

If it were true that the defendant, in coming from the southern part of
Solana Street, had to stop his auto before crossing Real Street,
because he had met vehicles which were going along the latter street
or were coming from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto across said
Real Street and to continue its way along Solana Street northward, he
should have adjusted the speed of the auto which he was operating
until he had fully crossed Real Street and had completely reached a
clear way on Solana Street. But, as the child was run over by the auto
precisely at the entrance of Solana Street, this accident could not have
occurred if the auto had been running at a slow speed, aside from the
fact that the defendant, at the moment of crossing Real Street and
entering Solana Street, in a northward direction, could have seen the
child in the act of crossing the latter street from the sidewalk on the
right to that on the left, and if the accident had occurred in such a way
that after the automobile had run over the body of the child, and the
child's body had already been stretched out on the ground, the
automobile still moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile entered Solana Street
from Real Street, at a high speed without the defendant having blown
the horn. If these precautions had been taken by the defendant, the
deplorable accident which caused the death of the child would not have
occurred.

23
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of
the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject-matter either
of a criminal action with its consequent civil liability arising from a crime or
of an entirely separate and independent civil action for fault or negligence
under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate
individually of a cuasi-delito or culpa aquilianaunder the Civil Code has been
fully and clearly recognized, even with regard to a negligent act for which
the wrongdoer could have been prosecuted and convicted in a criminal case
and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime.

Years later (in 1930) this Court had another occasion to apply the same
doctrine. In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant,
Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion Bernal,
brought a civil action to recover damages for the child's death as a result of
burns caused by the fault and negligence of the defendants. On the evening
of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte.
Fortunata Enverso with her daughter Purificacion Bernal had come from
another municipality to attend the same. After the procession the mother
and the daughter with two others were passing along Gran Capitan Street in
front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by
defendants J. V. House, when an automobile appeared from the opposite
direction. The little girl, who was slightly ahead of the rest, was so frightened
by the automobile that she turned to run, but unfortunately she fell into the
street gutter where hot water from the electric plant was flowing. The child
died that same night from the burns. The trial courts dismissed the action
because of the contributory negligence of the plaintiffs. But this Court held,
on appeal, that there was no contributory negligence, and allowed the
parents P1,000 in damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric plant. This Court
said in part:

Although the trial judge made the findings of fact hereinbefore

outlined, he nevertheless was led to order the dismissal of the action
because of the contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand taken by the
trial judge. The mother and her child had a perfect right to be on the

24
 principal street of Tacloban, Leyte, on the evening when the religious
procession was held. There was nothing abnormal in allowing the child
to run along a few paces in advance of the mother. No one could
foresee the coincidence of an automobile appearing and of a frightened
child running and falling into a ditch filled with hot water. The doctrine
announced in the much debated case of Rakes vs. Atlantic Gulf and
Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil
Code must again be enforced. The contributory negligence of the child
and her mother, if any, does not operate as a bar to recovery, but in its
strictest sense could only result in reduction of the damages.

It is most significant that in the case just cited, this Court specifically applied
article 1902 of the Civil Code. It is thus that although J. V. House could have
been criminally prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for
fault or negligence under article 1902 of the Civil Code.

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was
for damages for the death of the plaintiff's daughter alleged to have been
caused by the negligence of the servant in driving an automobile over the
child. It appeared that the cause of the mishap was a defect in the steering
gear. The defendant Leynes had rented the automobile from the
International Garage of Manila, to be used by him in carrying passengers
during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to
pay P1,000 as damages to the plaintiff. On appeal this Court reversed the
judgment as to Leynes on the ground that he had shown that the exercised
the care of a good father of a family, thus overcoming the presumption of
negligence under article 1903. This Court said:

As to selection, the defendant has clearly shown that he exercised the

care and diligence of a good father of a family. He obtained the
machine from a reputable garage and it was, so far as appeared, in
good condition. The workmen were likewise selected from a standard
garage, were duly licensed by the Government in their particular
calling, and apparently thoroughly competent. The machine had been
used but a few hours when the accident occurred and it is clear from
the evidence that the defendant had no notice, either actual or
constructive, of the defective condition of the steering gear.

25
The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of
negligence, but also provides when the liability shall cease. It says:

"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."

From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part of
the matter or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and
(2) that presumption is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of
a family, the presumption is overcome and he is relieve from liability.

This theory bases the responsibility of the master ultimately on his

own negligence and not on that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs.
Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint alleged
that the defendant's servant had so negligently driven an automobile, which
was operated by defendant as a public vehicle, that said automobile struck
and damaged the plaintiff's motorcycle. This Court, applying article 1903 and
following the rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is
the owner or director of a business or enterprise and the negligent acts
are committed while the servant is engaged in his master's
employment as such owner.

Another case which followed the decision in Bahia vs. Litonjua and
Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The
latter case was an action for damages brought by Cuison for the death of his
seven-year-old son Moises. The little boy was on his way to school with his

26
sister Marciana. Some large pieces of lumber fell from a truck and pinned
the boy underneath, instantly killing him. Two youths, Telesforo Binoya and
Francisco Bautista, who were working for Ora, an employee of defendant
Norton & Harrison Co., pleaded guilty to the crime of homicide through
reckless negligence and were sentenced accordingly. This Court, applying
articles 1902 and 1903, held:

The basis of civil law liability is not respondent superior but the
relationship of pater familias. This theory bases the liability of the
master ultimately on his own negligence and not on that of his
servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco
vs. Manila Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517
(year 1930) the plaintiff brought an action for damages for the demolition of
its wharf, which had been struck by the steamer Helen C belonging to the
defendant. This Court held (p. 526):

The evidence shows that Captain Lasa at the time the plaintiff's wharf
collapsed was a duly licensed captain, authorized to navigate and
direct a vessel of any tonnage, and that the appellee contracted his
services because of his reputation as a captain, according to F. C.
Cadwallader. This being so, we are of the opinion that the presumption
of liability against the defendant has been overcome by the exercise of
the care and diligence of a good father of a family in selecting Captain
Lasa, in accordance with the doctrines laid down by this court in the
cases cited above, and the defendant is therefore absolved from all
liability.

It is, therefore, seen that the defendant's theory about his secondary liability
is negatived by the six cases above set forth. He is, on the authority of these
cases, primarily and directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We
study first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A
collision between a truck of the City of Manila and a street car of the Manila
Electric Co. took place on June 8, 1925. The truck was damaged in the
amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for

27
the crime of damage to property and slight injuries through reckless
imprudence. He was found guilty and sentenced to pay a fine of P900, to
indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in
case of insolvency. Unable to collect the indemnity from Eustaquio, the City
of Manila filed an action against the Manila Electric Company to obtain
payment, claiming that the defendant was subsidiarily liable. The main
defense was that the defendant had exercised the diligence of a good father
of a family to prevent the damage. The lower court rendered judgment in
favor of the plaintiff. This Court held, in part, that this case was governed by
the Penal Code, saying:

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.

xxx xxx xxx

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 as 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

28
 0902 of the Civil Code should be disregarded and codal articles 1093
and 1903 applied.)

It is not clear how the above case could support the defendant's proposition,
because the Court of Appeals based its decision in the present case on the
defendant's primary responsibility under article 1903 of the Civil Code and
not on his subsidiary liability arising from Fontanilla's criminal negligence. In
other words, the case of City of Manila vs. Manila Electric Co., supra, is
predicated on an entirely different theory, which is the subsidiary liability of
an employer arising from a criminal act of his employee, whereas the
foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have
already seen that this is a proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by
the defendant. A motorman in the employ of the Manila Electric Company
had been convicted o homicide by simple negligence and sentenced, among
other things, to pay the heirs of the deceased the sum of P1,000. An action
was then brought to enforce the subsidiary liability of the defendant as
employer under the Penal Code. The defendant attempted to show that it
had exercised the diligence of a good father of a family in selecting the
motorman, and therefore claimed exemption from civil liability. But this
Court held:

In view of the foregoing considerations, we are of opinion and so hold,

(1) that the exemption from civil liability established in article 1903 of
the Civil Code for all who have acted with the diligence of a good
father of a family, is not applicable to the subsidiary civil liability
provided in article 20 of the Penal Code.

The above case is also extraneous to the theory of the defendant in the
instant case, because the action there had for its purpose the enforcement
of the defendant's subsidiary liability under the Penal Code, while in the case
at bar, the plaintiff's cause of action is based on the defendant's primary and
direct responsibility under article 1903 of the Civil Code. In fact, the above
case destroys the defendant's contention because that decision illustrates
the principle that the employer's primary responsibility under article 1903 of
the Civil Code is different in character from his subsidiary liability under the
Penal Code.

29
In trying to apply the two cases just referred to, counsel for the defendant
has failed to recognize the distinction between civil liability arising from a
crime, which is governed by the Penal Code, and the responsibility for cuasi-
delito or culpa aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327).
That case need not be set forth. Suffice it to say that the question involved
was also civil liability arising from a crime. Hence, it is as inapplicable as the
two cases above discussed.

The foregoing authorities clearly demonstrate the separate individuality

of cuasi-delitos or culpa aquiliana under the Civil Code. Specifically they
show that there is a distinction between civil liability arising from criminal
negligence (governed by the Penal Code) and responsibility for fault or
negligence under articles 1902 to 1910 of the Civil Code, and that the same
negligent act may produce either a civil liability arising from a crime under
the Penal Code, or a separate responsibility for fault or negligence under
articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities
above cited render it inescapable to conclude that the employer in this
case the defendant-petitioner is primarily and directly liable under article
1903 of the Civil Code.

The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing
doctrines that have been little understood in the past, it might not be
inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in article 365 punishes not only reckless but
also simple negligence. If we were to hold that articles 1902 to 1910 of the
Civil Code refer only to fault or negligence not punished by law, according to
the literal import of article 1093 of the Civil Code, the legal institution of
culpa aquiliana would have very little scope and application in actual life.
Death or injury to persons and damage to property through any degree of
negligence even the slightest would have to be indemnified only
through the principle of civil liability arising from a crime. In such a state of
affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are
loath to impute to the lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the interpretation of the laws,

30
disposed to uphold the letter that killeth rather than the spirit that giveth
life. We will not use the literal meaning of the law to smother and render
almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of
evidence is sufficient to make the defendant pay in damages. There are
numerous cases of criminal negligence which can not be shown beyond
reasonable doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible in a civil
action under articles 1902 to 1910 of the Civil Code. Otherwise, there would
be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.

Thirdly, to hold that there is only one way to make defendant's liability
effective, and that is, to sue the driver and exhaust his (the latter's)
property first, would be tantamount to compelling the plaintiff to follow a
devious and cumbersome method of obtaining relief. True, there is such a
remedy under our laws, but there is also a more expeditious way, which is
based on the primary and direct responsibility of the defendant under article
1903 of the Civil Code. Our view of the law is more likely to facilitate remedy
for civil wrongs, because the procedure indicated by the defendant is
wasteful and productive of delay, it being a matter of common knowledge
that professional drivers of taxis and similar public conveyance usually do
not have sufficient means with which to pay damages. Why, then, should the
plaintiff be required in all cases to go through this roundabout, unnecessary,
and probably useless procedure? In construing the laws, courts have
endeavored to shorten and facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility
of employers and their presumed negligence are principles calculated to
protect society. Workmen and employees should be carefully chosen and
supervised in order to avoid injury to the public. It is the masters or
employers who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should guarantee the
latter's careful conduct for the personnel and patrimonial safety of others. As
Theilhard has said, "they should reproach themselves, at least, some for
their weakness, others for their poor selection and all for their negligence."

31
And according to Manresa, "It is much more equitable and just that such
responsibility should fall upon the principal or director who could have
chosen a careful and prudent employee, and not upon the injured person
who could not exercise such selection and who used such employee because
of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many
jurists also base this primary responsibility of the employer on the principle
of representation of the principal by the agent. Thus, Oyuelos says in the
work already cited (Vol. 7, p. 747) that before third persons the employer
and employee "vienen a ser como una sola personalidad, por refundicion de
la del dependiente en la de quien le emplea y utiliza." ("become as one
personality by the merging of the person of the employee in that of him who
employs and utilizes him.") All these observations acquire a peculiar force
and significance when it comes to motor accidents, and there is need of
stressing and accentuating the responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal
Code and the Civil Code on this subject, which has given rise to the
overlapping or concurrence of spheres already discussed, and for lack of
understanding of the character and efficacy of the action for culpa aquiliana,
there has grown up a common practice to seek damages only by virtue of
the civil responsibility arising from a crime, forgetting that there is another
remedy, which is by invoking articles 1902-1910 of the Civil Code. Although
this habitual method is allowed by our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is high time
we pointed out to the harm done by such practice and to restore the
principle of responsibility for fault or negligence under articles 1902 et seq.
of the Civil Code to its full rigor. It is high time we caused the stream of
quasi-delict or culpa aquiliana to flow on its own natural channel, so that its
waters may no longer be diverted into that of a crime under the Penal Code.
This will, it is believed, make for the better safeguarding of private rights
because it re-establishes an ancient and additional remedy, and for the
further reason that an independent civil action, not depending on the issues,
limitations and results of a criminal prosecution, and entirely directed by the
party wronged or his counsel, is more likely to secure adequate and
efficacious redress.

32
In view of the foregoing, the judgment of the Court of Appeals should be and
is hereby affirmed, with costs against the defendant-petitioner.

Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

Mendoza vs La Mallorca
G.R. No. L-26407 March 31, 1978

EUSEBIO MENDOZA, plaintiff-appellant,

vs.
LA MALLORCA BUS COMPANY, defendant-appellee.

Alberto S. Plantilla for appellant.

Geminiano F. Yabut & Rafael Monterey for appellee.

GUERRERO, J.:

This is an appeal from the Decision of the Court of First Instance of Nueva
Ecija in Civil Case No. 2626 entitled "Eusebio Mendoza, Plaintiff, v. La
Mallorca Bus Company, Defendant," raised to the Court of Appeals but
certified to Us by said court 1 in its Resolution dated July 26, 1966 as only
questions of law were raised therein.

The facts are stated in the Resolution of the appellate court:

On April 3, 1950, at Plaridel, Bulacan, a collision occurred

involving a freight truck of the plaintiff and a bus of the
defendant. A criminal case for damage to property thru reckless
imprudence was brought against defendant's driver, Claudio
Arceo, (Criminal Case No. 1230, CFI-Bulacan). resulting in the
conviction of said driver, which conviction was affirmed by this
Court in CA-G.R. No. 11602-R. in the said criminal case, the
plaintiff made express reservation for the filing of a separate civil
action. In affirming the judgment of conviction imposed upon the
accused by the lower court, this Court modified the fine imposed,

33
 with the observation that the freight truck of the plaintiff therein
involved and damaged was worth only P5,000.00 and not
P7,000.00 as found by the trial court.

On May 8, 1956, plaintiff filed a separate civil action for damages

against the herein defendant, based on quasi-delict under the
Civil Code, which separate civil action (Case No. 2137) was
ordered dismissed by the trial court upon a finding that plaintiff's
action, instituted exactly six years, one month and five days
from the date of the accident (which occurred on April 3, 1950)
had already prescribed, which order became final without
plaintiff having appealed therefrom.

Subsequently, or on August 26, 1957, the plaintiff instituted the

present action, based on the alleged subsidiary liability of the
defendant company under the Revised Penal Code. A motion for
pre hearing under Rule 8, Sec. 5 of the Rules of Court was filed
in the lower Court in consequence of which the lower court, by
order dated Dec. 3, 1958, ordered the dismissal of the case. The
order of Jan. 20, 1959 denied the motion for reconsideration.

From the order of the lower court dated December 3, 1958

dismissing the instant action on the ground that the dismissal of
Civil Case No. 2137 was a bar to the present action, the plaintiff
has appealed, alleging that the following errors were committed
by the lower court:

1. In holding that the dismissal of Civil Case No. 2137 operated

as a bar to the filing of the present action; and

2. In dismissing the complaint.

We agree with the plaintiff-appellant. The lower court committed a reversible

error in declaring that the dismissed of Civil Case No. 2137 operated as a
bar to the filing of the present action.

It is well-settled in our jurisprudence that the essential requisites for the

existence of res judicata are: (1) the former judgment must be final; (2) it
must have been rendered by a court having jurisdiction on the merits; (3) it

34
must be a judgment on the merits; and (4) there must be, between the first
and second actions: (a) identity of parties; (b) identity of subject matter,
and (c) identity of cause of action. 2

A careful study of the case at bar presents a dispute as to only one of the
above elements: Whether or not, as between Civil Case No. 2137 and the
present action, there is Identity of causes of action.

We hold that, the two actions, namely, the civil action based on quasi-
delict (Civil Case No. 2137) and the civil action based on c liability (Civil
Case No. 2626), are two separate and independent actions based on distinct
causes of action. 3

The test of identity of causes of action is stated in tills wise: It lies not in the
form of an action but on whether the same evidence would support and
establish the former and present causes of action. 4

Civil Case No. 2137 was an action for damages based on culpa
aquiliana under Articles 2176 to 2194 of the New Civil Code for which the
defendant-appellee, as employer, was to be made primarily and directly
liable for reason of his own negligence, either in the selection or supervision
of his driver; 5 the present action stems from the conviction by final
judgement of defendant-appellee's driver in the previous criminal case filed
against said driver for damage to property through reckless imprudence
(Crim. Case No. 1230), damages for which defendant-appellee, as employer,
is made subsidiarily liable under Art. 103 of the Revised Penal Code.

Applying the above-stated test, it is evident that res judicata cannot be a

defense against the filing of the present action by petitioner. Defendant-
appellee could thwart an adverse decision in Civil Case No. 2137 by proving
his due diligence in the selection of its employees, but this same evidence
will fail in the present action for his liability is inseparable from that of his
driver once the latter is finally convicted. 6

In the case of M.D. Transit & Taxi Co., Inc. v. Court of Appeals (22 SCRA
559), this Court declared the same principle in simpler terms:

The importance of this issue is due to the fact that appellant's

alleged diligence in the selection of its employees and in

35
 exercising supervision over them would be a good defense
should the action be bard upon a quasi- delict, but not ff
predicated upon a liability springing from a crime.

The question presented before Us has already been resolved in the case
of Jocson v. Glorioso, 7 where the issue under consideration is "whether the
previous dismissal of an action based on culpa aquiliana precludes the
application of the plain and explicit command of Art. 103 of the Revised
Penal Code." There, this Court ruled in the negative having adopted this
Court's decision in a previous case, Diana v. Batangas Trans, Co. 8 where it
was held:

Considering the distinguishing characteristics of the two cases,

which involve two different remedies, it can hardly be said that
there is Identity of reliefs in both actions as to make the present
case fall under the operation of Rule 8, Section I (d) of the Rules
of Court. In other words, it is a mistake to say that the present
action should be dismissed because of the pendency of another
action between the same parties involving the same cause.
Evidently, both cases involve different causes of action. In fact.
when the Court of Appeals dismissed the action based on culpa
aquiliana (Civil Case No. 8022), this distinction was stressed. It
was there said that the negligent act committed by defendant's
employee is not a quasi crime, for such negligence is punished
by law. What plaintiffs should have done was to institute an
action under Art. 103 of the Revised Penal Code (CA-G.R. No.
3632-R). And this is what plaintiffs have done. To deprive them
now of this remedy, after the conviction of defendant's
employee, would be to deprive them altogether of the indemnity
to which they are entitled by law and by a court decision, which
injustice it is our duty to prevent.

This Court then concluded:

On the same principle then, the previous dismissal of the action

based on culpa aquiliana could not be a bar to the enforcement
of the subsidiary liability required by Art. 103 of the Revised
Penal Code.

36
 What clearly emerges then is the controlling force of the
principle that once there is a conviction for a felony, final in
character, the employer according to the plain and explicit
command of Article 103 of the Revised Penal Code, is subsidiarily
liable, if it be shown that the commission thereof was in the
discharge of the duties of such employee. 9

WHEREFORE, judgment is hereby entered setting aside the orders of the

lower court dated December 3, 1958 and January 20, 1959 respectively
dismissing the present action and denying plaintiff-appellant's motion for
reconsideration. Let the case be remanded below for further proceedings.

SO ORDERED.

Virata vs Ochoa
G.R. No. L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA

VIRATA, NAPOLEON VIRATA, ARACELY VIRATA, ZENAIDA VIRATA,
LUZMINDA VIRATA, PACITA VIRATA, and EVANGELINA
VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST
INSTANCE OF CAVITE, 7th JUDICIAL DISTRICT, BRANCH V, stationed
at BACOOR, CAVITE, respondents.

Remulla, Estrella & Associates for petitioners

Exequil C. Masangkay for respondents.

FERNANDEZ, J.:

This is an appeal by certiorari, from the order of the Court of First Instance
of Cavite, Branch V, in Civil Case No. B-134 granting the motion of the

37
defendants to dismiss the complaint on the ground that there is another
action pending between the same parties for the same cause. 1

The record shows that on September 24, 1975 one Arsenio Virata died as a
result of having been bumped while walking along Taft Avenue, Pasay City by
a passenger jeepney driven by Maximo Borilla and registered in the name Of
Victoria Ochoa; that Borilla is the employer of Ochoa; that for the death of
Arsenio Virata, a action for homicide through reckless imprudence was
instituted on September 25, 1975 against Maximo Borilla in the Court of First
Instance of Rizal at Pasay City, docketed as C Case No. 3162-P of said court;
that at the hearing of the said criminal case on December 12, 1975, Atty.
Julio Francisco, the private prosecutor, made a reservation to file a separate
civil action for damages against the driver on his criminal liability; that on
February 19, 1976 Atty. Julio Francisco filed a motion in said c case to
withdraw the reservation to file a separate civil action; that thereafter, the
private prosecutor actively participated in the trial and presented evidence
on the damages; that on June 29, 1976 the heirs of Arsenio Virata again
reserved their right to institute a separate civil action; that on July 19, 1977
the heirs of Arsenio Virata, petitioners herein, commenced Civil No. B-134 in
the Court of First Instance of Cavite at Bacoor, Branch V, for damages based
on quasi-delict against the driver Maximo Borilla and the registered owner of
the jeepney, Victorio Ochoa; that on August 13, 1976 the defendants,
private respondents filed a motion to dismiss on the ground that there is
another action, Criminal Case No. 3162-P, pending between the same parties
for the same cause; that on September 8, 1976 the Court of First Instance
of Rizal at Pasay City a decision in Criminal Case No. 3612-P acquitting the
accused Maximo Borilla on the ground that he caused an injury by name
accident; and that on January 31, 1977, the Court of First Instance of Cavite
at Bacoor granted the motion to Civil Case No. B-134 for damages. 2

The principal issue is weather or not the of the Arsenio Virata, can prosecute
an action for the damages based on quasi-delict against Maximo Borilla and
Victoria Ochoa, driver and owner, respectively on the passenger jeepney that
bumped Arsenio Virata.

It is settled that in negligence cases the aggrieved parties may choose

between an action under the Revised Penal Code or of quasi-delict under
Article 2176 of the Civil Code of the Philippines. What is prohibited by Article

38
2177 of the Civil Code of the Philippines is to recover twice for the same
negligent act.

The Supreme Court has held that:

According to the Code Commission: 'The foregoing provision

(Article 2177) though at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal and
civil negligence. The former is a violation of the criminal law,
while the latter is a 'culpa aquiliana' or quasi-delict, of ancient
origin, having always had its own foundation and individuality,
separate from criminal negligence. Such distinction between
criminal negligence and 'culpa extra-contractual' or quasi-delito
has been sustained by decision of the Supreme Court of Spain
and maintained as clear, sound and perfectly tenable by Maura,
an outstanding Spanish jurist. Therefore, under the proposed
Article 2177, acquittal from an accusation of criminal negligence,
whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal
negligence, but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double recovery. (Report of
the Code Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to

only acts of negligence, the same argument of Justice Bocobo
about construction that upholds 'the spirit that given life' rather
than that which is literal that killeth the intent of the lawmaker
should be observed in applying the same. And considering that
the preliminary chapter on human relations of the new Civil Code
definitely establishes the separability and independence of
liability in a civil action for acts criminal in character (under
Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Penal Code, and, in a sense, the Rules
of Court, under Sections 2 and 3(c), Rule 111, contemplate also
the same separability, it is 'more congruent' with the spirit of
law, equity and justice, and more in harmony with modern
progress', to borrow the felicitous language in Rakes vs. Atlantic
Gulf and Pacific Co., 7 Phil. to 359, to hod as We do hold, that
Article 2176, where it refers to 'fault covers not only acts 'not

39
 punishable by law' but also criminal in character, whether
intentional and voluntary or consequently, a separate civil action
lies against the in a criminal act, whether or not he is criminally
prosecuted and found guilty and acquitted, provided that the
offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the, two
assuming the awards made in the two cases vary. In other words
the extinction of civil liability refereed to in Par. (c) of Section 13,
Rule 111, refers exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the civil liability for the
same act considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been
committed by the accused. Brief stated, We hold, in reitration of
Garcia, that culpa aquilina includes voluntary and negligent acts
which may be punishable by law. 3

The petitioners are not seeking to recover twice for the same negligent act.
Before Criminal Case No. 3162-P was decided, they manifested in said
criminal case that they were filing a separate civil action for damages against
the owner and driver of the passenger jeepney based on quasi-delict. The
acquittal of the driver, Maximo Borilla, of the crime charged in Criminal Case
No. 3162-P is not a bar to the prosecution of Civil Case No. B-134 for
damages based on quasi-delict The source of the obligation sought to be
enforced in Civil Case No. B-134 is quasi-delict, not an act or omission
punishable by law. Under Article 1157 of the Civil Code of the Philippines,
quasi-delict and an act or omission punishable by law are two different
sources of obligation.

Moreover, for the petitioners to prevail in the action for damages, Civil Case
No. B-134, they have only to establish their cause of action by
preponderance of the evidence.

WHEREFORE, the order of dismissal appealed from is hereby set aside and
Civil Case No. B-134 is reinstated and remanded to the lower court for
further proceedings, with costs against the private respondents.

SO ORDERED.

40
Layugan vs IAC
G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and
TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents.

Edralin S. Mateo for petitioner.

Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.

Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:

Assailed in this petition for review on certiorari are 1) the decision 1 of the
then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled
"Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-
Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-
Indemnity Corporation, Third Party Defendant- Appellant, "which reversed
and set aside the decision 3 of the Regional Trial Court, Third Judicial Region,
Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party
complaint, and the counter claims of the parties and 2) the
resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for
reconsideration, for lack of merit.

The findings of fact by the trial court which were adopted by the appellate
court are as follows: 5

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo

Isidro, alleging that on May 15, 1979 while at Baretbet,
Bagabag, Nueva Vizcaya, the Plaintiff and a companion were
repairing the tire of their cargo truck with Plate No. SU-730

41
which was parked along the right side of the National Highway;
that defendant's truck bearing Plate No. PW-583, driven
recklessly by Daniel Serrano bumped the plaintiff, that as a
result, plaintiff was injured and hospitalized at Dr. Paulino J.
Garcia Research and Medical Center and the Our Lady of Lourdes
Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) and
will incur more expenses as he recuperates from said injuries;
that because of said injuries he would be deprived of a lifetime
income in the sum of SEVENTY THOUSAND PESOS (P70,000.00);
and that he agreed to pay his lawyer the sum of TEN THOUSAND
PESOS (Pl0,000.00).

As prayed for by the plaintiffs counsel, the Court declared the

defendant in default on October 12, 1979, and plaintiff's
evidence was received ex-parte on January 11, 1978 and
February 19, 1980. The decision on behalf of the plaintiff was set
aside to give a chance to the defendant to file his answer and
later on, a third-party complaint.

Defendant admitted his ownership of the vehicle involved in the

accident driven by Daniel Serrano. Defendant countered that the
plaintiff was merely a bystander, not a truck helper being a
brother-in-law law of the driver of said truck; that the truck
allegedly being repaired was parked, occupying almost half of
the right lane towards Solano, Nueva Vizcaya, right after the
curve; that the proximate cause of the incident was the failure of
the driver of the parked truck in installing the early warning
device, hence the driver of the parked car should be liable for
damages sustained by the truck of the herein defendant in the
amount of more than P20,000.00; that plaintiff being a mere
bystander and hitchhiker must suffer all the damages he
incurred. By way of counterclaim defendant alleged that due to
plaintiffs baseless complaint he was constrained to engage the
services of counsel for P5,000.00 and P200.00 per court
appearance; that he suffered sleepless nights, humiliation,
wounded feelings which may be estimated at P30.000.00.

On May 29, 1981, a third-party complaint was filed by the

defendant against his insurer, the Travellers Multi Indemnity

42
Corporation; that the third-party plaintiff, without admitting his
liability to the plaintiff, claimed that the third-party defendant is
liable to the former for contribution, indemnity and subrogation
by virtue of their contract under Insurance Policy No. 11723
which covers the insurer's liability for damages arising from
death, bodily injuries and damage to property.

Third-party defendant answered that, even assuming that the

subject matter of the complaint is covered by a valid and
existing insurance policy, its liability shall in no case exceed the
limit defined under the terms and conditions stated therein; that
the complaint is premature as no claim has been submitted to
the third party defendant as prescribed under the Insurance
Code; that the accident in question was approximately caused by
the carelessness and gross negligence of the plaintiff-, that by
reason of the third-party complaint, third-party defendant was
constrained to engage the services of counsel for a fee of
P3,000.00.

Pedro Layugan declared that he is a married man with one (1)

child. He was employed as security guard in Mandaluyong, Metro
Manila, with a salary of SIX HUNDRED PESOS (600.00) a month.
When he is off-duty, he worked as a truck helper and while
working as such, he sustained injuries as a result of the bumping
of the cargo truck they were repairing at Baretbet, Bagabag,
Nueva Vizcaya by the driver of the defendant. He used to earn
TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS
(P300.00) monthly, at the rate of ONE HUNDRED PESOS
(Pl00.00) per trip. Due to said injuries, his left leg was
amputated so he had to use crutches to walk. Prior to the
incident, he supported his family sufficiently, but after getting
injured, his family is now being supported by his parents and
brother.

GODOFREDO ISIDRO, defendant/third-party plaintiff, testified

that his truck involved in this vehicular accident is insured with
the Travellers Multi Indemnity Corporation covering own damage
and third-party liability, under vehicle policy No. 11723 (Exh.
"1") dated May 30, 1978; that after he filed the insurance claim

43
 the insurance company paid him the sum of P18,000.00 for the
damages sustained by this truck but not the third party liability.

DANIEL SERRANO, defendant driver, declared that he gave a

statement before the municipal police of Bagabag, Nueva
Vizcaya on May 16, 1979; that he knew the responsibilities of a
driver; that before leaving, he checked the truck. The truck
owner used to instruct him to be careful in driving. He bumped
the truck being repaired by Pedro Layugan, plaintiff, while the
same was at a stop position. From the evidence presented, it has
been established clearly that the injuries sustained by the
plaintiff was caused by defendant's driver, Daniel Serrano. The
police report confirmed the allegation of the plaintiff and
admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the plaintiff
to the ground. As a result thereof, plaintiff sustained injuries on
his left forearm and left foot. The left leg of the plaintiff from
below the knee was later on amputated (Exh. "C") when
gangrene had set in, thereby rendering him incapacitated for
work depriving him of his income. (pp. 118 to 120, Record on
Appeal.)

xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial
court rendered its decision, the dispositive part of which reads as follows: 6

WHEREFORE, premises considered, the defendant is hereby

ordered:

a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS

actual and compensatory damages;

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;

c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and

d) To pay the costs of this suit. On the third-party complaint, the

third-party defendant is ordered to indemnify the
defendant/third party plaintiff-.

44
 a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual
and compensatory damages; and

b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of

the trial court and dismissed the complaint, the third-party complaint, and
the counter- claims of both appellants. 7

Hence, this petition.

The petitioner alleges the following errors. 8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE

APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S
COMPLAINT.

2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED

CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA
LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.

The crux of the controversy lies in the correctness or error of the decision of
the respondent court finding the petitioner negligent under the doctrine
of Res ipsa loquitur (The thing speaks for itself).<re||an1w> Corollary
thereto, is the question as to who is negligent, if the doctrine is inapplicable.

The respondent corporation stresses that the issues raised in the petition
being factual, the same is not reviewable by this Court in a petition for
review by certiorari. 9

Indeed, it is an elementary rule in the review of decisions of the Court of

Appeals that its findings of fact are entitled to great respect and will not
ordinarily be disturbed by this Court. 10 For if we have to review every
question of fact elevated to us, we would hardly have any more time left for
the weightier issues compelling and deserving our preferential
attention. 11 Be that as it may, this rule is not inflexible. Surely there are
established exceptions 12 when the Court should review and rectify the
findings of fact of the lower court, such as:

45
1) when the conclusion is a finding grounded entirely on speculation,
surmise, or conjecture; 2) the inference made is manifestly mistaken; 3)
there is grave abuse of discretion; 4) the judgment is based on
misapprehension of facts; 5) the Court of Appeals went beyond the issues of
the case if the findings are contrary to the admission of both the appellant
and the appellee; 6) the findings of the Court of Appeals are contrary to
those of the trial court; 7) the said findings of fact are conclusions without
citation of specific evidence on which they are based; 8) the facts set forth in
the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondents; and 9) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are contradicted on
record.

Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a

deviation from the general rule.

From its finding that the parked truck was loaded with ten (10) big round
logs 13 the Court of Appeals inferred that because of its weight the truck
could not have been driven to the shoulder of the road and concluded that
the same was parked on a portion of the road 14 at the time of the accident.
Consequently, the respondent court inferred that the mishap was due to the
negligence of the driver of the parked truck. 15 The inference or conclusion is
manifestly erroneous. In a large measure, it is grounded on speculation,
surmise, or conjecture. How the respondent court could have reversed the
finding of the trial court that a warning device was installed 16 escapes us
because it is evident from the record that really such a device, in the form of
a lighted kerosene lamp, was installed by the driver of the parked truck
three to four meters from the rear of his parked truck. 17 We see this
negative finding of the respondent appellate court as a misreading of the
facts and the evidence on record and directly contravening the positive
finding of the trial court that an early warning device was in proper place
when the accident happened and that the driver of the private respondent
was the one negligent. On the other hand, the respondent court, in refusing
to give its "imprimatur to the trial court's finding and conclusion that Daniel
Serrano (private respondent Isidro's driver) was negligent in driving the
truck that bumped the parked truck", did not cite specific evidence to
support its conclusion. In cavalier fashion, it simply and nebulously adverted
to unspecified "scanty evidence on record." 18

46
On the technical aspect of the case, the respondent corporation would want
us to dismiss this petition on the ground that it was filed out of time. It must
be noted that there was a motion for extension, 19 albeit filed erroneously
with the respondent court, dated March 19, 1986, requesting for 30 days
from March 20, 1986, to file the necessary petition or pleading before the
Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for
the petitioner before the Supreme Court" with motion 20 was filed, again
erroneously, with the Court of Appeals, requesting for 20 days extension "to
file the Petition for Review on Certiorari." Likewise a similar motion 21 was
filed with this Court also on April 1, 1986. On the other hand, the instant
petition for review was filed on April 17, 1986 22 but it was only after three
months, on August 1, 1986, in its comment 23 that the respondent
corporation raised the issue of tardiness. The respondent corporation should
not have waited in ambush before the comment was required and before due
course was given. In any event, to exact its "a pound of flesh", so to speak,
at this very late stage, would cause a grave miscarriage of justice.
Parenthetically, it must be noted that private respondent Isidro did not raise
this issue of late filing.

We now come to the merits of this petition.

The question before us is who was negligent? Negligence is the omission to

do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do 24 or as Judge
Cooley defines it, "(T)he failure to observe for the protection of the interests
of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. 25

In Picart vs. Smith, 26

decided more than seventy years ago but still a sound
rule, we held:

The test by which to determine the existence of negligence in a particular

case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined by

47
reference to the personal judgment of the actor in the situation before him.
The Law considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by that.

Respondent Isidro posits that any immobile object along the highway, like a
parked truck, poses serious danger to a moving vehicle which has the right
to be on the highway. He argues that since the parked cargo truck in this
case was a threat to life and limb and property, it was incumbent upon the
driver as well as the petitioner, who claims to be a helper of the truck driver,
to exercise extreme care so that the motorist negotiating the road would be
properly forewarned of the peril of a parked vehicle. Isidro submits that the
burden of proving that care and diligence were observed is shifted to the
petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to
be on the road, while the immobile cargo truck had no business, so to speak,
to be there. Likewise, Isidro proffers that the petitioner must show to the
satisfaction of a reasonable mind that the driver and he (petitioner) himself,
provided an early warning device, like that required by law, or, by some
other adequate means that would properly forewarn vehicles of the
impending danger that the parked vehicle posed considering the time, place,
and other peculiar circumstances of the occasion. Absent such proof of care,
as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa
loquitur, evoke the presumption of negligence on the part of the driver of the
parked cargo truck as well as his helper, the petitioner herein, who was
fixing the flat tire of the said truck. 27

Respondent Isidro's contention is untenable.

The evidence on record discloses that three or four meters from the rear of
the parked truck, a lighted kerosene lamp was placed. 28 Moreover, there is
the admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29

Question No. 8 (by Patrolman Josefino Velasco)Will you narrate

to me in brief how the accident happens (sic) if you can still
remember?

Answer: (by Daniel Serrano)

That on or about 10:40 p.m., 15 May 1979 while

driving Isuzu truck at Baretbet, Bagabag, Nueva

48
 Vizcaya and at KM 285, I met another vehicle who
(sic) did not dim his (sic) lights which cause (sic) me
to be blinded with intense glare of the light that's
why I did not notice a parked truck who (sic) was
repairing a front flat tire. When I was a few meters
away, I saw the truck which was loaded with round
logs. I step (sic) on my foot brakes but it did not
function with my many attempts. I have (sic) found
out later that the fluid pipe on the rear right was cut
that's why the breaks did not function. (Emphasis
supplied).

Whether the cargo truck was parked along the road or on half the shoulder
of the right side of the road would be of no moment taking into account the
warning device consisting of the lighted kerosene lamp placed three or four
meters from the back of the truck. 30 But despite this warning which we rule
as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the
private respondent, still bumped the rear of the parked cargo truck. As a
direct consequence of such accident the petitioner sustained injuries on his
left forearm and left foot. His left leg was later amputated from below the
knee when gangrene had set in. 31

It is clear from the foregoing disquisition that the absence or want of care of
Daniel Serrano has been established by clear and convincing evidence. It
follows that in stamping its imprimatur upon the invocation by respondent
Isidro of the doctrine of Res ipsa loquitur to escape liability for the
negligence of his employee, the respondent court committed reversible error.

The respondent court ruled: 32

xxx xxx xxx

In addition to this, we agree with the following arguments of

appellant Godofredo Isidro which would show that the accident
was caused due to the negligence of the driver of the cargo
truck:

xxx xxx xxx

49
 ... In the case at bar the burden of proving that care
and diligence was (sic) observed is shifted evidently
to the plaintiff, for, as adverted to, the motorists
have the right to be on the road, while the immobile
truck has no business, so to speak, to be there. It is
thus for the plaintiff to show to the satisfaction of a
reasonable mind that the driver and he himself did
employ early warning device such as that required
by law or by some other adequate means or device
that would properly forewarn vehicles of the
impending danger that the parked vehicle posed
considering the time, place and other peculiar
circumstances of the occasion. Absent such proof of
care, as in the case at bar, will evoke the
presumption of negligence under the doctrine of res
ipsa loquitur, on the part of the driver of the parked
cargo truck as well as plaintiff who was fixing the flat
tire of said truck. (pp. 14-17, Appellant's Brief).
(Emphasis supplied).

At this juncture, it may be enlightening and helpful in the proper resolution

of the issue of negligence to examine the doctrine of Res ipsa loquitur.

This doctrine is stated thus: "Where the thing which causes injury is shown
to be under the management of the defendant, and the accident is such as
in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence
of an explanation by the defendant, that the accident arose from want of
care. 33 Or as Black's Law Dictionary 34 puts it:

Res ipsa loquitur. The thing speaks for itself Rebuttable

presumption or inference that defendant was negligent, which
arises upon proof that instrumentality causing injury was in
defendant's exclusive control, and that the accident was one
which ordinarily does not happen in absence of negligence. Res
ipsa loquitur is rule of evidence whereby negligence of alleged
wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances
attending it lead reasonably to belief that in absence of

50
 negligence it would not have occurred and that thing which
caused injury is shown to have been under management and
control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex.
Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa
loquitur" the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence that
injury was caused by an agency or instrumentality under
exclusive control and management of defendant, and that the
occurrence was such that in the ordinary course of things would
not happen if reasonable care had been used.

In this jurisdiction we have applied this doctrine in quite a number of cases,

notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case
of F.F. Cruz and Co., Inc. vs. CA. 36

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law
of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific proof
of negligence. 37 The doctrine is not a rule of substantive law 38 but merely a
mode of proof or a mere procedural convenience. 39 The rule, when
applicable to the facts and circumstances of a particular case, is not intended
to and does not dispense with the requirement of proof of culpable
negligence on the part of the party charged. 40 It merely determines and
regulates what shall be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due care. 41 The doctrine
can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available. 42 Hence, it has generally
been held that the presumption of inference arising from the doctrine cannot
be availed of, or is overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence which is the cause of
the injury complained of or where there is direct evidence as to the precise
cause of the accident and all the facts and circumstances attendant on the
occurrence clearly appear. 43 Finally, once the actual cause of injury is
established beyond controversy, whether by the plaintiff or by the defendant,
no presumptions will be involved and the doctrine becomes inapplicable
when the circumstances have been so completely eludicated that no
inference of defendant's liability can reasonably be made, whatever the
source of the evidence, 44 as in this case.

51
The private respondent is sued under Art. 2176 in relation to Art. 2180,
paragraph 5, of the Civil Code. In the latter, when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either
in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows necessarily that if the
employer shows to the satisfaction of the court that in the selection and in
the supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability. 45 In
disclaiming liability for the incident, the private respondent stresses that the
negligence of his employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a driver and that the
truck owner used to instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first
place, it is clear that the driver did not know his responsibilities because he
apparently did not check his vehicle before he took it on the road. If he did
he could have discovered earlier that the brake fluid pipe on the right was
cut, and could have repaired it and thus the accident could have been
avoided. Moveover, to our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the driver was licensed,
and the fact that he had no record of any accident, as found by the
respondent court, are not sufficient to destroy the finding of negligence of
the Regional Trial Court given the facts established at the trial 47 The private
respondent or his mechanic, who must be competent, should have
conducted a thorough inspection of his vehicle before allowing his driver to
drive it. In the light of the circumstances obtaining in the case, we hold that
Isidro failed to prove that the diligence of a good father of a family in the
supervision of his employees which would exculpate him from solidary
liability with his driver to the petitioner. But even if we concede that the
diligence of a good father of a family was observed by Isidro in the
supervision of his driver, there is not an iota of evidence on record of the
observance by Isidro of the same quantum of diligence in the supervision of
his mechanic, if any, who would be directly in charge in maintaining the road
worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof
that Isidro exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the selection of his

52
mechanic, if any, in order to insure the safe operation of his truck and thus
prevent damage to others. Accordingly, the responsibility of Isidro as
employer treated in Article 2180, paragraph 5, of the Civil Code has not
ceased.

WHEREFORE, the petition is hereby GRANTED. The Decision of the

respondent court as well as its Resolution denying the petitioner's motion for
reconsideration are hereby SET ASIDE and the decision of the trial court,
dated January 20, 1983, is hereby REINSTATED in toto. With costs against
the private respondents.

SO ORDERED.

Picart vs Smith
G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been
caused by an automobile driven by the defendant. From a judgment of the
Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the plaintiff was riding on his
pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate
of about ten or twelve miles per hour. As the defendant neared the bridge he

53
saw a horseman on it and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before
him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up against the railing on
the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get
over to the other side. The bridge is shown to have a length of about 75
meters and a width of 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road for
the machine. In so doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited fright, and the
rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward
the horse without diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape hitting the
horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the
railing. In so doing, it as struck on the hock of the left hind leg by the flange
of the car and the limb was broken. The horse fell and its rider was thrown
off with some violence. From the evidence adduced in the case we believe
that when the accident occurred the free space where the pony stood
between the automobile and the railing of the bridge was probably less than
one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and
required medical attention for several days.

The question presented for decision is whether or not the defendant in

maneuvering his car in the manner above described was guilty of negligence
such as gives rise to a civil obligation to repair the damage done; and we are
of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass
over to the proper side; but as he moved toward the center of the bridge it

54
was demonstrated to his eyes that this would not be done; and he must in a
moment have perceived that it was too late for the horse to cross with safety
in front of the moving vehicle. In the nature of things this change of
situation occurred while the automobile was yet some distance away; and
from this moment it was not longer within the power of the plaintiff to
escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass sufficiently far
away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was,
we think, deceived into doing this by the fact that the horse had not yet
exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here
confronted him. When the defendant exposed the horse and rider to this
danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular

case may be stated as follows: Did the defendant in doing the alleged
negligent act use that person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a

given situation must of course be always determined in the light of human
experience and in view of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of
the course actually pursued? If so, it was the duty of the actor to take

55
precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case
is this: Conduct is said to be negligent when a prudent man in the position of
the tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.

Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of
that course. Under these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for
he was guilty of antecedent negligence in planting himself on the wrong side
of the road. But as we have already stated, the defendant was also
negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts
of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is chargeable
with the consequences, without reference to the prior negligence of the
other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) should perhaps be mentioned in this connection. This Court there
held that while contributory negligence on the part of the person injured did
not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the
other party. The defendant company had there employed the plaintiff, as a
laborer, to assist in transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails were conveyed upon
cars which were hauled along a narrow track. At certain spot near the
water's edge the track gave way by reason of the combined effect of the

56
weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and
broken. It appeared in evidence that the accident was due to the effects of
the typhoon which had dislodged one of the supports of the track. The court
found that the defendant company was negligent in having failed to repair
the bed of the track and also that the plaintiff was, at the moment of the
accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the
track in proper repair nevertheless the amount of the damages should be
reduced on account of the contributory negligence in the plaintiff. As will be
seen the defendant's negligence in that case consisted in an omission only.
The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the
defendant was actually present and operating the automobile which caused
the damage, we do not feel constrained to attempt to weigh the negligence
of the respective parties in order to apportion the damage according to the
degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the
accident and that the antecedent negligence of the plaintiff was a more
remote factor in the case.

A point of minor importance in the case is indicated in the special defense

pleaded in the defendant's answer, to the effect that the subject matter of
the action had been previously adjudicated in the court of a justice of the
peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in
a criminal prosecution for the offense mentioned would be res adjudicata
upon the question of his civil liability arising from negligence -- a point upon
which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing
can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep.,
564.)

57
From what has been said it results that the judgment of the lower court
must be reversed, and judgment is her rendered that the plaintiff recover of
the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.

Phil Hawk vs Vivian Lee

THIRD DIVISION

PHILIPPINE HAWK G.R. No. 166869

CORPORATION,

Petitioner, Present:

CORONA, J., Chairperson,

VELASCO, JR.,

NACHURA,

-versus- PERALTA, and

MENDOZA, JJ.

Promulgated:

February 16, 2010

VIVIAN TAN LEE,

58
 Respondent.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
---x

DECISION

PERALTA, J.:

This is a Petition for Review on Certiorari[1] of the Decision of the Court

of Appeals in CA-G.R. CV No. 70860, promulgated on August 17, 2004,
affirming with modification the Decision of the Regional Trial Court (RTC) of
Quezon City, Branch 102, dated March 16, 2001, in Civil Case No. Q-91-
9191, ordering petitioner Philippine Hawk Corporation and Margarito Avila to
jointly and severally pay respondent Vivian Tan Lee damages as a result of a
vehicular accident.

The facts are as follows:

On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of
Quezon City a Complaint[2] against petitioner Philippine Hawk Corporation
and defendant Margarito Avila for damages based on quasi-delict, arising
from a vehicular accident that occurred on March 17, 1991 in Barangay
Buensoceso, Gumaca, Quezon. The accident resulted in the death of
respondents husband, Silvino Tan, and caused respondent physical injuries.

On June 18, 1992, respondent filed an Amended Complaint, [3] in her

own behalf and in behalf of her children, in the civil case for damages

59
against petitioner. Respondent sought the payment of indemnity for the
death of Silvino Tan, moral andexemplary damages, funeral and interment
expenses, medical and hospitalization expenses, the cost of the motorcycles
repair, attorneys fees, and other just and equitable reliefs.

The accident involved a motorcycle, a passenger jeep, and a bus with

Body No. 119. The bus was owned by petitioner Philippine Hawk
Corporation, and was then being driven by Margarito Avila.

In its Answer,[4] petitioner denied liability for the vehicular accident,

alleging that the immediate and proximate cause of the accident was the
recklessness or lack of caution of Silvino Tan. Petitioner asserted that it
exercised the diligence of a good father of the family in the selection and
supervision of its employees, including Margarito Avila.

On March 25, 1993, the trial court issued a Pre-trial Order [5] stating
that the parties manifested that there was no possibility of amicable
settlement between them. However, they agreed to stipulate on the
following facts:

1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon,

plaintiff Vivian Lee Tan and her husband Silvino Tan, while on
board a motorcycle with [P]late No. DA-5480 driven by the
latter, and a Metro Bus with [P]late No. NXR-262 driven by
Margarito Avila, were involved in an accident;

2. As a result of the accident, Silvino Tan died on the spot

while plaintiff Vivian Lee Tan suffered physical injuries which
necessitated medical attention and hospitalization;

3. The deceased Silvino Tan is survived by his wife, plaintiff

Vivian Lee Tan and four children, three of whom are now
residents of the United States; and

60
 4. Defendant Margarito Avila is an employee of defendant
Philippine Hawk.[6]

The parties also agreed on the following issues:

1. Whether or not the proximate cause of the accident

causing physical injuries upon the plaintiff Vivian Lee Tan and
resulting in the death of the latters husband was the
recklessness and negligence of Margarito Avila or the
deceased Silvino Tan; and

2. Whether or not defendant Philippine Hawk Transport

Corporation exercised the diligence of a good father of the
family in the selection and supervision of its driver Margarito
Avila.[7]

Respondent testified that on March 17, 1991, she was riding on

their motorcycle in tandem with her husband, who was on the wheel, at a
place after a Caltex gasoline station in Barangay Buensoceso, Gumaca,
Quezon on the way to Lopez, Quezon. They came from the Pasumbal
Machine Shop, where they inquired about the repair of their tanker. They
were on a stop position at the side of the highway; and when they were
about to make a turn, she saw a bus running at fast speed comingtoward
them, and then the bus hit a jeep parked on the roadside, and their
motorcycle as well. She lost consciousness and was brought to the hospital
in Gumaca, Quezon, where she was confined for a week. She was later
transferred to St. Lukes Hospital in Quezon City, Manila. She suffered a
fracture on her left chest, her left arm became swollen, she felt pain in her
bones, and had high blood pressure.[8]

61
 Respondents husband died due to the vehicular accident. The
immediate cause of his death was massive cerebral hemorrhage. [9]

Respondent further testified that her husband was leasing [10] and
operating a Caltex gasoline station in Gumaca, Quezon that yielded one
million pesos a year in revenue. They also had a copra business, which gave
them an income of P3,000.00 a month or P36,000.00 a year.[11]

Ernest Ovial, the driver of the passenger jeep involved in the accident,
testified that in the afternoon of March 17, 1991, his jeep was parked on the
left side of the highway near the Pasumbal Machine Shop. He did not notice
the motorcycle before the accident. But he saw the bus dragging the
motorcycle along the highway, and then the bus bumped his jeep and sped
away.[12]

For the defense, Margarito Avila, the driver of petitioners

bus, testified that on March 17, 1999, at about 4:30 p.m., he was driving his
bus at 60 kilometers per hour on the Maharlika Highway. When they were at
Barangay Buensoceso, Gumaca, Quezon, a motorcycle ran from his left side
of the highway, and as the bus came near, the motorcycle crossed the path
of the bus, and so he turned the bus to the right. He heard a loud banging
sound. From his side mirror, he saw that the motorcycle turned turtle
(bumaliktad). He did not stop to help out of fear for his life, but drove on
and surrendered to the police. He denied that he bumped the motorcycle.[13]

Avila further testified that he had previously been involved in

sideswiping incidents, but he forgot how many times. [14]

Rodolfo Ilagan, the bus conductor, testified that the motorcycle

bumped the left side of the bus that was running at 40 kilometers per hour.
[15]

62
 Domingo S. Sisperes, operations officer of petitioner, testified that, like
their other drivers, Avila was subjected to and passed the following
requirements:

(1) Submission of NBI clearance;

(2) Certification from his previous employer that he had no

bad record;

(3) Physical examination to determine his fitness to drive;

(4) Test of his driving ability, particularly his defensive skill; and

(5) Review of his driving skill every six months.[16]

Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon,

testified that the bus was running on the highway on a straight path when a
motorcycle, with a woman behind its driver, suddenly emerged from the left
side of the road from a machine shop. The motorcycle crossed the highway
in a zigzag manner and bumped the side of the bus.[17]

In its Decision dated March 16, 2001, the trial court rendered
judgment against petitioner and defendant Margarito Avila, the dispositive
portion of which reads:

ACCORDINGLY, MARGARITO AVILA is adjudged guilty of

simple negligence, and judgment is hereby rendered in favor of
the plaintiff Vivian Lee Tan and h[er] husbands heirs ordering the
defendants Philippine Hawk Corporation and Margarito Avila to
pay them jointly and solidarily the sum of P745,575.00

63
 representing loss of earnings and actual damages
plus P50,000.00 as moral damages. [18]

The trial court found that before the collision, the motorcycle was on
the left side of the road, just as the passenger jeep was. Prior to the
accident, the motorcycle was in a running position moving toward the right
side of the highway. The trial court agreed with the bus driver that the
motorcycle was moving ahead of the bus from the left side of the road
toward the right side of the road, but disagreed that the motorcycle crossed
the path of the bus while the bus was running on the right side of the road.
[19]

The trial court held that if the bus were on the right side of the
highway, and Margarito Avila turned his bus to the right in an attempt to
avoid hitting the motorcyle, then the bus would not have hit the passenger
jeep, which was then parked on the left side of the road. The fact that the
bus also hit the passenger jeep showed that the bus must have been
running from the right lane to the left lane of the highway, which caused the
collision with the motorcycle and the passenger jeep parked on the left side
of the road. The trial court stated that since Avila saw the motorcycle before
the collision, he should have stepped on the brakes and slowed down, but he
just maintained his speed and veered to the left. [20] The trial court found
Margarito Avila guilty of simple negligence.

The trial court held petitioner bus company liable for failing to exercise
the diligence of a good father of the family in the selection and supervision
of Avila, having failed to sufficiently inculcate in him discipline and correct
behavior on the road.[21]

64
 On appeal, the Court of Appeals affirmed the decision of the trial court
with modification in the award of damages. The dispositive portion of the
decision reads:

WHEREFORE, foregoing premises considered, the appeal is

DENIED. The assailed decision dated March 16, 2001 is hereby
AFFIRMED with MODIFICATION. Appellants Philippine Hawk and
Avila are hereby ordered to pay jointly and severally appellee the
following amount: (a) P168,019.55 as actual damages;
(b) P10,000.00 as temperate damages; (c) P100,000.00 as
moral damages; (d) P590,000.00 as unearned income; and
(e) P50,000.00 as civil indemnity.[22]

Petitioner filed this petition, raising the following issues:

1) The Court of Appeals committed grave abuse of discretion

amounting to lack of jurisdiction in passing upon an issue, which
had not been raised on appeal, and which had, therefore, attained
finality, in total disregard of the doctrine laid down by this Court
in Abubakar v. Abubakar, G.R. No. 134622, October 22, 1999.

2) The Court of Appeals committed reversible error in its finding that

the petitioners bus driver saw the motorcycle of private respondent
executing a U-turn on the highway about fifteen (15) meters away
and thereafter held that the Doctrine of Last Clear was applicable to
the instant case. This was a palpable error for the simple reason
that the aforesaid distance was the distance of the witness to the
bus and not the distance of the bus to the respondents motorcycle,
as clearly borne out by the records.

65
 3) The Court of Appeals committed reversible error in awarding
damages in total disregard of the established doctrine laid down
in Danao v. Court of Appeals, 154 SCRA 447 and Viron
Transportation Co., Inc. v. Delos Santos, G.R. No. 138296,
November 22, 2000.[23]

In short, the issues raised by petitioner are: (1) whether or

not negligence may be attributed to petitioners driver, and
whether negligence on his part was the proximate cause of the accident,
resulting in the death of Silvino Tan and causing physical injuries to
respondent; (2) whether or not petitioner is liable to respondent for
damages; and (3) whether or not the damages awarded by respondent
Court of Appeals are proper.

Petitioner seeks a review of the factual findings of the trial court, which
were sustained by the Court of Appeals, that petitioners driver was negligent
in driving the bus, which caused physical injuries to respondent and the
death of respondents husband.

The rule is settled that the findings of the trial court, especially when
affirmed by the Court of Appeals, are conclusive on this Court when
supported by the evidence on record. [24] The Court has carefully reviewed
the records of this case, and found no cogent reason to disturb the findings
of the trial court, thus:

The Court agree[s] with the bus driver Margarito that the
motorcycle was moving ahead of the bus towards the right side
from the left side of the road, but disagrees with him that
it crossed the path of the bus while the bus was running on the
right side of the highway.

66
 If the bus were on the right side of the highway and
Margarito turned his bus to the right in an attempt to avoid
hitting it, then the bus would not have hit the passenger jeep
vehicle which was then parked on the left side of the road. The
fact that the bus hit the jeep too, shows that the bus must have
been running to the left lane of the highway from right to the
left, that the collision between it and the parked jeep and the
moving rightways cycle became inevitable. Besides, Margarito
said he saw the motorcycle before the collision ahead of the bus;
that being so, an extra-cautious public utility driver should have
stepped on his brakes and slowed down. Here, the bus never
slowed down, it simply maintained its highway speed and veered
to the left. This is negligence indeed.[25]

Petitioner contends that the Court of Appeals was mistaken in stating

that the bus driver saw respondents motorcycle about 15 meters away
before the collision, because the said distance, as testified to by its witness
Efren Delantar Ong, was Ongs distance from the bus, and not the distance of
the bus from the motorcycle. Petitioner asserts that this mistaken
assumption of the Court of Appeals made it conclude that the bus driver,
Margarito Avila, had the last clear chance to avoid the accident, which was
the basis for the conclusion that Avila was guilty of simple negligence.

A review of the records showed that it was petitioners witness, Efren

Delantar Ong, who was about 15 meters away from the bus when he saw
the vehicular accident.[26] Nevertheless, this fact does not affect the finding
of the trial court that petitioners bus driver, Margarito Avila, was guilty of
simple negligence as affirmed by the appellate court. Foreseeability is the
fundamental test of negligence. [27] To be negligent, a defendant must have
acted or failed to act in such a way that an ordinary reasonable man would
have realized that certain interests of certain persons were unreasonably
subjected to a general but definite class of risks.[28]

67
 In this case, the bus driver, who was driving on the right side of the
road, already saw the motorcycle on the left side of the road before the
collision. However, he did not take the necessary precaution to slow down,
but drove on and bumped the motorcycle, and also the passenger jeep
parked on the left side of the road, showing that the bus was negligent in
veering to the left lane, causing it to hit the motorcycle and the passenger
jeep.

Whenever an employees negligence causes damage or injury to

another, there instantly arises a presumption that the employer failed to
exercise the due diligence of a good father of the family in the selection or
supervision of its employees.[29]To avoid liability for a quasi-delict committed
by his employee, an employer must overcome the presumption by
presenting convincing proof that he exercised the care and diligence of a
good father of a family in the selection and supervision of his employee. [30]

The Court upholds the finding of the trial court and the Court of
Appeals that petitioner is liable to respondent, since it failed to exercise the
diligence of a good father of the family in the selection and supervision of its
bus driver, Margarito Avila, for having failed to sufficiently inculcate in him
discipline and correct behavior on the road. Indeed, petitioners tests were
concentrated on the ability to drive and physical fitness to do so. It also did
not know that Avila had been previously involved in sideswiping incidents.

As regards the issue on the damages awarded, petitioner contends

that it was the only one that appealed the decision of the trial court with
respect to the award of actual and moral damages; hence, the Court of
Appeals erred in awarding other kinds of damages in favor of respondent,
who did not appeal from the trial courts decision.

Petitioners contention is unmeritorious.

68
 Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:

SEC. 8. Questions that may be decided. -- No error which

does not affect the jurisdiction over the subject matter or the
validity of the judgment appealed from or the proceedings
therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned error
and properly argued in the brief, save as the court pass upon
plain errors and clerical errors.

Philippine National Bank v. Rabat [31] cited the book[32] of Justice

Florenz D. Regalado to explain the section above, thus:

In his book, Mr. Justice Florenz D. Regalado commented on

this section, thus:

1. Sec. 8, which is an amendment of the former Sec. 7 of

this Rule, now includes some substantial changes in the rules on
assignment of errors. The basic procedural rule is that only
errors claimed and assigned by a party will be considered by the
court, except errors affecting its jurisdiction over the subject
matter. To this exception has now been added errors affecting
the validity of the judgment appealed from or the proceedings
therein.

Also, even if the error complained of by a party is not

expressly stated in his assignment of errors but the same is
closely related to or dependent on an assigned error and
properly argued in his brief, such error may now be considered
by the court. These changes are of jurisprudential origin.
2. The procedure in the Supreme Court being
generally the same as that in the Court of Appeals, unless

69
 otherwise indicated (see Secs. 2 and 4, Rule 56), it has
been held that the latter is clothed with ample authority
to review matters, even if they are not assigned as errors
on appeal, if it finds that their consideration is necessary
in arriving at a just decision of the case. Also, an unassigned
error closely related to an error properly assigned (PCIB vs. CA,
et al., L-34931, Mar. 18, 1988), or upon which the determination
of the question raised by error properly assigned is dependent,
will be considered by the appellate court notwithstanding the
failure to assign it as error (Ortigas, Jr. vs. Lufthansa German
Airlines, L-28773, June 30, 1975; Soco vs. Militante, et al., G.R.
No. 58961, June 28, 1983).

It may also be observed that under Sec. 8 of this Rule, the

appellate court is authorized to consider a plain error, although it
was not specifically assigned by the appellant (Dilag vs. Heirs of
Resurreccion, 76 Phil. 649), otherwise it would be sacrificing
substance for technicalities.[33]

In this case for damages based on quasi-delict, the trial court awarded
respondent the sum of P745,575.00, representing loss of earning capacity
(P590,000.00) and actual damages (P155,575.00 for funeral expenses),
plus P50,000.00 as moral damages. On appeal to the Court of Appeals,
petitioner assigned as error the award of damages by the trial court on the
ground that it was based merely on suppositions and surmises, not the
admissions made by respondent during the trial.

In its Decision, the Court of Appeals sustained the award by the trial
court for loss of earning capacity of the deceased Silvino Tan, moral
damages for his death, and actual damages, although the amount of the
latter award was modified.

70
 The indemnity for loss of earning capacity of the deceased is provided
for by Article 2206 of the Civil Code.[34] Compensation of this nature is
awarded not for loss of earnings, but for loss of capacity to earn money.[35]

As a rule, documentary evidence should be presented to substantiate

the claim for damages for loss of earning capacity.[36] By way of exception,
damages for loss of earning capacity may be awarded despite the absence of
documentary evidence when: (1) the deceased is self-employed and earning
less than the minimum wage under current labor laws, in which case, judicial
notice may be taken of the fact that in the deceased's line of work no
documentary evidence is available; or (2) the deceased is employed as a
daily wage worker earning less than the minimum wage under current labor
laws.[37]

In this case, the records show that respondents husband was leasing
and operating a Caltex gasoline station in Gumaca, Quezon. Respondent
testified that her husband earned an annual income of one million pesos.
Respondent presented in evidence a Certificate of Creditable Income Tax
Withheld at Source for the Year 1990, [38] which showed that respondents
husband earned a gross income of P950,988.43 in 1990. It is reasonable to
use the Certificate and respondents testimony as bases for fixing the gross
annual income of the deceased at one million pesos before respondents
husband died on March 17, 1999. However, no documentary evidence was
presented regarding the income derived from their copra business; hence,
the testimony of respondent as regards such income cannot be considered.

In the computation of loss of earning capacity, only net earnings, not

gross earnings, are to be considered; that is, the total of the earnings less
expenses necessary for the creation of such earnings or income, less living
and other incidental expenses.[39] In the absence of documentary evidence, it
is reasonable to peg necessary expenses for the lease and operation of the

71
gasoline station at 80 percent of the gross income, and peg living expenses
at 50 percent of the net income (gross income less necessary expenses).

In this case, the computation for loss of earning capacity is as follows:

Net Earning = Life Expectancy x Gross Annual Income Reasonable and

Capacity [2/3 (80-age at the (GAI) Necessary

time of death)] Expenses

(80% of GAI)

X = [2/3 (80-65)] x P1,000,000.00 - P800,000.00

X = 2/3 (15) x P200,000.00 - P100,000.00

(Living Expenses)

X = 30/3 x P100,000.00

X = 10 x P100,000.00

X = P1,000,000.00

The Court of Appeals also awarded actual damages for the expenses
incurred in connection with the death, wake, and interment of respondents
husband in the amount of P154,575.30, and the medical expenses of
respondent in the amount of P168,019.55.

Actual damages must be substantiated by documentary evidence, such

as receipts, in order to prove expenses incurred as a result of the death of
the victim[40] or the physical injuries sustained by the victim. A review of the

72
valid receipts submitted in evidence showed that the funeral and related
expenses amounted only to P114,948.60, while the medical expenses of
respondent amounted only to P12,244.25, yielding a total of P127,192.85 in
actual damages.

Moreover, the Court of Appeals correctly sustained the award of moral

damages in the amount of P50,000.00 for the death of respondents
husband. Moral damages are not intended to enrich a plaintiff at the expense
of the defendant.[41] They are awarded to allow the plaintiff to obtain means,
diversions or amusements that will serve to alleviate the moral suffering
he/she has undergone due to the defendants culpable action and must,
perforce, be proportional to the suffering inflicted.[42]

In addition, the Court of Appeals correctly awarded temperate

damages in the amount of P10,000.00 for the damage caused on
respondents motorcycle. Under Art. 2224 of the Civil Code, temperate
damages may be recovered when the court finds that some pecuniary loss
has been suffered but its amount cannot, from the nature of the case, be
proved with certainty. The cost of the repair of the motorcycle was prayed
for by respondent in her Complaint. However, the evidence presented was
merely a job estimate[43] of the cost of the motorcycles repair amounting
to P17, 829.00. The Court of Appeals aptly held that there was no doubt that
the damage caused on the motorcycle was due to the negligence of
petitioners driver. In the absence of competent proof of the actual damage
caused on the motorcycle or the actual cost of its repair, the award of
temperate damages by the appellate court in the amount of P10,000.00 was
reasonable under the circumstances.[44]

The Court of Appeals also correctly awarded respondent moral

damages for the physical injuries she sustained due to the vehicular
accident. Under Art. 2219 of the Civil Code, [45] moral damages may be
recovered in quasi-delicts causing physical injuries. However, the award

73
of P50,000.00 should be reduced to P30,000.00 in accordance with
prevailing jurisprudence.[46]

Further, the Court of Appeals correctly awarded respondent civil

indemnity for the death of her husband, which has been fixed by current
jurisprudence at P50,000.00.[47] The award is proper under Art. 2206 of the
Civil Code.[48]

In fine, the Court of Appeals correctly awarded civil indemnity for the
death of respondents husband, temperate damages, and moral damages for
the physical injuries sustained by respondent in addition to the damages
granted by the trial court to respondent. The trial court overlooked awarding
the additional damages, which were prayed for by respondent in her
Amended Complaint. The appellate court is clothed with ample authority to
review matters, even if they are not assigned as errors in the appeal, if it
finds that their consideration is necessary in arriving at a just decision of the
case.[49]

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals dated August 17, 2004 in CA-G.R. CV No. 70860 is
hereby AFFIRMED with MODIFICATION. Petitioner Philippine Hawk
Corporation and Margarito Avila are hereby ordered to pay jointly and
severally respondent Vivian Lee Tan: (a) civil indemnity in the amount
of Fifty Thousand Pesos (P50,000.00); (b) actual damages in the amount
of One Hundred Twenty-Seven Thousand One Hundred Ninety-Two Pesos
and Eighty-Five Centavos ( P127,192.85); (c) moral damages in the amount
of Eighty Thousand Pesos (P80,000.00); (d) indemnity for loss of earning
capacity in the amount of One Million Pesos (P1,000,000.00); and (e)
temperate damages in the amount of Ten Thousand Pesos (P10,000.00).

74
 Costs against petitioner.

SO ORDERED.

Phoenix vs IAC
G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U.

CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents.

FELICIANO, J:

In the early morning of 15 November 1975 at about 1:30 a.m. private

respondent Leonardo Dionisio was on his way home he lived in 1214-B
Zamora Street, Bangkal, Makati from a cocktails-and-dinner meeting with
his boss, the general manager of a marketing corporation. During the
cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor.
Dionisio was driving his Volkswagen car and had just crossed the intersection
of General Lacuna and General Santos Streets at Bangkal, Makati, not far
from his home, and was proceeding down General Lacuna Street, when his
car headlights (in his allegation) suddenly failed. He switched his headlights
on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2
meters away from his car. The dump truck, owned by and registered in the
name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the
right hand side of General Lacuna Street (i.e., on the right hand side of a
person facing in the same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump truck was parked askew
(not parallel to the street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There were no lights nor
any so-called "early warning" reflector devices set anywhere near the dump
truck, front or rear. The dump truck had earlier that evening been driven

75
home by petitioner Armando U. Carbonel, its regular driver, with the
permission of his employer Phoenix, in view of work scheduled to be carried
out early the following morning, Dionisio claimed that he tried to avoid a
collision by swerving his car to the left but it was too late and his car
smashed into the dump truck. As a result of the collision, Dionisio suffered
some physical injuries including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of

Pampanga basically claiming that the legal and proximate cause of his
injuries was the negligent manner in which Carbonel had parked the dump
truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on
the other hand, countered that the proximate cause of Dionisio's injuries was
his own recklessness in driving fast at the time of the accident, while under
the influence of liquor, without his headlights on and without a curfew pass.
Phoenix also sought to establish that it had exercised due rare in the
selection and supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix
and Carbonel and ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P 15,000.00

for hospital bills and the replacement of the lost dentures of
plaintiff;

(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-

00 as loss of expected income for plaintiff brought about the
accident in controversy and which is the result of the negligence
of the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000.
as moral damages for the unexpected and sudden withdrawal of
plaintiff from his lifetime career as a marketing man; mental
anguish, wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity, and the
untold sorrows and frustration in life experienced by plaintiff and
his family since the accident in controversy up to the present
time;

76
 (4) To pay plaintiff jointly and severally the sum of P 10,000.00
as damages for the wanton disregard of defendants to settle
amicably this case with the plaintiff before the filing of this case
in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P

4,500.00 due as and for attorney's fees; and

(6) The cost of suit. (Emphasis supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That

court in CA-G.R. No. 65476 affirmed the decision of the trial court but
modified the award of damages to the following extent:

1. The award of P15,000.00 as compensatory

damages was reduced to P6,460.71, the latter being
the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected

income was reduced to P100,000.00,basically
because Dionisio had voluntarily resigned his job
such that, in the opinion of the appellate court, his
loss of income "was not solely attributable to the
accident in question;" 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
untouched.

This decision of the Intermediate Appellate Court is now before us on a

petition for review.

Both the trial court and the appellate court had made fairly explicit findings
of fact relating to the manner in which the dump truck was parked along
General Lacuna Street on the basis of which both courts drew the inference

77
that there was negligence on the part of Carbonel, the dump truck driver,
and that this negligence was the proximate cause of the accident and
Dionisio's injuries. We note, however, that both courts failed to pass upon
the defense raised by Carbonel and Phoenix that the true legal and
proximate cause of the accident was not the way in which the dump truck
had been parked but rather the reckless way in which Dionisio had driven his
car that night when he smashed into the dump truck. The Intermediate
Appellate Court in its questioned decision casually conceded that Dionisio
was "in some way, negligent" but apparently failed to see the relevance of
Dionisio's negligence and made no further mention of it. We have examined
the record both before the trial court and the Intermediate Appellate Court
and we find that both parties had placed into the record sufficient evidence
on the basis of which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless manner in
which Dionisio drove his car that night. The petitioners Phoenix and Carbonel
contend that if there was negligence in the manner in which the dump truck
was parked, that negligence was merely a "passive and static condition" and
that private respondent Dionisio's recklessness constituted an intervening,
efficient cause determinative of the accident and the injuries he sustained.
The need to administer substantial justice as between the parties in this
case, without having to remand it back to the trial court after eleven years,
compels us to address directly the contention put forward by the petitioners
and to examine for ourselves the record pertaining to Dionisio's alleged
negligence which must bear upon the liability, or extent of liability, of
Phoenix and Carbonel.

There are four factual issues that need to be looked into: (a) whether or not
private respondent Dionisio had a curfew pass valid and effective for that
eventful night; (b) whether Dionisio was driving fast or speeding just before
the collision with the dump truck; (c) whether Dionisio had purposely turned
off his car's headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision; and (d)
whether Dionisio was intoxicated at the time of the accident.

As to the first issue relating to the curfew pass, it is clear that no curfew
pass was found on the person of Dionisio immediately after the accident nor
was any found in his car. Phoenix's evidence here consisted of the testimony
of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati
Medical Center for emergency treatment immediately after the accident. At

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the Makati Medical Center, a nurse took off Dionisio's clothes and examined
them along with the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to produce any curfew
pass during the trial. Instead, he offered the explanation that his family may
have misplaced his curfew pass. He also offered a certification (dated two
years after the accident) issued by one Major Benjamin N. Libarnes of the
Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando,
Pampanga, which was said to have authority to issue curfew passes for
Pampanga and Metro Manila. This certification was to the effect that private
respondent Dionisio had a valid curfew pass. This certification did not,
however, specify any pass serial number or date or period of effectivity of
the supposed curfew pass. We find that private respondent Dionisio was
unable to prove possession of a valid curfew pass during the night of the
accident and that the preponderance of evidence shows that he did not have
such a pass during that night. The relevance of possession or non-
possession of a curfew pass that night lies in the light it tends to shed on the
other related issues: whether Dionisio was speeding home and whether he
had indeed purposely put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in the nearby police station
for travelling after the onset of curfew without a valid curfew pass.

On the second issue whether or not Dionisio was speeding home that
night both the trial court and the appellate court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman

Cuyno who was at the scene of the accident almost immediately after it
occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the scene
of the accident told him that Dionisio's car was "moving fast" and did not
have its headlights on. 2 Dionisio, on the other hand, claimed that he was
travelling at a moderate speed at 30 kilometers per hour and had just
crossed the intersection of General Santos and General Lacuna Streets and
had started to accelerate when his headlights failed just before the collision
took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was

hearsay and did not fag within any of the recognized exceptions to the
hearsay rule since the facts he testified to were not acquired by him through
official information and had not been given by the informants pursuant to

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any duty to do so. Private respondent's objection fails to take account of the
fact that the testimony of Patrolman Cuyno is admissible not under the
official records exception to the hearsay rule 4 but rather as part of the res
gestae. 5 Testimonial evidence under this exception to the hearsay rule
consists of excited utterances made on the occasion of an occurrence or
event sufficiently startling in nature so as to render inoperative the normal
reflective thought processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not the result of
reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing

into a stationary object in the dead of night is a sufficiently startling event as
to evoke spontaneous, rather than reflective, reactions from observers who
happened to be around at that time. The testimony of Patrolman Cuyno was
therefore admissible as part of the res gestae and should have been
considered by the trial court. Clearly, substantial weight should have been
ascribed to such testimony, even though it did not, as it could not, have
purported to describe quantitatively the precise velocity at winch Dionisio
was travelling just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights,
or whether his headlights accidentally malfunctioned, just moments before
the accident. The Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the intersection but was
non-committal as to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before he reached the
intersection so as not to be detected by the police in the police precinct
which he (being a resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio i.e., that he
had his headlights on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone off, although he
succeeded in switching his lights on again at "bright" split seconds before
contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the
time of the accident. The evidence here consisted of the testimony of
Patrolman Cuyno to the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car and brought to the

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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. 8There simply is not enough evidence to
show how much liquor he had in fact taken and the effects of that upon his
physical faculties or upon his judgment or mental alertness. We are also
aware that "one shot or two" of hard liquor may affect different people
differently.

The conclusion we draw from the factual circumstances outlined above is

that private respondent Dionisio was negligent the night of the accident. He
was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate
Appellate Court that the legal and proximate cause of the accident and of
Dionisio's injuries was the wrongful or negligent manner in which the
dump truck was parked in other words, the negligence of petitioner
Carbonel. That there was a reasonable relationship between petitioner
Carbonel's negligence on the one hand and the accident and respondent's
injuries on the other hand, is quite clear. Put in a slightly different manner,
the collision of Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence.

The petitioners, however, urge that the truck driver's negligence was merely
a "passive and static condition" and that private respondent Dionisio's
negligence was an "efficient intervening cause and that consequently
Dionisio's negligence must be regarded as the legal and proximate cause of
the accident rather than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the older cases
in various jurisdictions in the United States but we are unable to persuade
ourselves that these arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the distinctions between "cause"
and "condition" which the 'petitioners would have us adopt have already

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been "almost entirely discredited." Professors and Keeton make this quite
clear:

Cause and condition. Many courts have sought to distinguish

between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant
has created only a passive static condition which made the
damage possible, the defendant is said not to be liable. But so
far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in
producing the result it is quite impossible to distinguish between
active forces and passive situations, particularly since, as is
invariably the case, the latter are the result of other active
forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act
may be culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much to
bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape
responsibility. Even the lapse of a considerable time during
which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable
to another who fans into it a month afterward. "Cause" and
"condition" still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it has any
validity at all, it must refer to the type of case where the forces
set in operation by the defendant have come to rest in a position
of apparent safety, and some new force intervenes. But even in
such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and the
character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a
"passive and static condition" was rather an indispensable and efficient
cause. The collision between the dump truck and the private respondent's
car would in an probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices. The improper
parking of the dump truck created an unreasonable risk of injury for anyone
driving down General Lacuna Street and for having so created this risk, the

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truck driver must be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's negligence and
therefore closer to the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an "intervening cause"
was no more than a foreseeable consequent manner which the truck driver
had parked the dump truck. In other words, the petitioner truck driver owed
a duty to private respondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had created. Dionisio's
negligence was not of an independent and overpowering nature as to cut, as
it were, the chain of causation in fact between the improper parking of the
dump truck and the accident, nor to sever the juris vinculum of liability. It is
helpful to quote once more from Professor and Keeton:

Foreseeable Intervening Causes. If the intervening cause is one

which in ordinary human experience is reasonably to be
anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee that
an ordinary, usual and customary wind arising later wig spread it
beyond the defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place may
foresee the risk of fire from some independent source. ... In all
of these cases there is an intervening cause combining with the
defendant's conduct to produce the result and in each case the
defendant's negligence consists in failure to protect the plaintiff
against that very risk.

Obviously the defendant cannot be relieved from liability by the

fact that the risk or a substantial and important part of the risk,
to which the defendant has subjected the plaintiff has indeed
come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's negligence. The
courts are quite generally agreed that intervening causes which
fall fairly in this category will not supersede the defendant's
responsibility.

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 Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all ordinary
forces of nature such as usual wind or rain, or snow or frost or
fog or even lightning; that one who leaves an obstruction on the
road or a railroad track should foresee that a vehicle or a train
will run into it; ...

The risk created by the defendant may include the intervention

of the foreseeable negligence of others. ... [The standard of
reasonable conduct may require the defendant to protect the
plaintiff against 'that occasional negligence which is one of the
ordinary incidents of human life, and therefore to be
anticipated.' Thus, a defendant who blocks the sidewalk and
forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently
driven; and one who parks an automobile on the highway
without lights at night is not relieved of responsibility when
another negligently drives into it. --- 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. Smith 11 but it is a matter for debate whether, or to
what extent, it has found its way into the Civil Code of the Philippines. The
historical function of that doctrine in the common law was to mitigate the
harshness of another common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory negligence prevented
any recovery at all by a plaintiff who was also negligent, even if the
plaintiff's negligence was relatively minor as compared with the wrongful act

84
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' pro-position must tend to weaken the very bonds of society.

Petitioner Carbonel's proven negligence creates a presumption of negligence

on the part of his employer Phoenix 16 in supervising its employees properly
and adequately. The respondent appellate court in effect found, correctly in
our opinion, that Phoenix was not able to overcome this presumption of
negligence. The circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was work to be done early

85
the following morning, when coupled with the failure to show any effort on
the part of Phoenix to supervise the manner in which the dump truck is
parked when away from company premises, is an affirmative showing
of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative
negligence of private respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we believe that the demands
of substantial justice are satisfied by allocating most of the damages on a
20-80 ratio. Thus, 20% of the damages awarded by the respondent
appellate court, except the award of P10,000.00 as exemplary damages and
P4,500.00 as attorney's fees and costs, shall be borne by private respondent
Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel
and Phoenix who shall be solidarity liable therefor to the former. The award
of exemplary damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course entitled to reimbursement
from Carbonel. 18 We see no sufficient reason for disturbing the reduced
award of damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by

reducing the aggregate amount of compensatory damages, loss of expected
income and moral damages private respondent Dionisio is entitled to by 20%
of such amount. Costs against the petitioners.

SO ORDERED.

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