Insufficient proof

A LAW EAC H DAY (Keeps Trouble Away) By Jose C . Sison (The Philippine Star) Updated

OMC Carriers Inc. and Petalino vs. Spouses Nabua, G.R. 148974, July
2, 2010

Care and diligence of a good father of a family in the selection and supervision of
his employee

The rule is that an employer of a negligent employee or household helper shall be liable for the
damages caused by the latter acting within the scope of their assigned tasks even though the former is not
engaged in any business or industry. The exception is that said employer is not liable if he proves that he
exercised the care and diligence of a good father of a family in the selection and supervision of his employee
(Article 2180, C ivil C ode). How does the employer prove such care and diligence? This is answered in this
case.

On August 4, 1995 at about 3 p.m. an Isuzu private tanker owned by and regis tered in the name of
OMC C arriers Inc. (OMC ) then being driven by Gorio, was cruising along Quirino Highway towards Lagro Q.C .
As it approached a barangay in Novaliches, the said tanker hit a private vehicle, an Isuzu Gemini which was
making a left turn towards a nearby gasoline station. The impact heavily damaged the right side portion of
the Isuzu Gemini and mortally injured its 18-year old driver, Randy, who was later pronounced dead on
arrival at the nearby hospital where he was brought.

Two eyewitnesses saw that Randy gave a sign as he was turning to the left at a very slow pace
while the tanker was running fast as it suddenly came in and hit the vehicle. The traffic investigator also
found skid marks made by the tanker confirming that it was runn ing beyond normal speed.

Randy’s parents thus sued Gorio and his employer OMC together with its General Manager Carlo
before the RTC asking for actual, compensatory, moral and exemplary damages and attorney’s fees. OMC
and C arlo denied liability and alleged that they exercised the care and diligence of a good father of a family
in the selection and supervision of its employees including Gorio. To prove their defense they presented oral
testimonies to prove that new employees were given formal written papers as to the things expected from
them as drivers and as to the things they should do just in case. Employees were also given guidelines and
circulars both from O MC and from its client, Petron about offenses punishable with dismissal and about “hot
spots” and “table of penalties”. Testimonies were also given relating to the checking of damages during
carbarn time, the determination if drivers were issued traffic violation tickets. Another witness also testified
that they conduct seminars regarding safety and driving.

The RTC however rendered a decision finding OMC and C arlo jointly and severally liable with Gorio
for damages due to the latter’s negligence and ordered them to pay, actual, compensatory, moral and
exemplary damages and attorney’s fees. On appeal, the C ourt of Appeals modified the said RTC decision by
absolving C arlo and deleting the award for compensatory and exemplary damages. OMC still questioned this
decision. It contended tha t it should also be absolved of any liability because it has proven t hat it has
exercised the care and diligence of a good father of the family in the selection and supervision of its
employees particularly Gorio. Was OMC correct?
 No. When an injury is caused by an employee, there instantly arises a presumption of law that there
was negligence on the part of the employer either in the selection or in the supervision of the employee.
Said presumption may be overcome by a clear showing o n the part of the employer that it has exercised
such care and diligence. It is paramount that the best and most complete evidence is formally entered.

There is really no hard and fast rule on the quantum of evidence necessary to prove that an
employer has exercised the care and diligence of a good father of a family in the selection and super vision of
its employees to escape liability for the la tter’s negligence. But oral testimonies which dwell on mere
generalities and are apparently biased in nature must be buttressed by any other object, record or
document which might obviate their apparent biased nature.

In the case at bar OMC may have proven that it has exercised due diligence in the selection of Gorio
but not in his supervision. The circulars presented do not in any way concern safety procedures to prevent
accidents or damages to property or injury to people on the road. The existence of supervisory policies
cannot be casually invoked to overturn the presump tion of negligence of the employer. The testimo nies
presented here are all self-serving oral evidence without any object or documentar y evidence to support
them. Even the seminars regarding safety and driving were no t satisfactorily established in evidence.
Specifically there is no showing that Gorio attended them.

Hence OMC is jointly and severally liability with Gorio to pay the heirs of Randy: death indemnity of
P50,000, ac tual damages of P59,173.50 and moral damages of P50,000 with six percent interest per annum
from date of the RTC decision and 12 percent per annum from the time the decision becomes final until full
satisfaction (OMC C arriers Inc. and Petalino vs. Spouses Nabua, G.R. 148974, July 2, 2010).