G.R. No. 73998 November 14, 1988 PEDRO T. LAYUGAN, petitioner, vs.

INTERMEDIATE APPELLATE COURT, GODOFREDO I IDRO, !"# TRA$ELLER MULTI%INDEMNITY CORPORATION, respondents. Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate Court & in ACG.R. CV No. 1 !!, entitled "#edro $. %a&u'an, #laintiff-Appellee, versus Godofredo Isidro, (efendant-Appellant and $hird-#art& #laintiff-Appellee, versus $ravellers )ulti-Indemnit& Corporation, $hird #art& (efendant- Appellant, "which reversed and set aside the decision 3 of the Re'ional $rial Court, $hird *udicial Re'ion, +ranch ,,VI, Ca-anatuan Cit&, and also dismissed the complaint, third part& complaint, and the counter claims of the parties and .) the resolution 4 den&in' the plaintiff-appellee/s 0herein petitioner) motion for reconsideration, for lac1 of merit. $he findin's of fact -& the trial court which were adopted -& the appellate court are as follows2 '333 333 333 #edro $. %a&u'an filed an action for dama'es a'ainst Godofredo Isidro, alle'in' that on )a& 1!, 1454 while at +aret-et, +a'a-a', Nueva Vi6ca&a, the #laintiff and a companion were repairin' the tire of their car'o truc1 with #late No. 78-59 which was par1ed alon' the ri'ht side of the National :i'hwa&; that defendant/s truc1 -earin' #late No. #<-!=9, driven rec1lessl& -& (aniel 7errano -umped the plaintiff, that as a result, plaintiff was in>ured and hospitali6ed at (r. #aulino *. Garcia Research and )edical Center and the ?ur %ad& of %ourdes :ospital; that he spent $@N $:?87AN( #@7?7 0#l , . ) and will incur more e3penses as he recuperates from said in>uries; that -ecause of said in>uries he would -e deprived of a lifetime income in the sum of 7@V@N$A $:?87AN( #@7?7 0#5 , . ); and that he a'reed to pa& his law&er the sum of $@N $:?87AN( #@7?7 0#l , . ). As pra&ed for -& the plaintiffs counsel, the Court declared the defendant in default on ?cto-er 1., 1454, and plaintiff/s evidence was received ex-parte on *anuar& 11, 145= and Be-ruar& 14, 14= . $he decision on -ehalf of the plaintiff was set aside to 'ive a chance to the defendant to file his answer and later on, a third-part& complaint. (efendant admitted his ownership of the vehicle involved in the accident driven -& (aniel 7errano. (efendant countered that the plaintiff was merel& a -&stander, not a truc1 helper -ein' a -rother-in-law law of the driver of said truc1; that the truc1 alle'edl& -ein' repaired was par1ed, occup&in' almost half of the ri'ht lane towards 7olano, Nueva Vi6ca&a, ri'ht after the curve; that the pro3imate cause of the incident was the failure of the driver of the par1ed truc1 in installin' the earl& warnin' device, hence the driver of the par1ed car should -e lia-le for dama'es sustained -& the truc1 of the herein defendant in the amount of more than #. , . ; that plaintiff -ein' a mere -&stander and hitchhi1er must suffer all the dama'es he incurred. +& wa& of counterclaim defendant alle'ed that due to plaintiffs -aseless complaint he was constrained to en'a'e the services of counsel for #!, . and #. . per court appearance; that he suffered sleepless ni'hts, humiliation, wounded feelin's which ma& -e estimated at #9 . . . ?n )a& .4, 14=1, a third-part& complaint was filed -& the defendant a'ainst his insurer, the $ravellers )ulti Indemnit& Corporation; that the third-part& plaintiff, without admittin' his lia-ilit& to the plaintiff, claimed that the third-part& defendant is lia-le to the former for contri-ution, indemnit& and su-ro'ation -& virtue of their contract under Insurance #olic& No. 115.9 which covers the insurer/s lia-ilit& for dama'es arisin' from death, -odil& in>uries and dama'e to propert&. $hird-part& defendant answered that, even assumin' that the su->ect matter of the complaint is covered -& a valid and e3istin' insurance polic&, its lia-ilit& shall in no case e3ceed the limit defined under the terms and conditions stated therein; that the complaint is premature as no claim has -een su-mitted to the third part& defendant as prescri-ed under the Insurance Code; that the accident in Cuestion was appro3imatel& caused -& the carelessness and 'ross ne'li'ence of the plaintiff-, that -& reason of the third-part& complaint, third-part& defendant was constrained to en'a'e the services of counsel for a fee of #9, . . #edro %a&u'an declared that he is a married man with one 01) child. :e was emplo&ed as securit& 'uard in )andalu&on', )etro )anila, with a salar& of 7I, :8N(R@( #@7?7 0D . ) a month. <hen he is off-dut&, he wor1ed as a truc1 helper and while wor1in' as such, he sustained in>uries as a result of the -umpin' of the car'o truc1 the& were repairin' at +aret-et, +a'a-a', Nueva Vi6ca&a -& the driver of the defendant. :e used to earn $<? :8N(R@( #@7?7 0#. . ) to $:R@@ :8N(R@( #@7?7 0#9 . ) monthl&, at the rate of ?N@ :8N(R@( #@7?7 0#l . ) per trip. (ue to said in>uries, his left le' was amputated so he had to use crutches to wal1. #rior to the incident, he supported his famil& sufficientl&, -ut after 'ettin' in>ured, his famil& is now -ein' supported -& his parents and -rother. G?(?BR@(? I7I(R?, defendantEthird-part& plaintiff, testified that his truc1 involved in this vehicular accident is insured with the $ravellers )ulti Indemnit& Corporation coverin' own dama'e and third-part& lia-ilit&, under vehicle polic& No. 115.9 0@3h. "1") dated )a& 9 , 145=; that after he filed the insurance claim the insurance compan& paid him the sum of #1=, . for the dama'es sustained -& this truc1 -ut not the third part& lia-ilit&.

(ANI@% 7@RRAN?, defendant driver, declared that he 'ave a statement -efore the municipal police of +a'a-a', Nueva Vi6ca&a on )a& 1D, 1454; that he 1new the responsi-ilities of a driver; that -efore leavin', he chec1ed the truc1. $he truc1 owner used to instruct him to -e careful in drivin'. :e -umped the truc1 -ein' repaired -& #edro %a&u'an, plaintiff, while the same was at a stop position. Brom the evidence presented, it has -een esta-lished clearl& that the in>uries sustained -& the plaintiff was caused -& defendant/s driver, (aniel 7errano. $he police report confirmed the alle'ation of the plaintiff and admitted -& (aniel 7errano on cross-e3amination. $he collision dislod'ed the >ac1 from the par1ed truc1 and pinned the plaintiff to the 'round. As a result thereof, plaintiff sustained in>uries on his left forearm and left foot. $he left le' of the plaintiff from -elow the 1nee was later on amputated 0@3h. "C") when 'an'rene had set in, there-& renderin' him incapacitated for wor1 deprivin' him of his income. 0pp. 11= to 1. , Record on Appeal.) 333 333 333 8pon such findin's, ampl& supported -& the evidence on record, the trial court rendered its decision, the dispositive part of which reads as follows2 ( <:@R@B?R@, premises considered, the defendant is here-& ordered2 a) $o pa& the plaintiff 7@V@N$A $:?87AN( 0#5 , -) $<? $:?87AN( 0#., . . ) #@7?7 actual and compensator& dama'es;

) #@7?7 for attorne&/s fees; . ) #@7?7 for moral dama'es; and

c) BIV@ $:?87AN( 0#!,

d) $o pa& the costs of this suit. ?n the third-part& complaint, the third-part& defendant is ordered to indemnif& the defendantEthird part& plaintiff-. a) $he sum of BIB$A $:?87AN( 0#! , -) $he costs of this suit. $he Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the complaint, the third-part& complaint, and the counter- claims of -oth appellants. 7 :ence, this petition. $he petitioner alle'es the followin' errors. 8 1. <:@$:@R 8#?N $:@ GIV@N BAC$7, $:@ IN$@R)@(IA$@ A##@%%A$@ C?8R$ AC$@( C?RR@C$%A IN R@V@R7ING AN( 7@$$ING A7I(@ AN( (I7)I77ING $:@ #%AIN$IBBA##@%%@@/7 C?)#%AIN$. .. <:@$:@R $:@ IN$@R)@(IA$@ A##@%%A$@ C?8R$ AC$@( C?RR@C$%A IN A##%AING $:@ (?C$RIN@ ?B "R@7 I#7A %?F8I$8R" <I$: #R?#@R *8RI7- #R8(@N$IA% 0sic) +A7I7. $he cru3 of the controvers& lies in the correctness or error of the decision of the respondent court findin' the petitioner ne'li'ent under the doctrine of Res ipsa loquitur 0$he thin' spea1s for itself).<re||an1w> Corollar& thereto, is the Cuestion as to who is ne'li'ent, if the doctrine is inapplica-le. $he respondent corporation stresses that the issues raised in the petition -ein' factual, the same is not reviewa-le -& this Court in a petition for review -& certiorari. 9 Indeed, it is an elementar& rule in the review of decisions of the Court of Appeals that its findin's of fact are entitled to 'reat respect and will not ordinaril& -e distur-ed -& this Court. 1) Bor if we have to review ever& Cuestion of fact elevated to us, we would hardl& have an& more time left for the wei'htier issues compellin' and deservin' our preferential attention. 11 +e that as it ma&, this rule is not infle3i-le. 7urel& there are esta-lished e3ceptions 1& *when the Court should review and rectif& the findin's of fact of the lower court, such as2 1) when the conclusion is a findin' 'rounded entirel& on speculation, surmise, or con>ecture; .) the inference made is manifestl& mista1en; 9) there is 'rave a-use of discretion; G) the >ud'ment is -ased on misapprehension of facts; !) the Court of Appeals went -e&ond the issues of the case if the findin's are contrar& to the admission of -oth the appellant and the appellee; D) the findin's of the Court of Appeals are contrar& to those of the trial court; 5) the said findin's of . ) #@7?7 for actual and compensator& dama'es; and

fact are conclusions without citation of specific evidence on which the& are -ased; =) the facts set forth in the petition as well as in the petitioner/s main and repl& -riefs are not disputed -& the respondents; and 4) when the findin's of fact of the Court of Appeals are premised on the a-sence of evidence and are contradicted on record. @3ceptions 1, ., G, D, 5, and 4 o-tain in the instant case to warrant a deviation from the 'eneral rule. Brom its findin' that the par1ed truc1 was loaded with ten 01 ) -i' round lo's 13 the Court of Appeals inferred that -ecause of its wei'ht the truc1 could not have -een driven to the shoulder of the road and concluded that the same was par1ed on a portion of the road 14 at the time of the accident. ConseCuentl&, the respondent court inferred that the mishap was due to the ne'li'ence of the driver of the par1ed truc1. 1' $he inference or conclusion is manifestl& erroneous. In a lar'e measure, it is 'rounded on speculation, surmise, or con>ecture. :ow the respondent court could have reversed the findin' of the trial court that a warnin' device was installed 1(escapes us -ecause it is evident from the record that reall& such a device, in the form of a li'hted 1erosene lamp, was installed -& the driver of the par1ed truc1 three to four meters from the rear of his par1ed truc1. 17 <e see this ne'ative findin' of the respondent appellate court as a misreadin' of the facts and the evidence on record and directl& contravenin' the positive findin' of the trial court that an earl& warnin' device was in proper place when the accident happened and that the driver of the private respondent was the one ne'li'ent. ?n the other hand, the respondent court, in refusin' to 'ive its "imprimatur to the trial court/s findin' and conclusion that (aniel 7errano 0private respondent Isidro/s driver) was ne'li'ent in drivin' the truc1 that -umped the par1ed truc1", did not cite specific evidence to support its conclusion. In cavalier fashion, it simpl& and ne-ulousl& adverted to unspecified "scant& evidence on record." 18 ?n the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the 'round that it was filed out of time. It must -e noted that there was a motion for e3tension, 19 al-eit filed erroneousl& with the respondent court, dated )arch 14, 14=D, reCuestin' for 9 da&s from )arch . , 14=D, to file the necessar& petition or pleadin' -efore the 7upreme Court". Also, on April 1, 14=D, an appearance of a new law&er for the petitioner -efore the 7upreme Court" with motion &) was filed, a'ain erroneousl&, with the Court of Appeals, reCuestin' for . da&s e3tension "to file the #etition for Review on Certiorari." %i1ewise a similar motion&1 was filed with this Court also on April 1, 14=D. ?n the other hand, the instant petition for review was filed on April 15, 14=D && -ut it was onl& after three months, on Au'ust 1, 14=D, in its comment &3 that the respondent corporation raised the issue of tardiness. $he respondent corporation should not have waited in am-ush -efore the comment was reCuired and -efore due course was 'iven. In an& event, to e3act its "a pound of flesh", so to spea1, at this ver& late sta'e, would cause a 'rave miscarria'e of >ustice. #arentheticall&, it must -e noted that private respondent Isidro did not raise this issue of late filin'. <e now come to the merits of this petition. $he Cuestion -efore us is who was ne'li'entH Ne'li'ence is the omission to do somethin' which a reasona-le man, 'uided -& those considerations which ordinaril& re'ulate the conduct of human affairs, would do, or the doin' of somethin' which a prudent and reasona-le man would not do &4 or as *ud'e Coole& defines it, "0$)he failure to o-serve for the protection of the interests of another person, that de'ree of care, precaution, and vi'ilance which the circumstances >ustl& demand, where-& such other person suffers in>ur&. &' In Picart vs. Smit ! &( decided more than sevent& &ears a'o -ut still a sound rule, we held2 $he test -& which to determine the e3istence of ne'li'ence in a particular case ma& -e stated as follows2 (id the defendant in doin' the alle'ed ne'li'ent act use that reasona"le care an# caution w ic an or#inaril$ pru#ent person woul# ave use# in t e same situationH If not, then he is 'uilt& of ne'li'ence. $he law here in effect adopts the standard supposed to -e supplied -& the ima'inar& conduct of the discreet paterfamilias of the Roman law. $he e3istence of ne'li'ence in a 'iven case is not determined -& reference to the personal >ud'ment of the actor in the situation -efore him. $he %aw considers what would -e rec1less, -lameworth&, or ne'li'ent in the man of ordinar& intelli'ence and prudence and determines lia-ilit& -& that. Respondent Isidro posits that an& immo-ile o->ect alon' the hi'hwa&, li1e a par1ed truc1, poses serious dan'er to a movin' vehicle which has the ri'ht to -e on the hi'hwa&. :e ar'ues that since the par1ed car'o truc1 in this case was a threat to life and lim- and propert&, it was incum-ent upon the driver as well as the petitioner, who claims to -e a helper of the truc1 driver, to e3ercise e3treme care so that the motorist ne'otiatin' the road would -e properl& forewarned of the peril of a par1ed vehicle. Isidro su-mits that the -urden of provin' that care and dili'ence were o-served is shifted to the petitioner, for, as previousl& claimed, his 0Isidro/s) Isu6u truc1 had a ri'ht to -e on the road, while the immo-ile car'o truc1 had no -usiness, so to spea1, to -e there. %i1ewise, Isidro proffers that the petitioner must show to the satisfaction of a reasona-le mind that the driver and he 0petitioner) himself, provided an earl& warnin' device, li1e that reCuired -& law, or, -& some other adeCuate means that would properl& forewarn vehicles of the impendin' dan'er that the par1ed vehicle posed considerin' the time, place, and other peculiar circumstances of the occasion. A-sent such proof of care, as in the case at -ar, Isidro concludes, would, under the doctrine of Res ipsa loCuitur, evo1e the presumption of ne'li'ence on the part of the driver of the par1ed car'o truc1 as well as his helper, the petitioner herein, who was fi3in' the flat tire of the said truc1. &7

Respondent Isidro/s contention is untena-le. $he evidence on record discloses that three or four meters from the rear of the par1ed truc1, a li'hted 1erosene lamp was placed. &8 )oreover, there is the admission of respondent Isidro/s driver, (aniel 7errano, to <it2 &9 Fuestion No. = 0-& #atrolman *osefino Velasco)I<ill &ou narrate to me in -rief how the accident happens 0sic) if &ou can still remem-erH Answer2 0-& (aniel 7errano) $hat on or a-out 1 2G p.m., 1! )a& 1454 while drivin' Isu6u truc1 at +aret-et, +a'a-a', Nueva Vi6ca&a and at J) .=!, I met another vehicle who 0sic) did not dim his 0sic) li'hts w ic cause 0sic) me to "e "lin#e# wit intense %lare o& t e li% t t at's w $ ( #i# not notice a par)e# truc) w o 0sic) was repairin% a &ront &lat tire. <hen I was a few meters awa&, I saw the truc1 which was loaded with round lo's. ( step 0sic) on m$ &oot "ra)es "ut it #i# not &unction wit m$ man$ attempts. ( ave 0sic) &oun# out later t at t e &lui# pipe on t e rear ri% t was cut t at's w $ t e "rea)s #i# not &unction. 0@mphasis supplied). <hether the car'o truc1 was par1ed alon' the road or on half the shoulder of the ri'ht side of the road would -e of no moment ta1in' into account the warnin' device consistin' of the li'hted 1erosene lamp placed three or four meters from the -ac1 of the truc1. 3) +ut despite this warnin' which we rule as sufficient, the Isu6u truc1 driven -& (aniel 7errano, an emplo&ee of the private respondent, still -umped the rear of the par1ed car'o truc1. As a direct conseCuence of such accident the petitioner sustained in>uries on his left forearm and left foot. :is left le' was later amputated from -elow the 1nee when 'an'rene had set in. 31 It is clear from the fore'oin' disCuisition that the a-sence or want of care of (aniel 7errano has -een esta-lished -& clear and convincin' evidence. It follows that in stampin' its imprimatur upon the invocation -& respondent Isidro of the doctrine of Res ipsa loCuitur to escape lia-ilit& for the ne'li'ence of his emplo&ee, the respondent court committed reversi-le error. $he respondent court ruled2 3& 333 333 333 In addition to this, we a'ree with the followin' ar'uments of appellant Godofredo Isidro which would show that the accident was caused due to the ne'li'ence of the driver of the car'o truc12 333 333 333 ... In the case at -ar the -urden of provin' that care and dili'ence was 0sic) o-served is shifted evidentl& to the plaintiff, for, as adverted to, the motorists have the ri'ht to -e on the road, while the immo-ile truc1 has no -usiness, so to spea1, to -e there. It is thus for the plaintiff to show to the satisfaction of a reasona-le mind that the driver and he himself did emplo& earl& warnin' device such as that reCuired -& law or "$ some ot er a#equate means or #evice t at woul# properl$ &orewarn ve icles o& t e impen#in% #an%er t at t e par)e# ve icle pose# consi#erin% t e time! place an# ot er peculiar circumstances o& t e occasion. A-sent such proof of care, as in the case at -ar, will evo1e the presumption of ne'li'ence under the doctrine of res ipsa loCuitur, on the part of the driver of the par1ed car'o truc1 as well as plaintiff who was fi3in' the flat tire of said truc1. 0pp. 1G-15, Appellant/s +rief). 0@mphasis supplied). At this >uncture, it ma& -e enli'htenin' and helpful in the proper resolution of the issue of ne'li'ence to e3amine the doctrine of Res ipsa loCuitur. $his doctrine is stated thus2 "<here the thin' which causes in>ur& is shown to -e under the mana'ement of the defendant, and the accident is such as in the ordinar& course of thin's does not happen if those who have the mana'ement use proper care, it affords reasona-le evidence, in the a-sence of an e3planation -& the defendant, that the accident arose from want of care. 33 ?r as *lac)'s +aw ,ictionar$ 34 puts it2 Res ipsa loquitur. $he thin' spea1s for itself Re-utta-le presumption or inference that defendant was ne'li'ent, which arises upon proof that instrumentalit& causin' in>ur& was in defendant/s e3clusive control, and that the accident was one which ordinaril& does not happen in a-sence of ne'li'ence. Res ipsa loCuitur is rule of evidence where-& ne'li'ence of alle'ed wron'doer ma& -e inferred from mere fact that accident happened provided character of accident and circumstances attendin' it lead reasona-l& to -elief that in a-sence of ne'li'ence it would not have occurred and that thin' which caused in>ur& is shown to have -een under mana'ement and control of alle'ed wron'doer. -illen v. -oo)er .onst. .o., $e3. Civ. App., G=G 7.<. .d 199, 1!!. 8nder doctrine of /res ipsa loquitur/ the happenin' of an in>ur&

permits an inference of ne'li'ence where plaintiff produces su-stantial evidence that in>ur& was caused -& an a'enc& or instrumentalit& under e3clusive control and mana'ement of defendant, and that the occurrence was such that in the ordinar& course of thin's would not happen if reasona-le care had -een used. In this >urisdiction we have applied this doctrine in Cuite a num-er of cases, nota-l& in Africa et al. vs. Calte3, Inc., et al., 3' and the latest is in the case of 0.0. .ru1 an# .o.! (nc. vs. .2. 3( $he doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of ne'li'ence which reco'ni6es that prima &acie ne'li'ence ma& -e esta-lished without direct proof and furnishes a su-stitute for specific proof of ne'li'ence. 37 $he doctrine is not a rule of su-stantive law 38 -ut merel& a mode of proof or a mere procedural convenience. 39 $he rule, when applica-le to the facts and circumstances of a particular case, is not intended to and does not dispense with the reCuirement of proof of culpa-le ne'li'ence on the part of the part& char'ed. 4) It merel& determines and re'ulates what shall -e prima facie evidence thereof and facilitates the -urden of plaintiff of provin' a -reach of the dut& of due care. 41 $he doctrine can -e invo1ed when and onl& when, under the circumstances involved, direct evidence is a-sent and not readil& availa-le. 4& :ence, it has 'enerall& -een held that the presumption of inference arisin' from the doctrine cannot -e availed of, or is overcome, where plaintiff has 1nowled'e and testifies or presents evidence as to the specific act of ne'li'ence which is the cause of the in>ur& 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 clearl& appear. 43 Binall&, once the actual cause of in>ur& is esta-lished -e&ond controvers&, whether -& the plaintiff or -& the defendant, no presumptions will -e involved and the doctrine -ecomes inapplica-le when the circumstances have -een so completel& eludicated that no inference of defendant/s lia-ilit& can reasona-l& -e made, whatever the source of the evidence, 44 as in this case. $he private respondent is sued under Art. .15D in relation to Art. .1= , para'raph !, of the Civil Code. In the latter, when an in>ur& is caused -& the ne'li'ence of a servant or emplo&ee there instantl& arises a presumption of law that there was ne'li'ence on the part of the master or emplo&er either in the selection of the servant or emplo&ee, or in supervision over him after selection, or -oth. 7uch presumption is 3uris tantum and not 3uris et #e 3ure and conseCuentl&, ma& -e re-utted. If follows necessaril& that if the emplo&er shows to the satisfaction of the court that in the selection and in the supervision he has e3ercised the care and dili'ence of a 'ood father of a famil&, the presumption is overcome and he is relieved from lia-ilit&. 4' In disclaimin' lia-ilit& for the incident, the private respondent stresses that the ne'li'ence of his emplo&ee has alread& -een adeCuatel& overcome -& his driver/s statement that he 1new his responsi-ilities as a driver and that the truc1 owner used to instruct him to -e careful in drivin'. 4( <e do not a'ree with the private respondent in his su-mission. In the first place, it is clear that the driver did not 1now his responsi-ilities -ecause he apparentl& did not chec1 his vehicle -efore he too1 it on the road. If he did he could have discovered earlier that the -ra1e fluid pipe on the ri'ht was cut, and could have repaired it and thus the accident could have -een avoided. )oveover, to our mind, the fact that the private respondent used to intruct his driver to -e careful in his drivin', that the driver was licensed, and the fact that he had no record of an& accident, as found -& the respondent court, are not sufficient to destro& the findin' of ne'li'ence of the Re'ional $rial Court 'iven the facts esta-lished at the trial 47 $he private respondent or his mechanic, who must -e competent, should have conducted a thorou'h inspection of his vehicle -efore allowin' his driver to drive it. In the li'ht of the circumstances o-tainin' in the case, we hold that Isidro failed to prove that the dili'ence of a 'ood father of a famil& in the supervision of his emplo&ees which would e3culpate him from solidar& lia-ilit& with his driver to the petitioner. +ut even if we concede that the dili'ence of a 'ood father of a famil& was o-served -& Isidro in the supervision of his driver, there is not an iota of evidence on record of the o-servance -& Isidro of the same Cuantum of dili'ence in the supervision of his mechanic, if an&, who would -e directl& in char'e in maintainin' the road worthiness of his 0Isidro/s) truc1. +ut that is not all. $here is paucit& of proof that Isidro e3ercised the dili'ence of a 'ood father of a famil& in the selection of his driver, (aniel 7errano, as well as in the selection of his mechanic, if an&, in order to insure the safe operation of his truc1 and thus prevent dama'e to others. Accordin'l&, the responsi-ilit& of Isidro as emplo&er treated in Article .1= , para'raph !, of the Civil Code has not ceased. <:@R@B?R@, the petition is here-& GRAN$@(. $he (ecision of the respondent court as well as its Resolution den&in' the petitioner/s motion for reconsideration are here-& 7@$ A7I(@ and the decision of the trial court, dated *anuar& . , 14=9, is here-& R@IN7$A$@( in toto. <ith costs a'ainst the private respondents. 7? ?R(@R@(.

G.R. No. L%('&9' M!r+, 1), 1987 P-OENI. CON TRUCTION, INC. !"# ARMANDO U. CAR/ONEL, petitioners, vs. T-E INTERMEDIATE APPELLATE COURT !"# LEONARDO DIONI IO, respondents. In the earl& mornin' of 1! Novem-er 145! I at a-out 129 a.m. I private respondent %eonardo (ionisio was on his wa& home I he lived in 1.1G-+ Kamora 7treet, +an'1al, )a1ati I from a coc1tails-and-dinner meetin' with his -oss, the 'eneral mana'er of a mar1etin' corporation. (urin' the coc1tails phase of the evenin', (ionisio had ta1en "a shot or two" of liCuor. (ionisio was drivin' his Vol1swa'en car and had >ust crossed the intersection of General %acuna and General 7antos 7treets at +an'1al, )a1ati, not far from his home, and was proceedin' down General %acuna 7treet, when his car headli'hts 0in his alle'ation) suddenl& failed. :e switched his headli'hts on "-ri'ht" and thereupon he saw a Bord dump truc1 loomin' some .-1E. meters awa& from his car. $he dump truc1, owned -& and re'istered in the name of petitioner #hoeni3 Construction Inc. 0"#hoeni3"), was par1ed on the ri'ht hand side of General %acuna 7treet 0i.e., on the ri'ht hand side of a person facin' in the same direction toward which (ionisio/s car was proceedin'), facin' the oncomin' traffic. $he dump truc1 was par1ed as1ew 0not parallel to the street cur-) in such a manner as to stic1 out onto the street, partl& -loc1in' the wa& of oncomin' traffic. $here were no li'hts nor an& so-called "earl& warnin'" reflector devices set an&where near the dump truc1, front or rear. $he dump truc1 had earlier that evenin' -een driven home -& petitioner Armando 8. Car-onel, its re'ular driver, with the permission of his emplo&er #hoeni3, in view of wor1 scheduled to -e carried out earl& the followin' mornin', (ionisio claimed that he tried to avoid a collision -& swervin' his car to the left -ut it was too late and his car smashed into the dump truc1. As a result of the collision, (ionisio suffered some ph&sical in>uries includin' some permanent facial scars, a "nervous -rea1down" and loss of two 'old -rid'e dentures. (ionisio commenced an action for dama'es in the Court of Birst Instance of #ampan'a -asicall& claimin' that the le'al and pro3imate cause of his in>uries was the ne'li'ent manner in which Car-onel had par1ed the dump truc1 entrusted to him -& his emplo&er #hoeni3. #hoeni3 and Car-onel, on the other hand, countered that the pro3imate cause of (ionisio/s in>uries was his own rec1lessness in drivin' fast at the time of the accident, while under the influence of liCuor, without his headli'hts on and without a curfew pass. #hoeni3 also sou'ht to esta-lish that it had e3ercised due rare in the selection and supervision of the dump truc1 driver. $he trial court rendered >ud'ment in favor of (ionisio and a'ainst #hoeni3 and Car-onel and ordered the latter2 01) $o pa& plaintiff >ointl& and severall& the sum of # 1!, of plaintiff; . for hospital -ills and the replacement of the lost dentures

0.) $o pa& plaintiff >ointl& and severall& the sum of # 1,! , .- as loss of e3pected income for plaintiff -rou'ht a-out the accident in controvers& and which is the result of the ne'li'ence of the defendants; 09) $o pa& the plaintiff >ointl& and severall& the sum of # 1 , . as moral dama'es for the une3pected and sudden withdrawal of plaintiff from his lifetime career as a mar1etin' man; mental an'uish, wounded feelin', serious an3iet&, social humiliation, -esmirched reputation, feelin' of economic insecurit&, and the untold sorrows and frustration in life e3perienced -& plaintiff and his famil& since the accident in controvers& up to the present time; 0G) $o pa& plaintiff >ointl& and severall& the sum of # 1 , . as dama'es for the wanton disre'ard of defendants to settle amica-l& this case with the plaintiff -efore the filin' of this case in court for a smaller amount. 0!) $o pa& the plaintiff >ointl& and severall& the sum of # G,! 0D) $he cost of suit. 0@mphasis supplied) #hoeni3 and Car-onel appealed to the Intermediate Appellate Court. $hat court in CA-G.R. No. D!G5D affirmed the decision of the trial court -ut modified the award of dama'es to the followin' e3tent2 1. $he award of #1!, . as compensator& dama'es was reduced to P4!546.71! the latter -ein' the onl& amount that the appellate court found the plaintiff to have proved as actuall& sustained -& him; .. $he award of #1! , . as loss of e3pected income was reduced to P166!666.66!-asicall& -ecause (ionisio had voluntaril& resi'ned his >o- such that, in the opinion of the appellate court, his loss of income "was not solel& attri-uta-le to the accident in Cuestion;" and . due as and for attorne&/s fees; and

9. $he award of #1 , . as moral dama'es was held -& the appellate court as e3cessive and unconsciona-le and hence reduced to P86!666.66. $he award of P16!666.66 as e3emplar& dama'es and P5!866.66 as attorne&/s fees and costs remained untouched. $his decision of the Intermediate Appellate Court is now -efore us on a petition for review. +oth the trial court and the appellate court had made fairl& e3plicit findin's of fact relatin' to the manner in which the dump truc1 was par1ed alon' General %acuna 7treet on the -asis of which -oth courts drew the inference that there was ne'li'ence on the part of Car-onel, the dump truc1 driver, and that this ne'li'ence was the pro3imate cause of the accident and (ionisio/s in>uries. <e note, however, that -oth courts failed to pass upon the defense raised -& Car-onel and #hoeni3 that the true le'al and pro3imate cause of the accident was not the wa& in which the dump truc1 had -een par1ed -ut rather the rec1less wa& in which (ionisio had driven his car that ni'ht when he smashed into the dump truc1. $he Intermediate Appellate Court in its Cuestioned decision casuall& conceded that (ionisio was "in some wa&, ne'li'ent" -ut apparentl& failed to see the relevance of (ionisio/s ne'li'ence and made no further mention of it. <e have e3amined the record -oth -efore the trial court and the Intermediate Appellate Court and we find that -oth parties had placed into the record sufficient evidence on the -asis of which the trial court and the appellate court could have and should have made findin's of fact relatin' to the alle'ed rec1less manner in which (ionisio drove his car that ni'ht. $he petitioners #hoeni3 and Car-onel contend that if there was ne'li'ence in the manner in which the dump truc1 was par1ed, that ne'li'ence was merel& a "passive and static condition" and that private respondent (ionisio/s rec1lessness constituted an intervenin', efficient cause determinative of the accident and the in>uries he sustained. $he need to administer su-stantial >ustice as -etween the parties in this case, without havin' to remand it -ac1 to the trial court after eleven &ears, compels us to address directl& the contention put forward -& the petitioners and to e3amine for ourselves the record pertainin' to (ionisio/s alle'ed ne'li'ence which must -ear upon the lia-ilit&, or e3tent of lia-ilit&, of #hoeni3 and Car-onel. $here are four factual issues that need to -e loo1ed into2 0a) whether or not private respondent (ionisio had a curfew pass valid and effective for that eventful ni'ht; 0-) whether (ionisio was drivin' fast or speedin' >ust -efore the collision with the dump truc1; 0c) whether (ionisio had purposel& turned off his car/s headli'hts -efore contact with the dump truc1 or whether those headli'hts accidentall& malfunctioned moments -efore the collision; and 0d) whether (ionisio was into3icated at the time of the accident. As to the first issue relatin' to the curfew pass, it is clear that no curfew pass was found on the person of (ionisio immediatel& after the accident nor was an& found in his car. #hoeni3/s evidence here consisted of the testimon& of #atrolman Cu&no who had ta1en (ionisio, unconscious, to the )a1ati )edical Center for emer'enc& treatment immediatel& after the accident. At the )a1ati )edical Center, a nurse too1 off (ionisio/s clothes and e3amined them alon' with the contents of poc1ets to'ether with #atrolman Cu&no. 1 #rivate respondent (ionisio was not a-le to produce an& curfew pass durin' the trial. Instead, he offered the e3planation that his famil& ma& have misplaced his curfew pass. :e also offered a certification 0dated two &ears after the accident) issued -& one )a>or +en>amin N. %i-arnes of the Kone Inte'rated #olice Intelli'ence 8nit of Camp ?livas, 7an Bernando, #ampan'a, which was said to have authorit& to issue curfew passes for #ampan'a and )etro )anila. $his certification was to the effect that private respondent (ionisio had a valid curfew pass. $his certification did not, however, specif& an& pass serial num-er or date or period of effectivit& of the supposed curfew pass. <e find that private respondent (ionisio was una-le to prove possession of a valid curfew pass durin' the ni'ht of the accident and that the preponderance of evidence shows that he did not have such a pass durin' that ni'ht. $he relevance of possession or non-possession of a curfew pass that ni'ht lies in the li'ht it tends to shed on the other related issues2 whether (ionisio was speedin' home and whether he had indeed purposel& put out his headli'hts -efore the accident, in order to avoid detection and possi-l& arrest -& the police in the near-& police station for travellin' after the onset of curfew without a valid curfew pass. ?n the second issue I whether or not (ionisio was speedin' home that ni'ht I -oth the trial court and the appellate court were completel& silent. $he defendants in the trial court introduced the testimon& of #atrolman Cu&no who was at the scene of the accident almost immediatel& after it occurred, the police station where he was -ased -ein' -arel& . meters awa&. #atrolman Cu&no testified that people who had 'athered at the scene of the accident told him that (ionisio/s car was "movin' fast" and did not have its headli'hts on. & (ionisio, on the other hand, claimed that he was travellin' at a moderate speed at 9 1ilometers per hour and had >ust crossed the intersection of General 7antos and General %acuna 7treets and had started to accelerate when his headli'hts failed >ust -efore the collision too1 place. 3 #rivate respondent (ionisio asserts that #atrolman Cu&no/s testimon& was hearsa& and did not fa' within an& of the reco'ni6ed e3ceptions to the hearsa& rule since the facts he testified to were not acCuired -& him throu'h official information and had not -een 'iven -& the informants pursuant to an& dut& to do so. #rivate respondent/s o->ection fails to ta1e account of the fact that the testimon& of #atrolman Cu&no is admissi-le not under the official records e3ception to the hearsa& rule 4 -ut rather as part of the res %estae. ' $estimonial evidence under this e3ception to the hearsa& rule

consists of e3cited utterances made on the occasion of an occurrence or event sufficientl& startlin' in nature so as to render inoperative the normal reflective thou'ht processes of the o-server and hence made as a spontaneous reaction to the occurrence or event, and not the result of reflective thou'ht. ( <e thin1 that an automo-ile speedin' down a street and suddenl& smashin' into a stationar& o->ect in the dead of ni'ht is a sufficientl& startlin' event as to evo1e spontaneous, rather than reflective, reactions from o-servers who happened to -e around at that time. $he testimon& of #atrolman Cu&no was therefore admissi-le as part of theres %estae and should have -een considered -& the trial court. Clearl&, su-stantial wei'ht should have -een ascri-ed to such testimon&, even thou'h it did not, as it could not, have purported to descri-e Cuantitativel& the precise velocit& at winch (ionisio was travellin' >ust -efore impact with the #hoeni3 dump truc1. A third related issue is whether (ionisio purposel& turned off his headli'hts, or whether his headli'hts accidentall& malfunctioned, >ust moments -efore the accident. $he Intermediate Appellate Court e3pressl& found that the headli'hts of (ionisio/s car went off as he crossed the intersection -ut was non-committal as to wh& the& did so. It is the petitioners/ contention that (ionisio purposel& shut off his headli'hts even -efore he reached the intersection so as not to -e detected -& the police in the police precinct which he 0-ein' a resident in the area) 1new was not far awa& from the intersection. <e -elieve that the petitioners/ theor& is a more credi-le e3planation than that offered -& private respondent (ionisio I i.e., that he had his headli'hts on -ut that, at the crucial moment, these had in some m&sterious if convenient wa& malfunctioned and 'one off, althou'h he succeeded in switchin' his li'hts on a'ain at "-ri'ht" split seconds -efore contact with the dump truc1. A fourth and final issue relates to whether (ionisio was into3icated at the time of the accident. $he evidence here consisted of the testimon& of #atrolman Cu&no to the effect that private respondent (ionisio smelled of liCuor at the time he was ta1en from his smashed car and -rou'ht to the )a1ati )edical Center in an unconscious condition. 7 $his testimon& has to -e ta1en in con>unction with the admission of (ionisio that he had ta1en "a shot or two" of liCuor -efore dinner with his -oss that ni'ht. <e do not -elieve that this evidence is sufficient to show that (ionisio was so heavil& under the influence of liCuor as to constitute his drivin' a motor vehicle per se an act of rec1less imprudence. 8 $here simpl& is not enou'h evidence to show how much liCuor he had in fact ta1en and the effects of that upon his ph&sical faculties or upon his >ud'ment or mental alertness. <e are also aware that "one shot or two" of hard liCuor ma& affect different people differentl&. $he conclusion we draw from the factual circumstances outlined a-ove is that private respondent (ionisio was ne'li'ent the ni'ht of the accident. :e was hurr&in' home that ni'ht and drivin' faster than he should have -een. <orse, he e3tin'uished his headli'hts at or near the intersection of General %acuna and General 7antos 7treets and thus did not see the dump truc1 that was par1ed as1ew and stic1in' out onto the road lane. Nonetheless, we a'ree with the Court of Birst Instance and the Intermediate Appellate Court that the le'al and pro3imate cause of the accident and of (ionisio/s in>uries was the wron'ful I or ne'li'ent manner in which the dump truc1 was par1ed in other words, the ne'li'ence of petitioner Car-onel. $hat there was a reasona-le relationship -etween petitioner Car-onel/s ne'li'ence on the one hand and the accident and respondent/s in>uries on the other hand, is Cuite clear. #ut in a sli'htl& different manner, the collision of (ionisio/s car with the dump truc1 was a natural and foreseea-le conseCuence of the truc1 driver/s ne'li'ence. $he petitioners, however, ur'e that the truc1 driver/s ne'li'ence was merel& a "passive and static condition" and that private respondent (ionisio/s ne'li'ence was an "efficient intervenin' cause and that conseCuentl& (ionisio/s ne'li'ence must -e re'arded as the le'al and pro3imate cause of the accident rather than the earlier ne'li'ence of Car-onel. <e note that the petitioners/ ar'uments are drawn from a readin' of some of the older cases in various >urisdictions in the 8nited 7tates -ut we are una-le to persuade ourselves that these ar'uments have an& validit& for our >urisdiction. <e note, firstl&, that even in the 8nited 7tates, the distinctions -etween "cause" and "condition" which the /petitioners would have us adopt have alread& -een "almost entirel& discredited." #rofessors and Jeeton ma1e this Cuite clear2 .ause an# con#ition. )an& courts have sou'ht to distin'uish -etween the active "cause" of the harm and the e3istin' "conditions" upon which that cause operated. If the defendant has created onl& a passive static condition which made the dama'e possi-le, the defendant is said not to -e lia-le. *ut so &ar as t e &act o& causation is concerne#! in t e sense o& necessar$ antece#ents w ic ave pla$e# an important part in pro#ucin% t e result it is quite impossi"le to #istin%uis "etween active &orces an# passive situations! particularl$ since! as is invaria"l$ t e case! t e latter are t e result o& ot er active &orces w ic ave %one "e&ore. $he defendant who spills 'asoline a-out the premises creates a "condition," -ut the act ma& -e culpa-le -ecause of the dan'er of fire. <hen a spar1 i'nites the 'asoline, the condition has done Cuite as much to -rin' a-out the fire as the spar1; and since that is the ver& ris1 which the defendant has created, the defendant will not escape responsi-ilit&. 9ven t e lapse o& a consi#era"le time #urin% w ic t e /con#ition/ remains static will not necessaril$ a&&ect lia"ilit$: one who di's a trench in the hi'hwa& ma& still -e lia-le to another who fans into it a month afterward. /.ause/ an# /con#ition/ still &in# occasional mention in t e #ecisions: "ut t e #istinction is now almost entirel$ #iscre#ite#. 7o far as it has an& validit& at all, it must refer to the t&pe of case where the forces

set in operation -& the defendant have come to rest in a position of apparent safet&, and some new force intervenes. *ut even in suc cases! it is not t e #istinction "etween /cause/ an# /con#ition/ w ic is important "ut t e nature o& t e ris) an# t e c aracter o& t e intervenin% cause. 9 <e -elieve, secondl&, that the truc1 driver/s ne'li'ence far from -ein' a "passive and static condition" was rather an indispensa-le and efficient cause. $he collision -etween the dump truc1 and the private respondent/s car would in an pro-a-ilit& not have occurred had the dump truc1 not -een par1ed as1ew without an& warnin' li'hts or reflector devices. $he improper par1in' of the dump truc1 created an unreasona-le ris1 of in>ur& for an&one drivin' down General %acuna 7treet and for havin' so created this ris1, the truc1 driver must -e held responsi-le. In our view, (ionisio/s ne'li'ence, althou'h later in point of time than the truc1 driver/s ne'li'ence and therefore closer to the accident, was not an efficient intervenin' or independent cause. <hat the #etitioners descri-e as an "intervenin' cause" was no more than a foreseea-le conseCuent manner which the truc1 driver had par1ed the dump truc1. In other words, the petitioner truc1 driver owed a dut& to private respondent (ionisio and others similarl& situated not to impose upon them the ver& ris1 the truc1 driver had created. (ionisio/s ne'li'ence was not of an independent and overpowerin' nature as to cut, as it were, the chain of causation in fact -etween the improper par1in' of the dump truc1 and the accident, nor to sever the >uris vinculum of lia-ilit&. It is helpful to Cuote once more from #rofessor and Jeeton2 0oreseea"le (ntervenin% .auses. (& t e intervenin% cause is one w ic in or#inar$ uman experience is reasona"l$ to "e anticipate# or one w ic t e #e&en#ant as reason to anticipate un#er t e particular circumstances! t e #e&en#ant ma$ "e ne%li%ence amon% ot er reasons! "ecause o& &ailure to %uar# a%ainst it: or t e #e&en#ant ma$ "e ne%li%ent onl$ &or t at reason. $hus one who sets a fire ma& -e reCuired to foresee that an ordinar&, usual and customar& wind arisin' later wi' spread it -e&ond the defendant/s own propert&, and therefore to ta1e precautions to prevent that event. $he person who leaves the com-usti-le or e3plosive material e3posed in a pu-lic place ma& foresee the ris1 of fire from some independent source. ... (n all o& t ese cases t ere is an intervenin% cause com"inin% wit t e #e&en#ant's con#uct to pro#uce t e result an# in eac case t e #e&en#ant's ne%li%ence consists in &ailure to protect t e plainti&& a%ainst t at ver$ ris). ;"viousl$ t e #e&en#ant cannot "e relieve# &rom lia"ilit$ "$ t e &act t at t e ris) or a su"stantial an# important part o& t e ris)! to w ic t e #e&en#ant as su"3ecte# t e plainti&& as in#ee# come to pass. 0oreseea"le intervenin% &orces are wit in t e scope ori%inal ris)! an# ence o& t e #e&en#ant's ne%li%ence. $he courts are Cuite 'enerall& a'reed that intervenin' causes which fall fairl& in this cate'or& will not supersede the defendant/s responsi-ilit&. < us it as "een el# that a defendant will -e reCuired to anticipate the usual weather of the vicinit&, includin' all ordinar& forces of nature such as usual wind or rain, or snow or frost or fo' or even li'htnin'; t at one w o leaves an o"struction on t e roa# or a railroa# trac) s oul# &oresee t at a ve icle or a train will run into it: ... < e ris) create# "$ t e #e&en#ant ma$ inclu#e t e intervention o& t e &oreseea"le ne%li%ence o& ot ers. ... =< e stan#ar# o& reasona"le con#uct ma$ require t e #e&en#ant to protect t e plainti&& a%ainst 't at occasional ne%li%ence w ic is one o& t e or#inar$ inci#ents o& uman li&e! an# t ere&ore to "e anticipate#.' $hus, a defendant who -loc1s the sidewal1 and forces the plaintiff to wal1 in a street where the plaintiff will -e e3posed to the ris1s of heav& traffic -ecomes lia-le when the plaintiff is run down -& a car, even thou'h the car is ne'li'entl& driven; an# one w o par)s an automo"ile on t e i% wa$ wit out li% ts at ni% t is not relieve# o& responsi"ilit$ w en anot er ne%li%entl$ #rives into it. --- 1) <e hold that private respondent (ionisio/s ne'li'ence was "onl& contri-utor&," that the "immediate and pro3imate cause" of the in>ur& remained the truc1 driver/s "lac1 of due care" and that conseCuentl& respondent (ionisio ma& recover dama'es thou'h such dama'es are su->ect to miti'ation -& the courts 0Article .154, Civil Code of the #hilippines). #etitioners also as1 us to appl& what the& refer to as the "last clear chance" doctrine. $he theor& here of petitioners is that while the petitioner truc1 driver was ne'li'ent, private respondent (ionisio had the "last clear chance" of avoidin' the accident and hence his in>uries, and that (ionisio havin' failed to ta1e that "last clear chance" must -ear his own in>uries alone. $he last clear chance doctrine of the common law was imported into our >urisdiction -& Picart vs. Smit 11 -ut it is a matter for de-ate whether, or to what e3tent, it has found its wa& into the Civil Code of the #hilippines. $he historical function of that doctrine in the common law was to miti'ate the harshness of another common law doctrine or rule that of contri-utor& ne'li'ence. 1& $he common law rule of contri-utor& ne'li'ence prevented an& recover& at all -& a plaintiff who was also ne'li'ent, even if the plaintiff/s ne'li'ence was relativel& minor as compared with the wron'ful act or omission of the defendant. 13 $he common law notion of last clear chance permitted courts to 'rant recover& to a plaintiff who had also -een ne'li'ent provided that the defendant had the last clear chance to avoid the casualt& and failed to do so. 14 Accordin'l&, it is difficult to see what role, if an&, the common law last clear chance doctrine has to pla& in a >urisdiction where the common law concept of contri-utor& ne'li'ence as an a-solute -ar to recover& -& the plaintiff, has itself -een re>ected, as it has -een in Article .154 of the Civil Code of the #hilippines. 1'

Is there perhaps a 'eneral concept of "last clear chance" that ma& -e e3tracted from its common law matri3 and utili6ed as a 'eneral rule in ne'li'ence cases in a civil law >urisdiction li1e oursH <e do not -elieve so. 8nder Article .154, the tas1 of a court, in technical terms, is to determine whose ne'li'ence I the plaintiff/s or the defendant/s I was the le'al or pro3imate cause of the in>ur&. $hat tas1 is not simpl& or even primaril& an e3ercise in chronolo'& or ph&sics, as the petitioners seem to impl& -& the use of terms li1e "last" or "intervenin'" or "immediate." $he relative location in the continuum of time of the plaintiff/s and the defendant/s ne'li'ent acts or omissions, is onl& one of the relevant factors that ma& -e ta1en into account. ?f more fundamental importance are the nature of the ne'li'ent act or omission of each part& and the character and 'ravit& of the ris1s created -& such act or omission for the rest of the communit&. $he petitioners ur'e that the truc1 driver 0and therefore his emplo&er) should -e a-solved from responsi-ilit& for his own prior ne'li'ence -ecause the unfortunate plaintiff failed to act with that increased dili'ence which had -ecome necessar& to avoid the peril precisel& created -& the truc1 driver/s own wron'ful act or omission. $o accept this proposition is to come too close to wipin' out the fundamental principle of law that a man must respond for the forseea-le conseCuences of his own ne'li'ent act or omission. ?ur law on Cuasi-delicts see1s to reduce the ris1s and -urdens of livin' in societ& and to allocate them amon' the mem-ers of societ&. $o accept the petitioners/ pro-position must tend to wea1en the ver& -onds of societ&. #etitioner Car-onel/s proven ne'li'ence creates a presumption of ne'li'ence on the part of his emplo&er #hoeni31( in supervisin' its emplo&ees properl& and adeCuatel&. $he respondent appellate court in effect found, correctl& in our opinion, that #hoeni3 was not a-le to overcome this presumption of ne'li'ence. $he circumstance that #hoeni3 had allowed its truc1 driver to -rin' the dump truc1 to his home whenever there was wor1 to -e done earl& the followin' mornin', when coupled with the failure to show an& effort on the part of #hoeni3 to supervise the manner in which the dump truc1 is par1ed when awa& from compan& premises, is an affirmative showin' of culpa in vi%ilan#o on the part of #hoeni3. $urnin' to the award of dama'es and ta1in' into account the comparative ne'li'ence of private respondent (ionisio on one hand and petitioners Car-onel and #hoeni3 upon the other hand, 17 we -elieve that the demands of su-stantial >ustice are satisfied -& allocatin' most of the dama'es on a . -= ratio. $hus, . L of the dama'es awarded -& the respondent appellate court, e3cept the award of #1 , . as e3emplar& dama'es and #G,! . as attorne&/s fees and costs, shall -e -orne -& private respondent (ionisio; onl& the -alance of = L needs to -e paid -& petitioners Car-onel and #hoeni3 who shall -e solidarit& lia-le therefor to the former. $he award of e3emplar& dama'es and attorne&/s fees and costs shall -e -orne e3clusivel& -& the petitioners. #hoeni3 is of course entitled to reim-ursement from Car-onel. 18 <e see no sufficient reason for distur-in' the reduced award of dama'es made -& the respondent appellate court. <:@R@B?R@, the decision of the respondent appellate court is modified -& reducin' the a''re'ate amount of compensator& dama'es, loss of e3pected income and moral dama'es private respondent (ionisio is entitled to -& . L of such amount. Costs a'ainst the petitioners.

G.R. No. L%(81)& 0123 1(, 199&

GEORGE MC4EE !"# ARACELI 4O- MC4EE, petitioners, vs. INTERMEDIATE APPELLATE COURT, 0AIME TAYAG !"# RO ALINDA MANALO, respondents. G.R. No. L%(81)3 0123 1(, 199& CARMEN DAYRIT 4O-, LETICIA 4O-, 0ULIETA 4O- TU5UERO, ARACELI 4O- MC4EE, ANTONIO 4O- !"# ELI6A/ET- 4O- TURLA, petitioners, vs. INTERMEDIATE APPELLATE COURT, 0AIME TAYAG !"# RO ALINDA MANALO, respondents. #etitioners ur'e this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos. D4 G G1, promul'ated on 9 April 14=G, which set aside its previous (ecision dated .4 Novem-er 14=9 reversin' the (ecision of the trial court which dismissed petitioners/ complaints in Civil Case No. GG55 and Civil Case No. GG5= of the then Court of Birst Instance 0now Re'ional $rial Court) of #ampan'a entitled "Carmen (a&rit Joh, %eticia Joh, *ulieta Joh $uCuero, Araceli Joh )cJee and @li6a-eth Joh $urla vs. *aime $a&a' and Rosalinda )analo," and "Geor'e )cJee and Araceli Joh )cJee vs. *aime $a&a' and Rosalinda )analo," respectivel&, and 'ranted the private respondents/ counterclaim for moral dama'es, attorne&/s fees and liti'ation e3penses. $he said civil cases for dama'es -ased on quasi-#elict were filed as a result of a vehicular accident which led to the deaths of *ose Joh, Jim Joh )cJee and %oida +ondoc and caused ph&sical in>uries to Geor'e Joh )cJee, Christopher Joh )cJee and petitioner Araceli Joh )cJee. #etitioners in G.R. No. D=1 ., parents of the minors Geor'e Joh )cJee, Christopher Joh )cJee and the deceased Jim Joh )cJee, were the plaintiffs in Civil Case No. GG5=, while petitioner Carmen (a&rit Joh and her co-petitioners in G.R. No. D=1 9, who are the wife and children, respectivel&, of the late *ose Joh, were the plaintiffs in Civil Case No. GG55. 8pon the other hand, private respondents are the owners of the car'o truc1which fi'ured in the mishap; a certain Ru-en Galan' was the driver of the truc1 at the time of the accident. $he antecedent facts are not disputed. +etween nine and ten o/cloc1 in the mornin' of = *anuar& 1455, in #ulon' #ulo +rid'e alon' )acArthur :i'hwa&, -etween An'eles Cit& and 7an Bernando, #ampan'a, a head-on-collision too1 place -etween an International car'o truc1, %oadstar, with #late No. RB41.-$ #hilippines /5D owned -& private respondents, and driven -& Ru-en Galan', and a Bord @scort car -earin' #late No. 7.-=! #ampan'a /5D driven -& *ose Joh. $he collision resulted in the deaths of *ose Joh, Jim Joh )cJee and %oida +ondoc, and ph&sical in>uries to Geor'e Joh )cJee, Christopher Joh )cJee and Araceli Joh )cJee, all passen'ers of the Bord @scort. *ose Joh was the father of petitioner Araceli Joh )cJee, the mother of minors Geor'e, Christopher and Jim Joh )cJee. %oida +ondoc, on the other hand, was the -a-& sitter of one and a half &ear old Jim. At the time of the collision, Jim was seated on the lap of %oida +ondoc who was at the front passen'er/s seat of the car while Araceli and her two 0.) sons were seated at the car/s -ac1 seat. Immediatel& -efore the collision, the car'o truc1, which was loaded with two hundred 0. ) cavans of rice wei'hin' a-out 1 , 1ilos, was travelin' southward from An'eles Cit& to 7an Bernando #ampan'a, and was -ound for )anila. $he Bord @scort, on the other hand, was on its wa& to An'eles Cit& from 7an Bernando. <hen the north-ound car was a-out 01 ) meters awa& from the southern approach of the -rid'e, two 0.) -o&s suddenl& darted from the ri'ht side of the road and into the lane of the car. $he -o&s were movin' -ac1 and forth, unsure of whether to cross all the wa& to the other side or turn -ac1. *ose Joh -lew the horn of the car, swerved to the left and entered the lane of the truc1; he then switched on the headli'hts of the car, applied the -ra1es and thereafter attempted to return to his lane. +efore he could do so, his car collided with the truc1. $he collision occurred in the lane of the truc1, which was the opposite lane, on the said -rid'e. $he incident was immediatel& reported to the police station in An'eles Cit&; conseCuentl&, a team of police officers was forthwith dispatched to conduct an on the spot investi'ation. In the s1etch 1 prepared -& the investi'atin' officers, the -rid'e is descri-ed to -e si3t& 0D ) "footsteps" lon' and fourteen 01G) "footsteps" wide I seven 05) "footsteps" from the center line to the inner ed'e of the side wal1 on -oth sides. & #ulon' #ulo +rid'e, which spans a dr& -roo1, is made of concrete with soft shoulders and concrete railin's on -oth sides a-out three 09) feet hi'h. $he s1etch of the investi'atin' officer discloses that the ri'ht rear portion of the car'o truc1 was two 0.) "footsteps" from the ed'e of the ri'ht sidewal1, while its left front portion was touchin' the center line of the -rid'e, with the smashed front side of the car restin' on its front -umper. $he truc1 was a-out si3teen 01D) "footsteps" awa& from the northern end of the -rid'e while the car was a-out thirt&-si3 09D) "footsteps" from the opposite end. 71id mar1s produced -& the ri'ht front tire of the truc1 measured nine 04) "footsteps", while s1id mar1s produced -& the left front tire measured five 0!) "footsteps." $he two 0.) rear tires of the truc1, however, produced no s1id mar1s.

In his statement to the investi'atin' police officers immediatel& after the accident, Galan' admitted that he was travelin' at thirt& 09 ) miles 0G= 1ilometers) per hour. As a conseCuence of the collision, two 0.) cases, Civil Case No. GG55 and No. GG5=, were filed on 91 *anuar& 1455 -efore the then Court of Birst Instance of #ampan'a and were raffled to +ranch III and +ranch V of the said court, respectivel&. In the first, herein petitioners in G.R. No. D=1 9 pra&ed for the award of #1., . as indemnit& for the death of *ose Joh, #1! , . as moral dama'es, #D , . as e3emplar& dama'es, #1 , . for liti'ation e3penses, #D, . for -urial e3penses, #9,D! . for the -urial lot and #4,! . for the tom-, plus attorne&/s fees. 3 In the second case, petitioners in G.R. No. D=1 . pra&ed for the followin'2 0a) in connection with the death of Jim )cJee, the sum of #1., . as death -enefit, #9,1! . for funeral services, #9,D! . for the cemeter& lot, #9, . for the tom-, #! , . as moral dama'es, #1 , . as e3emplar& dama'es and #., . as miscellaneous dama'es; 0-) in the case of Araceli Joh )cJee, in connection with the serious ph&sical in>uries suffered, the sum of #1 , . as moral dama'es, #. , . as e3emplar& dama'es, #1., . for loss of earnin's, #!, . for the hospitali6ation e3penses up to the date of the filin' of the complaint; and 0c) with respect to Geor'e )cJee, *r., in connection with the serious ph&sical in>uries suffered, the sum of #! , . as moral dama'es, #. , . as e3emplar& dama'es and the followin' medical e3penses2 #9,G pa&a-le to the )edical Center, #9,! . pa&a-le to the 7t. Brancis )edical Center, #!,15!. pa&a-le to the Clar1 Air +ase :ospital, and miscellaneous e3penses amountin' to #!, . . $he& also sou'ht an award of attorne&/s fees amountin' to .!L of the total award plus travelin' and hotel e3penses, with costs. 4 ?n 1 )arch 1455, an Information char'in' Ru-en Galan' with the crime of "Rec1less Imprudence Resultin' to 0sic) )ultiple :omicide and #h&sical In>uries and (ama'e to #ropert&" was filed with the trial court. It was doc1eted as Criminal Case No. 95!1 and was raffled to +ranch V of the court, the same +ranch where Civil Case No. GG5= was assi'ned. ' In their Answer with Counterclaim in Civil Case No. GG55, private respondents asserted that it was the Bord @scort car which "invaded and -umped 0sic) the lane of the truc1 driven -& Ru-en Galan' and, as counterclaim, pra&ed for the award of #1!, . as attorne&/s fees, #. , . as actual and liCuidated dama'es, #1 , . as moral dama'es and #9 , . as -usiness losses. ( In Civil Case No. GG5=, private respondents first filed a motion to dismiss on 'rounds of pendenc& of another action 0Civil Case No. GG55) and failure to implead an indispensa-le part&, Ru-en Galan', the truc1 driver; the& also filed a motion to consolidate the case with Civil Case No. GG55 pendin' -efore +ranch III of the same court, which was opposed -& the plaintiffs. 7 +oth motions were denied -& +ranch V, then presided over -& *ud'e I'nacio Capulon'. $hereupon, private respondents filed their Answer with Counterclaim 8 wherein the& alle'ed that *ose Joh was the person "at fault havin' approached the lane of the truc1 driven -& Ru-en Galan', . . . which was on the ri'ht lane 'oin' towards )anila and at a moderate speed o-servin' all traffic rules and re'ulations applica-le under the circumstances then prevailin';" in their counterclaim, the& pra&ed for an award of dama'es as ma& -e determined -& the court after due hearin', and the sums of #1 , . as attorne&/s fees and #!, . as e3penses of liti'ation. #etitioners filed their Answers to the Counterclaims in -oth cases. $o e3pedite the proceedin's, the plaintiffs in Civil Case No. GG5= filed on .5 )arch 145= a motion to adopt the testimonies of witnesses ta1en durin' the hearin' of Criminal Case No. 95!1, which private respondents opposed and which the court denied. 9 #etitioners su-seCuentl& moved to reconsider the order den&in' the motion for consolidation, 1) which *ud'e Capulon' 'ranted in the ?rder of ! 7eptem-er 145=; he then directed that Civil Case No. GG5= -e consolidated with Civil Case No. GG55 in +ranch III of the court then presided over -& *ud'e )ario CastaMeda, *r. %eft then with +ranch V of the trial court was Criminal Case No. 95!1. In the civil cases, the plaintiffs presented as witnesses Araceli Joh )cJee, Bernando NuMa', Col. Ro-ert Bit6'erald, #rimitivo #arel, @u'enio $anhueco, Carmen Joh and Antonio Joh, 11 and offered several documentar& e3hi-its. 8pon the other hand, private respondents presented as witnesses Ru-en Galan', Kenaida 7oliman, *aime $a&a' and Roman (a&rit. 1& In the criminal case, the prosecution presented as witnesses )rs. Araceli )cJee, 7alud 7amia, #fc. Bernando NuMa', (r. Ramon #anlilio, (r. Ro-ert Bit6'erald, (r. Ro-erto Auson, (r. :ector, 8landa&, #fc. +eni'no de %eon, )arina +olos, #rimitivo #arel, Ro'elio #ineda, +enito Caraan and @u'enio $anhueco, and offered several documentar& e3hi-its. 13 8pon the other hand, the defense presented the accused Ru-en Galan', %uciano #un6alan, Kenaida 7oliman and Roman (a&rit, and offered documentar& e3hi-its. 14 ?n 1 ?cto-er 14= , *ud'e Capulon' rendered a decision a'ainst the accused Ru-en Galan' in the aforesaid criminal case. $he dispositive portion of the decision reads as follows2

<:@R@B?R@, in view of the fore'oin', >ud'ment is here-& rendered findin' the accused Ru-en Galan' 'uilt& -e&ond reasona-le dou-t of the crime char'ed in the information and after appl&in' the provisions of Article 9D! of the Revised #enal Code and indeterminate sentence law, this Court, imposes upon said accused Ru-en Galan' the penalt& of si3 0D) months of arresto ma$or as minimum to two 0.) &ears, four 0G) months and one 01) da& of prision correccional as ma3imum; the accused is further sentenced to pa& and indemnif& the heirs of %oida +ondoc the amount of #1., . as indemnit& for her death; to reim-urse the heirs of %oida +ondoc the amount of #., . representin' the funeral e3penses; to pa& the heirs of %oida +ondoc the amount of #. , . representin' her loss of income; to indemnif& and pa& the heirs of the deceased *ose Joh the value of the car in the amount of #!9,41 .4!, and to pa& the costs. 1' $he aforecited decision was promul'ated onl& on 15 Novem-er 14= ; on the same da&, counsel for petitioners filed with +ranch III of the court I where the two 0.) civil cases were pendin' I a manifestation to that effect and attached thereto a cop& of the decision. 1( 8pon the other hand, *ud'e )ario CastaMeda, *r. dismissed the two 0.) civil cases on 1. Novem-er 14= and awarded the private respondents moral dama'es, e3emplar& dama'es and attorne&/s fees. 17 $he dispositive portion of the said decision reads as follows2 <:@R@B?R@, findin' the preponderance of evidence to -e in favor of the defendants and a'ainst the plaintiffs, these cases are here-& ordered (I7)I77@( with costs a'ainst the plaintiffs. $he defendants had proven their counter-claim, thru evidences 0sic) presented and unre-utted. :ence, the& are here-& awarded moral and e3emplar& dama'es in the amount of #1 , . plus attorne&/s fee of #1!, . and liti'ation e3penses for 0sic) #., . . $he actual dama'es claimed for 0sic) -& the defendants is 0sic) here-& dismissin' for lac1 of proof to that effect 0sic). 18 A cop& of the decision was sent -& re'istered mail to the petitioners on .= Novem-er 14= and was received on . (ecem-er 14= . 19 Accused Ru-en Galan' appealed the >ud'ment of conviction to the Court of Appeals. $he appeal was doc1eted as C.A.-G.R. +l'. .G5DG-CR and was assi'ned to the court/s $hird (ivision. #laintiffs in Civil Cases Nos. GG55 and GG5= li1ewise separatel& appealed the 1. Novem-er 14= decision to the appellate court. $he appeals were doc1eted as C.A.-G.R. No. D4 G1-R and C.A.-G.R. No. D4 G -R, respectivel&, and were assi'ned to the Bourth Civil Cases (ivision. ?n G ?cto-er 14=., the respondent Court promul'ated its decision &) in C.A.-G.R. +l'. .G5DG-CR affirmin' the conviction of Galan'. &1 $he dispositive portion of the decision reads2 ,2-(+ ,(<;! an% atol na pa)sa n% nariton% pa% a a"ol a$ 2min% pina%titi"a$ sa )an$an% )a"uuan. 2n% na% a a"ol pa rin an% pina%"a"a$a# n% %u%ol n% pa% a a"ol. A motion for reconsideration of the decision was denied -& the respondent Court in its >apasi$a an promul'ated on .! Novem-er 14=.. && A petition for its review &3 was filed with this Court; said petition was su-seCuentl& denied. A motion for its reconsideration was denied with finalit& in the Resolution of . April 14=9. &4 ?n .4 Novem-er 14=9, respondent Court, -& then 1nown as the Intermediate Appellate Court, promul'ated its consolidated decision in A.C.-G.R. CV Nos. D4 G and D4 G1, &' the dispositive portion of which reads2 <:@R@B?R@, the decision appealed from it here-& reversed and set aside and another one is rendered, orderin' defendants-appellees to pa& plaintiffs-appellants as follows2 Bor the death of *ose Joh2 #! , . as moral dama'es # 1., . as death indemnit& # 1D, . for the lot and tom- 0@3hs. 8 and 8-1) # G, . e3penses for holdin' a wa1e 0p. 4, tsn April 14, 1454) # 4! . for the cas1et 0@3h. )) # 95!. for the vault services 0@3hs. V and V-1) Bor the death of Jim Joh )cJee2

#! , . as moral dama'es # 1., . as death indemnit& # 1, . for the purchase of the -urial lot 0@3h. )) # 4! . for funeral services 0@3h. )-1) # 95!. for vault services 0@3hs. V and V-1) Bor the ph&sical in>uries suffered -& Geor'e Joh )cJee2 # .!, . as moral dama'es # D5.. for Clar1 Bield :ospital 0@3h. @) # G,9=G. paid to An'eles )edical Clinic 0@3hs. (, (-1 and (-.) # 1,!!!. paid to 7t. Brancis )edical Center 0@3hs. + and +-1) Bor the ph&sical in>uries suffered -& Araceli Joh )cJee2 # .!, . as moral dama'es # 1, !!. paid to 7t. Brancis )edical Center 0@3hs. G and G-1) # 5!. paid to 7t. Brancis )edical Center 0@3hs. G-. and G-9) # G.=. to Carmelite General :ospital 0@3h. B) # 11G.. to )uMo6 Clinic 0@3h. ))) Bor the ph&sical in>uries suffered -& Christopher Joh )cJee2 #1 , . as moral dama'es # 1,.91.1 to 7t. Brancis )edical Center 0@3hs. % and %-1) # 9.1.4! to B.C.@.A. :ospital 0@3hs. G and (-1) In addition, <e award #1 , . as counsel 0sic) fees in Civil Case No. GG55 and another #1 , . ; as counsel 0sic) fees in Civil Case No. GG5=. No pronouncement as to costs. 7? ?R(@R@(. &( $he decision is anchored principall& on the respondent Court/s findin's that it was Ru-en Galan'/s inattentiveness or rec1less imprudence which caused the accident. $he appellate court further said that the law presumes ne'li'ence on the part of the defendants 0private respondents), as emplo&ers of Galan', in the selection and supervision of the latter; it was further asserted that these defendants did not alle'e in their Answers the defense of havin' e3ercised the dili'ence of a 'ood father of a famil& in selectin' and supervisin' the said emplo&ee. &7$his conclusion of rec1less imprudence is -ased on the followin' findin's of fact2 In the face of these diametricall& opposed >udicial positions, the determinative issue in this appeal is posited in the fourth assi'ned error as follows2 IV $:@ $RIA% C?8R$ @RR@( <:@N I$ :@%( $:@ 0sic) (RIV@R ?B $:@ $R8CJ 7$?##@( :I7 $R8CJ +%@< :I7 :?RN 7<I$C:@( ?N :I7 :@A(%IG:$7 AN( C?8%( N?$ 7<@RV@ $? $:@ RIG:$. 7upportive of plaintiffs/ version, principal witness Araceli Joh )cJee testified thus2 F <hat happened after that, as &ou approached the -rid'eH A <hen we were approachin' the -rid'e, two 0.) -o&s tried to cross the ri'ht lane on the ri'ht side of the hi'hwa& 'oin' to 7an Bernando. )& father, who is 0sic) the driver of the car tried to avoid the two 0.) -o&s who were crossin', he -lew his horn and swerved to the left to avoid hittin' the two 0.) -o&s. <e noticed the truc1, he

switched on the headli'hts to warn the truc1 driver, to slow down to 'ive us the ri'ht of wa& to come -ac1 to our ri'ht lane. F (id the truc1 slow downH A No, sir, it did not, >ust 0sic) continued on its wa&. F <hat happened after thatH A After avoidin' the two 0.) -o&s, the car tried to 'o -ac1 to the ri'ht lane since the truc1 is 0sic) comin', m& father stepped on the -ra1es and all what 0sic) I heard is the sound of impact 0sic), sir. 0tsn, pp. !-D, *ul& .., 1455); or 0@3hi-it "?" in these Civil Cases). 333 333 333 F )rs. how did &ou 1now that the truc1 driven -& the herein accused, Ru-en Galan' did not reduce its speed -efore the actual impact of collision 0sic) as &ou narrated in this @3hi-it "1," how did &ou 1now 0sic)H A It >ust 1ept on comin', sir. If onl& he reduced his speed, we could have 'ot 0sic) -ac1 to our ri'ht lane on side 0sic) of the hi'hwa&, sir. 0tsn. pp. 99-9G *ul& .., 1455) or 0@3hi-it "?" in these Civil Cases) 0pp. 9 -91, Appellants/ +rief). #laintiffs/ version was successfull& corro-orated to ?ur satisfaction -& the followin' facts and circumstances2 1. An impartial e&e-witness to the mishap, @u'enio $anhueco, declared that the truc1 stopped onl& when it had alread& collided with the car2 333 333 333 $anhueco repeated the same testimon& durin' the hearin' in the criminal case2 333 333 333 $anhueco could 0sic) not -e ta''ed as an accommodation witness -ecause he was one of the first to arrive at the scene of the accident. As a matter of fact, he -rou'ht one of the in>ured passen'ers to the hospital. <e are not prepared to accord faith and credit to defendants/ witnesses, Kenaida 7oliman, a passen'er of the truc1, and Roman (a&rit, who supposedl& lived across the street. Re'ardin' 7oliman, e3perience has shown that in the ordinar& course of events people usuall& ta1e the side of the person with whom the& are associated at the time of the accident, -ecause, as a 'eneral rule, the& do not wish to -e identified with the person who was at fault. $hus an ima'inar& -ond is unconsciousl& created amon' the several persons within the same 'roup 0#eople vs. Vivencio, CA-G.R. No. 91 -CR, *an. 91, 14D.). <ith respect to (a&rit, <e can not help suspectin' 0sic) that he is an accommodation witness. :e did not 'o to the succor of the in>ured persons. :e said he wanted to call the police authorities a-out the mishap, -ut his phone had no dial tone. +e this 0sic) as it ma&, the trial court in the criminal case acted correctl& in refusin' to -elieve (a&rit. .. @3hi-it ., the statement of Galan', does not include the claim that Galan' stopped his truc1 at a safe distance from the car, accordin' to plaintiffs 0p. .!, Appellants/ +rief). $his contention of appellants was completel& passed su"-silencio or was not refuted -& appellees in their -rief. @3hi-it . is one of the e3hi-its not included in the record. Accordin' to the $a-le of Contents su-mitted -& the court -elow, said @3hi-it . was not su-mitted -& defendants-appellees. In this li'ht, it is not farfetched to surmise that Galan'/s claim that he stopped was an eleventh-hour desperate attempt to e3culpate himself from imprisonment and dama'es.

9. Galan' divul'ed that he stopped after seein' the car a-out 1 meters awa&2 A$$A. 7?$$?2 F (o I understand from &our testimon& that inspite of the fact that &ou admitted that the road is strai'ht and &ou ma& -e a-le to 0sic) see ! -1 meters awa& from &ou an& vehicle, &ou first saw that car onl& a-out ten 01 ) meters awa& from &ou for the first timeH 333 333 333 A I noticed it, sir, that it was a-out ten 01 ) meters awa&. A$$A. 7?$$?2 F 7o, for clarification, &ou clarif& and state under &our oath that &ou have 0sic) not noticed it -efore that ten 01 ) metersH 0$sn. 9 to !, 7ept. 1=, 1454). 0p. 1D, Appellants/ +rief) Galan'/s testimon& su-stantiate 0sic) $anhueco/s statement that Galan' stopped onl& -ecause of the impact. At ten 01 ) meters awa&, with the truc1 runnin' at 9 miles per hour, as revealed in Galan'/s affidavit 0@3h. .; p. .!, Appellants/ -rief), it is well-ni'h impossi-le to avoid a collision on a -rid'e. !. Galan'/s truc1 stopped -ecause of the collision, and not -ecause he waited for *ose Joh to return to his proper lane. $he police investi'ator, #fc. Bernando %. NuMa', stated that he found s1id mar1s under the truc1 -ut there were not 0sic) s1id mar1s -ehind the truc1 0pp. 14-. , t.s.n., Nov. 9, 145=). $he presence of s1id mar1s show 0sic) that the truc1 was speedin'. 7ince the s1id mar1s were found under the truc1 and none were found at the rear of the truc1, the reasona-le conclusion is that the s1id mar1s under the truc1 were caused -& the truc1/s front wheels when the truc1s 0sic) suddenl& stopped seconds -efore the mishap in an endeavor to avoid the same. +ut, as aforesaid, Galan' saw the car at -arel& 1 meters awa&, a ver& short distance to avoid a collision, and in his futile endeavor to avoid the collision he a-ruptl& stepped on his -ra1es -ut the smashup happened >ust the same. Bor the inattentiveness or rec1less imprudence of Galan', the law presumes ne'li'ence on the part of the defendants in the selection of their driver or in the supervision over him. Appellees did not alle'e such defense of havin' e3ercised the duties of a 'ood father of a famil& in the selection and supervision of their emplo&ees in their answers. $he& did not even adduce evidence that the& did in fact have methods of selection and pro'rams of supervision. $he inattentiveness or ne'li'ence of Galan' was the pro3imate cause of the mishap. If Galan'/s attention was on the hi'hwa&, he would have si'hted the car earlier or at a ver& safe distance than 0sic) 1 meters. :e proceeded to cross the -rid'e, and tried to stop when a collision was alread& inevita-le, -ecause at the time that he entered the -rid'e his attention was not riveted to the road in front of him. ?n the Cuestion of dama'es, the claims of appellants were ampl& proven, -ut the items must -e reduced. &8 A motion for reconsideration alle'in' improper appreciation of the facts was su-seCuentl& filed -& private respondents on the -asis of which the respondent Court, in its Resolution of 9 April 14=G, &9 reconsidered and set aside its .4 Novem-er 14=9 decision and affirmed in toto the trial court/s >ud'ment of 1. Novem-er 14= . A motion to reconsider this Resolution was denied -& the respondent Court on G *ul& 14=G. 3) :ence, this petition. #etitioners alle'e that respondent Court2 I . . . C?))I$$@( A V@RA 7@RI?87 AN( GRAV@ @RR?R <:@N I$ $?$A%%A R@V@R7@( I$7 (@CI7I?N +A )@R@%A +A7ING I$ BR?) 0sic) A )@R@ "#R@78)#$I?N," $?$A%%A (I7R@GAR(ING $:@ #RIVA$@ R@7#?N(@N$7/ (RIV@R/7 A()I77I?N7 AN( C?NB@77I?N7, <:? @,C%87IV@%A C?))I$$@( $:@ #R?,I)A$@ CA87@ ?B $:@ ACCI(@N$ 0 sic), B8R$:@R, I$ A%7? (I7R@GAR(@( $:@ @VI(@NC@ A((8C@( AN( B?8N( IN $:@

R@C?R(7; $:@R@B?R@, R@7#?N(@N$ C?8R$/7 R@7?%8$I?N7 0ANN@,@7 A and +, #@$I$I?N) AR@ C%@AR%A @RR?N@?87, #8R@%A +A7@( ?N 7#@C8%A$I?N7, C?N*@C$8R@7 AN( <I$:?8$ 78R@ B?8N(A$I?N IN $:@ @VI(@NC@. II . . . GRAV@%A A+87@( I$7 (I7CR@$I?N AN( @RR@( <:@N IN @BB@C$ I$ (I7R@GAR(@( A (?C$RIN@ %AI( (?<N +A $:I7 :?N?RA+%@ C?8R$ +A 7$A$ING A)?NG ?$:@R7, "I$ CANN?$ CA$@G?RICA%%A A(?#$ $:@ BIN(ING7 ?B G8I%$ IN $:@ CRI)INA% CA7@ <:@R@ $:@ (RIV@R ?B $:@ $R8CJ INV?%V@( IN $:@ ACCI(@N$ <A7 IN(IC$@(. III . . . #A$@N$%A C?))I$$@( GRAV@ A+87@ ?B (I7CR@$I?N AN( )A(@ A )I7%@A(ING #R?N?8NC@)@N$, <:@N I$ :@%(2 "I$ I7 $:87 INC8)+@N$ 8#?N $:@ #%AIN$IBB7A##@%%AN$7 0A##@%%@@7 <R?NG%A )@N$I?N@( IN $:@ R@7?%8$I?N) $? #R?V@ $:@IR A%%@GA$I?N7 $:A$ $:@ #R?,I)A$@ CA87@ ?B $:@ ACCI(@N$ <A7 $:@ N@G%IG@NC@ ?B #RIVA$@ R@7#?N(@N$7/ (RIV@R. IV . . . C?))I$$@( AN?$:@R GRI@VI?87 0sic) @RR?R; C?))I$$@( GRAV@ A+87@ ?B (I7CR@$I?N AN( CI$@( AN?$:@R CA7@ <:IC: I7 C%@AR%A INA##%ICA+%@ $? $:@7@ CA7@7. V . . . C?))I$$@( A #A$@N$ @RR?R AN( GRAV@%A A+87@( I$7 (I7CR@$I?N IN A(?#$ING $:@ BIN(ING7 ?B $:@ $RIA% C?8R$ <:IC: AR@ C%@AR%A @RR?N@?87 AN( C?N$RARA $? $:@ @VI(@NC@ B?8N( IN $:@ R@C?R(7, 7#@CIA%%A $:@A 0 sic) AR@ C?N$RARA $? $:@ A()I$$@( BAC$7 AN( *8(ICIA% A()I77I?N7 )A(@ +A $:@ #RIVA$@ R@7#?N(@N$7/ (RIV@R. VI . . . @,C@@(@( I$7 *8RI7(IC$I?N, C?))I$$@( GRAV@ A+87@ ?B (I7CR@$I?N AN( GRAV@%A @RR@( <:@N I$ A<AR(@( (A)AG@7 $? $:@ #RIVA$@ R@7#?N(@N$7 <:@N 7AI( A<AR( I7 N?$ 78##?R$@( +A @VI(@NC@, IN $:@ R@C?R(7, AN( 7AI( A<AR( I7 N?$ A%%?<@( +A %A< AN( $:@ C?N7I7$@N$ (@CI7I?N7 ?B $:I7 :?N?RA+%@ C?8R$. VII . . . @,C@@(@( I$7 *8RI7(IC$I?N, C?))I$$@( GRAV@ A+87@ ?B (I7CR@$I?N AN( GRAV@%A @RR@( <:@N I$ @RR?N@?87%A 7@$ A7I(@ I$7 (@CI7I?N A<AR(ING (A)AG@7 $? #@$I$I?N@R7 <:IC: I7 C%@AR%A IN ACC?R(ANC@ <I$: $:@ @VI(@NC@, $:@ %A< AN( *8RI7#R8(@NC@ R@%A$IV@ $? $:@ A<AR( ?B (A)AG@7. 31 In the Resolution of 1. 7eptem-er 14=G, <e reCuired private respondents to Comment on the petition. 3& After the said Comment 33 was filed, petitioners su-mitted a Repl& 34 thereto; this Court then 'ave due course to the instant petitions and reCuired petitioners to file their +rief, 3' which the& accordin'l& complied with. $here is merit in the petition. +efore <e ta1e on the main tas1 of dissectin' the ar'uments and counter-ar'uments, some o-servations on the procedural vicissitudes of these cases are in order. Civil Cases Nos. GG55 and GG5=, which were for the recover& of civil lia-ilit& arisin' from a quasi-#elict under Article .15D in relation to Article .1= of the Civil Code, were filed ahead of Criminal Case No. 95!1. Civil Case No. GG5= was eventuall& consolidated with Civil Case No. GG55 for >oint trial in +ranch III of the trial court. $he records do not indicate an& attempt on the part of the parties, and it ma& therefore -e reasona-l& concluded that none was made, to consolidate Criminal Case No. 95!1 with the civil cases, or vice-versa. $he parties ma& have then -elieved, and understanda-l& so, since -& then no specific provision of law or rulin' of this Court e3pressl& allowed such a consolidation, that an independent civil action, authori6ed under Article 99 in relation to Article .155 of the Civil Code, such as the civil cases in this case, cannot -e consolidated with the criminal case. Indeed, such consolidation could

have -een farthest from their minds as Article 99 itself e3pressl& provides that the "civil action shall proceed independentl& of the criminal prosecution, and shall reCuire onl& a preponderance of evidence." +e that as it ma&, there was then no le'al impediment a'ainst such consolidation. 7ection 1, Rule 91 of the Rules of Court, which see1s to avoid a multiplicit& of suits, 'uard a'ainst oppression and a-use, prevent dela&s, clear con'ested doc1ets to simplif& the wor1 of the trial court, or in short, attain >ustice with the least e3pense to the parties liti'ants, 3( would have easil& sustained a consolidation, there-& preventin' the unseemin', if no ludicrous, spectacle of two 0.) >ud'es appreciatin', accordin' to their respective orientation, perception and perhaps even pre>udice, the same facts #i&&erentl$! and thereafter renderin' con&lictin% decisions. 7uch was what happened in this case. It should not, hopefull&, happen an&more. In the recent case of .o3uan%co vs. .ourt or 2ppeals! 37 this Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recover& of civil lia-ilit& authori6ed under Articles 9., 99, 9G or .15D of the Civil Code with the criminal action su->ect, however, to the condition that no final >ud'ment has -een rendered in that criminal case. %et it -e stressed, however, that the >ud'ment in Criminal Case No. 95!1 findin' Galan' 'uilt& of rec1less imprudence, althou'h alread& final -& virtue of the denial -& no less than this Court of his last attempt to set aside the respondent Court/s affirmance of the verdict of conviction, has no relevance or importance to this case. As <e held in ,ionisio vs. 2lven#ia! 38 the responsi-ilit& arisin' from fault or ne'li'ence in a quasi-#elict is entirel& separate and distinct from the civil lia-ilit& arisin' from ne'li'ence under the #enal Code. And, as more concretel& stated in the concurrin' opinion of *ustice *.+.%. Re&es, "in the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acCuittal or conviction, would -e entirel& irrelevant to the civil action." 39 In Salta vs. ,e ?e$ra an# P@* vs. Purisima! 4) this Court stated2 . . . It seems perfectl& reasona-le to conclude that the civil actions mentioned in Article 99, permitted in the same manner to -e filed separatel& from the criminal case, ma& proceed similarl& re%ar#less o& t e result o& t e criminal case. Indeed, when the law has allowed a civil case related to a criminal case, to -e filed separatel& and to proceed independentl& even durin' the pendenc& of the latter case, the intention is patent to ma1e the court/s disposition of the criminal case of no effect whatsoever on the separate civil case. $his must -e so -ecause the offenses specified in Article 99 are of such a nature, unli1e other offenses not mentioned, that the& ma& -e made the su->ect of a separate civil action -ecause of the distinct separa-ilit& of their respective >uridical cause or -asis of action . . . . <hat remains to -e the most important consideration as to wh& the decision in the criminal case should not -e considered in this appeal is the fact that private respondents were not parties therein. It would have -een entirel& different if the petitioners/ cause of action was for dama'es arisin' from a #elict! in which case private respondents/ lia-ilit& could onl& -e su-sidiar& pursuant to Article 1 9 of the Revised #enal Code. In the a-sence of an& collusion, the >ud'ment of conviction in the criminal case a'ainst Galan' would have -een conclusive in the civil cases for the su-sidiar& lia-ilit& of the private respondents. 41 And now to the merits of the petition. It is readil& apparent from the pleadin's that the principal issue raised in this petition is whether or not respondent Court/s findin's in its challen'ed resolution are supported -& evidence or are -ased on mere speculations, con>ectures and presumptions. $he principle is well-esta-lished that this Court is not a trier of facts. $herefore, in an appeal -& certiorari under Rule G! of the Revised Rules of Court, onl& Cuestions of law ma& -e raised. $he resolution of factual issues is the function of the lower courts whose findin's on these matters are received with respect and are, as a rule, -indin' on this Court. 4& $he fore'oin' rule, however, is not without e3ceptions. Bindin's of facts of the trial courts and the Court of Appeals ma& -e set aside when such findin's are not supported -& the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its >ud'ment. 43$he same is true where the appellate court/s conclusions are 'rounded entirel& on con>ectures, speculations and surmises 44 or where the conclusions of the lower courts are -ased on a misapprehension of facts. 4' It is at once o-vious to this Court that the instant case Cualifies as one of the aforementioned e3ceptions as the findin's and conclusions of the trial court and the respondent Court in its challen'ed resolution are not supported -& the evidence, are -ased on an misapprehension of facts and the inferences made therefrom are manifestl& mista1en. $he respondent Court/s decision of .4 Novem-er 14=9 ma1es the correct findin's of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperl& invaded the lane of the truc1 and that the collision occurred in said lane 'ave rise to the presumption that the driver of the car, *ose Joh, was ne'li'ent. ?n the -asis of this presumed ne'li'ence, the appellate court immediatel& concluded that it was *ose Joh/s ne'li'ence that was the immediate and pro3imate cause of the collision. $his is an unwarranted deduction as the evidence for the petitioners convincin'l& shows that the car swerved into the truc1/s lane -ecause as it approached the southern end of the -rid'e, two 0.) -o&s darted across the road from the ri'ht sidewal1 into the lane of the car. As testified to -& petitioner Araceli Joh )cJee2 F <hat happened after that, as &ou approached the -rid'eH A <hen we were approachin' the -rid'e, two 0.) -o&s tried to cross the ri'ht lane on the ri'ht side of the hi'hwa& 'oin' to 7an Bernando. )& father, who is 0sic) the driver of the car tried to avoid the two 0.) -o&s who were crossin', he -lew his horn and swerved to the left to avoid hittin' the two 0.) -o&s. <e noticed the truc1, he switched on the headli'hts to warn the truc1 driver, to slow down to 'ive us the ri'ht of wa& to come -ac1 to our ri'ht lane. F (id the truc1 slow downH A No sir, it did not, >ust 0sic) continued on its wa&. F <hat happened after thatH A After avoidin' the two 0.) -o&s, the car tried to 'o -ac1 to the ri'ht lane since the truc1 is 0sic) comin', m& father stepped on the -ra1es and all what 0sic) I heard is the sound of impact 0sic), sir. 4( :er credi-ilit& and testimon& remained intact even durin' cross e3amination. *ose Joh/s entr& into the lane of the truc1 was necessar& in order to avoid what was, in his mind at that time, a 'reater peril I death or in>ur& to the two 0.) -o&s. 7uch act can hardl& -e classified as ne'li'ent. Ne'li'ence was defined and descri-ed -& this Court in +a$u%an vs. (nterme#iate 2ppellate .ourt! 47 thus2 . . . Ne'li'ence is the omission to do somethin' which a reasona-le man, 'uided -& those considerations which ordinaril& re'ulate the conduct of human affairs, would do, or the doin' of somethin' which a prudent and reasona-le man would not do 0+lac1/s %aw (ictionar&, Bifth @dition, 49 ), or as *ud'e Coole& defines it, "0$)he failure to o-serve for the protection of the interests of another person, that de'ree of care, precaution, and vi'ilance which the circumstances >ustl& demand, where-& such other person suffers in>ur&." 0Coole& on $orts, Bourth @dition, vol. 9, .D!) In #icart vs. 7mith 095 #hil = 4, =19), decided more than sevent& &ears a'o -ut still a sound rule, 0<)e held2 $he test -& which to determine the e3istence of ne'li'ence in a particular case ma& -e stated as follows2 (id the defendant in doin' the alle'ed ne'li'ent act use thatAreasona"le care an# caution w ic an or#inaril$ pru#ent person woul# ave use# in t e same situationBC If not, then he is 'uilt& of ne'li'ence. $he law here in effect adopts the standard supposed to -e supplied -& the ima'inar& conduct of the discreet pater&amiliasof the Roman law. . . . In .orliss vs. Danila Railroa# .ompan$! 48 <e held2 . . . Ne'li'ence is want of the care reCuired -& the circumstances. It is a relative or comparative, not an a-solute, term and its application depends upon the situation of the parties and the de'ree of care and vi'ilance which the circumstances reasona-l& reCuire. <here the dan'er is 'reat, a hi'h de'ree of care is necessar&, and the failure to o-serve it is a want of ordinar& care under the circumstances. 0citin' Ahern v. ?re'on $elephone Co., 9! #ac. !G4 01=4G). ?n the -asis of the fore'oin' definition, the test of ne'li'ence and the facts o-tainin' in this case, it is manifest that no ne'li'ence could -e imputed to *ose Joh. An& reasona-le and ordinar& prudent man would have tried to avoid runnin' over the two -o&s -& swervin' the car awa& from where the& were even if this would mean enterin' the opposite lane.

Avoidin' such immediate peril would -e the natural course to ta1e particularl& where the vehicle in the opposite lane would -e several meters awa& and could ver& well slow down, move to the side of the road and 'ive wa& to the oncomin' car. )oreover, under what is 1nown as the emer'enc& rule, "one who suddenl& finds himself in a place of dan'er, and is reCuired to act without time to consider the -est means that ma& -e adopted to avoid the impendin' dan'er, is not 'uilt& of ne'li'ence, if he fails to adopt what su-seCuentl& and upon reflection ma& appear to have -een a -etter method, unless the emer'enc& in which he finds himself is -rou'ht a-out -& his own ne'li'ence." 49 Considerin' the sudden intrusion of the two 0.) -o&s into the lane of the car, <e find that *ose Joh adopted the -est means possi-le in the 'iven situation to avoid hittin' them. Appl&in' the a-ove test, therefore, it is clear that he was not 'uilt& of ne'li'ence. In an& case, assumin', ar%uen#o that *ose Joh is ne'li'ent, it cannot -e said that his ne'li'ence was the pro3imate cause of the collision. #ro3imate cause has -een defined as2 . . . that cause, which, in natural and continuous seCuence, un-ro1en -& an& efficient intervenin' cause, produces the in>ur&, and without which the result would not have occurred. And more comprehensivel&, the pro3imate le'al cause is that actin' first and producin' the in>ur&, either immediatel& or -& settin' other events in motion, all constitutin' a natural and continuous chain of events, each havin' a close causal connection with its immediate predecessor, the final event in the chain immediatel& effectin' the in>ur& as a natural and pro-a-le result of the cause which first acted, under such circumstances that the person responsi-le for the first event should, as an ordinar& prudent and intelli'ent person, have reasona-le 'round to e3pect at the moment of his act or default that an in>ur& to some person mi'ht pro-a-l& result therefrom. ') Appl&in' the a-ove definition, althou'h it ma& -e said that the act of *ose Joh, if at all ne'li'ent, was the initial act in the chain of events, it cannot -e said that the same caused the eventual in>uries and deaths -ecause of the occurrence of a sufficient intervenin' event, the ne'li'ent act of the truc1 driver, which was the actual cause of the tra'ed&. $he entr& of the car into the lane of the truc1 would not have resulted in the collision had the latter heeded the emer'enc& si'nals 'iven -& the former to slow down and 'ive the car an opportunit& to 'o -ac1 into its proper lane. Instead of slowin' down and swervin' to the far ri'ht of the road, which was the proper precautionar& measure under the 'iven circumstances, the truc1 driver continued at full speed towards the car. $he truc1 driver/s ne'li'ence -ecomes more apparent in view of the fact that the road is 5.! meters wide while the car measures 1.!4= meters and the truc1, ...=D meters, in width. $his would mean that -oth car and truc1 could pass side -& side with a clearance of 9.DD1 meters to spare. '1 Burthermore, the -rid'e has a level sidewal1 which could have partiall& accommodated the truc1. An& reasona-le man findin' himself in the 'iven situation would have tried to avoid the car instead of meetin' it head-on. $he truc1 driver/s ne'li'ence is apparent in the records. :e himself said that his truc1 was runnin' at 9 miles 0G= 1ilometers) per hour alon' the -rid'e while the ma3imum speed allowed -& law on a -rid'e '& is onl& 9 1ilometers per hour. 8nder Article .1=! of the Civil Code, a person drivin' a vehicle is presumed ne'li'ent if at the time of the mishap, he was violatin' an& traffic re'ulation. <e cannot 'ive credence to private respondents/ claim that there was an error in the translation -& the investi'atin' officer of the truc1 driver/s response in #ampan'o as to whether the speed cited was in 1ilometers per hour or miles per hour. $he law presumes that official dut& has -een re'ularl& performed; '3 unless there is proof to the contrar&, this presumption holds. In the instant case, private respondents/ claim is -ased on mere con>ecture. $he truc1 driver/s ne'li'ence was li1ewise dul& esta-lished throu'h the earlier Cuoted testimon& of petitioner Araceli Joh )cJee which was dul& corro-orated -& the testimon& of @u'enio $anhueco, an impartial e&ewitness to the mishap. Araceli Joh )cJee testified further, thus2 333 333 333 F )rs. how did &ou 1now that the truc1 driven -& the herein accused, Ru-en Galan' did not reduce its speed -efore the actual impact of collision as &ou narrated in this @3hi-it "1," how did &ou 1nowH A It >ust 1ept on comin', sir. If onl& he reduced his speed, we could have 'ot 0sic) -ac1 to our ri'ht lane on side 0sic) of the hi'hwa&, sir. 0tsn, pp. 99-9G, *ul& .., 1455) or 0@3hi-it; "?" in these Civil Cases) 0pp. 9 -91, Appellants/ +rief) '4 while @u'enio $anhueco testified thus2 F <hen &ou saw the truc1, how was it movin'H

A It was movin' ! to D 1ilometers per hour, sir. F Immediatel& after &ou saw this truc1, do &ou 1now what happenedH A I saw the truc1 and a car collided 0sic), sir, and I went to the place to help the victims. 0tsn. .=, April 14, 1454) 333 333 333 F Brom the time &ou saw the truc1 to the time of the impact, will &ou tell us if the said truc1 ever stoppedH A ( saw it stoppe# AsicC w en it as AsicC alrea#$ colli#e# wit t e car an# it was alrea#$ motionless. 0tsn. 91, April 14, 1454; @mphasis 7upplied). 0p. .5, Appellants/ +rief). '' Clearl&, therefore, it was the truc1 driver/s su-seCuent ne'li'ence in failin' to ta1e the proper measures and de'ree of care necessar& to avoid the collision which was the pro3imate cause of the resultin' accident. @ven if *ose Joh was indeed ne'li'ent, the doctrine of last clear chance finds application here. %ast clear chance is a doctrine in the law of torts which states that the contri-utor& ne'li'ence of the part& in>ured will not defeat the claim for dama'es if it is shown that the defendant mi'ht, -& the e3ercise of reasona-le care and prudence, have avoided the conseCuences of the ne'li'ence of the in>ured part&. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solel& responsi-le for the conseCuences thereof. '( In *ustamante vs. .ourt o& 2ppeals! '7 <e held2 $he respondent court adopted the doctrine of "last clear chance." $he doctrine, stated -roadl&, is that the ne'li'ence of the plaintiff does not preclude a recover& for the ne'li'ence of the defendant where it appears that the defendant, -& e3ercisin' reasona-le care and prudence, mi'ht have avoided in>urious conseCuences to the plaintiff notwithstandin' the plaintiff/s ne'li'ence. In other words, the doctrine of last clear chance means that even thou'h a person/s own acts ma& have placed him in a position of peril, and an in>ur& results, the in>ured person is entitled to recover& 0sic). As the doctrine is usuall& stated, a person who has the last clear chance or opportunit& of avoidin' an accident, notwithstandin' the ne'li'ent acts of his opponent or that of a third person imputed to the opponent is considered in law solel& responsi-le for the conseCuences of the accident. 07an'co, $orts and (ama'es, Gth @d., 14=D, p. 1D!). $he practical import of the doctrine is that a ne'li'ent defendant is held lia-le to a ne'li'ent plaintiff, or even to a plaintiff who has -een 'rossl& ne'li'ent in placin' himself in peril, if he, aware of the plaintiff/s peril, or accordin' to some authorities, should have -een aware of it in the reasona-le e3ercise of due care, had in fact an opportunit& later than that of the plaintiff to avoid an accident 0!5 Am. *ur., .d, pp. 54=-544). In Pantranco @ort 9xpress! (nc.! vs. *aesa! '8 <e ruled2 $he doctrine of last clear chance was defined -& this Court in the case of ?n' v. )etropolitan <ater (istrict, 1 G #hil. 945 014!=), in this wise2 $he doctrine of the last clear chance simpl&, means that the ne'li'ence of a claimant does not preclude a recover& for the ne'li'ence of defendant where it appears that the latter, -& e3ercisin' reasona-le care and prudence, mi'ht have avoided in>urious conseCuences to claimant notwithstandin' his ne'li'ence. $he doctrine applies onl& in a situation where the plaintiff was 'uilt& of prior or antecedent ne'li'ence -ut the defendant, who had the last fair chance to avoid the impendin' harm and failed to do so, is made lia-le for all the conseCuences of the accident notwithstandin' the prior ne'li'ence of the plaintiff N#icart v. 7mith, 95 #hil. = 4 0141=); Glan #eople/s %um-er and :ardware, et al. vs. Intermediate Appellate Court, Cecilia Alfere6 Vda. de Cali-o, et al., G.R. No. 5 G49, )a&, 1=, 14=4O. $he su-seCuent ne'li'ence of the defendant in failin' to e3ercise ordinar& care to avoid in>ur& to plaintiff -ecomes the immediate or pro3imate cause of the accident which intervenes -etween the

accident and the more remote ne'li'ence of the plaintiff, thus ma1in' the defendant lia-le to the plaintiff N#icart v. 7mith, supraO. Generall&, the last clear chance doctrine is invo1ed for the purpose of ma1in' a defendant lia-le to a plaintiff who was 'uilt& of prior or antecedent ne'li'ence, althou'h it ma& also -e raised as a defense to defeat claim 0sic) for dama'es. Appl&in' the fore'oin' doctrine, it is not difficult to rule, as <e now rule, that it was the truc1 driver/s ne'li'ence in failin' to e3ert ordinar& care to avoid the collision which was, in law, the pro3imate cause of the collision. As emplo&ers of the truc1 driver, the private respondents are, under Article .1= of the Civil Code, directl& and primaril& lia-le for the resultin' dama'es. $he presumption that the& are ne'li'ent flows from the ne'li'ence of their emplo&ee. $hat presumption, however, is onl& 3uris tantum! not 3uris et #e 3ure. '9 $heir onl& possi-le defense is that the& e3ercised all the dili'ence of a 'ood father of a famil& to prevent the dama'e. Article .1= reads as follows2 $he o-li'ation imposed -& Article .15D is demanda-le not onl& for one/s own acts or omissions, -ut also for those of persons for whom one is responsi-le. 333 333 333 @mplo&ers shall -e lia-le for the dama'es caused -& their emplo&ees and household helpers actin' within the scope of their assi'ned tas1s, even thou'h the former are not en'a'ed in an& -usiness or industr&. 333 333 333 $he responsi-ilit& treated of in this article shall cease when the persons herein mentioned prove that the& o-served all the dili'ence of a 'ood father of a famil& to prevent dama'e. $he dili'ence of a 'ood father referred to means the dili'ence in the selection and supervision of emplo&ees. ()$he answers of the private respondents in Civil Cases Nos. GG55 and GG5= did not interpose this defense. Neither did the& attempt to prove it. $he respondent Court was then correct in its (ecision of .4 Novem-er 14=9 in reversin' the decision of the trial court which dismissed Civil Cases Nos. GG55 and GG5=. Its assailed Resolution of 9 April 14=G finds no sufficient le'al and factual moorin's. In the li'ht of recent decisions of this Court, (1 the indemnit& for death must, however, -e increased from #1., #! , . . . to

<:@R@B?R@, the instant petition is GRAN$@(. $he assailed Resolution of the respondent Court of 9 April 14=G is 7@$ A7I(@ while its (ecision of .4 Novem-er 14=9 in C.A.-G.R. CV Nos. D4 G -G1 is R@IN7$A$@(, su->ect to the modification that the indemnit& for death is increased from #1., . to #! , . each for the death of *ose Joh and Jim Joh )cJee. Costs a'ainst private respondents. 7? ?R(@R@(.

G.R. No. 8')44 01"e 3, 199& MACARIO TAMARGO, CEL O TAMARGO !"# AURELIA TAMARGO, petitioners, vs.

-ON. COURT OF APPEAL , T-E -ON. ARI TON L. RU/IO, RTC 01#7e, /r!"+, &), $87!", I2o+o9 1r: $ICTOR /UNDOC: !"# CLARA /UNDOC, respondents. ?n . ?cto-er 14=., Adel-erto +undoc, then a minor of 1 &ears of a'e, shot *ennifer $amar'o with an air riflecausin' in>uries which resulted in her death. Accordin'l&, a civil complaint for dama'es was filed with the Re'ional $rial Court, +ranch . , Vi'an, Ilocos 7ur, doc1eted as Civil Case No. 9G!5-V, -& petitioner )acario $amar'o, *ennifer/s adoptin' parent, and petitioner spouses Celso and Aurelia $amar'o, *ennifer/s natural parents a'ainst respondent spouses Victor and Clara +undoc, Adel-erto/s natural parents with whom he was livin' at the time of the tra'ic incident. In addition to this case for dama'es, a criminal information or :omicide throu'h Rec1less Imprudence was filed NCriminal Case No. 15..-VO a'ainst Adel-erto +undoc. Adel-erto, however, was acCuitted and e3empted from criminal lia-ilit& on the 'round that he -ad acted without discernment. #rior to the incident, or on 1 (ecem-er 14=1, the spouses 7a-as and Belisa Rapisura had filed a petition to adopt the minor Adel-erto +undoc in 7pecial #roceedin's No. 959-$ -efore the then Court of Birst Instance of Ilocos 7ur. $his petition for adoption was 'runted on, 1= Novem-er 14=., that is, a&ter Adel-erto had shot and 1illed *ennifer. In their Answer, respondent spouses +undoc, Adel-erto/s natural parents, recitin' the result of the fore'oin' petition for adoption, claimed that not the&, -ut rather the adoptin' parents, namel& the spouses 7a-as and Belisa Rapisura, were indispensa-le parties to the action since parental authorit& had shifted to the adoptin' parents from the moment the successful petition for adoption was filed. #etitioners in their Repl& contended that since Adel-erto +undoc was then actuall& livin' with his natural parents, parental authorit& had not ceased nor -een relinCuished -& the mere filin' and 'rantin' of a petition for adoption. $he trial court on 9 (ecem-er 14=5 dismissed petitioners/ complaint, rulin' that respondent natural parents of Adel-erto indeed were not indispensa-le parties to the action. #etitioners received a cop& of the trial court/s (ecision on 5 (ecem-er 14=5. <ithin the 1!-da& re'lementar& period, or on 1G (ecem-er 14=5, petitioners filed a motion for reconsideration followed -& a supplemental motion for reconsideration on 1! *anuar& 14==. It appearin', however, that the motions failed to compl& with 7ections G and ! of Rule 1! of the Revised Rules of Court I that notice of the motion shall -e 'iven to all parties concerned at least three 09) da&s -efore the hearin' of said motion; and that said notice shall state the time and place of hearin' I -oth motions were denied -& the trial court in an ?rder dated 1= April 14==. ?n .= April 14==, petitioners filed a notice of appeal. In its ?rder dated D *une 14==, the trial court dismissed the notice at appeal, this time rulin' that the notice had -een filed -e&ond the 1!-da& re'lementar& period endin' .. (ecem-er 14=5. #etitioners went to the Court of Appeals on a petition for man#amus and certiorari Cuestionin' the trial court/s (ecision dated 9 (ecem-er 14=5 and the ?rders dated 1= April 14== and D *une 14==, $he Court of Appeals dismissed the petition, rulin' that petitioners had lost their ri'ht to appeal. In the present #etition for Review, petitioners once a'ain contend that respondent spouses +undoc are the indispensa-le parties to the action for dama'es caused -& the acts of their minor child, Adel-erto +undoc. Resolution of this #etition hin'es on the followin' issues2 01) whether or not petitioners, notwithstandin' loss of their ri'ht to appeal, ma& still file the instant #etition; conversel&, whether the Court ma& still ta1e co'ni6ance of the case even throu'h petitioners/ appeal had -een filed out of time; and 0.) whether or not the effects of adoption, insofar as parental authorit& is concerned ma& -e 'iven retroactive effect so as to ma1e the adoptin' parents the indispensa-le parties in a dama'e case filed a'ainst their adopted child, for acts committed -& the latter, when actual custod& was &et lod'ed with the -iolo'ical parents. 1. It will -e recalled that, petitioners/ motion 0and supplemental motion) for reconsideration filed -efore the trial court, not havin' complied with the reCuirements of 7ection 19, Rule G1, and 7ection G, Rule 1!, of the Revised Rules of Court, were considered pro &orma and hence did not interrupt and suspend the re'lementar& period to appeal2 the trial court held that the motions, not havin' contained a notice of time and place of hearin', had -ecome useless pieces of paper which did not interrupt the re'lementar& period. 1 As in fact repeatedl& held -& this Court, what is mandator& is the service of the motion on the opposin' counsel indicatin' the time and place of hearin'. & In view, however, of the nature of the issue raised in the instant. #etition, and in order that su-stantial >ustice ma& -e served, the Court, invo1in' its ri'ht to suspend the application of technical rules to prevent manifest in>ustice, elects to treat the notice of appeal as havin' -een seasona-l& filed -efore the trial court, and the motion 0and supplemental motion) for reconsideration filed -& petitioner in the trial court as havin' interrupted the re'lementar& period for appeal. As the Court held in Ere%orio v. .ourt o& 2ppeals2 3

(ismissal of appeal; purel& on technical 'rounds is frowned upon where the polic& of the courts is to encoura'e hearin's of appeal on their merits. $he rules of procedure ou'ht not -e applied in a ver& ri'id technical sense, rules of procedure are used onl& to help secure not override, su-stantial >ustice. if d technical and ri'id enforcement of the rules is made their aim would -e defeated. 4 .. It is not disputed that Adel-erto +undoc/s voluntar& act of shootin' *ennifer $amar'o with an air rifle 'ave rise to a cause of action on quasi-#elict a'ainst him. As Article .15D of the Civil Code provides2 <hoever -& act or omission causes dama'e to another, there -ein' fault or ne'li'ence, is o-li'ed to pa& for the dama'e done. 7uch fault or ne'li'ence, if there is no pre-e3istin' contractual relation -etween the parties, is called a quasi-#elict . . . 8pon the other hand, the law imposes civil lia-ilit& upon the father and, in case of his death or incapacit&, the mother, for an& dama'es that ma& -e caused -& a minor c il# who lives with them. Article .1= of the Civil Code reads2 $he o-li'ation imposed -& article .15D is demanda-le not onl& for one/s own acts or omissions, -ut also for those of persons for whom one is responsi-le. $he father and, in case of his death or incapacit&, the mother, are responsi-le for the dama'es caused -& the minor c il#ren w o live in t eir compan$. 333 333 333 $he responsi-ilit& treated of in this Article shall cease when the person herein mentioned prove that the& o-served all the dili'ence of a 'ood father of a famil& to prevent dama'e. 0@mphasis supplied) $his principle of parental lia-ilit& is a species of what is freCuentl& desi'nated as vicarious lia-ilit&, or the doctrine of "imputed ne'li'ence" under An'lo-American tort law, where a person is not onl& lia-le for torts committed -& himself, -ut also for torts committed -& others with whom he has a certain relationship and for whom he is responsi-le. $hus, parental lia-ilit& is made a natural or lo'ical conseCuence of the duties and responsi-ilities of parents I their parental authorit& I which includes the instructin', controllin' and disciplinin' of the child. ' $he -asis for the doctrine of vicarious lia-ilit& was e3plained -& the Court in .an%co v. Danila Railroa# .o. ( in the followin' terms2 <ith respect to e3tra-contractual o-li'ation arisin' from ne'li'ence, whether of act or omission, it is competent for the le'islature to elect I and our %e'islature has so elected I to limit such lia-ilit& to cases in which the person upon whom such an o-li'ation is imposed is morall& culpa-le or, on the contrar&, for reasons of pu-lic polic&. to e3tend that lia-ilit&, without re'ard to the lac1 of moral culpa-ilit&, so as to include responsi"ilit$ &or t e ne%li%ence o& t ose persons w ose acts or omissions are imputa"le, -& a le'al fiction, to ot ers w o are in a position to exercise an a"solute or limite# control over t em. $he le'islature which adopted our Civil Code has elected to limit extra-contractual lia"ilit$ I with certain well-defined e3ceptions I to cases in w ic moral culpa"ilit$ can "e #irectl$ impute# to t e persons to "e c ar%e#. $his moral responsi-ilit& ma& consist in havin' failed to e3ercise due care in one/s own acts, or in avin% &aile# to exercise #ue care in the selection and control of one/s a'ent or servants, or in t e control o& persons w o! "$ reasons o& t eir status! occup$ a position o& #epen#enc$ wit respect to t e person ma#e lia"le &or t eir con#uct. 7 0@mphasis 7upplied) $he civil lia-ilit& imposed upon parents for the torts of their minor children livin' with them, ma& -e seen to -e -ased upon the parental authorit& vested -& the Civil Code upon such parents. $he civil law assumes that when an unemancipated child livin' with its parents commits a tortious acts, the parents were ne'li'ent in the performance of their le'al and natural dut& closel& to supervise the child who is in their custod& and control. #arental lia-ilit& is, in other words, anchored upon parental authorit& coupled with presumed parental dereliction in the dischar'e of the duties accompan&in' such authorit&. $he parental dereliction is, of course, onl& presumed and the presumption can -e overtuned under Article .1= of the Civil Code -& proof that the parents had e3ercised all the dili'ence of a 'ood father of a famil& to prevent the dama'e. In the instant case, the shootin' of *ennifer -& Adel-erto with an air rifle occured when parental authorit& was still lod'ed in respondent +undoc spouses, the natural parents of the minor Adel-erto. It would thus follow that the natural parents who had then actual custod& of the minor Adel-erto, are the indispensa-le parties to the suit for dama'es. $he natural parents of Adel-erto, however, stoutl& maintain that -ecause a decree of adoption was issued -& the adoption court in favor of the Rapisura spouses, parental authorit& was vested in the latter as adoptin' parents as o& t e time o& t e &ilin% o& t e petition &or a#option that is, "e&ore Adel-erto had shot *ennifer which an air rifle. $he +undoc spouses contend that the& were therefore free of an& parental responsi-ilit& for Adel-erto/s alle'edl& tortious conduct.

Respondent +undoc spouses rel& on Article 9D of the Child and Aouth <elfare Code 8 which reads as follows2 Art. 9D. ,ecree o& 2#option. I If, after considerin' the report of the (epartment of 7ocial <elfare or dul& licensed child placement a'enc& and the evidence su-mitted -efore it, the court is satisfied that the petitioner is Cualified to maintain, care for, and educate the child, that the trial custod& period has -een completed, and that the -est interests of the child will -e promoted -& the adoption, a #ecree o& a#option s all "e entere#! w ic s all "e e&&ective e #ate t e ori%inal petition was &ile#. $he decree shall state the name -& which the child is thenceforth to -e 1nown. 0@mphasis supplied) $he +undoc spouses further ar'ue that the a-ove Article 9D should -e read in relation to Article 94 of the same Code2 Art. 94. 9&&ect o& 2#option. I $he adoption shall2 333 333 333 0.) ,issolve t e aut orit$ veste# in t e natural parents, e3cept where the adopter is the spouse of the survivin' natural parent; 333 333 333 0@mphasis supplied) and ur'e that their #arental authorit& must -e deemed to have -een dissolved as of the time the #etition for adoption was filed. $he Court is not persuaded. As earlier noted, under the Civil Code, the -asis of parental lia-ilit& for the torts of a minor child is the relationship e3istin' -etween the parents and the minor child livin' with them and over whom, the law presumes, the parents e3ercise supervision and control. Article != of the Child and Aouth <elfare Code, re-enacted this rule2 Article != <orts I #arents and 'uardians are responsi-le for the dama'e caused -& the child under their parental authorit& in accor#ance wit t e civil .o#e. 0@mphasis supplied) Article ..1 of the Bamil& Code of the #hilippines 9 has similarl& insisted upon the reCuisite that the child, doer of the tortious act, shall have -eer in the actual custod& of the parents sou'ht to -e held lia-le for the ensuin' dama'e2 Art. ..1. #arents and other persons e3ercisin' parental authorit& shall -e civill& lia-le for the in>uries and dama'es caused -& the acts or omissions of their unemancipated children livin% in t eir compan$and under their parental authorit& su->ect to the appropriate defenses provided -& law. 0@mphasis supplied) <e do not -elieve that parental authorit& is properl& re'arded as havin' -een retroactivel& transferred to and vested in the adoptin' parents, the Rapisura spouses, at the time the air rifle shootin' happened. <e do not consider that retroactive effect ma& -e 'iver to the decree of adoption so as to impose a lia-ilit& upon the adoptin' parents accruin' at a time w en a#optin% parents a# no actual or p $sicall$ custo#$ over t e a#opte# c il#. Retroactive affect ma& perhaps -e 'iven to the 'rantin' of the petition for adoption where such is essential to permit the accrual of some -enefit or advanta'e in favor of the adopted child. In the instant case, however, to hold that parental authorit& had -een retroactivel& lod'ed in the Rapisura spouses so as to -urden them with lia-ilit& for a tortious act that the& could not have foreseen and which the& could not have prevented 0since the& were at the time in the 8nited 7tates and had no ph&sical custod& over the child Adel-erto) would -e unfair and unconsciona-le. 7uch a result, moreover, would -e inconsistent with the philosophical and polic& -asis underl&in' the doctrine of vicarious lia-ilit&. #ut a little differentl&, no presumption of parental dereliction on the part of the adoptin' parents, the Rapisura spouses, could have arisen since Adel-erto was not in fact su->ect to their control at the time the tort was committed. Article 9! of the Child and Aouth <elfare Code fortifies the conclusion reached a-ove. Article 9! provides as follows2 Art. 9!. <rial .usto#$. I No petition for adoption shall -e finall& 'ranted unless and until the adoptin' parents are 'iven -& the courts a supervise# trial custo#$ perio# of at least si3 months to assess their ad>ustment and emotional readiness for the le'al union. ,urin% t e perio# o& trial custo#$! parental aut orit$ s all "e veste# in t e a#optin% parents. 0@mphasis supplied)

8nder the a-ove Article 9!, parental authorit& is provisionall& vested in the adoptin' parents durin' the period of trial custod&, i.e., -efore the issuance of a decree of adoption, precisel$ "ecause t e a#optin% parents are %iven actual custo#$ o& t e c il# #urin% suc trial perio#. In the instant case, the trial custod& period either had not &et -e'un or -ad alread& -een completed at the time of the air rifle shootin'; in an& case, actual custod& of Adel-erto was then with his natural parents, not the adoptin' parents. Accordin'l&, we conclude that respondent +undoc spouses, Adel-erto/s natural parents, were indispensa-le parties to the suit for dama'es -rou'ht -& petitioners, and that the dismissal -& the trial court of petitioners/ complaint, the indispensa-le parties -ein' alread& -efore the court, constituted 'rave a-use of discretion amountin' to lac1 or e3cess of >urisdiction. <:@R@B?R@, premises considered, the #etition for Review is here-& GRAN$@( (8@ C?8R7@ and the (ecision of the Court of Appeals dated D 7eptem-er 14==, in C.A.-G.R. No. 7#-1! 1D is here-& R@V@R7@( and 7@$ A7I(@. #etitioners/ complaint filed -efore the trial court is here-& R@IN7$A$@( and this case is R@)AN(@( to that court for further proceedin's consistent with this (ecision. Costs a'ainst respondent +undoc spouses. $his (ecision is immediatel& e3ecutor&. 7? ?R(@R@(. G.R. No. 7)4'8 O+;ober ', 1988 /EN0AMIN AL$O A !"# /AGUIO COLLEGE FOUNDATION, petitioners, vs. T-E INTERMEDIATE APPELLATE COURT, EDUARDO /. CA TRO, DIOMEDE /. CA TRO, $IRGINIA /. CA TRO !"# RODOLFO /. CA TRO., respondents. 9#il"erto *. <ene&rancia &or petitioners. +eonar#o +. .oc3in Fr. &or respon#ents.

PADILLA, J.: In this petition for review on certiorari, petitioners see1 the reversal of the decision 1 of respondent Intermediate Appellate Court, dated 5 (ecem-er 14=G, in AC-G.R. No. CV D4=5D, in so far as it affirmed the decision & of the Court of Birst Instance of $arlac 0hereinafter referred to as the $rial Court), which held, amon' others, petitioners solidaril& ha-le with *imm& +. A-on, under Art. .1= of the Civil Code. $he relevant facts, as found -& the $rial Court and adopted -& reference -& the respondent Court, are2 ... +a'uio Colle'es Boundation 0+CB, hereafter) is an academic institution ... N:oweverO, it is also an institution of arts and trade. It has so advertised itself, as its own evidence shows. Its -rochure 0@3h. .) shows that +CB has a fullfled'ed technical-vocational department offer Communication, +roadcast and $elet&pe $echnician courses as well as @lectronics 7erviceman and Automotive )echanics courses... these courses divest +CB of the nature or character of -ein' purel& or e3clusivel& an academic institution. 3 <ithin the premises of the +CB is an R?$C 8nit, the +a'uio Colle'es Boundation Reserve ?fficers $rainin'Corps 0R?$C) 8nit, which is under the fifth control of the Armed Borces of the #hilippines. 4 $he R?$C 8nit, -& wa& of accommodation to the Armed Borces of the #hilippines 0AB#), pursuant to (epartment ?rder No. 1G, 7eries of 145! of the (epartment of @ducation and Culture, ' is provided -& the +CB an office and an armor& located at the -asement of its main -uildin'. ( $he +a'uio Colle'es Boundation R?$C 8nit had *imm& +. A-on as its dul& appointed armorer. 7 As armorer of the R?$C 8nit, *imm& +. A-on received his appointment from the AB#. Not -ein' an emplo&ee of the +CB, he also received his salar& from the AB#, 8 as well as orders from Captain Ro-erto C. 8n'os, the Commandant of the +a'uio Colle'es Boundation R?$C 8nit, concurrent Commandant of other R?$C units in +a'uio and an emplo&ee 0officer) of the AB#. 9 *imm& +. A-on was also a commerce student of the +CB. 1) ?n 9 )arch 1455, at around =2 p.m., in the par1in' space of +CB, *imm& +. A-on shot Napoleon Castro a student of the 8niversit& of +a'uio with an unlicensed firearm which the former too1 from the armor& of the R?$C 8nit of the +CB. 11 As a result, Napoleon Castro died and *imm& +. A-on was prosecuted for, and convicted of the crime of :omicide -& )ilitar& Commission No. 9 , AB#. 1&

7u-seCuentl&, the heirs of Napoleon Castro sued for dama'es, impleadin' *imm& +. A-on, Ro-erto C. 8n'os 0R?$C Commandant +en>amin 7alvosa 0#resident and Chairman of the +oard of +CB), *esus 7alvosa 0@3ecutive Vice #resident of +CB), %i-ertad (. Fuetolio 0(ean of the Colle'e of @ducation and @3ecutive $rustee of +CB) and the +a'uio Colle'es Boundation Inc. as part& defendants. After hearin', the $rial Court rendered a decision, 01) sentencin' defendants *imm& +. A-on, +en>amin 7alvosa and +a'uio Colle'es Boundation, Inc., >ointl& and severall&, to pa& private respondents, as heirs of Napoleon Castro2 a) #1., . for the death of Napoleon Castro, 0-) #91D, . as indemnit& for the loss of earnin' capacit& of the deceased, 0c) #!, . as moral dama'es, 0d) #D, . as actual dama'es, and 0e) #!, . as attorne&/s fees, plus costs; 0.) a-solvin' the other defendants; and 09) dismissin' the defendants/ counterclaim for lac1 of merit. 13 ?n appeal -& petitioners, the respondent Court affirmed with modification the decision of the $rial Court. $he modification consisted in reducin' the award for loss of earnin' capacit& of the deceased from #91D, . to #9 , . -& wa& of temperate dama'es, and increasin' the indemnit& for the death of Napoleon Castro from #1., . to #9 , . . :ence, this petition. $he central issue in this case is whether or not petitioners can -e held solidarit& ha-le with *imm& +. A-on for dama'es under Article .1= of the Civil Code, as a conseCuence of the tortious act of *imm& +. A-on. 8nder the penultimate para'raph of Art. .1= of the Civil Code, teachers or heads of esta-lishments of arts and trades are ha-le for "dama'es caused -& their pupils and students or apprentices, so lon' as the& remain in their custod&." $he rationale of such lia-ilit& is that so lon' as the student remains in the custod& of a teacher, the latter "stands, to a certain e3tent, in loco parentis Nas to the studentO and NisO called upon to e3ercise reasona-le supervision over the conduct of the NstudentO." 14 %i1ewise, "the phrase used in NArt. .1= I /so lon' as 0the students) remain in their custod& means the protective and supervisor& custod& that the school and its heads and teachers e3ercise over the pupils and students for as lon' as the& are at atten#ance in t e sc ool, includin' recess time." 1' In the case at -ar, in holdin' that *imm& +. A-on was stin in the protective and supervisor& custod& of the +a'uio Colle'es Boundation when he shot Napoleon Castro, the respondent Court ruled that2 it is true that 2"on was not atten#in% an$ class or sc ool &unction at t e time o& t e s ootin% inci#ent, which was at a-out = o/cloc1 in the evenin'; -ut considerin' that A-on was emplo&ed as an armorer and propert& custodian of the +CB R?$C unit, e must ave "een atten#in% ni% t classes an# t ere&ore t at our in t e evenin% was 3ust a"out #ismissal time &or im or soon t erea&ter. < e time interval is sa&el$ wit in t e /recess time/ t at t e trial court spo)e o& an# envisione# "$ t e Palisoc case! supra. 1( 0@mphasis supplied) In line with the case of Palisoc, 17 a student not "at attendance in the school" cannot -e in "recess" thereat. A "recess," as the concept is em-raced in the phrase "at attendance in the school," contemplates a situation of temporar& ad>ournment of school activities where the student still remains within call of his mentor and is not permitted to leave the school premises, or the area within which the school activit& is conducted. Recess -& its nature does not include dismissal. 18 %i1ewise, the mere fact of -ein' enrolled or -ein' in the premises of a school without more does not constitute "attendin' school" or -ein' in the "protective and supervisor& custod&/ of the school, as contemplated in the law. 8pon the fore'oin' considerations, we hold that *imm& +. A-on cannot -e considered to have -een "at attendance in the school," or in the custod& of +CB, when he shot Napoleon Castro. %o'icall&, therefore, petitioners cannot under Art. .1= of the Civil Code -e held solidarit& lia-le with *imm& +. A-on for dama'es resultin' from his acts. +esides, the record shows that -efore the shootin' incident, Ro-erto +. 8n'os R?$C 8nit Commandant, AB#, had instructed *imm& +. A-on "not to leave the office and Nto 1eep the armor&O well 'uarded." 19 Apart from ne'atin' a findin' that *imm& +. A-on was under the custod& of the school when he committed the act for which the petitioners are sou'ht to -e held lia-le, this circumstance shows that *imm& +. A-on was supposed to -ewor)in% in t e armor$ with definite instructions from his superior, the R?$C Commandant, when he shot Napoleon Castro. #etitioners also raise the issue that, under Art. .1= of the Civil Code, a school which offers -oth academic and technicalEvocational courses cannot -e held lia-le for a tort committed -& a student enrolled onl& in its academic pro'ram; however, considerin' that *imm& +. A-on was not in the custod& of +CB when he shot Napoleon Castro, the Court deems it unnecessar& to pass upon such other issue. &) <:@R@B?R@, the decision appealed from is here-& R@V@R7@( in so far as it holds petitioners solidaril& lia-le with *imm& +. A-on for his tortious act in the 1illin' of Napoleon Castro. No costs. 7? ?R(@R@(.

G.R. No. 7'11& A1719; 17, 199& FILAMER C-RI TIAN IN TITUTE, petitioner, vs. -ON. INTERMEDIATE APPELLATE COURT, -ON. ENRI5UE P. UPLICO, 8" ,89 +!<!+8;3 !9 01#7e o= ;,e Re78o"!2 Tr8!2 Co1r;, /r!"+, .I$, Ro>!9 C8;3 !"# POTENCIANO 4APUNAN, R., respondents.

$he private respondents, heirs of the late #otenciano Japunan, see1 reconsideration of the decision rendered -& this Court on ?cto-er 1D, 144 0Bilamer Christian Institute v. Court of Appeals, 14 7CRA G55) reviewin' the appellate court/s conclusion that there e3ists an emplo&er-emplo&ee relationship -etween the petitioner and its co-defendant Buntecha. $he Court ruled that the petitioner is not lia-le for the in>uries caused -& Buntecha on the 'rounds that the latter was not an authori6ed driver for whose acts the petitioner shall -e directl& and primaril& answera-le, and that Buntecha was merel& a wor1in' scholar who, under 7ection 1G, Rule ,, +oo1 III of the Rules and Re'ulations Implementin' the %a-or Code is not considered an emplo&ee of the petitioner. $he private respondents assert that the circumstances o-tainin' in the present case call for the application of Article .1= of the Civil Code since Buntecha is no dou-t an emplo&ee of the petitioner. $he private respondents maintain that under Article .1= an in>ured part& shall have recourse a'ainst the servant as well as the petitioner for whom, at the time of the incident, the servant was performin' an act in furtherance of the interest and for the -enefit of the petitioner. Buntecha alle'edl& did not steal the school >eep nor use it for a >o& ride without the 1nowled'e of the school authorities. After a re-e3amination of the laws relevant to the facts found -& the trial court and the appellate court, the Court reconsiders its decision. <e reinstate the Court of Appeals/ decision penned -& the late *ustice (esiderio *urado and concurred in -& *ustices *ose C. Campos, *r. and 7erafin @. Camilon. Appl&in' Civil Code provisions, the appellate court affirmed the trial court decision which ordered the pa&ment of the #. , . lia-ilit& in the Kenith Insurance Corporation polic&, #1 , . moral dama'es, #G, . liti'ation and actual e3penses, and #9, . attorne&/s fees. It is undisputed that Buntecha was a wor1in' student, -ein' a part-time >anitor and a scholar of petitioner Bilamer. :e was, in relation to the school, an emplo&ee even if he was assi'ned to clean the school premises for onl& two 0.) hours in the mornin' of each school da&. :avin' a student driver/s license, Buntecha reCuested the driver, Allan )asa, and was allowed, to ta1e over the vehicle while the latter was on his wa& home one late afternoon. It is si'nificant to note that the place where Allan lives is also the house of his father, the school president, A'ustin )asa. )oreover, it is also the house where Buntecha was allowed free -oard while he was a student of Bilamer Christian Institute. Allan )asa turned over the vehicle to Buntecha onl& after drivin' down a road, ne'otiatin' a sharp dan'erous cur-, and viewin' that the road was clear. 0$7N, April G, 14=9, pp. 5=-54) Accordin' to Allan/s testimon&, a fast movin' truc1 with 'larin' li'hts nearl& hit them so that the& had to swerve to the ri'ht to avoid a collision. 8pon swervin', the& heard a sound as if somethin' had -umped a'ainst the vehicle, -ut the& did not stop to chec1. Actuall&, the #ino& >eep swerved towards the pedestrian, #otenciano Japunan who was wal1in' in his lane in the direction a'ainst vehicular traffic, and hit him. Allan affirmed that Buntecha followed his advise to swerve to the ri'ht. 0("i#., p. 54) At the time of the incident 0D29 #.).) in Ro3as Cit&, the >eep had onl& one functionin' headli'ht. Allan testified that he was the driver and at the same time a securit& 'uard of the petitioner-school. :e further said that there was no specific time for him to -e off-dut& and that after drivin' the students home at !2 in the afternoon, he still had to 'o -ac1 to school and then drive home usin' the same vehicle. (rivin' the vehicle to and from the house of the school president where -oth Allan and Buntecha reside is an act in furtherance of the interest of the petitioner-school. Allan/s >o- demands that he drive home the school >eep so he can use it to fetch students in the mornin' of the ne3t school da&. It is indu-ita-le under the circumstances that the school president had 1nowled'e that the >eep was routinel& driven home for the said purpose. )oreover, it is not impro-a-le that the school president also had 1nowled'e of Buntecha/s possession of a student driver/s license and his desire to under'o drivin' lessons durin' the time that he was not in his classrooms. In learnin' how to drive while ta1in' the vehicle home in the direction of Allan/s house, Buntecha definitel& was not havin' a >o& ride. Buntecha was not drivin' for the purpose of his en>o&ment or for a "frolic of his own" -ut ultimatel&, for the service for which the >eep was intended -& the petitioner school. 07ee %. +attistoni v. $homas, Can 7C 1GG, 1 (.%.R. !55, = A%R 5.. N149.O; 7ee also Association of +aptists for <orld @van'elism, Inc. v. Bieldmen/s Insurance Co., Inc. 1.G 7CRA D1= N14=9O). $herefore, the Court is constrained to conclude that the act of Buntecha in ta1in' over the steerin' wheel was one done for and in -ehalf of his emplo&er for which act the petitioner-school cannot den& an& responsi-ilit& -& ar'uin' that it was done -e&ond the scope of his >anitorial duties. $he clause "within the scope of their assi'ned tas1s" for purposes of raisin' the presumption of lia-ilit& of an emplo&er, includes an& act done -& an emplo&ee, in furtherance of the interests of the emplo&er or for the account of the emplo&er at the time of the infliction of the in>ur& or dama'e. 0)anuel Casada, 14 Va 4 D, !4 7@ .d G5 N14! O) @ven if somehow, the emplo&ee drivin' the vehicle derived some -enefit from the act, the e3istence of a presumptive lia-ilit& of the emplo&er is determined -& answerin' the Cuestion of whether or not the servant was at the time of the accident performin' an& act in furtherance of his master/s -usiness. 0Johlman v. :&land, .1 N< DG9, ! A%R 1G95 N14.DO; *ameson v. Gavett, 51 # .d 495 N1495O)

7ection 1G, Rule ,, +oo1 III of the Rules implementin' the %a-or Code, on which the petitioner anchors its defense, was promul'ated -& the 7ecretar& of %a-or and @mplo&ment onl& for the purpose of administerin' and enforcin' the provisions of the %a-or Code on conditions of emplo&ment. #articularl&, Rule , of +oo1 III provides 'uidelines on the manner -& which the powers of the %a-or 7ecretar& shall -e e3ercised; on what records should -e 1ept; maintained and preserved; on pa&roll; and on the e3clusion of wor1in' scholars from, and inclusion of resident ph&sicians in the emplo&ment covera'e as far as compliance with the su-stantive la-or provisions on wor1in' conditions, rest periods, and wa'es, is concerned. In other words, Rule , is merel& a 'uide to the enforcement of the su-stantive law on la-or. $he Court, thus, ma1es the distinction and so holds that 7ection 1G, Rule ,, +oo1 III of the Rules is not the decisive law in a civil suit for dama'es instituted -& an in>ured person durin' a vehicular accident a'ainst a wor1in' student of a school and a'ainst the school itself. $he present case does not deal with a la-or dispute on conditions of emplo&ment -etween an alle'ed emplo&ee and an alle'ed emplo&er. It invo1es a claim -rou'ht -& one for dama'es for in>ur& caused -& the patentl& ne'li'ent acts of a person, a'ainst -oth doer-emplo&ee and his emplo&er. :ence, the reliance on the implementin' rule on la-or to disre'ard the primar& lia-ilit& of an emplo&er under Article .1= of the Civil Code is misplaced. An implementin' rule on la-or cannot -e used -& an emplo&er as a shield to avoid lia-ilit& under the su-stantive provisions of the Civil Code. $here is evidence to show that there e3ists in the present case an e3tra-contractual o-li'ation arisin' from the ne'li'ence or rec1less imprudence of a person "whose acts or omissions are imputa-le, -& a le'al fiction, to other0s) who are in a position to e3ercise an a-solute or limited control over 0him)." 0+ahia v. %iton>ua and %e&nes, 9 #hil. D.G N141!O) Buntecha is an emplo&ee of petitioner Bilamer. :e need not have an official appointment for a driver/s position in order that the petitioner ma& -e held responsi-le for his 'rossl& ne'li'ent act, it -ein' sufficient that the act of drivin' at the time of the incident was for the -enefit of the petitioner. :ence, the fact that Buntecha was not the school driver or was not actin' within the scope of his >anitorial duties does not relieve the petitioner of the -urden of re-uttin' the presumption 3uris tantum that there was ne'li'ence on its part either in the selection of a servant or emplo&ee, or in the supervision over him. $he petitioner has failed to show proof of its havin' e3ercised the reCuired dili'ence of a 'ood father of a famil& over its emplo&ees Buntecha and Allan. $he Court reiterates that supervision includes the formulation of suita-le rules and re'ulations for the 'uidance of its emplo&ees and the issuance of proper instructions intended for the protection of the pu-lic and persons with whom the emplo&er has relations throu'h his emplo&ees. 0+ahia v. %iton>ua and %e&nes, supra! at p. D.=; #hoeni3 Construction, v. Intermediate Appellate Court, 1G= 7CRA 9!9 N14=5O) An emplo&er is e3pected to impose upon its emplo&ees the necessar& discipline called for in the performance of an& act indispensa-le to the -usiness and -eneficial to their emplo&er. In the present case, the petitioner has not shown that it has set forth such rules and 'uidelines as would prohi-it an& one of its emplo&ees from ta1in' control over its vehicles if one is not the official driver or prohi-itin' the driver and son of the Bilamer president from authori6in' another emplo&ee to drive the school vehicle. Burthermore, the petitioner has failed to prove that it had imposed sanctions or warned its emplo&ees a'ainst the use of its vehicles -& persons other than the driver. $he petitioner, thus, has an o-li'ation to pa& dama'es for in>ur& arisin' from the uns1illed manner -& which Buntecha drove the vehicle. 0Can'co v. )anila Railroad Co., 9= #hil. 5D=, 55. N141=O). In the a-sence of evidence that the petitioner had e3ercised the dili'ence of a 'ood father of a famil& in the supervision of its emplo&ees, the law imposes upon it the vicarious lia-ilit& for acts or omissions of its emplo&ees. 08mali v. +acani, D4 7CRA .D9 N145DO; #o-lete v. Ba-ros, 49 7CRA . N1454O; Japalaran +us %iner v. Coronado, 15D 7CRA 54. N14=4O; Branco v. Intermediate Appellate Court, 15= 7CRA 991 N14=4O; #antranco North @3press, Inc. v. +aesa, 154 7CRA 9=G N14=4O) $he lia-ilit& of the emplo&er is, under Article .1= , primar& and solidar&. :owever, the emplo&er shall have recourse a'ainst the ne'li'ent emplo&ee for whatever dama'es are paid to the heirs of the plaintiff. It is an admitted fact that the actual driver of the school >eep, Allan )asa, was not made a part& defendant in the civil case for dama'es. $his is Cuite understanda-le considerin' that as far as the in>ured pedestrian, plaintiff #otenciano Japunan, was concerned, it was Buntecha who was the one drivin' the vehicle and presuma-l& was one authori6ed -& the school to drive. $he plaintiff and his heirs should not now -e left to suffer without simultaneous recourse a'ainst the petitioner for the conseCuent in>ur& caused -& a >anitor doin' a drivin' chore for the petitioner even for a short while. Bor the purpose of recoverin' dama'es under the prevailin' circumstances, it is enou'h that the plaintiff and the private respondent heirs were a-le to esta-lish the e3istence of emplo&er-emplo&ee relationship -etween Buntecha and petitioner Bilamer and the fact that Buntecha was en'a'ed in an act not for an independent purpose of his own -ut in

furtherance of the -usiness of his emplo&er. A position of responsi-ilit& on the part of the petitioner has thus -een satisfactoril& demonstrated. <:@R@B?R@, the motion for reconsideration of the decision dated ?cto-er 1D, 144 is here-& GRAN$@(. $he decision of the respondent appellate court affirmin' the trial court decision is R@IN7$A$@(. 7? ?R(@R@(.

G.R. No. L%111'4

M!r+, &1, 191(

E. MERRITT, plaintiff-appellant, vs. GO$ERNMENT OF T-E P-ILIPPINE I LAND , defendant-appellant.

$his is an appeal -& -oth parties from a >ud'ment of the Court of Birst Instance of the cit& of )anila in favor of the plaintiff for the sum of #1G,5G1, to'ether with the costs of the cause. Counsel for the plaintiff insist that the trial court erred 01) "in limitin' the 'eneral dama'es which the plaintiff suffered to #!, , instead of #.!, as claimed in the complaint," and 0.) "in limitin' the time when plaintiff was entirel& disa-led to two months and twent&-one da&s and fi3in' the dama'e accordin'l& in the sum of #.,DDD, instead of #D, as claimed -& plaintiff in his complaint." $he Attorne&-General on -ehalf of the defendant ur'es that the trial court erred2 0a) in findin' that the collision -etween the plaintiff/s motorc&cle and the am-ulance of the General :ospital was due to the ne'li'ence of the chauffeur; 0-) in holdin' that the Government of the #hilippine Islands is lia-le for the dama'es sustained -& the plaintiff as a result of the collision, even if it -e true that the collision was due to the ne'li'ence of the chauffeur; and 0c) in renderin' >ud'ment a'ainst the defendant for the sum of #1G,5G1. $he trial court/s findin's of fact, which are full& supported -& the record, are as follows2 It is a fact not disputed -& counsel for the defendant that when the plaintiff, ridin' on a motorc&cle, was 'oin' toward the western part of Calle #adre Baura, passin' alon' the west side thereof at a speed of ten to twelve miles an hour, upon crossin' $aft Avenue and when he was ten feet from the southwestern intersection of said streets, the General :ospital am-ulance, upon reachin' said avenue, instead of turnin' toward the south, after passin' the center thereof, so that it would -e on the left side of said avenue, as is prescri-ed -& the ordinance and the )otor Vehicle Act, turned suddenl& and une3pectedl& and lon' -efore reachin' the center of the street, into the ri'ht side of $aft Avenue, without havin' sounded an& whistle or horn, -& which movement it struc1 the plaintiff, who was alread& si3 feet from the southwestern point or from the post place there. +& reason of the resultin' collision, the plaintiff was so severel& in>ured that, accordin' to (r. 7alee-&, who e3amined him on the ver& same da& that he was ta1en to the General :ospital, he was sufferin' from a depression in the left parietal re'ion, a would in the same place and in the -ac1 part of his head, while -lood issued from his nose and he was entirel& unconscious. $he mar1s revealed that he had one or more fractures of the s1ull and that the 're& matter and -rain was had suffered material in>ur&. At ten o/cloc1 of the ni'ht in Cuestion, which was the time set for performin' the operation, his pulse was so wea1 and so irre'ular that, in his opinion, there was little hope that he would live. :is ri'ht le' was -ro1en in such a wa& that the fracture e3tended to the outer s1in in such manner that it mi'ht -e re'arded as dou-le and the would -e e3posed to infection, for which reason it was of the most serious nature. At another e3amination si3 da&s -efore the da& of the trial, (r. 7alee-& noticed that the plaintiff/s le' showed a contraction of an inch and a half and a curvature that made his le' ver& wea1 and painful at the point of the fracture. @3amination of his head revealed a nota-le read>ustment of the functions of the -rain and nerves. $he patient apparentl& was sli'htl& deaf, had a li'ht wea1ness in his e&es and in his mental condition. $his latter wea1ness was alwa&s noticed when the plaintiff had to do an& difficult mental la-or, especiall& when he attempted to use his mone& for mathematical calculations. Accordin' to the various merchants who testified as witnesses, the plaintiff/s mental and ph&sical condition prior to the accident was e3cellent, and that after havin' received the in>uries that have -een discussed, his ph&sical condition had under'one a noticea-le depreciation, for he had lost the a'ilit&, ener'&, and a-ilit& that he had constantl& displa&ed -efore the accident as one of the -est constructors of wooden -uildin's and he could not now earn even a half of the income that he had secured for his wor1 -ecause he had lost ! per cent of his efficienc&. As a contractor, he could no lon'er, as he had -efore done, clim- up ladders and scaffoldin's to reach the hi'hest parts of the -uildin'. As a conseCuence of the loss the plaintiff suffered in the efficienc& of his wor1 as a contractor, he had to dissolved the partnership he had formed with the en'ineer. <ilson, -ecause he was incapacitated from ma1in' mathematical calculations on account of the condition of his le' and of his mental faculties, and he had to 'ive up a contract he had for the construction of the 8& Chaco -uildin'." <e ma& sa& at the outset that we are in full accord with the trial court to the effect that the collision -etween the plaintiff/s motorc&cle and the am-ulance of the General :ospital was due solel& to the ne'li'ence of the chauffeur. $he two items which constitute a part of the #1G,5G1 and which are drawn in Cuestion -& the plaintiff are 0a) #!, , the award awarded for permanent in>uries, and 0-) the #.,DDD, the amount allowed for the loss of wa'es durin' the time the plaintiff was incapacitated from pursuin' his occupation. <e find nothin' in the record which would >ustif& us in

increasin' the amount of the first. As to the second, the record shows, and the trial court so found, that the plaintiff/s services as a contractor were worth #1, per month. $he court, however, limited the time to two months and twent&one da&s, which the plaintiff was actuall& confined in the hospital. In this we thin1 there was error, -ecause it was clearl& esta-lished that the plaintiff was wholl& incapacitated for a period of si3 months. $he mere fact that he remained in the hospital onl& two months and twent&-one da&s while the remainder of the si3 months was spent in his home, would not prevent recover& for the whole time. <e, therefore, find that the amount of dama'es sustained -& the plaintiff, without an& fault on his part, is #1=, 5!. As the ne'li'ence which caused the collision is a tort committed -& an a'ent or emplo&ee of the Government, the inCuir& at once arises whether the Government is le'all&-lia-le for the dama'es resultin' therefrom. Act No. .G!5, effective Be-ruar& 9, 141!, reads2 An Act authori6in' @. )erritt to -rin' suit a'ainst the Government of the #hilippine Islands and authori6in' the Attorne&-General of said Islands to appear in said suit. <hereas a claim has -een filed a'ainst the Government of the #hilippine Islands -& )r. @. )erritt, of )anila, for dama'es resultin' from a collision -etween his motorc&cle and the am-ulance of the General :ospital on )arch twent&-fifth, nineteen hundred and thirteen; <hereas it is not 1nown who is responsi-le for the accident nor is it possi-le to determine the amount of dama'es, if an&, to which the claimant is entitled; and <hereas the (irector of #u-lic <or1s and the Attorne&-General recommended that an Act -e passed -& the %e'islature authori6in' )r. @. )erritt to -rin' suit in the courts a'ainst the Government, in order that said Cuestions ma& -e decided2 Now, therefore, *$ aut orit$ o& t e Gnite# States! "e it enacte# "$ t e P ilippine +e%islature! t atH 7@C$I?N 1. @. )erritt is here-& authori6ed to -rin' suit in the Court of Birst Instance of the cit& of )anila a'ainst the Government of the #hilippine Islands in order to fi3 the responsi-ilit& for the collision -etween his motorc&cle and the am-ulance of the General :ospital, and to determine the amount of the dama'es, if an&, to which )r. @. )erritt is entitled on account of said collision, and the Attorne&-General of the #hilippine Islands is here-& authori6ed and directed to appear at the trial on the -ehalf of the Government of said Islands, to defendant said Government at the same. 7@C. .. $his Act shall ta1e effect on its passa'e. @nacted, Be-ruar& 9, 141!. (id the defendant, in enactin' the a-ove Cuoted Act, simpl& waive its immunit& from suit or did it also concede its lia-ilit& to the plaintiffH If onl& the former, then it cannot -e held that the Act created an& new cause of action in favor of the plaintiff or e3tended the defendant/s lia-ilit& to an& case not previousl& reco'ni6ed. All admit that the Insular Government 0the defendant) cannot -e sued -& an individual without its consent. It is also admitted that the instant case is one a'ainst the Government. As the consent of the Government to -e sued -& the plaintiff was entirel& voluntar& on its part, it is our dut& to loo1 carefull& into the terms of the consent, and render >ud'ment accordin'l&. $he plaintiff was authori6ed to -rin' this action a'ainst the Government "in order to fi3 the responsi-ilit& for the collision -etween his motorc&cle and the am-ulance of the General :ospital and to determine the amount of the dama'es, if an&, to which )r. @. )erritt is entitled on account of said collision, . . . ." $hese were the two Cuestions su-mitted to the court for determination. $he Act was passed "in order that said Cuestions ma& -e decided." <e have "decided" that the accident was due solel& to the ne'li'ence of the chauffeur, who was at the time an emplo&ee of the defendant, and we have also fi3ed the amount of dama'es sustained -& the plaintiff as a result of the collision. (oes the Act authori6e us to hold that the Government is le'all& lia-le for that amountH If not, we must loo1 elsewhere for such authorit&, if it e3ists. $he Government of the #hilippine Islands havin' -een "modeled after the Bederal and 7tate Governments in the 8nited 7tates," we ma& loo1 to the decisions of the hi'h courts of that countr& for aid in determinin' the purpose and scope of Act No. .G!5.

In the 8nited 7tates the rule that the state is not lia-le for the torts committed -& its officers or a'ents whom it emplo&s, e3cept when e3pressl& made so -& le'islative enactment, is well settled. "$he Government," sa&s *ustice 7tor&, "does not underta1e to 'uarantee to an& person the fidelit& of the officers or a'ents whom it emplo&s, since that would involve it in all its operations in endless em-arrassments, difficulties and losses, which would -e su-versive of the pu-lic interest." 0Claussen vs. Cit& of %uverne, 1 9 )inn., G41, citin' 8. 7. vs. Jir1patric1, 4 <heat, 5. ; D %. @d., 144; and +eers vs. 7tates, . :ow., !.5; 1! %. @d., 441.) In the case of Delvin vs. State 01.1 Cal., 1D), the plaintiff sou'ht to recover dama'es from the state for personal in>uries received on account of the ne'li'ence of the state officers at the state fair, a state institution created -& the le'islature for the purpose of improvin' a'ricultural and 1indred industries; to disseminate information calculated to educate and -enefit the industrial classes; and to advance -& such means the material interests of the state, -ein' o->ects similar to those sou'ht -& the pu-lic school s&stem. In passin' upon the Cuestion of the state/s lia-ilit& for the ne'li'ent acts of its officers or a'ents, the court said2 No claim arises a'ainst an& 'overnment is favor of an individual, -& reason of the misfeasance, laches, or unauthori6ed e3ercise of powers -& its officers or a'ents. 0Citin' Gi--ons vs. 8. 7., = <all., .D4; Clodfelter vs. 7tate, =D N. C., !1, !9; G1 Am. Rep., GG ; Chapman vs. 7tate, 1 G Cal., D4 ; G9 Am. 7t. Rep., 1!=; Green vs. 7tate, 59 Cal., .4; +ourn vs. :art, 49 Cal., 9.1; .5 Am. 7t. Rep., . 9; 7tor& on A'enc&, sec. 914.) As to the scope of le'islative enactments permittin' individuals to sue the state where the cause of action arises out of either fort or contract, the rule is stated in 9D C&c., 41!, thus2 +& consentin' to -e sued a state simpl& waives its immunit& from suit. It does not there-& concede its lia-ilit& to plaintiff, or create an& cause of action in his favor, or e3tend its lia-ilit& to an& cause not previousl& reco'ni6ed. It merel& 'ives a remed& to enforce a pree3istin' lia-ilit& and su-mits itself to the >urisdiction of the court, su->ect to its ri'ht to interpose an& lawful defense. In 2p&el"ac er vs. State 01!. N. <., 1GG, advanced sheets), decided April 1D, 141!, the Act of 1419, which authori6ed the -rin'in' of this suit, read2 7@C$I?N 1. Authorit& is here-& 'iven to Geor'e Apfel-acher, of the town of 7ummit, <au1esha Count&, <isconsin, to -rin' suit in such court or courts and in such form or forms as he ma& -e advised for the purpose of settlin' and determinin' all controversies which he ma& now have with the 7tate of <isconsin, or its dul& authori6ed officers and a'ents, relative to the mill propert& of said Geor'e Apfel-acher, the fish hatcher& of the 7tate of <isconsin on the +ar1 River, and the mill propert& of @van :umphre& at the lower end of Na'awic1a %a1e, and relative to the use of the waters of said +ar1 River and Na'awic1a %a1e, all in the count& of <au1esha, <isconsin. In determinin' the scope of this act, the court said2 #laintiff claims that -& the enactment of this law the le'islature admitted lia-ilit& on the part of the state for the acts of its officers, and that the suit now stands >ust as it would stand -etween private parties. It is difficult to see how the act does, or was intended to do, more than remove the state/s immunit& from suit. It simpl& 'ives authorit& to commence suit for the purpose of settlin' plaintiff/s controversies with the estate. Nowhere in the act is there a whisper or su''estion that the court or courts in the disposition of the suit shall depart from well esta-lished principles of law, or that the amount of dama'es is the onl& Cuestion to -e settled. $he act opened the door of the court to the plaintiff. It did not pass upon the Cuestion of lia-ilit&, -ut left the suit >ust where it would -e in the a-sence of the state/s immunit& from suit. If the %e'islature had intended to chan'e the rule that o-tained in this state so lon' and to declare lia-ilit& on the part of the state, it would not have left so important a matter to mere inference, -ut would have done so in e3press terms. 0)urdoc1 Grate Co. vs. Commonwealth, 1!. )ass., .=; .G N.@., =!G; = %. R. A., 944.) In ,ennin% vs. State 01.9 Cal., 91D), the provisions of the Act of 1=49, relied upon and considered, are as follows2 All persons who have, or shall hereafter have, claims on contract or for ne'li'ence a'ainst the state not allowed -& the state -oard of e3aminers, are here-& authori6ed, on the terms and conditions herein contained, to -rin' suit thereon a'ainst the state in an& of the courts of this state of competent >urisdiction, and prosecute the same to final >ud'ment. $he rules of practice in civil cases shall appl& to such suits, e3cept as herein otherwise provided. And the court said2

$his statute has -een considered -& this court in at least two cases, arisin' under different facts, and in -oth it was held that said statute did not create an& lia-ilit& or cause of action a'ainst the state where none e3isted -efore, -ut merel& 'ave an additional remed& to enforce such lia-ilit& as would have e3isted if the statute had not -een enacted. 0Chapman vs. 7tate, 1 G Cal., D4 ; G9 Am. 7t. Rep., 1!=; )elvin vs. 7tate, 1.1 Cal., 1D.) A statute of )assachusetts enacted in 1==5 'ave to the superior court ">urisdiction of all claims a'ainst the commonwealth, whether at law or in eCuit&," with an e3ception not necessar& to -e here mentioned. In construin' this statute the court, in Dur#oc) Erate .o. vs. .ommonwealt 01!. )ass., .=), said2 $he statute we are discussin' disclose no intention to create a'ainst the state a new and heretofore unreco'ni6ed class of lia-ilities, -ut onl& an intention to provide a >udicial tri-unal where well reco'ni6ed e3istin' lia-ilities can -e ad>udicated. In Sipple vs. State 044 N. A., .=G), where the -oard of the canal claims had, -& the terms of the statute of New Aor1, >urisdiction of claims for dama'es for in>uries in the mana'ement of the canals such as the plaintiff had sustained, Chief *ustice Ru'er remar1s2 "It must -e conceded that the state can -e made lia-le for in>uries arisin' from the ne'li'ence of its a'ents or servants, onl& -& force of some positive statute assumin' such lia-ilit&." It -ein' Cuite clear that Act No. .G!5 does not operate to e3tend the Government/s lia-ilit& to an& cause not previousl& reco'ni6ed, we will now e3amine the su-stantive law touchin' the defendant/s lia-ilit& for the ne'li'ent acts of its officers, a'ents, and emplo&ees. #ara'raph ! of article 14 9 of the Civil Code reads2 $he state is lia-le in this sense when it acts throu'h a special a'ent, -ut not when the dama'e should have -een caused -& the official to whom properl& it pertained to do the act performed, in which case the provisions of the precedin' article shall -e applica-le. $he supreme court of 7pain in definin' the scope of this para'raph said2 $hat the o-li'ation to indemnif& for dama'es which a third person causes to another -& his fault or ne'li'ence is -ased, as is evidenced -& the same %aw 9, $itle 1!, #artida 5, on that the person o-li'ated, -& his own fault or ne'li'ence, ta1es part in the act or omission of the third part& who caused the dama'e. It follows therefrom that the state, -& virtue of such provisions of law, is not responsi-le for the dama'es suffered -& private individuals in conseCuence of acts performed -& its emplo&ees in the dischar'e of the functions pertainin' to their office, -ecause neither fault nor even ne'li'ence can -e presumed on the part of the state in the or'ani6ation of -ranches of pu-lic service and in the appointment of its a'ents; on the contrar&, we must presuppose all foresi'ht humanl& possi-le on its part in order that each -ranch of service serves the 'eneral weal an that of private persons interested in its operation. +etween these latter and the state, therefore, no relations of a private nature 'overned -& the civil law can arise e3cept in a case where the state acts as a >udicial person capa-le of acCuirin' ri'hts and contractin' o-li'ations. 07upreme Court of 7pain, *anuar& 5, 1=4=; =9 *ur. Civ., .G.) $hat the Civil Code in chapter ., title 1D, -oo1 G, re'ulates the o-li'ations which arise out of fault or ne'li'ence; and whereas in the first article thereof. No. 14 ., where the 'eneral principle is laid down that where a person who -& an act or omission causes dama'e to another throu'h fault or ne'li'ence, shall -e o-li'ed to repair the dama'e so done, reference is made to acts or omissions of the persons who directl& or indirectl& cause the dama'e, the followin' articles refers to this persons and imposes an identical o-li'ation upon those who maintain fi3ed relations of authorit& and superiorit& over the authors of the dama'e, -ecause the law presumes that in conseCuence of such relations the evil caused -& their own fault or ne'li'ence is imputa-le to them. $his le'al presumption 'ives wa& to proof, however, -ecause, as held in the last para'raph of article 14 9, responsi-ilit& for acts of third persons ceases when the persons mentioned in said article prove that the& emplo&ed all the dili'ence of a 'ood father of a famil& to avoid the dama'e, and amon' these persons, called upon to answer in a direct and not a su-sidiar& manner, are found, in addition to the mother or the father in a proper case, 'uardians and owners or directors of an esta-lishment or enterprise, the state, -ut not alwa&s, e3cept when it acts throu'h the a'enc& of a special a'ent, dou-tless -ecause and onl& in this case, the fault or ne'li'ence, which is the ori'inal -asis of this 1ind of o->ections, must -e presumed to lie with the state. $hat althou'h in some cases the state mi'ht -& virtue of the 'eneral principle set forth in article 14 . respond for all the dama'e that is occasioned to private parties -& orders or resolutions which -& fault or ne'li'ence are made -& -ranches of the central administration actin' in the name and representation of the state itself and as an e3ternal e3pression of its soverei'nt& in the e3ercise of its e3ecutive powers, &et said article is not applica-le in the case of dama'es said to have -een occasioned to the petitioners "$ an executive o&&icial, actin' in the e3ercise of his powers, in proceedin's to enforce the collections of certain propert& ta3es owin' -& the owner of the propert& which the& hold in su-lease.

$hat the responsi-ilit& of the state is limited -& article 14 9 to the case wherein it acts t rou% a special a%ent 0and a special a'ent, in the sense in which these words are emplo&ed, is one who receives a definite and fi3ed order or commission, forei'n to the e3ercise of the duties of his office if he is a special official) so that in representation of the state and -ein' -ound to act as an a'ent thereof, he e3ecutes the trust confided to him. $his concept does not appl& to an& e3ecutive a'ent who is an emplo&ee of the actin' administration and who on his own responsi-ilit& performs the functions which are inherent in and naturall& pertain to his office and which are re'ulated -& law and the re'ulations." 07upreme Court of 7pain, )a& 1=, 14 G; 4= *ur. Civ., 9=4, 94 .) $hat accordin' to para'raph ! of article 14 9 of the Civil Code and the principle laid down in a decision, amon' others, of the 1=th of )a&, 14 G, in a dama'e case, the responsi-ilit& of the state is limited to that which it contracts throu'h a special a'ent, dul& empowered -& a #e&inite or#er or commission to per&orm some act or c ar%e# wit some #e&inite purpose w ic %ives rise to t e claim, and not where the claim is -ased on acts or omissions imputa-le to a pu-lic official char'ed with some administrative or technical office who can -e held to the proper responsi-ilit& in the manner laid down -& the law of civil responsi-ilit&. ConseCuentl&, the trial court in not so decidin' and in sentencin' the said entit& to the pa&ment of dama'es, caused -& an official of the second class referred to, has -& erroneous interpretation infrin'ed the provisions of articles 14 . and 14 9 of the Civil Code. 07upreme Court of 7pain, *ul& 9 , 1411; 1.. *ur. Civ., 1GD.) It is, therefore, evidence that the 7tate 0the Government of the #hilippine Islands) is onl& lia-le, accordin' to the a-ove Cuoted decisions of the 7upreme Court of 7pain, for the acts of its a'ents, officers and emplo&ees when the& act as special a'ents within the meanin' of para'raph ! of article 14 9, supra, and that the chauffeur of the am-ulance of the General :ospital was not such an a'ent. Bor the fore'oin' reasons, the >ud'ment appealed from must -e reversed, without costs in this instance. <hether the Government intends to ma1e itself le'all& lia-le for the amount of dama'es a-ove set forth, which the plaintiff has sustained -& reason of the ne'li'ent acts of one of its emplo&ees, -& le'islative enactment and -& appropriatin' sufficient funds therefor, we are not called upon to determine. $his matter rests solel& with the %e'islature and not with the courts. 2rellano! .. F.! <orres! Fo nson! an# Dorelan#! FF.! concur.

G.R. No. L%'&179 A<r82 8, 1991 MUNICIPALITY OF AN FERNANDO, LA UNION, petitionervs. -ON. 0UDGE ROMEO N. FIRME, 0UANA RIMANDO%/ANI?A, IAUREANO /ANI?A, 0R., OR MARIETA /ANI?A, MONTANO /ANI?A, OR0A /ANI?A, AND LYDIA R. /ANI?A, respondents. $his is a petition for certiorari with pra&er for the issuance of a writ of preliminar& mandator& in>unction see1in' the nullification or modification of the proceedin's and the orders issued -& the respondent *ud'e Romeo N. Birme, in his capacit& as the presidin' >ud'e of the Court of Birst Instance of %a 8nion, 7econd *udicial (istrict, +ranch IV, +auan',

%a 8nion in Civil Case No. 1 5-+G, entitled "*uana Rimando +aniMa, et al. vs. )acario Nieveras, et al." dated Novem-er G, 145!; *ul& 19, 145D; Au'ust .9,145D; Be-ruar& .9, 1455; )arch 1D, 1455; *ul& .D, 1454; 7eptem-er 5, 1454; Novem-er 5, 1454 and (ecem-er 9, 1454 and the decision dated ?cto-er 1 , 1454 orderin' defendants )unicipalit& of 7an Bernando, %a 8nion and Alfredo +isli' to pa&, >ointl& and severall&, the plaintiffs for funeral e3penses, actual dama'es consistin' of the loss of earnin' capacit& of the deceased, attorne&/s fees and costs of suit and dismissin' the complaint a'ainst the @state of )acario Nieveras and +ernardo +ala'ot. $he antecedent facts are as follows2 #etitioner )unicipalit& of 7an Bernando, %a 8nion is a municipal corporation e3istin' under and in accordance with the laws of the Repu-lic of the #hilippines. Respondent :onora-le *ud'e Romeo N. Birme is impleaded in his official capacit& as the presidin' >ud'e of the Court of Birst Instance of %a 8nion, +ranch IV, +auan', %a 8nion. <hile private respondents *uana Rimando-+aniMa, %aureano +aniMa, *r., 7or )arietta +aniMa, )ontano +aniMa, ?r>a +aniMa and %&dia R. +aniMa are heirs of the deceased %aureano +aniMa 7r. and plaintiffs in Civil Case No. 1 5-+' -efore the aforesaid court. At a-out 5 o/cloc1 in the mornin' of (ecem-er 1D, 14D!, a collision occurred involvin' a passen'er >eepne& driven -& +ernardo +ala'ot and owned -& the @state of )acario Nieveras, a 'ravel and sand truc1 driven -& *ose )anande' and owned -& $anCuilino VelasCue6 and a dump truc1 of the )unicipalit& of 7an Bernando, %a 8nion and driven -& Alfredo +isli'. (ue to the impact, several passen'ers of the >eepne& includin' %aureano +aniMa 7r. died as a result of the in>uries the& sustained and four 0G) others suffered var&in' de'rees of ph&sical in>uries. ?n (ecem-er 11, 14DD, the private respondents instituted a compliant for dama'es a'ainst the @state of )acario Nieveras and +ernardo +ala'ot, owner and driver, respectivel&, of the passen'er >eepne&, which was doc1eted Civil Case No. .1=9 in the Court of Birst Instance of %a 8nion, +ranch I, 7an Bernando, %a 8nion. :owever, the aforesaid defendants filed a $hird #art& Complaint a'ainst the petitioner and the driver of a dump truc1 of petitioner. $hereafter, the case was su-seCuentl& transferred to +ranch IV, presided over -& respondent >ud'e and was su-seCuentl& doc1eted as Civil Case No. 1 5-+'. +& virtue of a court order dated )a& 5, 145!, the private respondents amended the complaint wherein the petitioner and its re'ular emplo&ee, Alfredo +isli' were impleaded for the first time as defendants. #etitioner filed its answer and raised affirmative defenses such as lac1 of cause of action, non-sua-ilit& of the 7tate, prescription of cause of action and the ne'li'ence of the owner and driver of the passen'er >eepne& as the pro3imate cause of the collision. In the course of the proceedin's, the respondent >ud'e issued the followin' Cuestioned orders, to wit2 01) ?rder dated Novem-er G, 145! dismissin' the cross-claim a'ainst +ernardo +ala'ot; 0.) ?rder dated *ul& 19, 145D admittin' the Amended Answer of the )unicipalit& of 7an Bernando, %a 8nion and +isli' and settin' the hearin' on the affirmative defenses onl& with respect to the supposed lac1 of >urisdiction; 09) ?rder dated Au'ust .9, 145D deferrin' there resolution of the 'rounds for the )otion to (ismiss until the trial; 0G) ?rder dated Be-ruar& .9, 1455 den&in' the motion for reconsideration of the order of *ul& 19, 145D filed -& the )unicipalit& and +isli' for havin' -een filed out of time; 0!) ?rder dated )arch 1D, 1455 reiteratin' the denial of the motion for reconsideration of the order of *ul& 19, 145D; 0D) ?rder dated *ul& .D, 1454 declarin' the case deemed su-mitted for decision it appearin' that parties have not &et su-mitted their respective memoranda despite the court/s direction; and 05) ?rder dated 7eptem-er 5, 1454 den&in' the petitioner/s motion for reconsideration andEor order to recall prosecution witnesses for cross e3amination. ?n ?cto-er 1 , 1454 the trial court rendered a decision, the dispositive portion is hereunder Cuoted as follows2 IN VI@< ?B A%% ?B 0sic) $:@ B?R@G?ING, >ud'ment is here-& rendered for the plaintiffs, and defendants )unicipalit& of 7an Bernando, %a 8nion and Alfredo +isli' are ordered to pa& >ointl& and severall&, plaintiffs *uana Rimando-+aniMa, )rs. #riscilla +. 7urell, %aureano +aniMa *r., 7or )arietta +aniMa, )rs. Be +. 7oriano, )ontano +aniMa, ?r>a +aniMa and %&dia +. +aniMa the sums of #1,! . as funeral e3penses and #.G,5GG..G as the lost e3pected earnin's of the late %aureano +aniMa 7r., #9 , . as moral dama'es, and #.,! . as attorne&/s fees. Costs a'ainst said defendants.

$he Complaint is dismissed as to defendants @state of )acario Nieveras and +ernardo +ala'ot. 0Rollo, p. 9 )

so ?R(@R@(.

#etitioner filed a motion for reconsideration and for a new trial without pre>udice to another motion which was then pendin'. :owever, respondent >ud'e issued another order dated Novem-er 5, 1454 den&in' the motion for reconsideration of the order of 7eptem-er 5, 1454 for havin' -een filed out of time. Binall&, the respondent >ud'e issued an order dated (ecem-er 9, 1454 providin' that if defendants municipalit& and +isli' further wish to pursue the matter disposed of in the order of *ul& .D, 1454, such should -e elevated to a hi'her court in accordance with the Rules of Court. :ence, this petition. #etitioner maintains that the respondent >ud'e committed 'rave a-use of discretion amountin' to e3cess of >urisdiction in issuin' the aforesaid orders and in renderin' a decision. Burthermore, petitioner asserts that while appeal of the decision ma&-e availa-le, the same is not the speed& and adeCuate remed& in the ordinar& course of law. ?n the other hand, private respondents controvert the position of the petitioner and alle'e that the petition is devoid of merit, utterl& lac1in' the 'ood faith which is indispensa-le in a petition for certiorari and prohi-ition. 0Rollo, p. G..) In addition, the private respondents stress that petitioner has not considered that ever& court, includin' respondent court, has the inherent power to amend and control its process and orders so as to ma1e them conforma-le to law and >ustice. 0Rollo, p. G9.) $he controvers& -oils down to the main issue of whether or not the respondent court committed 'rave a-use of discretion when it deferred and failed to resolve the defense of non-sua-ilit& of the 7tate amountin' to lac1 of >urisdiction in a motion to dismiss. In the case at -ar, the respondent >ud'e deferred the resolution of the defense of non-sua-ilit& of the 7tate amountin' to lac1 of >urisdiction until trial. :owever, said respondent >ud'e failed to resolve such defense, proceeded with the trial and thereafter rendered a decision a'ainst the municipalit& and its driver. $he respondent >ud'e did not commit 'rave a-use of discretion when in the e3ercise of its >ud'ment it ar-itraril& failed to resolve the vital issue of non-sua-ilit& of the 7tate in the 'uise of the municipalit&. :owever, said >ud'e acted in e3cess of his >urisdiction when in his decision dated ?cto-er 1 , 1454 he held the municipalit& lia-le for the Cuasi-delict committed -& its re'ular emplo&ee. $he doctrine of non-sua-ilit& of the 7tate is e3pressl& provided for in Article ,VI, 7ection 9 of the Constitution, to wit2 "the 7tate ma& not -e sued without its consent." 7tated in simple parlance, the %eneral rule is t at t e State ma$ not "e sue# except w en it %ives consent to "e sue#. Consent ta1es the form of e3press or implied consent. @3press consent ma& -e em-odied in a 'eneral law or a special law. $he standin' consent of the 7tate to -e sued in case of mone& claims involvin' lia-ilit& arisin' from contracts is found in Act No. 9 =9. A special law ma& -e passed to ena-le a person to sue the 'overnment for an alle'ed Cuasi-delict, as in )erritt v. Government of the #hilippine Islands 09G #hil 911). 0see 8nited 7tates of America v. Guinto, G.R. No. 5DD 5, Be-ruar& .D, 144 , 1=. 7CRA DGG, D!G.) Consent is implied when the 'overnment enters into -usiness contracts, there-& descendin' to the level of the other contractin' part&, and also when the 7tate files a complaint, thus openin' itself to a counterclaim. 0("i#) )unicipal corporations, for e3ample, li1e provinces and cities, are a'encies of the 7tate when the& are en'a'ed in 'overnmental functions and therefore should en>o& the soverei'n immunit& from suit. Nevertheless, the& are su->ect to suit even in the performance of such functions -ecause their charter provided that the& can sue and -e sued. 0Cru6, P ilippine Political +aw, 14=5 @dition, p. 94) A distinction should first -e made -etween sua-ilit& and lia-ilit&. "7ua-ilit& depends on the consent of the state to -e sued, lia-ilit& on the applica-le law and the esta-lished facts. $he circumstance that a state is sua-le does not necessaril& mean that it is lia-le; on the other hand, it can never -e held lia-le if it does not first consent to -e sued. %ia-ilit& is not conceded -& the mere fact that the state has allowed itself to -e sued. <hen the state does waive its soverei'n immunit&, it is onl& 'ivin' the plaintiff the chance to prove, if it can, that the defendant is lia-le." 08nited 7tates of America vs. Guinto, supra, p. D!4-DD ) Anent the issue of whether or not the municipalit& is lia-le for the torts committed -& its emplo&ee, the test of lia-ilit& of the municipalit& depends on whether or not the driver, actin' in -ehalf of the municipalit&, is performin' 'overnmental or

proprietar& functions. As emphasi6ed in the case of $orio vs. Bontanilla 0G. R. No. %-.4449, ?cto-er .9, 145=. =! 7CRA !44, D D), the distinction of powers -ecomes important for purposes of determinin' the lia-ilit& of the municipalit& for the acts of its a'ents which result in an in>ur& to third persons. Another statement of the test is 'iven in Cit& of Jo1omo vs. %o&, decided -& the 7upreme Court of Indiana in 141D, thus2 )unicipal corporations e3ist in a dual capacit&, and their functions are twofold. In one the& e3ercise the ri'ht sprin'in' from soverei'nt&, and while in the performance of the duties pertainin' thereto, their acts are political and 'overnmental. $heir officers and a'ents in such capacit&, thou'h elected or appointed -& them, are nevertheless pu-lic functionaries performin' a pu-lic service, and as such the& are officers, a'ents, and servants of the state. In the other capacit& the municipalities e3ercise a private, proprietar& or corporate ri'ht, arisin' from their e3istence as le'al persons and not as pu-lic a'encies. $heir officers and a'ents in the performance of such functions act in -ehalf of the municipalities in their corporate or individual capacit&, and not for the state or soverei'n power." 011. N.@., 44G-44!) 0("i#, pp. D !-D D.) It has alread& -een remar1ed that municipal corporations are sua-le -ecause their charters 'rant them the competence to sue and -e sued. Nevertheless, the& are 'enerall& not lia-le for torts committed -& them in the dischar'e of 'overnmental functions and can -e held answera-le onl& if it can -e shown that the& were actin' in a proprietar& capacit&. In permittin' such entities to -e sued, the 7tate merel& 'ives the claimant the ri'ht to show that the defendant was not actin' in its 'overnmental capacit& when the in>ur& was committed or that the case comes under the e3ceptions reco'ni6ed -& law. Bailin' this, the claimant cannot recover. 0Cru6, supra, p. GG.) In the case at -ar, the driver of the dump truc1 of the municipalit& insists that "he was on his wa& to the Na'uilian river to 'et a load of sand and 'ravel for the repair of 7an Bernando/s municipal streets." 0Rollo, p. .4.) In the a-sence of an& evidence to the contrar&, the re'ularit& of the performance of official dut& is presumed pursuant to 7ection 90m) of Rule 191 of the Revised Rules of Court. :ence, <e rule that the driver of the dump truc1 was performin' duties or tas1s pertainin' to his office. <e alread& stressed in the case of Pala&ox! et. al. vs. Province o& (locos @orte, the (istrict @n'ineer, and the #rovincial $reasurer 01 . #hil 11=D) that "the construction or maintenance of roads in which the truc1 and the driver wor1ed at the time of the accident are admittedl& 'overnmental activities." After a careful e3amination of e3istin' laws and >urisprudence, <e arrive at the conclusion t at t e municipalit$ cannot "e el# lia"le &or t e torts committe# "$ its re%ular emplo$ee! w o was t en en%a%e# in t e #isc ar%e o& %overnmental &unctions. :ence, the death of the passen'er PP tra'ic and deplora-le thou'h it ma& -e PP imposed on the municipalit& no dut& to pa& monetar& compensation. All premises considered, the Court is convinced that the respondent >ud'e/s dereliction in failin' to resolve the issue of non-sua-ilit& did not amount to 'rave a-use of discretion. +ut said >ud'e e3ceeded his >urisdiction when it ruled on the issue of lia-ilit&. ACC?R(ING%A, the petition is GRAN$@( and the decision of the respondent court is here-& modified, a-solvin' the petitioner municipalit& of an& lia-ilit& in favor of private respondents.

SO ORDERED.