Linda and Cheska vs.

Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 1 of 12

Republic of the Philippines

FIRST JUDICIAL REGION
MUNICIPAL TRIAL COURT
La Trinidad, Benguet
Linda and Cheska,
Plaintiffs,

Civil Case No. 14-123

For:

-versusDAMAGES
Danny, Jim and Gina,
Defendants.
x- - - - - - - - - - - - - - - - - - - - - - - - -x

MEMORANDUM
FOR THE DEFENDANTS
For they have sown the
wind, and they shall reap the
whirlwind: it hath no stalk:
the bud shall yield no meal: if
so be it yield, the strangers
shall swallow it up. - Hosea
8:7
WITH ALL DUE RESPECT TO THIS HONORABLE COURT,
defendants, through the undersigned counsel, submits this
Memorandum for the Defendants and states that:
STATEMENT OF THE PARTIES
Plaintiffs Linda is of legal age, widow of deceased
Dave, a Filipino citizen, with residence at Pico, La Trinidad,
Benguet.
Defendants Jim and Gina, are both of legal age,
residents of Mankayan, Benguet, Filipino citizens, and with
postal address at Rm. 307, Jose Miguel Bldg., #1 Labsan St.,
cor. Yandoc St., Baguio City. They are businesspersons who
have employed defendant Danny as their driver.
Defendant Danny is likewise of legal age, single, a
Filipino Citizen, and may be served court processes at the
same address of his co-defendants indicated above. He is
the employed driver of his co-defendants and is the holder of
a Professional Drivers License.

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 2 of 12

THE CASE
Plaintiffs filed this civil case for DAMAGES against the
Defendants, which arose due to a motor vehicle collision
which happened at Km. 5, La Trinidad, Benguet.
STATEMENT OF FACTS
On 1 November 2009, Jim and Gina informed Danny that he
was to pick up poultry feeds at San Fernando, La Union,
which they would use in the business of the former. This was
a usual task assigned to Danny, he being a seasoned,
professional, and veteran driver of Jim and Gina, despite his
disability. Around 6:00 in the evening, before departing for
San Fernando, La Union, Jim reminded Danny to carefully
check and inspect the condition of the Cargo Hino Truck,
which Danny would be driving, such as the chassis, engine,
brakes, oil, and lights of the vehicle. Jim also reminded
Danny to observe proper road courtesy and to observe traffic
rules.
Danny did as he was told by carefully and
meticulously checking and ensuring that the vehicle was
indeed road worthy for the trip.
At about 7:00 in the evening, Danny started his travel from
Mankayan, Benguet, accompanied by his helper, who was
seated at the passengers seat beside him. At around 9:00
in the evening, Danny and his helper stopped to rest and
have dinner at the Saddle somewhere along the Halsema
Highway. Due to his difficulty to digest food, he had to drink
one jigger of gin for appetizer and to help him properly
digest his food. Danny did not drink more than one jigger as
he was aware that he would still be driving to San Fernando,
La Union. After eating, they continued their travel.
At around 11:00 11:30 in the evening, Danny and his
helper were already at La Trinidad, Benguet, where he
noticed that the road was wet due to the persistent drizzling.
Although there was light traffic, Danny lessened his speed
because he was fully aware that he was in the town proper
vicinity of La Trinidad, Benguet, and due to the slippery
condition of the road.

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 3 of 12

When he was nearing the intersection at Trading Post, Km. 5,

La Trinidad, Benguet, he noticed a jeepney with plate
number XYZ 7890 which was in front of him. Due to the fact
that there was a jeepney in front of him, he further lessened
his speed. Danny noticed that the there were four (4) males
hanging at the back of the jeepney. When they were nearing
the intersection at Trading Post, Danny was approximately
around five to six meters away from said jeepney when the
jeepney suddenly, without warning stopped. Danny then
instinctively stepped on his brake and tried to turn to the
right to avoid any collision but due to the wet condition of
the road the vehicle did not stop immediately. Due to the
close distance and the skidding of the vehicle Danny was
driving, he accidentally hit the back of the jeepney which
caused the death of one of the four males who were hanging
from the back of the vehicle. Danny then immediately
stepped out of the truck to assist the person who was hit and
rushed him to the Benguet General Hospital, which was near
where the incident happened, but the male was declared
dead on arrival. Defendants later came to know that the
deceased was Dave, the late husband of plaintiff Linda and
the father of minor child Cheska.
In the complaint filed by the plaintiffs, they alleged that on 1
November 2009, deceased Dave accompanied the cousins of
Linda namely, Lester, Jay and Robin to Acop, Tublay,
Benguet.
Further allegations of the plaintiffs are as follows:
That same day, around 4:00 p.m., Lucky drove his jeepney to
Acop, Tublay, Benguet to help his parents bring the
vegetables they harvested from Tublay to the Trading Post at
La Trinidad, Benguet. It was already around 9:30 p.m. when
they finished loading the vegetables. They were overtaken
by nightfall at Acop, Tublay, Benguet. They waited along
Halsema Highway for a ride to take them to the Municipality
of La Trinidad. They later hitched a ride driven by a certain
Lucky. Lucky, is a resident of La Trinidad, Benguet, is the
owner and driver of a passenger jeepney bearing the Plate
No. XYZ 7890 which plies the route Tomay to Baguio City and
vice versa.
But because the jeepney was loaded with vegetables and
two passengers were already seated next to the driver,
Dave, Lester, Jay and Robin climbed the back of the jeepney,
and hanged to and stood on the rear platform, which we call

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 4 of 12

in Filipino as sabit or sumabit. Lester stood on the left

and on his right stood Jay; on the right of Jay stood Robin;
and on the right of Robin stood Dave, who was thus on the
extreme right. The rear lights of the jeepney were not
obstructed, as they were located below the rear platform
where the four men were standing.
When they reached La Trinidad, Benguet, it was drizzling.
The traffic was very light when the jeepney was approaching
the intersection of the road leading to the Trading Post.
Before turning right to enter the road, Lucky slackened the
speed of the jeepney indicating that he was turning to the
right. Then, the jeepney was suddenly pushed from
behind. The Cargo Hino Truck with Plate No. ABC 1234,
running at fifty (50) kilometers per hour to the direction of
Baguio City, bumped the rear portion of the jeepney.
Because of the impact, the jeepney was pushed to the
pavement of the road. Daves body was crushed, and he and
his companions were subsequently thrown off the jeepney
because of such great force caused by the impact. Dave died
on the spot.
STATEMENT OF THE ISSUES
1. WHETHER OR NOT JIM AND GINA SHOULD BE HELD
LIABLE FOR DAMAGES, AS EMPLOYERS OF DANNY
2. WHETHER OR NOT DANNY, AS THE DRIVER, SHOULD BE
HELD LIABLE FOR DAMAGES
3. WHETHER OR NOT PLAINTIFFS ARE ENTITLED TO ANY
DAMAGES

STATEMENT OF ARGUMENTS/DISCUSSIONS
I.

DEFENDANTS JIM AND GINA ARE NOT LIABLE FOR

DAMAGES

Plaintiffs would like to impress upon this Honorable Court

that Defendants Jim and Gina should be held liable under
Article 2184 and 2180 of the New Civil Code because they
are the employers of Danny.
Article 2184 of the New Civil Code provides that:

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 5 of 12

In motor vehicle mishaps, the owner is solidarily liable

with his driver, if the former, who was in the vehicle,
could have, by the use of the due diligence, prevented
the misfortune. It is disputably presumed that a driver
was negligent, if he had been found guilty of reckless
driving or violating traffic regulations at least twice
within the next preceding two months.
While Article 2180 reads:
X xx. Employers shall be liable for the damages caused
by their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry. X
xx .
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage.
Defendants, on the other hand, argue that the 2184 does
not find any applicability in this case because Jim and Gina
exerted due diligence to prevent the misfortune by
carefully and diligently selecting Danny as their employee.
Case law teaches that for an employer to have exercised
the diligence of a good father of a family, he should not be
satisfied with the applicants mere possession of a
professional drivers license; he must also carefully
examine the applicant for employment as to his
qualifications, his experience and record of service. 1
Defendant Jim, being himself a mechanic, personally
maintained the condition of the truck driven by Danny. By
way of practice, before Danny would embark on an
errand, Jim and Danny would personally inspect, check,
and ensure that the vehicle is road worthy.
Further, Danny has long been a driver for Jim and Gina,
even way back 2004. During said period, Danny was
never sanctioned for any traffic violation nor was he ever
involved in any vehicular accident. The collision subject of
this case is the first time that Danny was ever involved in
1 Ramos v. Pepsi-Cola Bottling Co. of the Philippines, 125 Phil. 701, 703-704 (1967) citing Campo v.
Camarote, 100 Phil. 459, 463 (1956).

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 6 of 12

any vehicular accident.

Thus, there is no reason to
believe that Jim and Gina should be held liable for
damages because they exerted due diligence in the
selection of Danny and the maintenance of the vehicle.
Granting without admitting that the collision happened
due to the negligence of Danny, Jim and Gina, as the
employers of Danny, should not be held liable for the
negligent acts of Danny.
Here, the burden of proof lies with the plaintiff in
establishing fault or negligence on the part of the
defendant2. The presumption under in Article 2180 has
been disputed and defendants have presented evidence
to rebut said presumption as there was no negligence on
the part of the defendants Jim and Gina in the hiring and
supervision and that there is failure on the plaintiff to
prove that the employer remised to such duty.
Hence, defendants Jim and Gina should not be held liable
for any damages.
II.

DEFENDANT DANNY IS NOT LIABLE FOR DAMAGES

Danny, despite his disability, is a holder of a Professional

Drivers License with number 12345. Thus, there is a
presumption that he possesses all the qualifications and
none of the disqualifications to be employed as the
professional driver of defendants Jim and Gina.
In fact and in fine, the deceased Dave, was himself
negligent in his act of hanging on the jeepney driven by
Lucky.
Section 51 of Republic Act 4136 reads:

Hitching to a vehicle. - No person shall hang on to,

ride on, the outside or the rear end of any
vehicle, and no person on a bicycle, roller skate or
other similar device, shall hold fast to or hitch on to any
moving vehicle, and no driver shall knowingly permit
any person to hang on to or ride, the outside or rear
2 Ong vs. Metropolitan Water District, 104 Phil 397

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 7 of 12

end of his vehicle or allow any person on a bicycle,

roller skate or other similar device to hold fast or hitch
to his vehicle. (Emphasis supplied)
In the case of Prospero Sabido and Aser Lagunda vs.
Carlos Custodio et. al.,3 where the deceased was also
hanging from the vehicle, the Supreme Court affirmed the
decision of the Court of Appeals which held that the
negligence of the carrier and its driver is independent, in
its execution, of the negligence of the truck driver and its
owner, both acts of negligence are the proximate cause of
the death of the deceased.
According to the great weight of authority, where the
concurrent or successive negligent acts or omission of two
or more persons, although acting independently of each
other, are, in combination, the direct and proximate cause
of a single injury to a third person, and it is impossible to
determine in what proportion each contributed to the
injury, either is responsible for the whole injury, even
though his act alone might not have caused the entire
injury, or the same damage might have resulted from the
acts of the other tort-feasor4
Thus, the plaintiffs should have included the driver of the
jeepney, Lucky, because despite fully knowing that it is
prohibited to allow persons to hang or sabit, he still
allowed the deceased and his friends. Furthermore, it is
admitted by plaintiffs that the deceased and his friends
were still hanging on the jeepney when they arrived at La
Trinidad, Benguet.
Plaintiffs claim in their complaint that Lucky knew that it
was difficult to catch a ride in Acop, Tublay, Benguet, due
to the distance away from the town proper and due to the
time, which is the reason why Lucky allowed the deceased
to hang on his jeepney. It is important to stress that when
they arrived at La Trinidad, it would already have been
easier to catch a ride from the town proper. However,
Lucky allowed the deceased to continue to hang on the
back of the jeepney up until the time when the collision
occurred. It is therefore clear, that the proximate cause of
the death of the deceased was the negligent act of
3 G.R. No. L-21512 ; August 31, 1966
4 38 Am. Jur. 946, 947

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 8 of 12

hanging on the jeepney. Had it not been for such act, the
death of the deceased would have been prevented by
merely alighting from the jeepney the moment that there
were more jeepneys which were plying the town proper.
Therefore, it can be reasonable concluded that the
deceased was in Damnum Absque Injuria or has
reasonably assumed the risk that he might suffer
damages due to his hanging on the back of the jeepney
driven by Lucky.
Even if for the sake of argument that Danny was indeed
negligent, the acts of Lucky and the deceased would be
construed as Contributory Negligence, if not the
immediate and proximate cause of his injury.
Article 2179 reads as follows:
When the plaintiffs negligence was the immediate and
proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being
the defendants lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the
damages to be awarded.
Further, it cannot be said that the accident was due to the
lack of due care and diligence of Danny. As stated above,
Danny exercised due diligence while driving the vehicle
because of his experience and expertise and the
circumstances revolving the facts of this case.
The underlying precept on contributory negligence is that
a plaintiff who is partly responsible for his own injury
should not be entitled to recover damages in full but must
bear the consequences of his own negligence. The
defendant must thus be held liable only for the damages
actually caused by his negligence.5
As admitted by the plaintiffs, Lucky did not immediately
signal that he was about to make a right turn.
Section 44 of R.A. No. 4136 provides:

5 Syki v. Begasa, G.R. No. 149149, 23 October 2003, 414 SCRA 237, 244.

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 9 of 12

Section 44.Signals on starting, stopping or turning. (a) The driver of any vehicle upon a highway, before
starting, stopping or turning from a direct line, shall first
see that such movement can be made in safety, and if
any pedestrian may be affected by such movement,
shall give a clearly audible signal by sounding the horn,
and whenever the operation of any other vehicle
approaching or following may be affected by such
movement, shall give a signal plainly visible to the
driver of such other vehicles of the intention to make
such movement.
(b) The signal herein required shall be given by means
of extending the hand and arm beyond the left side of
the vehicle, or by an approved mechanical or electrical
signal device.

In addition, Section 42 paragraph (d) of R.A. 4136 requires

that,
(d) Taillights. - Every motor vehicle and trailer shall,
during the above-mentioned hours, also bear on each
side in the rear a lamp showing a red light visible at
least one hundred meters from the rear of the vehicle
and a lamp throwing a white light upon the number
plate issued for such vehicle.
It is therefore clear that Lucky as the jeepney driver failed
to comply with the aforesaid Tail Light requirement since
Danny was unable to visually see, despite being
approximately five or six meters behind the jeepney, said
signal. More importantly, the accident occurred during
nighttime. Furthermore, granting without admitting that
the jeepney driver indeed used his signal light, one of the
persons hanging on the back of jeepney might have
blocked said signal light. The allegation of the plaintiff
that the signal lights were not covered or hidden highly
improbable, unbelievable, and contrary to human
experience because there were four (4) persons who were
hanging on the back of the jeepney. If the allegations of
the plaintiff were to be believed, then it would be as if the
persons hanging at the back of the jeepney were steady
for the entire duration of the travel despite the
maneuvering of the jeepney driver.

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 10 of 12

As a whole, the Doctrine of Last clear chance comes into

play where both parties are negligent, but the negligent
act of one is appreciably later in time than the other or
when it is impossible to determine whose or negligence
shall be attributed to the incident, the one who had the
last clear opportunity to avoid the impending harm and
failed to do so is chargeable with the consequences
thereof.6
In this case, the jeepney driver had the last clear
opportunity to avoid the mishap had it observed the traffic
rules as stated above and by letting the deceased and his
companions alight when they arrived at La Trinidad.
III.

PLAINTIFFS ARE NOT ENTITLED TO ANY DAMAGES

As discussed above, the proximate cause of the injuries

sustained by the deceased was due to the negligence of the
jeepney driver, who was not impleaded in this case, by
allowing the deceased to hang at the back of his jeepney.
Further, it was also due to the negligence of the deceased
himself in hanging at the back of the jeepney which was the
proximate cause of the accident. He was deemed to have
waived his own safety and thus has assumed the risk that
the might get injured because of his act. He should thus not
be allowed to pass on the blame to the defendants for his
negligent act pursuant to the principle of unjust enrichment
to the detriment of the defendants.
Indeed, the law provides that "A passenger must observe the
diligence of a good father of a family to avoid injury to
himself" (Article 1761, new Civil Code), which means that if
the injury to the passenger has been proximately caused by
his own negligence, the carrier cannot be held liable. 7 This
finds applicability in this case because of the negligence of
the deceased and the fault cannot be attributed to Danny, or
to his employers, Jim and Gina.
Article 2208 of the Civil Code allows attorneys fess to be
awarded by a court when its claimant is compelled to litigate
with third persons or to incur expenses to protect his interest
by reason of an unjustified act or omission of the party from
whom it is sought. While judicial discretion is here extant, an
6 Picart vs. Smith, 37 Phil 809
7 Lara et. al., vs. Valencia ; G.R. No. L-9907 ; 30 June 1958

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
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award thereof demands, nevertheless, a factual, legal or

equitable justification. The matter cannot and should not be
left to speculation and conjecture.8
Article 19 of the New Civil Code is explicit when it stated that
Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith. Thus, to allow
the plaintiffs to recover damages from the defendants, who
were merely in the exercise of their rights, despite the clear
negligence of the deceased would only injustice.
Although what has happened to the plaintiffs is indeed
unfortunate, it still does not warrant a claim for damages
when clearly the deceased himself caused such damages
against himself.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed of
this Honorable Court to render judgment in favor of the defendants and
against the plaintiff, DISMISSING the case for lack of merit.
Other reliefs just and equitable under the premises are likewise
prayed for.
Done in 12th day of February 2014, in the City of Baguio for La
Trinidad, Benguet.

Jan Carlo Mabutas

Narcissa Sabian
Joromy Ace Tabios
Richard Dayag
Kathleen Joy Mosuela
Marcus Bias
MOLINTAS AND PARTNERS LAW OFFICE
Counsel for the Defendants
#90, Princess Urduja St.,
Camdas Subdivision, 2600 Baguio City
(074 300 2096)
by:

8 Mirasol vs. De la Cruz, 84 SCRA 337; Stronghold Insurance Company, Inc.

vs. Court of Appeals, 173 SCRA 619

Linda and Cheska vs. Danny, Jim, and Gina

Civil Case No. 14-123 for DAMAGES
MEMORANDUM FOR DEFENDANTS
Page 12 of 12

CHRISTIAN B. AMISTAD
PTR No.2673687; 04 February 2011; Baguio City
IBP OR No. 841045; 10 January 2011; Baguio-Benguet
Roll No. 57299; 5 May 2009; Manila
MCLE Compliance No. III 0018203; 4 August 2010
Copy furnished:
Atty. DAEL A. LONGBOAN
Counsel for the Plaintiff

by: registered mail

Public Attorneys Office,

2011
Abatan, Buguias, Benguet

RR. No. ______; 21 December

Baguio City
EXPLANATION

Copies of the foregoing memorandum were served upon the above-mentioned counsel
and filed to this Honorable Court through registered mail personal service being impracticable
due to time and distance constraints.
CHRISTIAN B. AMISTAD