TORTS and DAMAGES
1. Calalas v CA (Torts)
Calalas v CA. G.R. No. 122039 May 31, 2000 VICENTE
CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA
JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.
FACTS:
At 10 o'clock in the morning of August 23, 1989, private
respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and
operated by petitioner Vicente Calalas. As the jeepney
was filled to capacity of about 24 passengers, Sunga
was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of
the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the
jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by Francisco
Salva bumped the left rear portion of the jeepney. As a
result, Sunga was injured.
On October 9, 1989, Sunga filed a complaint for
damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise
the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party complaint
against Francisco Salva, the owner of the Isuzu truck.
DECISION OF LOWER COURTS:
1. RTC Dumaguete rendered judgment against
Salva holding that the driver of the Isuzu truck was
responsible
It took cognizance of another case (Civil Case No.
3490), filed by Calalas against Salva and Verena, for
quasi-delict, in which Branch 37 of the same court held
Salva and his driver Verena jointly liable to Calalas for
the damage to his jeepney.
2. CA reversed the RTC, awarding damages instead to
Sunga as plaintiff in an action for breach of contract of
carriage since the cause of action was based on such
and not quasi delict.
Hence, current petition for review on certiorari.
ISSUE:
Whether (per ruling in Civil Case) negligence of Verena
was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make the
common carrier an insurer of the safety of its
passengers
In relation thereto, does the principle of res judicata
apply?
RULING:
No.
The issue in Civil Case No. 3490 was whether Salva and
his driver Verena were liable for quasi-delict for the
damage caused to petitioner's jeepney. On the other
hand, the issue in this case is whether petitioner is liable
on his contract of carriage.
Quasi-delict / culpa aquiliana / culpa extra contractual
1. Has as its source the negligence of the tortfeasor
2. negligence or fault should be clearly established
because it is the basis of the action
3. doctrine of proximate cause is applicable
(device for imputing liability to a person where there is
no relation between him and another party, obligation is
created by law itself)
Breach of contract / culpa contractual
1. premised upon the negligence in the performance of a
contractual obligation
2. action can be prosecuted merely by proving the
existence of the contract and the fact that the obligor
(here, the common carrier) failed to transport his
passenger safely to his destination
3. not available; it is the parties themselves who create
the obligation and the function of the law is merely to
regulate the relation thus created
In case of death or injuries to passengers, Art. 1756 of
the Civil Code provides that common carriers are
presumed to have been at fault or to have acted
negligently unless they prove that they observed
extraordinary diligence as defined in Arts. 1733 and
1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.
Hence, Vicente Calalas (operator) is liable since he did
not exercise utmost diligence.
1. Jeepney was not properly parked;
2. Overloading of passengers.
2. MERCURY DRUG CORP. v. BAKING
GR. No. 156037, May 28, 2007
SANDOVAL-GUTIERREZ, J.: (Proximate Cause)
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TORTS and DAMAGES
Sebastian M. Baking went to the clinic of Dr. Cesar Sy
for a medical check-up. After undergoing an ECG, and
several examininations, Dr. Sy found the respondents
blood sugar and triglyceride were above normal. The
doctor then prescribed two medical prescriptions-
Diamicron for the blood sugar and Benalize for his
triglyceride. Respondent then proceeded to Mercury
Drug Alabang to buy the prescribed medicines. The
sales lady misread the prescription for Diamicron as a
prescription for Dormicum. Thus what was sold was
Dormicum, a potent sleeping tablet. Unaware of the
wrong medicine, he took one pill on three consecutive
days. On the third day he took the medicine, he met an
accident while driving his car. He fell asleep while
driving. He could not remember anything about the
collision nor felt its impact. Suspecting the tablet he took,
respondent went back to Dr. Sy who was shocked after
finding that what was sold was Dormicum instead of
Diamicron. He filed the present complaint for damages
against petitioner. The trial court favored the defendant
which was affirmed by the CA hence this petition.
ISSUE: Is petitioner negligent, and if so, is the
negligence was the proximate cause of the accident?
HELD: YES. Art. 2176 provide the requisites of
negligence: 1. damage suffered by the plaintiff, 2. fault or
negligence of the defendant, 3. connection of cause and
effect between the fault or negligence of the defendant
and the damage incurred by the plaintiff. It is generally
recognized that the drugstore business is imbued with
public interest. Obviously, petitioners employee was
grossly negligent in selling the wrong prescription.
Considering that a fatal mistake could be a matter of life
and death for a buying patient, the said employee should
have been very cautious in dispensing medicines. She
should have verified whether the medicine she gave
respondent was indeed the one prescribed by the
physician. Petitioner contends that the proximate cause
of the accident was respondents negligence in driving
his car. Proximate cause is that cause, which in natural
and continuous sequence unbroken by any efficient
intervening cause, produces the injury, and without
which the result would not have occurred Proximate
cause is determined from the facts of each case, upon a
combined consideration of logic, common sense, policy,
and precedent. Here, the vehicular accident could not
have occurred had petitioners employee been careful in
reading the prescription. Without the potent effect of
Dormicum, a sleeping tablet, it was unlikely that
respondent would fall asleep while driving his car,
resulting in collision. Petition DENIED.
3. SPS. GUANIO VS. MAKATI SHANGRI-LA HOTEL
G.R. No. 190601 February 7, 2011
Facts: Petitioner spouses, Luigi M. Guanio and Anna
Hernandez-Guanio, booked respondent Makati Shangre-
La Hotel for their wedding reception.
A week before their wedding reception, the hotel
scheduled a food tasting. Eventually, the parties agreed
to a package where the final price was P1,150.00 per
person.
According to the complainants, when the actual
reception took place, the respondents representatives
did not show up despite their assurance that they would;
their guests complained of the delay in the service of the
dinner; certain items listed in the published menu were
unavailable; the hotels waiters were rude and
unapologetic when confronted about the delay; and
despite Alvarezs promise that there would be no charge
for the extension of the reception beyond 12:00
midnight, they were billed and paid P8,000 per hour for
the three-hour extension of the event up to 4:00 A.M. the
next day. They further claim that they brought wine and
liquor in accordance with their open bar arrangement,
but these were not served to the guests who were forced
to pay for their drinks. They sent a letter-complaint to
hotel and received an apologetic reply from the hotels
Executive Assistant Manager in charge of Food and
Beverage.
They nevertheless filed a complaint for breach of
contract and damages before the Regional Trial Court
(RTC) of Makati City.
Answering, the hotel said that complainants requested a
combination of king prawns and salmon, hence, the
price was increased to P1,200.00 per person, but
discounted at P1,150.00; that contrary to their claim, the
hotel representatives were present during the event,
albeit they were not permanently stationed thereat as
there were three other hotel functions; that while there
was a delay in the service of the meals, the same was
occasioned by the sudden increase of guests to 470
from the guaranteed expected minimum number of
guests of 350 to a maximum of 380, as stated in the
Banquet Event Order (BEO);2 and the Banquet Service
Director in fact relayed the delay in the service of the
meals to complainants father.
The RTC, relying heavily on the letter of the hotels
Executive Assistant ruled in favour of the complainants
and awarded damages in their favour.
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TORTS and DAMAGES
The Court of Appeals reversed the decision, noting that
the proximate cause of the complainants injury was the
unexpected increase in the number of their guests.
Issue:
WON Makati Shangri-La Hotel may be held liable
for damages.
Held:
The Supreme Court reversed the Court of Appeals
decision, noting that in this case, the obligation was
based on a contract, hence, the concept of proximate
cause has no application.
In absolving the hotel from damages, the Supreme Court
noted that: The appellate court, and even the trial court,
observed that petitioners were remiss in their obligation
to inform respondent of the change in the expected
number of guests. The observation is reflected in the
records of the case. Petitioners failure to discharge such
obligation thus excused, as the above-quoted paragraph
4.5 of the parties contract provide, respondent from
liability for any damage or inconvenience occasioned
thereby
Nevertheless, on grounds of equity, the High Court
awarded P50,000.00 in favour of the complainants and
justified it by saying:
The exculpatory clause notwithstanding, the Court
notes that respondent could have managed the
situation better, it being held in high esteem in the hotel
and service industry. Given respondents vast
experience, it is safe to presume that this is not its first
encounter with booked events exceeding the guaranteed
cover. It is not audacious to expect that certain
measures have been placed in case this predicament
crops up. That regardless of these measures,
respondent still received complaints as in the present
case, does not amuse.
Respondent admitted that three hotel functions
coincided with petitioners reception. To the Court, the
delay in service might have been avoided or minimized if
respondent exercised prescience in scheduling events.
No less than quality service should be delivered
especially in events which possibility of repetition is
close to nil. Petitioners are not expected to get married
twice in their lifetimes.
What applies in the present case is Article 1170 of the
Civil Code which reads:
Art. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence or delay, and
those who in any manner contravene the tenor thereof,
are liable for damages.
RCPI v. Verchez, et al. enlightens: In culpa contractual x
x x the mere proof of the existence of the contract and
the failure of its compliance justify, prima facie, a
corresponding right of relief. The law, recognizing the
obligatory force of contracts, will not permit a party to be
set free from liability for any kind of misperformance of
the contractual undertaking or a contravention of the
tenor thereof. A breach upon the contract confers upon
the injured party a valid cause for recovering that which
may have been lost or suffered.
The remedy serves to preserve the interests of the
promissee that may include his expectation interest ,
which is his interest in having the benefit of his bargain
by being put in as good a position as he would have
been in had the contract been performed, or his reliance
interest ,which is his interest in being reimbursed for
loss caused by reliance on the contract by being put in
as good a position as he would have been in had the
contract not been made; or hisrestitution interest, which
is his interest in having restored to him any benefit that
he has conferred on the other party. Indeed, agreements
can accomplish little, either for their makers or for
society, unless they are made the basis for action.
The effect of every infraction is to create a new duty, that
is, to make RECOMPENSE to the one who has been
injured by the failure of another to observe his
contractual obligation unless he can show extenuating
circumstances, like proof of his exercise of due diligence
or of the attendance of fortuitous event to excuse him
from his ensuing liability.
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TORTS and DAMAGES
4. G.R. No. 130003 October 20, 2004
JONAS AONUEVO, Petitioner.
vs.
HON. COURT OF APPEALS and JEROME
VILLAGRACIA, Respondent.
DECISION
TINGA, J.:
The bicycle provides considerable speed and freedom of
movement to the rider. It derives a certain charm from
being unencumbered by any enclosure, affording the
cyclist the perception of relative liberty. It also carries
some obvious risks on the part of the user and has
become the subject of regulation, if not by the
government, then by parental proscription.
The present petition seeks to bar recovery by an injured
cyclist of damages from the driver of the car which had
struck him. The argument is hinged on the cyclists
failure to install safety devices on his bicycle. However,
the lower courts agreed that the motorist himself caused
the collision with his own negligence. The facts are
deceptively simple, but the resolution entails thorough
consideration of fundamental precepts on negligence.
The present petition raises little issue with the factual
findings of the Regional Trial Court (RTC), Branch 160,
of Pasig City, as affirmed by the Court of Appeals. Both
courts adjudged petitioner, Jonas Aonuevo ( Aonuevo
), liable for the damages for the injuries sustained by the
cyclist, Jerome Villagracia (Villagracia). Instead, the
petition hinges on a sole legal question, characterized as
"novel" by the petitioner: whether Article 2185 of the
New Civil Code, which presumes the driver of a motor
vehicle negligent if he was violating a traffic regulation at
the time of the mishap, should apply by analogy to non-
motorized vehicles.1
As found by the RTC, and affirmed by the Court of
Appeals, the accident in question occurred on 8
February 1989, at around nine in the evening, at the
intersection of Boni Avenue and Barangka Drive in
Mandaluyong (now a city). Villagracia was traveling
along Boni Avenue on his bicycle, while Aonuevo,
traversing the opposite lane was driving his Lancer car
with plate number PJJ 359. The car was owned by
Procter and Gamble Inc., the employer of Aonuevos
brother, Jonathan. Aonuevo was in the course of
making a left turn towards Libertad Street when the
collision occurred. Villagracia sustained serious injuries
as a result, which necessitated his hospitalization
several times in 1989, and forced him to undergo four (4)
operations.
On 26 October 1989, Villagracia instituted an action for
damages against Procter and Gamble Phils., Inc. and
Aonuevo before the RTC.2 He had also filed a criminal
complaint against Aonuevo before the Metropolitan
Trial Court of Mandaluyong, but the latter was
subsequently acquitted of the criminal charge.3 Trial on
the civil action ensued, and in a Decision dated 9 March
1990, the RTC rendered judgment against Procter and
Gamble and Aonuevo, ordering them to pay Villagracia
the amounts of One Hundred Fifty Thousand Pesos
(150, 000.00). for actual damages, Ten Thousand
Pesos (10,000.00) for moral damages, and Twenty
Thousand Pesos (20,000.00) for attorneys fees, as
well as legal costs.4 Both defendants appealed to the
Court of Appeals.
In a Decision5 dated 8 May 1997, the Court of Appeals
Fourth Division affirmed the RTC Decision in toto6 . After
the Court of Appeals denied the Motion for
Reconsideration in a Resolution7 dated 22 July 1997,
Procter and Gamble and Aonuevo filed their respective
petitions for review with this Court. Procter and Gambles
petition was denied by this Court in a Resolution dated
24 November 1997. Aonuevos petition,8 on the other
hand, was given due course,9 and is the subject of
this Decision.
In arriving at the assailed Decision, the Court of Appeals
affirmed the factual findings of the RTC. Among them:
that it was Aonuevos vehicle which had struck
Villagracia;10 that Aonuevos vehicle had actually hit
Villagracias left mid-thigh, thus causing a comminuted
fracture;11 that as testified by eyewitness Alfredo
Sorsano, witness for Villagracia, Aonuevo was
"umaarangkada," or speeding as he made the left turn
into Libertad;12 that considering Aonuevos claim that a
passenger jeepney was obstructing his path as he made
the turn. Aonuevo had enough warning to control his
speed;13 and that Aonuevo failed to exercise the
ordinary precaution, care and diligence required of him
in order that the accident could have been
avoided.14 Notably, Aonuevo, in his current petition,
does not dispute the findings of tortious conduct on his
part made by the lower courts, hinging his appeal
instead on the alleged negligence of Villagracia.
Aonuevo proffers no exculpatory version of facts on his
part, nor does he dispute the conclusions made by the
RTC and the Court of Appeals. Accordingly, the Court,
which is not a trier of facts,15 is not compelled to review
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TORTS and DAMAGES
the factual findings of the lower courts, which following
jurisprudence have to be received with respect and are
in fact generally binding.16
Notwithstanding, the present petition presents interesting
questions for resolution. Aonuevos arguments are
especially fixated on a particular question of law:
whether Article 2185 of the New Civil Code should apply
by analogy to non-motorized vehicles.17 In the same
vein, Aonuevo insists that Villagracias own fault and
negligence serves to absolve the former of any liability
for damages.
Its is easy to discern why Aonuevo chooses to employ
this line of argument. Aonuevo points out that
Villagracias bicycle had no safety gadgets such as a
horn or bell, or headlights, as invoked by a 1948
municipal ordinance.18 Nor was it duly registered with the
Office of the Municipal Treasurer, as required by the
same ordinance. Finally, as admitted by Villagracia, his
bicycle did not have foot brakes.19 Before this Court,
Villagracia does not dispute these allegations, which he
admitted during the trial, but directs our attention instead
to the findings of Aonuevos own
negligence.20 Villagracia also contends that, assuming
there was contributory negligence on his part, such
would not exonerate Aonuevo from payment of
damages. The Court of Appeals likewise acknowledged
the lack of safety gadgets on Villagracias bicycle, but
characterized the contention as "off-tangent" and
insufficient to obviate the fact that it was Aonuevos
own negligence that caused the accident.21
Aonuevo claims that Villagracia violated traffic
regulations when he failed to register his bicycle or
install safety gadgets thereon. He posits that Article
2185 of the New Civil Code applies by analogy. The
provision reads:
Article 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has
been negligent if at the time of the mishap he was
violating any traffic regulation.
The provision was introduced for the first time in this
jurisdiction with the adoption in 1950 of the New Civil
Code.22Its applicability is expressly qualified to motor
vehicles only, and there is no ground to presume that the
law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should
apply by analogy to all types of vehicles23 . He points out
that modern-day travel is more complex now than when
the Code was enacted, the number and types of vehicles
now in use far more numerous than as of then. He even
suggests that at the time of the enactment of the Code,
the legislators "must have seen that only motor vehicles
were of such public concern that they had to be
specifically mentioned," yet today, the interaction of
vehicles of all types and nature has "inescapably
become matter of public concern" so as to expand the
application of the law to be more responsive to the
times.24
What Aonuevo seeks is for the Court to amend the
explicit command of the legislature, as embodied in
Article 2185, a task beyond the pale of judicial power.
The Court interprets, and not creates, the law. However,
since the Court is being asked to consider the matter, it
might as well examine whether Article 2185 could be
interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a
whole array of non-motorized vehicles ranging from
human-powered contraptions on wheels such as
bicycles, scooters, and animal-drawn carts such
as calesas and carromata. These modes of transport
were even more prevalent on the roads of the 1940s and
1950s than they are today, yet the framers of the New
Civil Code chose then to exclude these alternative
modes from the scope of Article 2185 with the use of the
term "motorized vehicles." If Aonuevo seriously
contends that the application of Article 2185 be
expanded due to the greater interaction today of all
types of vehicles, such argument contradicts historical
experience. The ratio of motorized vehicles as to non-
motorized vehicles, as it stood in 1950, was significantly
lower than as it stands today. This will be certainly
affirmed by statistical data, assuming such has been
compiled, much less confirmed by persons over sixty.
Aonuevos characterization of a vibrant intra-road
dynamic between motorized and non-motorized vehicles
is more apropos to the past than to the present.
There is a fundamental flaw in Aonuevos analysis of
Art. 2185, as applicable today. He premises that the
need for the distinction between motorized and non-
motorized vehicles arises from the relative mass of
number of these vehicles. The more pertinent basis for
the segregate classification is the difference in type of
these vehicles. A motorized vehicle operates by reason
of a motor engine unlike a non-motorized vehicle, which
runs as a result of a direct exertion by man or beast of
burden of direct physical force. A motorized vehicle,
unimpeded by the limitations in physical exertion. is
capable of greater speeds and acceleration than non-
motorized vehicles. At the same time, motorized vehicles
are more capable in inflicting greater injury or damage in
the event of an accident or collision. This is due to a
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combination of factors peculiar to the motor vehicle,
such as the greater speed, its relative greater bulk of
mass, and greater combustability due to the fuels that
they use.
There long has been judicial recognition of the peculiar
dangers posed by the motor vehicle. As far back as
1912, in the U.S. v. Juanillo25 , the Court has recognized
that an automobile is capable of great speed, greater
than that of ordinary vehicles hauled by animals, "and
beyond doubt it is highly dangerous when used on
country roads, putting to great hazard the safety and
lives of the mass of the people who travel on such
roads."26 In the same case, the Court emphasized:
A driver of an automobile, under such circumstances, is
required to use a greater degree of care than drivers of
animals, for the reason that the machine is capable of
greater destruction, and furthermore, it is absolutely
under the power and control of the driver; whereas, a
horse or other animal can and does to some extent aid
in averting an accident. It is not pleasant to be obliged to
slow down automobiles to accommodate persons riding,
driving, or walking. It is probably more agreeable to send
the machine along and let the horse or person get out of
the way in the best manner possible; but it is well to
understand, if this course is adopted and an accident
occurs, that the automobile driver will be called upon to
account for his acts. An automobile driver must at all
times use all the care and caution which a careful and
prudent driver would have exercised under the
circumstances.27
American jurisprudence has had occasion to explicitly
rule on the relationship between the motorist and the
cyclist. Motorists are required to exercise ordinary or
reasonable care to avoid collision with bicyclists.28 While
the duty of using ordinary care falls alike on the motorist
and the rider or driver of a bicycle, it is obvious, for
reasons growing out of the inherent differences in the
two vehicles, that more is required from the former to
fully discharge the duty than from the latter.29
The Code Commission was cognizant of the difference
in the natures and attached responsibilities of motorized
and non-motorized vehicles. Art. 2185 was not
formulated to compel or ensure obeisance by all to traffic
rules and regulations. If such were indeed the evil
sought to be remedied or guarded against, then the
framers of the Code would have expanded the provision
to include non-motorized vehicles or for that matter,
pedestrians. Yet, that was not the case; thus the need
arises to ascertain the peculiarities attaching to a
motorized vehicle within the dynamics of road travel. The
fact that there has long existed a higher degree of
diligence and care imposed on motorized vehicles,
arising from the special nature of motor vehicle, leads to
the inescapable conclusion that the qualification under
Article 2185 exists precisely to recognize such higher
standard. Simply put, the standards applicable to motor
vehicle are not on equal footing with other types of
vehicles.
Thus, we cannot sustain the contention that Art. 2185
should apply to non-motorized vehicles, even if by
analogy. There is factual and legal basis that
necessitates the distinction under Art. 2185, and to
adopt Aonuevos thesis would unwisely obviate this
distinction.
Even if the legal presumption under Article 2185 should
not apply to Villagracia, this should not preclude any
possible finding of negligence on his part. While the legal
argument as formulated by Aonuevo is erroneous, his
core contention that Villagracia was negligent for failure
to comply with traffic regulations warrants serious
consideration, especially since the imputed negligent
acts were admitted by Villagracia himself.
The Civil Code characterizes negligence as the omission
of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the
persons, of the time and of the place.30 However, the
existence of negligence in a given case is not
determined by the personal judgment of the actor in a
given situation, but rather, it is the law which determines
what would be reckless or negligent.31
Aonuevo, asserts that Villagracia was negligent as the
latter had transgressed a municipal ordinance requiring
the registration of bicycles and the installation of safety
devices thereon. This view finds some support if
anchored on the long standing principle of negligence
per se.
The generally accepted view is that the violation of a
statutory duty constitutes negligence, negligence as a
matter of law, or negligence per se.32 In Teague vs.
Fernandez,33 the Court cited with approval American
authorities elucidating on the rule:
"The mere fact of violation of a statute is not sufficient
basis for an inference that such violation was the
proximate cause of the injury complained. However, if
the very injury has happened which was intended to be
prevented by the statute, it has been held that violation
of the statute will be deemed to be the proximate cause
of the injury." (65 C.J.S. 1156)
"The generally accepted view is that violation of a
statutory duty constitutes negligence, negligence as a
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TORTS and DAMAGES
matter of law, or, according to the decisions on the
question, negligence per se, for the reason that non-
observance of what the legislature has prescribed as a
suitable precaution is failure to observe that care which
an ordinarily prudent man would observe, and, when the
state regards certain acts as so liable to injure others as
to justify their absolute prohibition, doing the forbidden
act is a breach of duty with respect to those who may be
injured thereby; or, as it has been otherwise expressed,
when the standard of care is fixed by law, failure to
conform to such standard is negligence, negligence per
se or negligence in and of itself, in the absence of a legal
excuse. According to this view it is immaterial, where a
statute has been violated, whether the act or omission
constituting such violation would have been regarded as
negligence in the absence of any statute on the subject
or whether there was, as a matter of fact, any reason to
anticipate that injury would result from such violation. x x
x." (65 C.J.S. pp.623-628)
"But the existence of an ordinance changes the
situation. If a driver causes an accident by exceeding the
speed limit, for example, we do not inquire whether his
prohibited conduct was unreasonably dangerous. It is
enough that it was prohibited. Violation of an ordinance
intended to promote safety is negligence. If by creating
the hazard which the ordinance was intended to avoid it
brings about the harm which the ordinance was intended
to prevent, it is a legal cause of the harm. This comes
only to saying that in such circumstances the law has no
reason to ignore the causal relation which obviously
exists in fact. The law has excellent reason to recognize
it, since it is the very relation which the makers of the
ordinance anticipated. This court has applied these
principles to speed limits and other regulations of the
manner of driving." (Ross vs. Hartman, 139 Fed. 2d 14
at 15).
"x x x However, the fact that other happenings causing
or contributing toward an injury intervened between the
violation of a statute or ordinance and the injury does not
necessarily make the result so remote that no action can
be maintained. The test is to be found not in the number
of intervening events or agents, but in their character
and in the natural and probable connection between the
wrong done and the injurious consequence. The general
principle is that the violation of a statute or ordinance is
not rendered remote as the cause of an injury by the
intervention of another agency if the occurrence of the
accident, in the manner in which it happened, was the
very thing which the statute or ordinance was intended
to prevent." (38 Am Jur 841)34
In Teague, the owner of a vocational school stricken by
a fire resulting in fatalities was found negligent, base on
her failure to provide adequate fire exits in contravention
of a Manila city ordinance.35 In F.F. Cruz and Co., Inc. v.
Court of Appeals36 , the failure of the petitioner to
construct a firewall in accordance with city ordinances
sufficed to support a finding of negligence.37 In Cipriano
v. Court of Appeals, 38 the Court found that the failure of
the petitioner to register and insure his auto rustproofing
shop in accordance with the statute constituted
negligence per se, thus holding him liable for the
damages for the destruction by fire of a customers
vehicle garaged therein.
Should the doctrine of negligence per se apply to
Villagracia, resulting from his violation of an ordinance?
It cannot be denied that the statutory purpose for
requiring bicycles to be equipped with headlights or
horns is to promote road safety and to minimize the
occurrence of road accidents involving bicycles. At face
value, Villagracias mishap was precisely the danger
sought to be guarded against by the ordinance he
violated. Aonuevo argues that Villagracias violation
should bar the latters recovery of damages, and a
simplistic interpretation of negligence per se might
vindicate such an argument.
But this is by no means a simple case. There is the fact
which we consider as proven, that Aonuevo was
speeding as he made the left turn, and such negligent
act was the proximate cause of the accident. This
reckless behavior would have imperiled anyone unlucky
enough within the path of Aonuevos car as it turned
into the intersection, whether they are fellow motorists,
pedestrians, or cyclists. We are hard put to conclude that
Villagracia would have avoided injury had his bicycle
been up to par with safety regulations, especially
considering that Aonuevo was already speeding as he
made the turn, or before he had seen Villagracia. Even
assuming that Aonuevo had failed to see Villagracia
because the bicycle was not equipped with headlights,
such lapse on the cyclists part would not have acquitted
the driver of his duty to slow down as he proceeded to
make the left turn.
This court has appreciated that negligence per se,
arising from the mere violation of a traffic statute, need
not be sufficient in itself in establishing liability for
damages. In Sanitary Steam Laundry, Inc. v. Court of
Appeals,39 a collision between a truck and a privately-
owned Cimarron van caused the death of three of the
vans passengers. The petitioner therein, the owner of
the truck, argued that the driver of the Cimarron was
committing multiple violations of the Land Transportation
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and Traffic Code40 at the time of the accident. Among
these violations: the Cimarron was overloaded at the
time of the accident; the front seat of the van was
occupied by four adults, including the driver; and the van
had only one functioning headlight. Similar as in this
case, petitioner therein invoked Article 2185 and argued
that the driver of the Cimarron should be presumed
negligent. The Court, speaking through Justice
Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of
the Cimarron driver contributed to the collision between
the vehicles. Indeed, petitioner has the burden of
showing a causal connection between the injury
received and the violation of the Land Transportation
and Traffic Code. He must show that the violation of the
statute was the proximate or legal cause of the injury or
that it substantially contributed thereto. Negligence
consisting in whole or in part, of violation of law, like any
other negligence, is without legal consequence unless it
is a contributing cause of the injury. Petitioner says that
"driving an overloaded vehicle with only one functioning
headlight during nighttime certainly increases the risk of
accident," that because the Cimarron had only one
headlight, there was "decreased visibility," and that the
fact that the vehicle was overloaded and its front seat
overcrowded "decreased its maneuverability." However,
mere allegations such as these are not sufficient to
discharge its burden of proving clearly that such alleged
negligence was the contributing cause of the injury. 41
Sanitary Steam42 is controlling in this case. The bare fact
that Villagracia was violating a municipal ordinance at
the time of the accident may have sufficiently
established some degree of negligence on his part, but
such negligence is without legal consequence unless it
is shown that it was a contributing cause of the injury. If
anything at all, it is but indicative of Villagracias failure in
fulfilling his obligation to the municipal government,
which would then be the proper party to initiate
corrective action as a result. But such failure alone is not
determinative of Villagracias negligence in relation to
the accident. Negligence is relative or comparative,
dependent upon the situation of the parties and the
degree of care and vigilance which the particular
circumstances reasonably require.43 To determine if
Villagracia was negligent, it is not sufficient to rely solely
on the violations of the municipal ordinance, but
imperative to examine Villagracias behavior in relation
to the contemporaneous circumstances of the accident.
The rule on negligence per se must admit qualifications
that may arise from the logical consequences of the
facts leading to the mishap. The doctrine (and Article
2185, for that matter) is undeniably useful as a judicial
guide in adjudging liability, for it seeks to impute
culpability arising from the failure of the actor to perform
up to a standard established by a legal fiat. But the
doctrine should not be rendered inflexible so as to deny
relief when in fact there is no causal relation between the
statutory violation and the injury sustained.
Presumptions in law, while convenient, are not
intractable so as to forbid rebuttal rooted in fact. After all,
tort law is remunerative in spirit, aiming to provide
compensation for the harm suffered by those whose
interests have been invaded owing to the conduct of
others.44
Under American case law, the failures imputed on
Villagracia are not grievous enough so as to negate
monetary relief. In the absence of statutory requirement,
one is not negligent as a matter of law for failing to equip
a horn, bell, or other warning devise onto a bicycle.45 In
most cases, the absence of proper lights on a bicycle
does not constitute negligence as a matter of law46 but is
a question for the jury whether the absence of proper
lights played a causal part in producing a collision with a
motorist.47 The absence of proper lights on a bicycle at
night, as required by statute or ordinance, may constitute
negligence barring or diminishing recovery if the bicyclist
is struck by a motorist as long as the absence of such
lights was a proximate cause of the collision; 48 however,
the absence of such lights will not preclude or diminish
recovery if the scene of the accident was well illuminated
by street lights,49 if substitute lights were present which
clearly rendered the bicyclist visible,50 if the motorist saw
the bicycle in spite of the absence of lights thereon,51 or
if the motorist would have been unable to see the bicycle
even if it had been equipped with lights.52 A bicycle
equipped with defective or ineffective brakes may
support a finding of negligence barring or diminishing
recovery by an injured bicyclist where such condition
was a contributing cause of the accident.53
The above doctrines reveal a common thread. The
failure of the bicycle owner to comply with accepted
safety practices, whether or not imposed by ordinance or
statute, is not sufficient to negate or mitigate recovery
unless a causal connection is established between such
failure and the injury sustained. The principle likewise
finds affirmation in Sanitary Steam, wherein we declared
that the violation of a traffic statute must be shown as
the proximate cause of the injury, or that it substantially
contributed thereto.54 Aonuevo had the burden of
clearly proving that the alleged negligence of Villagracia
was the proximate or contributory cause of the latters
injury.
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On this point, the findings of the Court of Appeals are
well-worth citing:
[As] admitted by appellant Aonuevo, he first saw
appellee Villagracia at a distance of about ten (10)
meters before the accident. Corrolarily, therefore, he
could have avoided the accident had he [stopped]
alongside with an earlier (sic) jeep which was already at
a full stop giving way to appellee. But according to
[eyewitness] Sorsano, he saw appellant Aonuevo
"umaarangkada" and hit the leg of Villagracia (TSN
March 14, 1990 p. 30). This earlier (sic) jeep at a full
stop gave way to Villagracia to proceed but Aonuevo at
an unexpected motion (umarangkada) came out hitting
Villagracia (TSN March 9, 1990 p. 49). Appellant
Aonuevo admitted that he did not blow his horn when
he crossed Boni Avenue (TSN March 21, 1990 p. 47).55
By Aonuevos own admission, he had seen Villagracia
at a good distance of ten (10) meters. Had he been
decelerating, as he should, as he made the turn,
Aonuevo would have had ample opportunity to avoid
hitting Villagracia. Moreover, the fact that Aonuevo had
sighted Villagracia before the accident would negate any
possibility that the absence of lights on the bike
contributed to the cause of the accident.56 A motorist has
been held liable for injury to or death of a bicyclist where
the motorist turned suddenly into the bicyclist so as to
cause a collision.57
Neither does Aonuevo attempt before this Court to
establish a causal connection between the safety
violations imputed to Villagracia and the accident itself.
Instead, he relied on a putative presumption that these
violations in themselves sufficiently established
negligence appreciable against Villagracia. Since the
onus on Aonuevo is to conclusively prove the link
between the violations and the accident, we can deem
him as having failed to discharge his necessary burden
of proving Villagracias own liability.
Neither can we can adjudge Villagracia with contributory
negligence.1wphi1 The leading case in contributory
negligence, Rakes v. Atlantic Gulf58 clarifies that
damages may be mitigated if the claimant "in
conjunction with the occurrence, [contributes] only to his
injury."59 To hold a person as having contributed to his
injuries, it must be shown that he performed an act that
brought about his injuries in disregard of warnings or
signs of an impending danger to health and body.60 To
prove contributory negligence, it is still necessary to
establish a causal link, although not proximate, between
the negligence of the party and the succeeding injury. In
a legal sense, negligence is contributory only when it
contributes proximately to the injury, and not simply a
condition for its occurrence.61
As between Aonuevo and Villagracia, the lower courts
adjudged Aonuevo as solely responsible for the
accident. The petition does not demonstrate why this
finding should be reversed. It is hard to imagine that the
same result would not have occurred even if Villagracias
bicycle had been equipped with safety equipment.
Aonuevo himself admitted having seen Villagracia from
ten (10) meters away, thus he could no longer claim not
having been sufficiently warned either by headlights or
safety horns. The fact that Aonuevo was recklessly
speeding as he made the turn likewise leads us to
believe that even if Villagracias bicycle had been
equipped with the proper brakes, the cyclist would not
have had opportunity to brake in time to avoid the
speeding car. Moreover, it was incumbent on Aonuevo
to have established that Villagracias failure to have
installed the proper brakes contributed to his own injury.
The fact that Aonuevo failed to adduce proof to that
effect leads us to consider such causal connection as
not proven.
All told, there is no reason to disturb the assailed
judgment.
WHEREFORE, the Petition is DENIED. The Decision of
the Court of Appeals is AFFIRMED. Costs against
petitioner.
SO ORDERED.
5. Phoenix Construction v. IAC
Facts:
At about 1:30 a.m. on November 15, 1975, private
respondent Leonardo Dionisio was on his way home
from cocktails and dinner meeting with his boss. He was
proceeding down General Lacuna Street when he saw a
Ford dump truck parked askew, partly blocking the way
of oncoming traffic, with no lights or early warning
reflector devices. The truck was driven earlier by
Armando Carbonel, a regular driver of the petitioner
company. Dionisio tried to swerve his car to the left, but
it was too late. He suffered some physical injuries and
nervous breakdown. Dionision filed an action for
damages against Carbonel and Phoenix Insurance.
Petitioners countered the claim by imputing the accident
to respondents own negligence in driving at high speed
without curfew pass and headlights, and while
intoxicated. The trial court and the Court of Appeals
ruled in favor of private respondent.
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Issue:
Whether the collision was brought about by the way the
truck was parked, or by respondents own negligence
Held:
We find that private respondent Dionisio was unable to
prove possession of a valid curfew pass during the night
of the accident and that the preponderance of evidence
shows that he did not have such a pass during that
night. It is the petitioners' contention that Dionisio
purposely shut off his headlights even before he reached
the intersection so as not to be detected by the police in
the police precinct which he (being a resident in the
area) knew was not far away from the intersection. We
believe that the petitioners' theory is a more credible
explanation than that offered by private respondent
Dionisio, i.e., that he had his headlights on but that, at
the crucial moment, these had in some mysterious if
convenient way malfunctioned and gone off, although he
succeeded in switching his lights on again at "bright"
split seconds before contact with the dump truck. We do
not believe that this evidence is sufficient to show that
Dionisio was so heavily under the influence of liquor as
to constitute his driving a motor vehicle per se an act of
reckless imprudence. The conclusion we draw from the
factual circumstances outlined above is that private
respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and driving
faster than he should have been. Worse, he
extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus
did not see the dump truck that was parked askew and
sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance
and the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries
was the wrongful or negligent manner in which the dump
truck was parked in other words, the negligence of
petitioner Carbonel. The collision of Dionisio's car with
the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
The distinctions between "cause" and "condition" which
the 'petitioners would have us adopt have already been
"almost entirely discredited. If the defendant has created
only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far
as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important
part in producing the result it is quite impossible to
distinguish between active forces and passive situations,
particularly since, as is invariably the case, the latter are
the result of other active forces which have gone before.
Even the lapse of a considerable time during which the
"condition" remains static will not necessarily affect
liability. "Cause" and "condition" still find occasional
mention in the decisions; but the distinction is now
almost entirely discredited. So far as it has any validity at
all, it must refer to the type of case where the forces set
in operation by the defendant have come to rest in a
position of apparent safety, and some new force
intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is
important but the nature of the risk and the character of
the intervening cause.
We believe, secondly, that the truck driver's negligence
far from being a "passive and static condition" was rather
an indispensable and efficient cause. The improper
parking of the dump truck created an unreasonable risk
of injury for anyone driving down General Lacuna Street
and for having so created this risk, the truck driver must
be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's
negligence and therefore closer to the accident, was not
an efficient intervening or independent cause.
The defendant cannot be relieved from liability by the
fact that the risk or a substantial and important part of
the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable
intervening forces are within the scope original risk, and
hence of the defendant's negligence. The courts are
quite generally agreed that intervening causes which fall
fairly in this category will not supersede the defendant's
responsibility. Thus, a defendant who blocks the
sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic
becomes liable when the plaintiff is run down by a car,
even though the car is negligently driven; and one who
parks an automobile on the highway without lights at
night is not relieved of responsibility when another
negligently drives into it. We hold that private respondent
Dionisio's negligence was "only contributory," that the
"immediate and proximate cause" of the injury remained
the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages
though such damages are subject to mitigation by the
courts.
Petitioners also ask us to apply what they refer to as the
"last clear chance" doctrine. The common law notion of
last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the
defendant had the last clear chance to avoid the
casualty and failed to do so. Accordingly, it is difficult to
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TORTS and DAMAGES
see what role, if any, the common law last clear chance
doctrine has to play in a jurisdiction where the common
law concept of contributory negligence as an absolute
bar to recovery by the plaintiff, has itself been rejected,
as it has been in Article 2179 of the Civil Code of the
Philippines. Under Article 2179, the task of a court, in
technical terms, is to determine whose negligence - the
plaintiff's or the defendant's - was the legal or proximate
cause of the injury. The relative location in the
continuum of time of the plaintiff's and the defendant's
negligent acts or omissions, is only one of the relevant
factors that may be taken into account. Of more
fundamental importance are the nature of the negligent
act or omission of each party and the character and
gravity of the risks created by such act or omission for
the rest of the community. Our law on quasi-delicts
seeks to reduce the risks and burdens of living in society
and to allocate them among the members of society. To
accept the petitioners' pro-position must tend to weaken
the very bonds of society.
We believe that the demands of substantial justice are
satisfied by allocating most of the damages on a 20-80
ratio. Thus, 20% of the damages awarded by the
respondent appellate court, except the award of
P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private
respondent Dionisio; only the balance of 80% needs to
be paid by petitioners Carbonel and Phoenix who shall
be solidarity liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall
be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from Carbonel. 18 We
see no sufficient reason for disturbing the reduced award
of damages made by the respondent appellate court.
6. G.R. No. 144723 February 27, 2006
LARRY ESTACION, Petitioner,
vs.
NOE BERNARDO, thru and his guardian ad litem ARLIE
BERNARDO, CECILIA BANDOQUILLO and
GEMINIANO QUINQUILLERA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by
Larry Estacion (petitioner) seeking to annul the Decision
dated April 17, 20001 of the Court of Appeals (CA) in
CA-GR CV No. 41447 which affirmed in toto the decision
of the Regional Trial Court (RTC) of Dumaguete City,
Branch 41, Negros Oriental, holding petitioner and his
driver Bienvenido Gerosano (Gerosano) liable for
damages for the injury sustained by Noe Bernardo
(respondent Noe). Also assailed is the appellate courts
Resolution dated August 16, 20002 denying petitioners
motion for reconsideration.
In the afternoon of October 16, 1982, respondent Noe
was going home to Dumaguete from Cebu, via Bato and
Tampi. At Tampi, he boarded a Ford Fiera passenger
jeepney with plate no. NLD 720 driven by respondent
Geminiano Quinquillera (Quinquillera), owned by
respondent Cecilia Bandoquillo (Bandoquillo), and was
seated on the extension seat placed at the center of the
Fiera. From San Jose, an old woman wanted to ride, so
respondent Noe offered his seat. Since the Fiera was
already full, respondent Noe hung or stood on the left
rear carrier of the vehicle. Somewhere along Barangay
Sto. Nio, San Jose, Negros Oriental, between
kilometers 13 and 14, the Fiera began to slow down and
then stopped by the right shoulder of the road to pick up
passengers. Suddenly, an Isuzu cargo truck, owned by
petitioner and driven by Gerosano, which was traveling
in the same direction, hit the rear end portion of the Fiera
where respondent Noe was standing. Due to the
tremendous force, the cargo truck smashed respondent
Noe against the Fiera crushing his legs and feet which
made him fall to the ground. A passing vehicle brought
him to the Silliman University Medical Center where his
lower left leg was amputated.
Police investigation reports showed that respondent Noe
was one of the 11 passengers of the Fiera who suffered
injuries; that when the Fiera stopped to pick up a
passenger, the cargo truck bumped the rear left portion
of the Fiera; that only one tire mark from the front right
wheel of the cargo truck was seen on the road. A sketch
of the accident was drawn by investigator Mateo Rubia
showing the relative positions of the two vehicles, their
distances from the shoulder of the road and the skid
marks of the right front wheel of the truck measuring
about 48 feet.
On February 18, 1993, respondent Noe, through his
guardian ad litem Arlie Bernardo, filed with the RTC of
Dumaguete City a complaint3 for damages arising
from quasi delict against petitioner as the registered
owner of the cargo truck and his driver Gerosano. He
alleged that the proximate cause of his injuries and
suffering was the reckless imprudence of Gerosano and
petitioners negligence in the selection of a reckless
driver and for operating a vehicle that was not
roadworthy. He prayed for actual damages, loss of
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TORTS and DAMAGES
income, moral and exemplary damages, attorneys fees,
litigation expenses and costs of suit.
Petitioner and his driver Gerosano filed their
Answer4 denying the material allegations in the
complaint. They, in turn, filed a third party
complaint5 against respondents Bandoquillo and
Quinquillera, as owner and driver respectively of the
Fiera. They alleged that it was the reckless imprudence
of respondent driver Quinquillera and his clear violation
of the traffic rules and regulations which was the
proximate cause of the accident and asked for
indemnification for whatever damages they would be
sentenced to pay. Respondents Bandoquillo and
Quinquillera filed their Answer to the third party
complaint asking for the dismissal of the third party
complaint and for payment of attorneys fees.
Driver Gerosano was charged criminally for reckless
imprudence resulting to multiple physical injuries with
damage to property before the Municipal Circuit Trial
Court (MCTC) of Pamplona-Amlan and San Jose,
Negros Oriental. On November 16, 1987, the MCTC
rendered its decision6 finding him guilty of the crime
charged and was sentenced to four months and one day
to two years and four months and to pay the costs.
On February 18, 1993, the RTC rendered its judgment in
the civil case,7 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered, ordering defendants Gerosano and
Estacion, to pay plaintiff, jointly or solidarily, the
following:
1. 129,584.20 for actual damages in the form of
medical and hospitalization expenses;
2. 50,000.00 for moral damages, consisting of mental
anguish, moral shock, serious anxiety and wounded
feelings;
3. 10,000.00 for attorneys fees; and
4. 5,000.00 for litigation expenses.
SO ORDERED.8
The trial court ruled that the negligence of Gerosano,
petitioners driver, is the direct and proximate cause of
the incident and of the injuries suffered by respondent
Noe; that Gerosanos gross negligence and reckless
imprudence had been confirmed by the Judgment in
Criminal Case No. 463; that based on the findings of the
police investigator, the faulty brakes caused the cargo
truck to bump the Fiera; that the Traffic Accident Report
showed that the tire mark of the cargo truck measuring
48 feet is visibly imprinted on the road where the incident
took place indicating that the said vehicle was speeding
fast; that the existence of one tire mark of the cargo
truck proved that the said vehicle had a faulty brake,
otherwise, it would have produced two tire marks on the
road; and that the photographs taken right after the
incident also showed who the guilty party was.
The trial court did not give credence to the argument of
petitioner and his driver that the truck was properly
checked by a mechanic before it was dispatched for a
trip. It found that petitioner is negligent in maintaining his
vehicle in good condition to prevent any accident to
happen; that petitioner is liable under Article 2180 of the
Civil Code as employer of driver Gerosano for being
negligent in the selection and supervision of his driver as
well as for maintaining and operating a vehicle that was
not roadworthy; and that petitioner and his driver are
solidarily liable for all the natural and probable
consequences of their negligent acts or omissions. The
trial court dismissed the third party complaint filed by
petitioner and his driver against respondents Bandoquillo
and Quinquillera.
Dissatisfied, only petitioner appealed to the CA. On April
17, 2000, the CA rendered the assailed decision which
affirmed in toto the decision of the trial court. Petitioners
motion for reconsideration was denied in a Resolution
dated August 16, 2000.
Hence, the herein petition for review.
Petitioner submits the following issues for resolution:9
WHETHER THE COURT OF APPEALS ERRED IN NOT
FINDING THAT PETITIONER LARRY ESTACION
EXERCISED THE DUE DILIGENCE OF A GOOD
FATHER OF A FAMILY TO PREVENT DAMAGE
DESPITE ABUNDANCE OF EVIDENCE TO THAT
EFFECT;
WHETHER THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT PETITIONER LARRY ESTACION
EXERCISED DUE DILIGENCE IN THE SELECTION
AND SUPERVISION OF HIS EMPLOYEE AND IN
MAINTAINING HIS CARGO TRUCK ROADWORTHY
AND IN GOOD OPERATING CONDITION;
WHETHER THE COURT OF APPEALS ERRED IN
EXONERATING RESPONDENTS CECILIA
BANDOQUILLO AND GEMINIANO QUINQUILLERA.
In his Memorandum, petitioner contends that he was
able to establish that he observed the diligence of a
good father of a family not only in the selection of his
employees but also in maintaining his truck roadworthy
Page 12 of 31
TORTS and DAMAGES
and in good operating condition; that the CA erred in
exonerating respondents Bandoquillo and Quinquillera,
owner and driver, respectively of the Fiera from liability
when their negligence was the proximate cause of
respondent Noes injuries; that respondent Noes act of
standing in the rear carrier of the Fiera is in itself
negligence on his part which was aggravated by the fact
that respondent Quinquillera overtook the cargo truck
driven by Gerosano on the curve and suddenly cut into
the latters lane; that due to the overloading of
passengers, Gerosano was not able to see the brake
lights of the Fiera when it suddenly stopped to pick up
passengers; that overloading is in violation of the
applicable traffic rules and regulations and Article 2185
is explicit when it provides that "unless there is proof to
the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap,
he was violating any traffic regulation"; that since the
Fiera driver was negligent, there arises a presumption
that respondent Bandoquillo, as owner of the Fiera, is
negligent in the selection and supervision of her
employee; that assuming petitioner Estacion and his
driver are not entirely blameless, the negligence of
Quinquillera is sufficient basis why the respective
liabilities should be delineated vis--vis their degree of
negligence consistent with Article 217910 of the Civil
Code.
Respondent Noe filed his Memorandum alleging that the
first and second issues raised are factual in nature which
are beyond the ambit of a petition for review; that
petitioner failed to overcome the presumption of
negligence thus he is liable for the negligence of his
driver Gerosano; and that the third issue is best
addressed to respondents Bandoquillo and Quinquillera.
Respondents Bandoquillo and Quinquillera failed to file
their memorandum despite receipt of our Resolution
requiring them to submit the same.
We find it apropos to resolve first the third issue
considering that the extent of the liability of petitioner
and his driver is dependent on whether respondents
Bandoquillo and Quinquillera are the ones negligent in
the vehicular mishap that happened in the afternoon of
October 16, 1982 where respondent Noe was injured,
resulting in the amputation of his left leg.
At the outset, the issue raised is factual in nature.
Whether a person is negligent or not is a question of fact
which we cannot pass upon in a petition for review
on certiorari, as our jurisdiction is limited to reviewing
errors of law.11As a rule, factual findings of the trial court,
affirmed by the CA, are final and conclusive and may not
be reviewed on appeal. The established exceptions are:
(1) when the inference made is manifestly mistaken,
absurd or impossible; (2) when there is grave abuse of
discretion; (3) when the findings are grounded entirely
on speculations, surmises or conjectures; (4) when the
judgment of the CA is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6)
when the CA, in making its findings, went beyond the
issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the
findings of fact are conclusions without citation of
specific evidence on which they are based; (8) when the
CA manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly
considered, would justify a different conclusion; and (9)
when the findings of fact of the CA are premised on the
absence of evidence and are contradicted by the
evidence on record.12
On the basis of the records of this case, we find that
there is cogent reason for us to review the factual
findings of the lower courts to conform to the evidence
on record and consider this case as an exception to the
general rule.
The trial court and the appellate court had made a
finding of fact that the proximate cause of the injury
sustained by respondent Noe was the negligent and
careless driving of petitioners driver, Gerosano, who
was driving at a fast speed with a faulty brake when the
accident happened. We see no cogent reason to disturb
the trial courts finding in giving more credence to the
testimony of respondent Noe than the testimony of
Gerosano, petitioners truck driver.
The correctness of such finding is borne by the records.
In his testimony, Gerosano said that he was driving the
truck at a speed of about 40 kilometers per hour;13 that
the Fiera was behind him but upon reaching the curve,
i.e.,after passing San Jose going to Dumaguete, the
Fiera overtook him and blocked his way;14 that he was
10 meters from the Fiera prior to the impact15 when he
applied the brakes16 and tried to evade the Fiera but he
still hit it.17
We agree with the trial court and the appellate court
when they found that the truck was running at a fast
speed because if Gerosano was really driving at a speed
of 40 kilometers per hour and considering that the
distance between the truck and the Fiera in front was
about 10 meters, he had more than enough time to
slacken his speed and apply his break to avoid hitting
the Fiera. However, from the way the truck reacted to
the application of the brakes, it showed that Gerosano
was driving at a fast speed because the brakes skidded
a lengthy 48 feet as shown in the sketch of police
Page 13 of 31
TORTS and DAMAGES
investigator Rubia of the tire marks visibly printed on the
road.
Moreover, the photographs taken after the incident and
the testimony of Gerosano as to the extent of damage to
the truck, i.e. the trucks windshield was broken and its
hood was damaged after the impact,18 further support
the finding of both courts that Gerosano was driving at a
fast pace.
The accident was further caused by the faulty brakes of
the truck. Based on the sketch report, there was only
one tire mark of the right tire of the cargo truck during
the incident which, as testified to by police investigator
Rubia, meant that the brakes of the truck were not
aligned otherwise there would be two tire marks
impressions on the road.19 Although petitioner contends
that there are other factors to explain why only one skid
mark was found at the place of the incident, such as the
angle and edges of the road as well as the balance of
the weight of the cargo laden in the truck, he failed to
show that indeed those factors were present to prove his
defense. Such claim cannot be given credence
considering that investigator Rubia testified that the body
of the truck was very much on the road, i.e., not over the
shoulder of the road,20 and the road was
straight.21 Indeed, it is the negligent act of petitioners
driver of driving the cargo truck at a fast speed coupled
with faulty brakes which was the proximate cause of
respondent Noes injury.
Petitioners claim that right after overtaking the cargo
truck, the Fiera driver suddenly stopped to pick up three
passengers from the side of the road; that the
overloading of passengers prevented his truck driver
from determining that the Fiera had pulled over to pick
up passengers as the latters brakelights were
obstructed by the passengers standing on the rear
portion of the Fiera were not substantiated at all.
Respondent Quinquillera, the driver of the Fiera, testified
that the distance from the curve of the road when he
stopped and picked up passengers was estimated to be
about 80 to 90 feet.22 In fact, from the sketch drawn by
investigator Rubia, it showed a distance of 145 feet from
the curve of the road to the speed tire mark (which
measured about 48 feet) visibly printed on the road to
the Fiera. This means that the Fiera driver did not stop
immediately after the curve as what petitioner claims.
Moreover, Gerosano admitted that his truck was at a
distance of 10 meters prior to the impact. The distance
between the two vehicles was such that it would be
impossible for Gerosano not to have seen that the Fiera
had pulled over to pick up passengers.
However, we agree with petitioner that respondent Noes
act of standing on the rear carrier of the Fiera exposing
himself to bodily injury is in itself negligence on his part.
We find that the trial court and the CA erred when they
failed to consider that respondent Noe was also guilty of
contributory negligence. Contributory negligence is
conduct on the part of the injured party, contributing as a
legal cause to the harm he has suffered, which falls
below the standard to which he is required to conform for
his own protection. 23
It has been established by the testimony of respondent
Noe that he was with four or five other persons standing
on the rear carrier of the Fiera since it was already full.
Respondent Noes act of standing on the left rear carrier
portion of the Fiera showed his lack of ordinary care and
foresight that such act could cause him harm or put his
life in danger. It has been held that "to hold a person as
having contributed to his injuries, it must be shown that
he performed an act that brought about his injuries in
disregard of warning or signs of an impending danger to
health and body.24 Respondent Noes act of hanging on
the Fiera is definitely dangerous to his life and limb.
We likewise find merit in petitioners contention that
respondent Quinquillera, the Fiera driver, was also
negligent. There is merit to petitioners claim that there
was overloading which is in violation of traffic rules and
regulations. Respondent Noe himself had testified that
he was standing at the rear portion of the Fiera because
the Fiera was already full. Respondent Quinquillera
should not have taken more passengers than what the
Fiera can accommodate. If the Fiera was not
overloaded, respondent Noe would not have been
standing on the rear carrier and sustained such extent of
injury.
Furthermore, we find that respondent Quinquillera was
negligent in allowing respondent Noe to stand on the
Fieras rear portion. Section 32(c) of Article III of
Republic Act No. 4136, otherwise known as "The Land
Transportation and Traffic Code" provides:
(c) Riding on running boards No driver shall allow any
person to ride on running board, step board or mudguard
of his motor vehicle for any purpose while the vehicle is
in motion.
Respondent Quinquilleras act of permitting respondent
Noe to hang on the rear portion of the Fiera in such a
dangerous position creates undue risk of harm to
respondent Noe. Quinquillera failed to observe that
degree of care, precaution and vigilance that the
circumstances justly demand. Thus, respondent Noe
suffered injury.25 Since respondent Quinquillera is
Page 14 of 31
TORTS and DAMAGES
negligent, there arises a presumption of negligence on
the part of his employer, respondent Bandoquillo, in
supervising her employees properly. Such presumption
was not rebutted at all by Bandoquillo. Thus, the CA
erred in affirming the dismissal of the third party
complaint filed by petitioner against respondents
Quinquillera and Bandoquillo.
Petitioner contends that he was able to establish that he
exercised the due diligence of a good father of a family
in the selection of his employees as well as in the
maintenance of his cargo truck in good operating
condition. He claims that in addition to looking at
Gerosanos drivers license, he accompanied the latter in
his first two trips, during which he ascertained
Gerosanos competence as a driver, petitioner being a
driver himself; that the truck driven by Gerosano has
never figured in any accident prior to the incident
involved; that upon his acquisition of the cargo truck on
March 16, 1982, only 7 months prior to the incident, the
same was thoroughly checked up and reconditioned;
and that he had in his employ a mechanic who
conducted periodic check-ups of the engine and brake
system of the cargo truck.
We are not persuaded.
Article 2180 of the Civil Code provides:
Art. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions,
but also for those of persons for whom one is
responsible.
xxx
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.
xxx
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.
As the employer of Gerosano, petitioner is primarily and
solidarily liable for the quasi-delict committed by the
former. Petitioner is presumed to be negligent in the
selection and supervision of his employee by operation
of law and may be relieved of responsibility for the
negligent acts of his driver, who at the time was acting
within the scope of his assigned task, only if he can
show that he observed all the diligence of a good father
of a family to prevent damage.26
In Yambao v. Zuniga,27 we have clarified the meaning of
the diligence of a good father of a family, thus:
The "diligence of a good father" referred to in the last
paragraph of the aforecited statute means diligence in
the selection and supervision of employees. Thus, when
an employee, while performing his duties, causes
damage to persons or property due to his own
negligence, there arises the juris tantum presumption
that the employer is negligent, either in the selection of
the employee or in the supervision over him after the
selection. For the employer to avoid the solidary liability
for a tort committed by his employee, an employer must
rebut the presumption by presenting adequate and
convincing proof that in the selection and supervision of
his employee, he or she exercises the care and diligence
of a good father of a family. x x x
Petitioners claim that she exercised due diligence in the
selection and supervision of her driver, Venturina,
deserves but scant consideration. Her allegation that
before she hired Venturina she required him to submit
his drivers license and clearances is worthless, in view
of her failure to offer in evidence certified true copies of
said license and clearances. Bare allegations,
unsubstantiated by evidence, are not equivalent to proof
under the rules of evidence. x x x
In any case, assuming arguendo that Venturina did
submit his license and clearances when he applied with
petitioner in January 1992, the latter still fails the test of
due diligence in the selection of her bus driver. 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.
Petitioner failed to present convincing proof that she
went to this extent of verifying Venturinas qualifications,
safety record, and driving history. The presumption juris
tantum that there was negligence in the selection of her
bus driver, thus, remains unrebutted.
Nor did petitioner show that she exercised due
supervision over Venturina after his selection. For as
pointed out by the Court of Appeals, petitioner did not
present any proof that she drafted and implemented
training programs and guidelines on road safety for her
employees. In fact, the record is bare of any showing
that petitioner required Venturina to attend periodic
seminars on road safety and traffic efficiency. Hence,
Page 15 of 31
TORTS and DAMAGES
petitioner cannot claim exemption from any liability
arising from the recklessness or negligence of Venturina.
In sum, petitioners liability to private respondents for the
negligent and imprudent acts of her driver, Venturina,
under Article 2180 of the Civil Code is both manifest and
clear. Petitioner, having failed to rebut the legal
presumption of negligence in the selection and
supervision of her driver, is responsible for damages, the
basis of the liability being the relationship of pater
familias or on the employers own negligence. x x
x28 (Emphasis supplied)
Petitioner failed to show that he examined driver
Gerosano as to his qualifications, experience and
service records. In fact, the testimony of driver Gerosano
in his cross-examination showed the non-observance of
these requirements. Gerosano testified that petitioner
was his first employer in Dumaguete and that he was
accepted by petitioner on the very day he applied for the
job;29 that his drivers license was issued in Mindanao
where he came from 30 and that while petitioner asked
him about his driving record in Mindanao, he did not
present any document of his driving record.31 Such
admission clearly established that petitioner did not
exercise due diligence in the selection of his driver
Gerosano.
Moreover, the fact that petitioners driver Gerosano was
driving in an efficient manner when petitioner was with
him in his first two trips would not conclusively establish
that Gerosano was not at all reckless. It could not be
considered as due diligence in the supervision of his
driver to exempt petitioner from liability. In the
supervision of his driver, petitioner must show that he
had formulated training programs and guidelines on road
safety for his driver which the records failed to show. We
find that petitioner failed to rebut the presumption of
negligence in the selection and supervision of his
employees.
Moreover, there was also no proof that he exercised
diligence in maintaining his cargo truck roadworthy and
in good operating condition. While petitioners mechanic
driver testified that he made a routine check up on
October 15, 1982, one day before the mishap happened,
and found the truck operational, there was no record of
such inspection.
Turning now to the award of damages, since there was
contributory negligence on the part of respondent Noe,
petitioners liability should be mitigated in accordance
with Article 2179 of the Civil Code which provides:
When the plaintiffs own 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.
The underlying precept of the above article 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.32
In Phoenix Construction, Inc., v. Intermediate Appellate
Court,33 where we held that the legal and proximate
cause of the accident and of Dionisios injuries was the
wrongful and negligent manner in which the dump truck
was parked but found Dionisio guilty of contributory
negligence on the night of the accident, we allocated
most of the damages on a 20-80 ratio. In said case, we
required Dionisio to bear 20% of the damages awarded
by the appellate court, except as to the award of
exemplary damages, attorneys fees and costs.
In the present case, taking into account the contributing
negligence of respondent Noe, we likewise rule that the
demands of substantial justice are satisfied by
distributing the damages also on a 20-80 ratio excluding
attorneys fees and litigation expenses.34 Consequently,
20% should be deducted from the actual and moral
damages awarded by the trial court in favor of
respondent Noe, that is: 20% of 129,584.20 for actual
damages is 25,916.84 and 20% of 50,000.00 for
moral damages is 10,000.00. Thus, after deducting the
same, the award for actual damages should be
103,667.36 and 40,000.00 for moral damages or 80%
of the damages so awarded.
Petitioner and respondents Bandoquillo and Quinquillera
are jointly and severally liable for the 80% of the
damages as well as attorneys fees and litigation
expenses conformably with our pronouncement in Tiu v.
Arriesgado35 where we held:
The petitioners, as well as the respondents Benjamin
Condor and Sergio Pedrano are jointly and severally
liable for said amount, conformably with the following
pronouncement of the Court in Fabre, Jr. v. Court of
Appeals:
The same rule of liability was applied in situations where
the negligence of the driver of the bus on which plaintiff
Page 16 of 31
TORTS and DAMAGES
was riding concurred with the negligence of a third party
who was the driver of another vehicle, thus causing an
accident. In Anuran v. Buo, Batangas Laguna Tayabas
Bus Co. v. Intermediate Appellate Court, and Metro
Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle and
the driver of the vehicle were jointly and severally held
liable to the injured passenger or the latters heirs. The
basis of this allocation of liability was explained in Viluan
v. Court of Appeals, thus:
"Nor should it make difference that the liability of
petitioner [bus owner] springs from contract while that of
respondents [owner and driver of other vehicle] arises
from quasi delict. As early as 1913, we already ruled
in Gutierrez v. Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the negligence of the driver
of the bus on which he was riding and of the driver of
another vehicle, the drivers as well as the owners of the
two vehicles are jointly and severally liable for damages.
Some members of the Court, though, are of the view that
under the circumstances they are liable on quasi
delict."36
WHEREFORE, the instant petition is PARTIALLY
GRANTED. The assailed Decision of the Court of
Appeals dated April 17, 2000 as well as its Resolution
dated August 16, 2000
are AFFIRMED with MODIFICATION to the effect that
the dispositive portion of the Decision dated February
18, 1993 of the Regional Trial Court of Dumaguete City
in Civil Case No. 8122, should read as follows:
"WHEREFORE, in view of the foregoing, judgment is
hereby rendered, ordering defendants Gerosano and
Estacion, as well as third party defendants Bandoquillo
and Quinquillera, to pay plaintiff, jointly and solidarily, the
following:
1. 103,667.36 for actual damages in the form of
medical and hospitalization expenses;
2. 40,000.00 for moral damages, consisting of mental
anguish, moral shock, serious anxiety and wounded
feelings;
3. 10,000.00 for attorneys fees; and
4. 5,000.00 for litigation expenses.1avvphil.net
SO ORDERED."
7. Rakes v Atlantic (Torts)
RAKES v ATLANTIC [G.R. No. 1719. January 23, 1907.]
M. H., RAKES, plaintiff-appellee, vs. THE ATLANTIC,
GULF AND PACIFIC COMPANY, defendant-appellant.
FACTS:
he plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting
iron rails from a barge in the harbor to the company's
yard near the malecon in Manila. Plaintiff claims that but
one hand car was used in this work. The defendant has
proved that there were two immediately following one
another, upon which were piled lengthwise seven rails,
each weighing 560 pounds, so that the ends of the rails
lay upon two crosspieces or sills secured to the cars, but
without side pieces or guards to prevent them from
slipping off. According to the testimony of the plaintiff,
the men were either in the rear of the car or at its sides.
According to that defendant, some of them were also in
front, hauling by a rope. At a certain spot at or near the
water's edge the track sagged, the tie broke, the car
either canted or upset, the rails slid off and caught the
plaintiff, breaking his leg, which was afterwards
amputated at about the knee.
ISSUE:
Whether the company is liable
RULING:
Yes. The negligence of the plaintiff, contributing to the
accident, to what extent it existed in fact and what legal
effect is to be given it. In two particulars is he charged
with carelessness:
First. That having noticed the depression in the track he
continued his work; and
Second.That he walked on the ends of the ties at the
side of the car instead of along the boards, either before
or behind it.
The Court ruled that His lack of caution in continuing at
his work after noticing the slight depression of the rail
was not of so gross a nature as to constitute negligence,
barring his recovery under the severe American rule.
While the plaintiff and his witnesses swear that not only
were they not forbidden to proceed in this way, but were
expressly directed by the foreman to do so, both the
officers of the company and three of the workmen testify
that there was a general prohibition frequently made
known to all the gang against walking by the side of the
car, and the foreman swears that he repeated the
prohibition before the starting of this particular load. On
this contradiction of proof we think that the
preponderance is in favor of the defendant's contention
to the extent of the general order being made known to
the workmen. If so, the disobedience of the plaintiff in
Page 17 of 31
TORTS and DAMAGES
placing himself in danger contributed in some degree to
the injury as a proximate, although not as its primary
cause.
Distinction must be between the accident and the injury,
between the event itself, without which there could have
been no accident, and those acts of the victim not
entering into it, independent of it, but contributing under
review was the displacement of the crosspiece or the
failure to replace it. this produced the event giving
occasion for damages that is, the sinking of the track
and the sliding of the iron rails.
1. CIVIL LIABILITY FOR DAMAGES. In order to
enforce the liability of an employer for injuries to his
employee, it is not necessary that a criminal action be
first prosecuted against the employer or his
representative primarily chargeable with the accident. No
criminal proceeding having been taken, the civil action
may proceed to judgment.
2. LIABILITY OF EMPLOYER TO WORKMEN. The
responsibility of an employer to his employee of a fellow-
servant of the employee injured, is not adopted in
Philippine jurisprudence.
3. FELLOW-SERVANT RULE. Sua cuique culpa
nocet. The doctrine known as the "Fellow-servant rule,"
exonerating the employer where the injury was incurred
through the negligence of a fellow-servant of the
employee injured, is not adopted in Philippine
jurisprudence.
8. RAMOS vs. COURT OF APPEALS
G.R. No. 124354. December 29, 1999.
Ponente: Kapunan
FACTS:
Erlinda Ramos underwent a surgical procedure to
remove stone from her gall bladder (cholecystectomy).
They hired Dr. Hosaka, a surgeon, to conduct the
surgery at the De Los Santos Medical Center (DLSMC).
Hosaka assured them that he would find a good
anesthesiologist. But the operation did not go as
planned, Dr. Hosaka arrived 3 hours late for the
operation, Dra. Gutierrez, the anesthesiologist botched
the administration of the anesthesia causing Erlinda to
go into a coma and suffer brain damage. The botched
operation was witnessed by Herminda Cruz, sister in law
of Erlinda and Dean of College of Nursing of Capitol
Medical Center.
The family of Ramos (petitioners) sued the hospital, the
surgeon and the anesthesiologist for damages. The
petitioners showed expert testimony showing that
Erlinda's condition was caused by the anesthesiologist in
not exercising reasonable care in intubating Erlinda.
Eyewitnesses heard the anesthesiologist saying Ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.
Diagnostic tests prior to surgery showed that Erlinda was
robust and fit to undergo surgery.
The RTC held that the anesthesiologist ommitted to
exercise due care in intubating the patient, the surgeon
was remiss in his obligation to provide a good
anesthesiologist and for arriving 3 hours late and the
hospital is liable for the negligence of the doctors and for
not cancelling the operation after the surgeon failed to
arrive on time. The surgeon, anesthesiologist and the
DLSMC were all held jointly and severally liable for
damages to petitioners. The CA reversed the decision of
the Trial Court.
ISSUES: Whether or not the private respondents were
negligent and thereby caused the comatose condition of
Ramos.
HELD:
Yes, private respondents were all negligent and are
solidarily liable for the damages.
RATIO:
Res ipsa loquitur a procedural or evidentiary rule which
means the thing or the transaction speaks for itself. It is
a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may
Page 18 of 31
TORTS and DAMAGES
permit an inference or raise a presumption of
negligence, or make out a plaintiffs prima facie case,
and present a question of fact for defendant to meet with
an explanation, where ordinarily in a medical malpractice
case, the complaining party must present expert
testimony to prove that the attending physician was
negligent.
This doctrine finds application in this case. On the day of
the operation, Erlinda Ramos already surrendered her
person to the private respondents who had complete
and exclusive control over her. Apart from the gallstone
problem, she was neurologically sound and fit. Then,
after the procedure, she was comatose and brain
damagedres ipsa loquitur!the thing speaks for itself!
Negligence Private respondents were not able to
disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the
proximate cause of her condition. One need not be an
anesthesiologist in order to tell whether or not the
intubation was a success. [res ipsa loquitur applies
here]. The Supreme Court also found that the
anesthesiologist only saw Erlinda for the first time on the
day of the operation which indicates unfamiliarity with
the patient and which is an act of negligence and
irresponsibility.
The head surgeon, Dr. Hosaka was also negligent. He
failed to exercise the proper authority as the captain of
the ship in determining if the anesthesiologist observed
the proper protocols. Also, because he was late, he did
not have time to confer with the anesthesiologist
regarding the anesthesia delivery.
The hospital failed to adduce evidence showing that it
exercised the diligence of a good father of the family in
hiring and supervision of its doctors (Art. 2180). The
hospital was negligent since they are the one in control
of the hiring and firing of their consultants. While these
consultants are not employees, hospitals still exert
significant controls on the selection and termination of
doctors who work there which is one of the hallmarks of
an employer-employee reationship. Thus, the hospital
was allocated a share in the liability.
Damages temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
9. Africa vs. Caltex, 16 SCRA 448
By LLBe:LawLifeBuzzEtcetera
Facts: In the afternoon of March 18, 1948, a fire broke
out at the Caltex service station at the corner of Antipolo
St. and Rizal Avenue, Manila. It started while gasoline
was being hosed from a tank truck into the underground
storage, right at the opening of the receiving tank where
the nozzle of the hose was inserted. The fire spread to
and burned several houses. The owners, among them
petitioner spouses Africa and heirs of Ong, sued
respondents Caltex Phil., Inc., the alleged owner of the
station, and Mateo Boquiren, the agent in charge of its
operation, for damages. The CFI and CA found that the
petitioners failed to prove negligence of the respondents,
and that there was due care in the premises and with
respect to the supervision of their employees.
Issue: Whether or not, without proof as to the cause and
origin of the fire, the doctrine of res ipsa loquitur should
apply so as to presume negligence on the part of the
respondents.
Held: Yes. Res ipsa loquitur literally means the thing or
transaction speaks for itself. For the doctrine of res ipsa
loquitur to apply, the following requisites should be
present: (a) the accident is of a kind which ordinarily
does not occur in the absence of someones negligence;
(b) it is caused by an instrumentality within the exclusive
control of the defendant or defendants; and (c) the
possibility of contributing conduct which would make the
plaintiff responsible is eliminated. In the case at bar, the
gasoline station, with all its appliances, equipment and
employees, was under the control of respondents. A fire
occurred therein and spread to and burned the
neighboring houses. The persons who knew or could
have known how the fire started were respondents and
their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the
incident happened because of want of care. The
negligence of the employees was the proximate cause of
the fire, which in the ordinary course of things does not
happen. Therefore, the petitioners are entitled to the
award for damages.
Page 19 of 31
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10. G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO
ISIDRO, and TRAVELLERS MULTI-INDEMNITY
CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-
Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.
SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the
decision 1 of the then Intermediate Appellate Court 2 in
AC-G.R. CV No. 01055, entitled "Pedro T. Layugan,
Plaintiff-Appellee, versus Godofredo Isidro, Defendant-
Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party
Defendant- Appellant, "which reversed and set aside the
decision 3 of the Regional Trial Court, Third Judicial
Region, Branch XXVI, Cabanatuan City, and also
dismissed the complaint, third party complaint, and the
counter claims of the parties and 2) the
resolution 4 denying the plaintiff-appellee's (herein
petitioner) motion for reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted
by the appellate court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages against
Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a
companion were repairing the tire of their cargo truck
with Plate No. SU-730 which was parked along the right
side of the National Highway; that defendant's truck
bearing Plate No. PW-583, driven recklessly by Daniel
Serrano bumped the plaintiff, that as a result, plaintiff
was injured and hospitalized at Dr. Paulino J. Garcia
Research and Medical Center and the Our Lady of
Lourdes Hospital; that he spent TEN THOUSAND
PESOS (Pl0,000.00) and will incur more expenses as he
recuperates from said injuries; that because of said
injuries he would be deprived of a lifetime income in the
sum of SEVENTY THOUSAND PESOS (P70,000.00);
and that he agreed to pay his lawyer the sum of TEN
THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court
declared the defendant in default on October 12, 1979,
and plaintiff's evidence was received ex-parte on
January 11, 1978 and February 19, 1980. The decision
on behalf of the plaintiff was set aside to give a chance
to the defendant to file his answer and later on, a third-
party complaint.
Defendant admitted his ownership of the vehicle
involved in the accident driven by Daniel Serrano.
Defendant countered that the plaintiff was merely a
bystander, not a truck helper being a brother-in-law law
of the driver of said truck; that the truck allegedly being
repaired was parked, occupying almost half of the right
lane towards Solano, Nueva Vizcaya, right after the
curve; that the proximate cause of the incident was the
failure of the driver of the parked truck in installing the
early warning device, hence the driver of the parked car
should be liable for damages sustained by the truck of
the herein defendant in the amount of more than
P20,000.00; that plaintiff being a mere bystander and
hitchhiker must suffer all the damages he incurred. By
way of counterclaim defendant alleged that due to
plaintiffs baseless complaint he was constrained to
engage the services of counsel for P5,000.00 and
P200.00 per court appearance; that he suffered
sleepless nights, humiliation, wounded feelings which
may be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by
the defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff,
without admitting his liability to the plaintiff, claimed that
the third-party defendant is liable to the former for
contribution, indemnity and subrogation by virtue of their
contract under Insurance Policy No. 11723 which covers
the insurer's liability for damages arising from death,
bodily injuries and damage to property.
Third-party defendant answered that, even assuming
that the subject matter of the complaint is covered by a
valid and existing insurance policy, its liability shall in no
case exceed the limit defined under the terms and
conditions stated therein; that the complaint is premature
as no claim has been submitted to the third party
defendant as prescribed under the Insurance Code; that
the accident in question was approximately caused by
the carelessness and gross negligence of the plaintiff-,
that by reason of the third-party complaint, third-party
defendant was constrained to engage the services of
counsel for a fee of P3,000.00.
Pedro Layugan declared that he is a married man with
one (1) child. He was employed as security guard in
Mandaluyong, Metro Manila, with a salary of SIX
Page 20 of 31
TORTS and DAMAGES
HUNDRED PESOS (600.00) a month. When he is off-
duty, he worked as a truck helper and while working as
such, he sustained injuries as a result of the bumping of
the cargo truck they were repairing at Baretbet,
Bagabag, Nueva Vizcaya by the driver of the defendant.
He used to earn TWO HUNDRED PESOS (P200.00) to
THREE HUNDRED PESOS (P300.00) monthly, at the
rate of ONE HUNDRED PESOS (Pl00.00) per trip. Due
to said injuries, his left leg was amputated so he had to
use crutches to walk. Prior to the incident, he supported
his family sufficiently, but after getting injured, his family
is now being supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff,
testified that his truck involved in this vehicular accident
is insured with the Travellers Multi Indemnity Corporation
covering own damage and third-party liability, under
vehicle policy No. 11723 (Exh. "1") dated May 30, 1978;
that after he filed the insurance claim the insurance
company paid him the sum of P18,000.00 for the
damages sustained by this truck but not the third party
liability.
DANIEL SERRANO, defendant driver, declared that he
gave a statement before the municipal police of
Bagabag, Nueva Vizcaya on May 16, 1979; that he knew
the responsibilities of a driver; that before leaving, he
checked the truck. The truck owner used to instruct him
to be careful in driving. He bumped the truck being
repaired by Pedro Layugan, plaintiff, while the same was
at a stop position. From the evidence presented, it has
been established clearly that the injuries sustained by
the plaintiff was caused by defendant's driver, Daniel
Serrano. The police report confirmed the allegation of
the plaintiff and admitted by Daniel Serrano on cross-
examination. The collision dislodged the jack from the
parked truck and pinned the plaintiff to the ground. As a
result thereof, plaintiff sustained injuries on his left
forearm and left foot. The left leg of the plaintiff from
below the knee was later on amputated (Exh. "C") when
gangrene had set in, thereby rendering him
incapacitated for work depriving him of his income. (pp.
118 to 120, Record on Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on
record, the trial court rendered its decision, the
dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is
hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND
(P70,000.00) PESOS actual and compensatory
damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's
fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral
damages; and
d) To pay the costs of this suit. On the third-party
complaint, the third-party defendant is ordered to
indemnify the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS
for actual and compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated
reversed the decision of the trial court and dismissed the
complaint, the third-party complaint, and the counter-
claims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE
INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN REVERSING AND SETTING ASIDE
AND DISMISSING THE PLAINTIFF-APPELLEE'S
COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE
COURT ACTED CORRECTLY IN APPLYING THE
DOCTRINE OF "RES IPSA LOQUITUR" WITH
PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or
error of the decision of the respondent court finding the
petitioner negligent under the doctrine of Res ipsa
loquitur (The thing speaks for
itself).<re||an1w> Corollary thereto, is the question
as to who is negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues
raised in the petition being factual, the same is not
reviewable by this Court in a petition for review by
certiorari. 9
Indeed, it is an elementary rule in the review of decisions
of the Court of Appeals that its findings of fact are
entitled to great respect and will not ordinarily be
disturbed by this Court. 10 For if we have to review every
question of fact elevated to us, we would hardly have
any more time left for the weightier issues compelling
and deserving our preferential attention.11 Be that as it
Page 21 of 31
TORTS and DAMAGES
may, this rule is not inflexible. Surely there are
established exceptions 12 when the Court should
review and rectify the findings of fact of the lower court,
such as:
1) when the conclusion is a finding grounded entirely on
speculation, surmise, or conjecture; 2) the inference
made is manifestly mistaken; 3) there is grave abuse of
discretion; 4) the judgment is based on misapprehension
of facts; 5) the Court of Appeals went beyond the issues
of the case if the findings are contrary to the admission
of both the appellant and the appellee; 6) the findings of
the Court of Appeals are contrary to those of the trial
court; 7) the said findings of fact are conclusions without
citation of specific evidence on which they are based; 8)
the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondents; and 9) when the findings of fact of the
Court of Appeals are premised on the absence of
evidence and are contradicted on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case
to warrant a deviation from the general rule.
From its finding that the parked truck was loaded with
ten (10) big round logs 13 the Court of Appeals inferred
that because of its weight the truck could not have been
driven to the shoulder of the road and concluded that the
same was parked on a portion of the road 14 at the time
of the accident. Consequently, the respondent court
inferred that the mishap was due to the negligence of the
driver of the parked truck.15 The inference or conclusion
is manifestly erroneous. In a large measure, it is
grounded on speculation, surmise, or conjecture. How
the respondent court could have reversed the finding of
the trial court that a warning device was
installed 16 escapes us because it is evident from the
record that really such a device, in the form of a lighted
kerosene lamp, was installed by the driver of the parked
truck three to four meters from the rear of his parked
truck.17 We see this negative finding of the respondent
appellate court as a misreading of the facts and the
evidence on record and directly contravening the
positive finding of the trial court that an early warning
device was in proper place when the accident happened
and that the driver of the private respondent was the one
negligent. On the other hand, the respondent court, in
refusing to give its "imprimatur to the trial court's finding
and conclusion that Daniel Serrano (private respondent
Isidro's driver) was negligent in driving the truck that
bumped the parked truck", did not cite specific evidence
to support its conclusion. In cavalier fashion, it simply
and nebulously adverted to unspecified "scanty evidence
on record." 18
On the technical aspect of the case, the respondent
corporation would want us to dismiss this petition on the
ground that it was filed out of time. It must be noted that
there was a motion for extension, 19 albeit filed
erroneously with the respondent court, dated March 19,
1986, requesting for 30 days from March 20, 1986, to file
the necessary petition or pleading before the Supreme
Court". Also, on April 1, 1986, an appearance of a new
lawyer for the petitioner before the Supreme Court" with
motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the
Petition for Review on Certiorari." Likewise a similar
motion 21 was filed with this Court also on April 1, 1986.
On the other hand, the instant petition for review was
filed on April 17, 1986 22 but it was only after three
months, on August 1, 1986, in its comment 23 that the
respondent corporation raised the issue of tardiness.
The respondent corporation should not have waited in
ambush before the comment was required and before
due course was given. In any event, to exact its "a
pound of flesh", so to speak, at this very late stage,
would cause a grave miscarriage of justice.
Parenthetically, it must be noted that private respondent
Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent?
Negligence is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and
reasonable man would not do24 or as Judge Cooley
defines it, "(T)he failure to observe for the protection of
the interests of another person, that degree of care,
precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury.25
In Picart vs. Smith, 26 decided more than seventy years
ago but still a sound rule, we held:
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily
prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment
of the actor in the situation before him. The Law
considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and
prudence and determines liability by that.
Page 22 of 31
TORTS and DAMAGES
Respondent Isidro posits that any immobile object along
the highway, like a parked truck, poses serious danger
to a moving vehicle which has the right to be on the
highway. He argues that since the parked cargo truck in
this case was a threat to life and limb and property, it
was incumbent upon the driver as well as the petitioner,
who claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road
would be properly forewarned of the peril of a parked
vehicle. Isidro submits that the burden of proving that
care and diligence were observed is shifted to the
petitioner, for, as previously claimed, his (Isidro's) Isuzu
truck had a right to be on the road, while the immobile
cargo truck had no business, so to speak, to be there.
Likewise, Isidro proffers that the petitioner must show to
the satisfaction of a reasonable mind that the driver and
he (petitioner) himself, provided an early warning device,
like that required by law, or, by some other adequate
means that would properly forewarn vehicles of the
impending danger that the parked vehicle posed
considering the time, place, and other peculiar
circumstances of the occasion. Absent such proof of
care, as in the case at bar, Isidro concludes, would,
under the doctrine of Res ipsa loquitur, evoke the
presumption of negligence on the part of the driver of the
parked cargo truck as well as his helper, the petitioner
herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four
meters from the rear of the parked truck, a lighted
kerosene lamp was placed.28 Moreover, there is the
admission of respondent Isidro's driver, Daniel Serrano,
to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will
you narrate to me in brief how the accident happens (sic)
if you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving
Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and at
KM 285, I met another vehicle who (sic) did not dim his
(sic) lights which cause (sic) me to be blinded with
intense glare of the light that's why I did not notice a
parked truck who (sic) was repairing a front flat tire.
When I was a few meters away, I saw the truck which
was loaded with round logs. I step (sic) on my foot
brakes but it did not function with my many attempts. I
have (sic) found out later that the fluid pipe on the rear
right was cut that's why the breaks did not function.
(Emphasis supplied).
Whether the cargo truck was parked along the road or
on half the shoulder of the right side of the road would
be of no moment taking into account the warning device
consisting of the lighted kerosene lamp placed three or
four meters from the back of the truck. 30 But despite this
warning which we rule as sufficient, the Isuzu truck
driven by Daniel Serrano, an employee of the private
respondent, still bumped the rear of the parked cargo
truck. As a direct consequence of such accident the
petitioner sustained injuries on his left forearm and left
foot. His left leg was later amputated from below the
knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the
absence or want of care of Daniel Serrano has been
established by clear and convincing evidence. It follows
that in stamping its imprimatur upon the invocation by
respondent Isidro of the doctrine of Res ipsa loquitur to
escape liability for the negligence of his employee, the
respondent court committed reversible error.
The respondent court ruled: 32
xxx xxx xxx
In addition to this, we agree with the following arguments
of appellant Godofredo Isidro which would show that the
accident was caused due to the negligence of the driver
of the cargo truck:
xxx xxx xxx
... In the case at bar the burden of proving that care and
diligence was (sic) observed is shifted evidently to the
plaintiff, for, as adverted to, the motorists have the right
to be on the road, while the immobile truck has no
business, so to speak, to be there. It is thus for the
plaintiff to show to the satisfaction of a reasonable mind
that the driver and he himself did employ early warning
device such as that required by law or by some other
adequate means or device that would properly forewarn
vehicles of the impending danger that the parked vehicle
posed considering the time, place and other peculiar
circumstances of the occasion. Absent such proof of
care, as in the case at bar, will evoke the presumption of
negligence under the doctrine of res ipsa loquitur, on the
part of the driver of the parked cargo truck as well as
plaintiff who was fixing the flat tire of said truck. (pp. 14-
17, Appellant's Brief). (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the
proper resolution of the issue of negligence to examine
the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which
causes injury is shown to be under the management of
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TORTS and DAMAGES
the defendant, and the accident is such as in the
ordinary course of things does not happen if those who
have the management use proper care, it affords
reasonable evidence, in the absence of an explanation
by the defendant, that the accident arose from want of
care. 33 Or as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable
presumption or inference that defendant was negligent,
which arises upon proof that instrumentality causing
injury was in defendant's exclusive control, and that the
accident was one which ordinarily does not happen in
absence of negligence. Res ipsa loquitur is rule of
evidence whereby negligence of alleged wrongdoer may
be inferred from mere fact that accident happened
provided character of accident and circumstances
attending it lead reasonably to belief that in absence of
negligence it would not have occurred and that thing
which caused injury is shown to have been under
management and control of alleged wrongdoer. Hillen v.
Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133,
155. Under doctrine of "res ipsa loquitur" the happening
of an injury permits an inference of negligence where
plaintiff produces substantial evidence that injury was
caused by an agency or instrumentality under exclusive
control and management of defendant, and that the
occurrence was such that in the ordinary course of
things would not happen if reasonable care had been
used.
In this jurisdiction we have applied this doctrine in quite a
number of cases, notably in Africa et al. vs. Caltex, Inc.,
et al., 35 and the latest is in the case of F.F. Cruz and
Co., Inc. vs. CA.36
The doctrine of Res ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of
negligence. 37 The doctrine is not a rule of substantive
law 38 but merely a mode of proof or a mere procedural
convenience. 39 The rule, when applicable to the facts
and circumstances of a particular case, is not intended
to and does not dispense with the requirement of proof
of culpable negligence on the part of the party
charged. 40 It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due
care.41 The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence
is absent and not readily available. 42 Hence, it has
generally been held that the presumption of inference
arising from the doctrine cannot be availed of, or is
overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence
which is the cause of the injury complained of or where
there is direct evidence as to the precise cause of the
accident and all the facts and circumstances attendant
on the occurrence clearly appear. 43 Finally, once the
actual cause of injury is established beyond controversy,
whether by the plaintiff or by the defendant, no
presumptions will be involved and the doctrine becomes
inapplicable when the circumstances have been so
completely eludicated that no inference of defendant's
liability can reasonably be made, whatever the source of
the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in
relation to Art. 2180, paragraph 5, of the Civil Code. In
the latter, when an injury is caused by the negligence of
a servant or employee there instantly arises a
presumption of law that there was negligence on the part
of the master or employer either in the selection of the
servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and
not juris et de jure and consequently, may be rebutted. If
follows necessarily that if the employer shows to the
satisfaction of the court that in the selection and in the
supervision he has exercised the care and diligence of a
good father of a family, the presumption is overcome
and he is relieved from liability. 45 In disclaiming liability
for the incident, the private respondent stresses that the
negligence of his employee has already been
adequately overcome by his driver's statement that he
knew his responsibilities as a driver and that the truck
owner used to instruct him to be careful in driving. 46
We do not agree with the private respondent in his
submission. In the first place, it is clear that the driver did
not know his responsibilities because he apparently did
not check his vehicle before he took it on the road. If he
did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and
thus the accident could have been avoided. Moveover,
to our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the
driver was licensed, and the fact that he had no record of
any accident, as found by the respondent court, are not
sufficient to destroy the finding of negligence of the
Regional Trial Court given the facts established at the
trial 47 The private respondent or his mechanic, who
must be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to
drive it. In the light of the circumstances obtaining in the
case, we hold that Isidro failed to prove that the diligence
of a good father of a family in the supervision of his
employees which would exculpate him from solidary
liability with his driver to the petitioner. But even if we
Page 24 of 31
TORTS and DAMAGES
concede that the diligence of a good father of a family
was observed by Isidro in the supervision of his driver,
there is not an iota of evidence on record of the
observance by Isidro of the same quantum of diligence
in the supervision of his mechanic, if any, who would be
directly in charge in maintaining the road worthiness of
his (Isidro's) truck. But that is not all. There is paucity of
proof that Isidro exercised the diligence of a good father
of a family in the selection of his driver, Daniel Serrano,
as well as in the selection of his mechanic, if any, in
order to insure the safe operation of his truck and thus
prevent damage to others. Accordingly, the responsibility
of Isidro as employer treated in Article 2180, paragraph
5, of the Civil Code has not ceased.
WHEREFORE, the petition is hereby GRANTED. The
Decision of the respondent court as well as its
Resolution denying the petitioner's motion for
reconsideration are hereby SET ASIDE and the decision
of the trial court, dated January 20, 1983, is hereby
REINSTATED in toto. With costs against the private
respondents.
SO ORDERED.
11. PICART v. SMITH
GR. No. L-12219, March 15, 1918
STREET, J.: (Last Clear Chance) The plaintiff was riding
on a pony over a Carlatan Bridge at San Fernando, La
Union. Before he had gotten half way across, defendant
approached from the opposite direction in an
automobile, going at about 10-12 miles per hour. He
blew his horn as warning which the plaintiff heard.
Having seen the approaching fast-approaching auto, he
pulled the pony up against the railing on the right side
instead of going left. The bridge is about 75 meters long
and 4.8 meters wide. The defendant guided the auto to
the left, that being the proper side for the auto, he
assumed that the plaintiff would move to the other side.
The defendant continued to approach without
decreasing the speed. When he had gotten near, there
being no possibility of the horse getting across to the
other side, he then turned the auto to the right to escape
hitting the horse. The horse got frightened and turned its
body across the bridge with its head across the railing.
The auto struck on the hock of the left hind leg of the
horse which was eventually broken. The horse fell and
the plaintiff was thrown off with some violence. The
horse died. The plaintiff received contusions which
caused temporary unconsciousness and required
medical attention for several days. CFI of La Union
absolved the defendant from liability.
ISSUE: Was defendant in maneuvering the car was
guilty of negligence such as gives rise to the civil
obligation to repair the damage done?
HELD: YES. The control of the situation pass entirely to
the defendant; and it was his duty either to bring his car
to an immediate stop or, seeing that there was no other
persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger
of collision. In doing this, the defendant ran straight on
until he was almost upon the horse. In view of the known
nature of the horse, there was an appreciable risk that, if
the animal in question was unacquainted with autos, he
might get excited and jump under the conditions which
here confronted him. The test of negligence is: Did the
defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinary prudent
person would have used in the same situation? If not,
then he is guilty of negligence. The question as to what
would constitute the conduct of a prudent man in a
situation must of course be always determined in the
light of human experience. Applying the conduct of the
defendant we think that negligence is clearly
established. It goes without saying that the plaintiff was
not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the
road. But the defendant was also negligent; and in such
case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that
the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant
succeeded the negligence of the plaintiff by an
appreciable interval. Under this circumstances the law is
that the person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable with the
consequences, with reference to the prior negligence of
the other party. Judgment is REVERSED.
12. Mr. and Mrs. Ong vs Metropolitan Water District
104 Phil 397 Civil Law Torts and Damages Due
Diligence as a Defense Last Clear Chance; when not
applied
On July 5, 1952, Dominador Ong (14 years old) and his
two brothers went to the swimming pool operated by
Metropolitan Water District (MWD). After paying the
entrance fee, the three proceeded to the small pool.
The swimming pools of MWD are provided with a ring
buoy, toy roof, towing line, oxygen resuscitator and a
first aid medicine kit. The bottom of the pools is painted
Page 25 of 31
TORTS and DAMAGES
with black colors so as to insure clear visibility. There is
on display in a conspicuous place within the area certain
rules and regulations governing the use of the pools.
MWD employs six lifeguards who are all trained as they
had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on
schedule prepared by their chief and arranged in such a
way as to have two guards at a time on duty to look after
the safety of the bathers. There is a male nurse and a
sanitary inspector with a clinic provided with oxygen
resuscitator. And there are security guards who are
available always in case of emergency.
Later, Dominador told his brothers that hell just be going
to the locker room to drink a bottle of Coke. No one saw
him returned. Later, the elder Ong noticed someone at
the bottom of the big pool and notified the lifeguard in
attendant (Manuel Abao), who immediately dove into
the water. The body was later identified as Dominadors.
He was attempted to be revived multiple times but of no
avail.
The parents of Ong sued MWD averring that MWD was
negligent in selecting its employees. During trial, the
elder brother of Ong and one other testified that Abao
was reading a magazine and was chatting with a
security guard when the incident happened and that he
was called a third time before he responded. Plaintiff
further alleged that even assuming that there was no
negligence on the part of MWD, it is still liable under the
doctrine of Last Clear Chance for having the last
opportunity to save the Dominador, its employees failed
to do so.
ISSUE: Whether or not MWD is liable for the death of
Dominador Ong.
HELD: No. As established by the facts, MWD was not
negligent in selecting its employees as all of them were
duly certified. MWD was not negligent in managing the
pools as there were proper safety measures and
precautions/regulations that were placed all over the
pools. Hence, due diligence is appreciated as a
complete and proper defense in this case. Further, the
testimony in court by the elder Ong and the other
witness was belied by the statements they have given to
the investigators when they said that the lifeguard
immediately dove into the water when he was called
about the boy at the bottom of the pool.
The doctrine of Last Clear Chance is of no application
here. It was not established as to how Dominador was
able to go to the big pool. He went to the locker and
thereafter no one saw him returned not until his body
was retrieved from the bottom of the big pool. The last
clear chance doctrine can never apply where the party
charged is required to act instantaneously (how can the
lifeguard act instantaneously in dissuading Dominador
from going to the big pool if he did not see him go there),
and if the injury cannot be avoided by the application of
all means at hand after the peril is or should have been
discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have
contributed to the injury.
13. G.R. No. 188363 February 27, 2013
ALLIED BANKING CORPORATION, Petitioner,
vs.
BANK OF THE PHILIPPINE ISLANDS, Respondents.
DECISION
VILLARAMA, JR., J.:
A collecting bank is guilty of contributory negligence
when it accepted for deposit a post-dated check
notwithstanding that said check had been cleared by the
drawee bank which failed to return the check within the
24-hour reglementary period.
Petitioner Allied Banking Corporation appeals the
Decision1 dated March 19, 2009 of the Court of Appeals
(CA) in CA-G.R. SP No. 97604 which set aside the
Decision2 dated December 13, 2005 of the Regional
Trial Court (RTC) of Makati City, Branch 57 in Civil Case
No. 05-418.
The factual antecedents:
On October 10, 2002, a check in the amount of
1,000,000.00 payable to "Mateo Mgt. Group
International" (MMGI) was presented for deposit and
accepted at petitioner's Kawit Branch. The check, post-
dated "Oct. 9, 2003", was drawn against the account of
Marciano Silva, Jr. (Silva) with respondent Bank of the
Philippine Islands (BPI) Bel-Air Branch. Upon receipt,
petitioner sent the check for clearing to respondent
through the Philippine Clearing House Corporation
(PCHC).3
The check was cleared by respondent and petitioner
credited the account of MMGI with 1,000,000.00. On
October 22, 2002, MMGIs account was closed and all
the funds therein were withdrawn. A month later, Silva
Page 26 of 31
TORTS and DAMAGES
discovered the debit of 1,000,000.00 from his account.
In response to Silvas complaint, respondent credited his
account with the aforesaid sum.4
On March 21, 2003, respondent returned a photocopy of
the check to petitioner for the reason: "Postdated."
Petitioner, however, refused to accept and sent back to
respondent a photocopy of the check. Thereafter, the
check, or more accurately, the Charge Slip, was tossed
several times from petitioner to respondent, and back to
petitioner, until on May 6, 2003, respondent requested
the PCHC to take custody of the check. Acting on the
request, PCHC directed the respondent to deliver the
original check and informed it of PCHCs authority under
Clearing House Operating Memo (CHOM) No. 279 dated
06 September 1996 to split 50/50 the amount of the
check subject of a "Ping-Pong" controversy which shall
be implemented thru the issuance of Debit Adjustment
Tickets against the outward demands of the banks
involved. PCHC likewise encouraged respondent to
submit the controversy for resolution thru the PCHC
Arbitration Mechanism.5
However, it was petitioner who filed a complaint6 before
the Arbitration Committee, asserting that respondent
should solely bear the entire face value of the check due
to its negligence in failing to return the check to
petitioner within the 24-hour reglementary period as
provided in Section 20.17 of the Clearing House Rules
and Regulations8(CHRR) 2000. Petitioner prayed that
respondent be ordered to reimburse the sum of
500,000.00 with 12% interest per annum, and to pay
attorneys fees and other arbitration expenses.
In its Answer with Counterclaims,9 respondent charged
petitioner with gross negligence for accepting the post-
dated check in the first place. It contended that
petitioners admitted negligence was the sole and
proximate cause of the loss.
On December 8, 2004, the Arbitration Committee
rendered its Decision10 in favor of petitioner and against
the respondent. First, it ruled that the situation of the
parties does not involve a "Ping-Pong" controversy since
the subject check was neither returned within the
reglementary time or through the PCHC return window,
nor coursed through the clearing facilities of the PCHC.
As to respondents direct presentation of a photocopy of
the subject check, it was declared to be without legal
basis because Section 21.111 of the CHRR 2000 does
not apply to post-dated checks. The Arbitration
Committee further noted that respondent not only failed
to return the check within the 24-hour reglementary
period, it also failed to institute any formal complaint
within the contemplation of Section 20.312 and it appears
that respondent was already contented with the 50-50
split initially implemented by the PCHC. Finding both
parties negligent in the performance of their duties, the
Committee applied the doctrine of "Last Clear Chance"
and ruled that the loss should be shouldered by
respondent alone, thus:
WHEREFORE, premises considered, judgment is
hereby rendered in favor of plaintiff Allied Banking
Corporation and against defendant Bank of the
Philippine Islands, ordering the latter to pay the former
the following:
(a) The sum of 500,000.00, plus interest thereon at the
rate of 12% per annum counted from the date of filing of
the complaint;
(b) Attorneys fees in the amount of 25,000.00;
(c) The sum of 2,090.00 as and by way of
reimbursement of filing fees, plus the cost of suit.
SO ORDERED.13
Respondent filed a motion for reconsideration14 but it
was denied by the PCHC Board of Directors under
Board Resolution No. 10-200515 dated April 22, 2005.
The Board pointed out that what actually transpired was
a "ping-pong" "not of a check but of a Charge Slip (CS)
enclosed in a carrier envelope that went back and forth
through the clearing system in apparent reaction by
[petitioner] to the wrongful return via the PCHC clearing
system." Respondents conduct was held as a "gross
and unmistakably deliberate violation" of Section
20.2,16 in relation to Section 20.1(e) of the CHRR 2000.17
On May 13, 2005, respondent filed a petition for
review18 in the RTC claiming that PCHC erred in
constricting the return of a post-dated check to Section
20.1, overlooking the fact that Section 20.3 is also
applicable which provision necessarily contemplates
defects that are referred to in Section 20.1 as both
sections are subsumed under the general provision
(Section 20) on the return of regular items. Respondent
also argued that assuming it to be liable, the PCHC
erred in holding it solely responsible and should bear
entirely the consequent loss considering that while
respondent may have the "last" opportunity in proximity,
it was petitioner which had the longest, fairest and
clearest chance to discover the mistake and avoid the
happening of the loss. Lastly, respondent assailed the
award of attorneys fees, arguing that PCHCs
perception of "malice" against it and misuse of the
clearing machinery is clearly baseless and unfounded.
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TORTS and DAMAGES
In its Decision dated December 13, 2005, the RTC
affirmed with modification the Arbitration Committees
decision by deleting the award of attorneys fees. The
RTC found no merit in respondents stance that through
inadvertence it failed to discover that the check was
post-dated and that confirmation within 24 hours is often
"elusive if not outright impossible" because a drawee
bank receives hundreds if not thousands of checks in an
ordinary clearing day. Thus:
Petitioner admitted par. 4 in its Answer with
Counterclaim and in its Memorandum, further adding
that upon receipt of the subject check "through
inadvertence", it did not notice that the check was
postdated, hence, petitioner did not return the same to
respondent."
These contradict petitioners belated contention that it
discovered the defect only after the lapse of the
reglementary period. What the evidence on record
discloses is that petitioner received the check on
October 10, 2002, that it was promptly sent for clearing,
that through inadvertence, it did not notice that the check
was postdated. Petitioner did not even state when it
discovered the defect in the subject check.
Likewise, petitioners contention that its discovery of the
defect was a non-issue in view of the admissions made
in its Answer is unavailing. The Court has noted the fact
that the PCHC Arbitration Committee conducted a
clarificatory hearing during which petitioner admitted that
its standard operating procedure as regards confirmation
of checks was not followed. No less than petitioners
witness admitted that BPI tried to call up the drawer of
the check, as their procedure dictates when it comes to
checks in large amounts. However, having initially failed
to contact the drawer, no follow up calls were made nor
other actions taken. Despite these, petitioner cleared the
check. Having admitted making said calls, it is simply
impossible for petitioner to have missed the fact that the
check was postdated.19 (Emphasis supplied)
With the denial of its motion for partial reconsideration,
respondent elevated the case to the CA by filing a
petition for review under Rule 42 of the 1997 Rules of
Civil Procedure, as amended.
By Decision dated March 19, 2009, the CA set aside the
RTC judgment and ruled for a 60-40 sharing of the loss
as it found petitioner guilty of contributory negligence in
accepting what is clearly a post-dated check. The CA
found that petitioners failure to notice the irregularity on
the face of the check was a breach of its duty to the
public and a telling sign of its lack of due diligence in
handling checks coursed through it. While the CA
conceded that the drawee bank has a bigger
responsibility in the clearing of checks, it declared that
the presenting bank cannot take lightly its obligation to
make sure that only valid checks are introduced into the
clearing system. According to the CA, considerations of
public policy and substantial justice will be served by
allocating the damage on a 60-40 ratio, as it thus
decreed:
WHEREFORE, the decision of the Regional Trial Court
of Makati City (Branch 57) dated December 13, 2005 is
ANNULLED and SET ASIDE and judgment is rendered
ordering petitioner to pay respondent Allied Banking
Corporation the sum of 100,000.00 plus interest
thereon at the rate of 6% from July 10, 2003, which shall
become 12% per annum from finality hereof, until fully
paid, aside from costs.
SO ORDERED.20
Its motion for reconsideration having been denied by the
CA, petitioner is now before the Court seeking a partial
reversal of the CAs decision and affirmance of the
December 13, 2005 Decision of the RTC.
Essentially, the two issues for resolution are: (1) whether
the doctrine of last clear chance applies in this case; and
(2) whether the 60-40 apportionment of loss ordered by
the CA was justified.
As well established by the records, both petitioner and
respondent were admittedly negligent in the encashment
of a check post-dated one year from its presentment.
Petitioner argues that the CA should have sustained
PCHCs finding that despite the antecedent negligence
of petitioner in accepting the postdated check for
deposit, respondent, by exercising reasonable care and
prudence, might have avoided injurious consequences
had it not negligently cleared the check in question. It
pointed out that in applying the doctrine of last clear
chance, the PCHC cited the case of Philippine Bank of
Commerce v. Court of Appeals21 which ruled that
assuming the banks depositor, private respondent, was
negligent in entrusting cash to a dishonest employee,
thus providing the latter with the opportunity to defraud
the company, it cannot be denied that petitioner bank
had the last clear opportunity to avert the injury incurred
by its client, simply by faithfully observing their self-
imposed validation procedure.
Petitioner underscores respondents failure to observe
clearing house rules and its own standard operating
procedure which, the PCHC said constitute further
negligence so much so that respondent should be solely
liable for the loss. Specifically, respondent failed to
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TORTS and DAMAGES
return the subject check within the 24-hour reglementary
period under Section 20.1 and to institute any formal
complaint within the contemplation of Section 20.3 of the
CHRR 2000. The PCHC likewise faulted respondent for
not making follow-up calls or taking any other action
after it initially attempted, without success, to contact by
telephone the drawer of the check, and clearing the
check despite such lack of confirmation from its
depositor in violation of its own standard procedure for
checks involving large amounts.
The doctrine of last clear chance, stated broadly, is that
the negligence of the plaintiff does not preclude a
recovery for the negligence of the defendant where it
appears that the defendant, by exercising reasonable
care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the
plaintiffs negligence.22The doctrine necessarily assumes
negligence on the part of the defendant and contributory
negligence on the part of the plaintiff, and does not apply
except upon that assumption.23 Stated differently, the
antecedent negligence of the plaintiff does not preclude
him from recovering damages caused by the
supervening negligence of the defendant, who had the
last fair chance to prevent the impending harm by the
exercise of due diligence.24Moreover, in situations where
the doctrine has been applied, it was defendants failure
to exercise such ordinary care, having the last clear
chance to avoid loss or injury, which was the proximate
cause of the occurrence of such loss or injury.25
In this case, the evidence clearly shows that the
proximate cause of the unwarranted encashment of the
subject check was the negligence of respondent who
cleared a post-dated check sent to it thru the PCHC
clearing facility without observing its own verification
procedure. As correctly found by the PCHC and upheld
by the RTC, if only respondent exercised ordinary care
in the clearing process, it could have easily noticed the
glaring defect upon seeing the date written on the face of
the check "Oct. 9, 2003". Respondent could have then
promptly returned the check and with the check thus
dishonored, petitioner would have not credited the
amount thereof to the payees account. Thus,
notwithstanding the antecedent negligence of the
petitioner in accepting the post-dated check for deposit,
it can seek reimbursement from respondent the amount
credited to the payees account covering the check.
What petitioner omitted to mention is that in the cited
case of Philippine Bank of Commerce v. Court of
Appeals,26while the Court found petitioner bank as the
culpable party under the doctrine of last clear chance
since it had, thru its teller, the last opportunity to avert
the injury incurred by its client simply by faithfully
observing its own validation procedure, it nevertheless
ruled that the plaintiff depositor (private respondent)
must share in the loss on account of its contributory
negligence. Thus:
The foregoing notwithstanding, it cannot be denied that,
indeed, private respondent was likewise negligent in not
checking its monthly statements of account. Had it done
so, the company would have been alerted to the series
of frauds being committed against RMC by its secretary.
The damage would definitely not have ballooned to such
an amount if only RMC, particularly Romeo Lipana, had
exercised even a little vigilance in their financial
affairs. This omission by RMC amounts to contributory
negligence which shall mitigate the damages that may
be awarded to the private respondent under Article 2179
of the New Civil Code, to wit:
"x x x. When the plaintiffs own 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 defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
damages to be awarded."
In view of this, we believe that the demands of
substantial justice are satisfied by allocating the damage
on a 60-40 ratio. Thus, 40% of the damage awarded by
the respondent appellate court, except the award of
25,000.00 attorneys fees, shall be borne by private
respondent RMC; only the balance of 60% needs to be
paid by the petitioners. The award of attorneys fees
shall be borne exclusively by the petitioners.27 (Italics in
the original; emphasis supplied)
In another earlier case,28 the Court refused to hold
petitioner bank solely liable for the loss notwithstanding
the finding that the proximate cause of the loss was due
to its negligence. Since the employees of private
respondent bank were likewise found negligent, its claim
for damages is subject to mitigation by the courts. Thus:
Both banks were negligent in the selection and
supervision of their employees resulting in the
encashment of the forged checks by an impostor. Both
banks were not able to overcome the presumption of
negligence in the selection and supervision of their
employees. It was the gross negligence of the
employees of both banks which resulted in the fraud and
the subsequent loss. While it is true that petitioner BPIs
negligence may have been the proximate cause of the
loss, respondent CBCs negligence contributed equally
to the success of the impostor in encashing the
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TORTS and DAMAGES
proceeds of the forged checks. Under these
circumstances, we apply Article 2179 of the Civil Code to
the effect that while respondent CBC may recover its
losses, such losses are subject to mitigation by the
courts. x x x
Considering the comparative negligence of the two (2)
banks, we rule that the demands of substantial justice
are satisfied by allocating the loss of 2,413,215.16 and
the costs of the arbitration proceedings in the amount of
7,250.00 and the costs of litigation on a 60-40 ratio.
Conformably with this ruling, no interests and attorneys
fees can be awarded to either of the
parties.29 (Emphasis supplied)
Apportionment of damages between parties who are
both negligent was followed in subsequent cases
involving banking transactions notwithstanding the
courts finding that one of them had the last clear
opportunity to avoid the occurrence of the loss.
In Bank of America NT & SA v. Philippine Racing
Club,30 the Court ruled:
In the case at bar, petitioner cannot evade responsibility
for the loss by attributing negligence on the part of
respondent because, even if we concur that the latter
was indeed negligent in pre-signing blank checks, the
former had the last clear chance to avoid the loss. To
reiterate, petitioners own operations manager admitted
that they could have called up the client for verification or
confirmation before honoring the dubious checks. Verily,
petitioner had the final opportunity to avert the injury that
befell the respondent. x x x Petitioners negligence has
been undoubtedly established and, thus, pursuant to Art.
1170 of the NCC, it must suffer the consequence of said
negligence.
In the interest of fairness, however, we believe it is
proper to consider respondents own negligence to
mitigate petitioners liability.1wphi1 Article 2179 of the
Civil Code provides:
xxxx
Explaining this provision in Lambert v. Heirs of Ray
Castillon, the Court held:
"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. xxx xxx xxx"
xxxx
Following established jurisprudential precedents, we
believe the allocation of sixty percent (60%) of the actual
damages involved in this case (represented by the
amount of the checks with legal interest) to petitioner is
proper under the premises. Respondent should, in light
of its contributory negligence, bear forty percent (40%) of
its own loss.31 (Emphasis supplied)
In Philippine National Bank v. F.F. Cruz and Co.,
Inc.,32 the Court made a similar disposition, thus:
Given the foregoing, we find no reversible error in the
findings of the appellate court that PNB was negligent in
the handling of FFCCIs combo account, specifically,
with respect to PNBs failure to detect the forgeries in the
subject applications for managers check which could
have prevented the loss. x x x PNB failed to meet the
high standard of diligence required by the circumstances
to prevent the fraud. In Philippine Bank of Commerce v.
Court of Appeals and The Consolidated Bank & Trust
Corporation v. Court of Appeals, where the banks
negligence is the proximate cause of the loss and the
depositor is guilty of contributory negligence, we
allocated the damages between the bank and the
depositor on a 60-40 ratio. We apply the same ruling in
this case considering that, as shown above, PNBs
negligence is the proximate cause of the loss while the
issue as to FFCCIs contributory negligence has been
settled with finality in G.R. No. 173278. Thus, the
appellate court properly adjudged PNB to bear the
greater part of the loss consistent with these rulings.33
"Contributory negligence is conduct on the part of the
injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard to which
he is required to conform for his own
protection."34 Admittedly, petitioners acceptance of the
subject check for deposit despite the one year postdate
written on its face was a clear violation of established
banking regulations and practices. In such instances,
payment should be refused by the drawee bank and
returned through the PCHC within the 24-hour
reglementary period. As aptly observed by the CA,
petitioners failure to comply with this basic policy
regarding post-dated checks was "a telling sign of its
lack of due diligence in handling checks coursed through
it."35
It bears stressing that "the diligence required of banks is
more than that of a Roman paterfamilias or a good father
of a family. The highest degree of diligence is
expected,"36 considering the nature of the banking
business that is imbued with public interest. While it is
true that respondent's liability for its negligent clearing of
the check is greater, petitioner cannot take lightly its own
Page 30 of 31
TORTS and DAMAGES

violation of the long-standing rule against encashment of

post-dated checks and the injurious consequences of
allowing such checks into the clearing system.

Petitioner repeatedly harps on respondent's

transgression of clearing house rules when the latter
resorted to direct presentment way beyond the
reglementary period but glosses over its own negligent
act that clearly fell short of the conduct expected of it as
a collecting bank. Petitioner must bear the
consequences of its omission to exercise extraordinary
diligence in scrutinizing checks presented by its
depositors.

Assessing the facts and in the light of the cited

precedents, the Court thus finds no error committed by
the CA in allocating the resulting loss from the wrongful
encashment of the subject check on a 60-40 ratio.

WHEREFORE, the petition for review on certiorari

is DENIED. The Decision dated March 19, 2009 of the
Court of Appeals in CA-G.R. SP No. 97604 is
hereby AFFIRMED.

Page 31 of 31