Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22533             February 9, 1967

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners, 

vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.

Placido B. Ramos and Renato L. Ramos for petitioners.

Trinidad & Borromeo for respondents.

BENGZON, J.P., J.:

On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I. 1 and Andres Bonifacio in the Court of
First Instance of Manila as a consequence of a collision, on May 10, 1958, involving the car of Placido Ramos and a tractor-
truck and trailer of PEPESI-COLA. Said car was at the time of the collision driven by Augusto Ramos, son and co-plaintiff of
Placido. PEPSI-COLA's tractor-truck was then driven by its driver and co-defendant Andres Bonifacio.

After trial the Court of First Instance rendered judgment on April 15, 1961, finding Bonifacio negligent and declaring that
PEPSI-COLA had not sufficiently proved its having exercised the due diligence of a good father of a family to prevent the
damage. PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the plaintiffs P2,638.50 actual damages; P2,000.00 moral
damages; P2,000.00 as exemplary damages; and, P1,000.00 attorney's fees, with costs.

Not satisfied with this decision, the defendants appellee to the Court of Appeals.

Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant Bonifacio negligent, but
modified it by absolving defendant PEPSI-COLA from liability, finding that, contrary to the plaintiffs' contention, PEPSI-COLA
sufficiently proved due diligence in the selection of its driver Bonifacio.

Plaintiffs thereupon appealed to Us through this petition for review of the Court of Appeals' decision. And appellants would
argue before this Court that defendant PEPSI-COLA's evidence failed to show that it had exercised due diligence in the
selection of its driver in question.

Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor, thus:

The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant company, was to the effect that
defendant driver was first hired as a member of the bottle crop in the production department; that when he was
hired as a driver, 'we had size [sic] him by looking into his background, asking him to submit clearances, previous
experience, physical examination and later on, he was sent to the pool house to take the usual driver's examination,
consisting of: First, theoretical examination and second, the practical driving examination, all of which he had
undergone, and that the defendant company was a member of the Safety Council. In view hereof, we are of the sense
that defendant company had exercised the diligence of a good father of a family in the choice or selection of
defendant driver'. In the case of Campo vs. CamaroteNo. L-9147 (1956), 53 O.G. 2794, cited in appellee's brief, our
Supreme Court had occasion to put it down as a rule that "In order that the defendant may be considered as having
exercised all the diligence of a good father of a family, he should not have been satisfied with the mere possession of
a professional driver's license; he should have carefully examined the applicant for employment as to his
qualifications, his experiences and record of service." Defendant Company has taken all these steps.2

Appellants herein seek to assail the foregoing portion of the decision under review by taking issue with the testimony of
Anasco upon which the findings of due diligence aforestated are rested. Thus, it is now contended that Añasco being PEPSI-
COLA's employee, is a biased and interested witness; and that his testimony is not believable.
It is rather clear, therefore, that appellants would raise herein an issue of fact and credibility, something as to which this Court
has consistently respected the findings of the Court of Appeals, with some few exceptions, which do not obtain herein. 3

Stated differently, Añascos credibility is not for this Court now to re-examine. And said witness having been found credible by
the Court of Appeals, his testimony, as accepted by said Court, cannot at this stage be assailed. As We said in  Co Tao vs. Court
of Appeals, L-9194, April 25, 1957, assignments of error involving the credibility of witnesses and which in effect dispute the
findings of fact of the Court of Appeals, cannot be reviewed in these proceedings. For a question to be one of law it must
involve no examination of the probative value of the evidence presented by the litigants or any of them. 4 And the distinction
is well-known: There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain
state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts. 5

From all this it follows that for the purposes of this appeal, it must be taken as established that, as testified to by Añasco,
PEPSI-COLA did in fact carefully examine the driver-applicant Bonifacio as to his qualifications, experiences and record of
service, taking all steps mentioned by the Court of Appeals in its decision already quoted.1äwphï1.ñët

Such being the case, there can be no doubt that PEPSI-COLA exercised the required due diligence in the selection of its driver.
As ruled by this Court in Campo vs. Camarote  53 O.G. 2794, 2797: "In order that the defendant may be considered as having
exercised all diligence of a good father of a family, he should not be satisfied with the mere possession of a professional
driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experience and
record of service."

It should perhaps be stated that in the instant case no question is raised as to due diligence in the supervision by PEPSI-COLA
of its driver. Article 2180 of the Civil Code provides inter alia:

... The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

xxx     xxx     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.

And construing a similar provision of the old Civil Code, this Court said in Bahia vs. Litonjua, 30 Phil. 624, 627:

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

As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is only due diligence in the selection of its
driver. And, parenthetically, it is not surprising that appellants thus confine their arguments to this aspect of due diligence,
since the record — as even appellants' brief (pp. 13-17) reflects in quoting in part the testimony of PEPSI-COLA's witness —
would show sufficient evidence to establish due diligence in the supervision by PEPSI-COLA of its drivers, including Bonifacio.

Appellants' other assignment of errors are likewise outside the purview of this Court's reviewing power. Thus, the question of
whether PEPSI- COLA violated the Revised Motor Vehicle Law and rules and regulations related thereto, not having been
raised and argued in the Court of Appeals, cannot be ventilated herein for the first time. 6 And the matter of whether or not
PEPSI-COLA did acts to ratify the negligent act of its driver is a factual issue not proper herein.

Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION

May 16, 1967

BENGZON, J.P., J.:

Petitioners seek a reconsideration 1 of Our decision2 in the instant case affirming in toto the challenged decision of the Court of
Appeals absolving respondent PEPSI-COLA from liability. In Our decision, We refrained from passing on the merits of the
question whether PEPSI-COLA, in operating the tractor-truck and trailer, violated the Rev. Motor Vehicle Law 3 and the rules
and regulations related thereto, for the procedural reason that it did not appear to have been raised before the Court of
Appeals.

It now appears, however, that said question was raised in a motion to reconsider filed with the Court of Appeals which
resolved the same against petitioners. Due consideration of the matter on its merits, convinces Us that the decision of the
Court of Appeals should still be affirmed in toto.

Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a), Sec. 27 of M.V.O. Administrative Order No. 1,
dated Sept. 1, 1951, in that at the time of the collision, the trailer-truck, which had a total weight of 30,000 kgms., was (a)
being driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit set and (b) was not equipped with a rear-vision mirror
nor provided with a helper for the driver.

The cited provisions read:

SECTION 27. Registration, operation, and inspection of truck-trailer combinations, semi-trailers, and tractors.

(a) No trailer or semi-trailer having a gross weight of more than 2,000 kilograms and is not equipped with effective
brakes on at least two opposite wheels of the rear axle and are so controlled that the brakes will act in unison with or
preceding the effective action of the brakes of the tractor-truck shall be registered for operation on public highways
of the Philippines; provided, that the trialers without brakes may be registered from year to year for operation under
the following conditions:

1. No such trailer shall be operated at any time at a speed in excess of 15 kilometers per hour in conjunction with a
tractor-truck, the actual gross weight of which is less than twice the weight of the trailer.

xxx     xxx     xxx

4(d) Tractor-trucks shall be either equipped with rear-vision mirror to enable the driver to see vehicles approaching
mirror the rear or shall carry a helper who shall be so stationed on the truck or trailer that he will constantly have a
view of the rear. He shall be provided with means of effectively signalling to the driver to give way to overtaking
vehicles.

4(e) No truck and trailer combination shall be operated at a speed greater than 30 kilometers per hour.

It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to trailers or semi-trailers having a gross weight
of more than 2,000 kgms., AND which are "not equipped with effective brakes on at least two opposite wheels, of the
rear axle and are so controlled that the brakes will act in unison with or preceding the effective action of the brakes of
the tractor-truck..." This is the condition set in the  proviso  in par. (a),supra, wherein "trailers without [such] brakes
may be registered from year to year for operation ..." i.e., they should not "be operated at any time at a speed in
excess of 15 kilometers per hour in conjunction with a tractor-truck ...". But there was no finding by the Court of
Appeals that the truck-trailer here did not have such brakes. In the absence of such fact, it is subpar. 4(e),  supra, that
will apply. And petitioners admit that the truck-trailer was being driven at about 30 k.p.h.

It is a fact that driver Bonifacio was not accompanied by a helper on the night of the collision since he was found to be
driving alone. However, there is no finding that the tractor-truck did not have a rear-vision mirror. To be sure, the records
disclose that Pat. Rodolfo Pahate, the traffic policeman who went to the collision scene, testified that he saw the tractor-truck
there but he does not remember if it had any rear vision mirror.4 This cannot prove lack of rear-vision mirror. And the cited
provision — subpar. 4(d) — is complied if either of the two alternatives, i.e., having a rear-vision mirror or a helper, is present.
Stated otherwise, said provision is violated only where there is a positive finding that the tractor-truck did not have both rear-
vision mirror and a helper for the driver.

Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the Rev. Motor Vehicle Law, providing that:

No motor vehicle operating as a single unit shall exceed the following dimensions:

Overall width ................ 2.5 meters.

xxx     xxx     xxx

since there was an express finding that the truck-trailer was 3 meters wide. However, Sec. 9 (d) of the same law, as
amended, providing that —

SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office  with the approval of the Secretary of Public
Works and Communications shall establish regulations and a tariff of additional fees under which special permits may
be issued in the discretion of the Chief of the Motor Vehicles Office or his deputies, for each of the following special
cases, and without such special permit, no such motor vehicles shall be operated on the public highways.

xxx     xxx     xxx

(d) For registration or use of a motor vehicle exceeding the limit of permissible dimensions specified in subsections (b)
and (c) of section eight-A hereof. (Emphasis supplied)

xxx     xxx     xxx

expressly allows the registration, or use of motor vehicles exceeding the limits of permissible dimensions specified in
subsec. (b) of Sec. 8-A. So, to conclude that there was a violation of law — which undisputably constitutes negligence,
at the very least — it is not enough that the width of the tractor-truck exceed the limit in Sec. 8-A; in addition, it must
also appear that there was no special permit granted under Sec. 9. Unfortunately for petitioners, that vital factual link
is missing. There was no proof much less any finding to that effect. And it was incumbent upon petitioners-appellants
to have proved lack of such permit since the tractor-truck and the trailer were registered. 5 Compliance with law and
regularity in the performance of official duty — in this case, the issuance of proper registration papers — are
presumed6 and prevail over mere surmises. Having charged a violation of law, the onus of substantiating the same fell
upon petitioners-appellants. Hence, the conclusion that there was a violation of the law lacks factual basis.

Petitioners would also have Us abandon  the Bahia  ruling.7 In its stead, We are urged to apply the Anglo-American doctrine
of respondent superior. We cannot however, abandon the Bahia ruling without going against the explicit mandate of the law.
A motor vehicle owner is not an absolute insurer against all damages caused by its driver. Article 2180 of our Civil Code is very
explicit that the owner's responsibility shall cease once it proves that it has observed the diligence of a good father of a family
to prevent damage. The Bahia case merely clarified what that diligence consists of, namely, diligence in the selection and
supervision of the driver-employee.

Neither could We apply the respondent superior  principle. Under Article 2180 of the Civil Code, the basis of an employer's
liability is his own negligence, not that of his employees. The former is made responsible for failing to properly and diligently
select and supervise his erring employees. We do not — and have never — followed the respondent superior rule. 8 So, the
American rulings cited by petitioners, based as they are on said doctrine, are not authoritative here.

In view of the foregoing, the motion for reconsideration is hereby denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-21477-81             April 29, 1966

FRANCISCA VILUAN, petitioner, 
vs.
THE COURT OF APPEALS, PATRICIO HUFANA and GREGORIO HUFANA, respondents.

Jose A. Solomon, for petitioner.

Lourdes M. Garcia, for respondents.

REGALA, J.:

Seven persons were killed and thirteen others were injured in Bangar, La Union, on February 16, 1958, when a passenger bus
on which they were riding caught fire after hitting a post and crashing against a tree. The bus, owned by petitioner and driven
by Hermenegildo Aquino, came from San Fernando, La Union and was on its way to Candon, Ilocos Sur.

It appears that, as the bus neared the gate of the Gabaldon school building in the municipality of Bangar, another passenger
bus owned by Patricio Hufana and driven by Gregorio Hufana tried to overtake it but that instead of giving way, Aquino
increased the speed of his bus and raced with the overtaking bus. Aquino lost control of his bus as a result of which it hit a
post, crashed against a tree and then burst into flames.

Among those who perished were Timoteo Mapanao, Francisca Lacsamana, Narcisa Mendoza and Gregorio Sibayan, whose
heirs sued petitioner and the latter's driver, Hermenegildo Aquino, for damages for breach of contract of carriage. Carolina
Sabado, one of those injured, also sued petitioner and the driver for damages. The complaints were filed in the Court of First
Instance of La Union.

In their answer, petitioner and her driver blamed respondent Gregorio Hufana for the accident. With leave of court, they filed
third party complaints against Hufana and the latter's employer, Patricio Hufana.

After trial, the court found that the accident was due to the concurrent negligence of the drivers of the two buses and held
both, together with their respective employers, jointly and severally liable for damages.

The dispositive portion of its decision reads:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered, declaring the plaintiff's entitled to damages to be
paid jointly and severally by the defendants and third-party defendants as follows:

(1) For plaintiff Juliana C. Vda. de Mapanao for the death of her son Timoteo Mapanao, the sum of P5,000.00 for
actual damages, P1,000.00 as moral damages and P250.00 as attorney's fees;

(2) For plaintiff Leon Lacsamana for the death of his daughter Francisca Lacsamana, the sum of P4,000.00 as actual
damages, P1,000.00 as moral damages and P250.00 as attorney's fees;

(3) For plaintiffs Juan Mendoza and Magdalena Mendoza for the death of their mother Narcisa Mendoza, the sum of
P4,000.00 for actual damages, P1,000.00 for moral damages and P250.00 as attorney's fees;

(4) For plaintiffs Agustina Sabado, Quintin Sibayan, Julita Sibayan, Primitivo Sibayan and Avelina Sibayan, the sum of
P4,000.00 for actual damages, P1,500.00 for moral damages and P250.00 as attorney's fees;
 (5) For the injured passenger Carolina Sabado, P649.00 for actual damages, P1,000.00 for moral damages and P250.00
for attorney's fees.

All such amounts awarded as damages shall bear interest at the legal rate of six per cent (6%) per annum from the
date of this decision until the same shall have been duly paid in full.

Defendants and third-party defendants are further ordered to pay proportionate costs."

Both petitioner and her driver and the respondents herein appealed to the Court of Appeals. While affirming the finding that
the accident was due to the concurrent negligence of the drivers of both the Viluan and the Hufana buses, the Court of
Appeals differed with the trial court in the assessment of liabilities of the parties. In its view only petitioner Francisca Viluan,
as operator of the bus, is liable for breach of contract of carriage. The driver, Hermenegildo Aquino, cannot be made jointly
and severally liable with petitioner because he is merely the latter's employee and is in no way a party to the contract of
carriage. The court added, however —

Hermenegildo Aquino is not entirely free from liability. He may be held liable, criminally and civilly, under the Revised
Penal Code (Articles 100 and 103), but not in a civil suit for damages predicated upon a breach of contract, such as
this one (Aguas, et al. vs. Vargas, et al., CA-G.R. No. 27161-R, Jan. 22, 1963). Furthermore, the common carrier,
Francisca Viluan could recover from Aquino any damages that she might have suffered by reason of the latter's
negligence.

Neither may respondents Patricio Hufana and Gregorio Hufana be held liable in the opinion of the appellate court because the
plaintiffs did not amend complaints in the main action so as to assert a claim against the respondents as third party
defendants.

The appellate court likewise disallowed the award of moral damages for P1,000.00 to Carolina Sabado, there being no
showing that the common carrier was guilty of fraud or bad faith in the performance of her obligation. Accordingly, it
rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, we hereby find defendant-appellant Francisca Viluan solely liable to the plaintiffs-
appellees for the damages and attorney's fees awarded to them by the court below and further declare null and void
the lower court's award of moral damages in the amount of P1,000.00 in favor of plaintiff Carolina Sabado. Thus
modified, the judgment appealed from is affirmed in all other respects, with costs in this instance against defendant-
appellant Francisca Viluan.

From this judgment petitioner brought this appeal. In brief, her position is that since the proximate cause of the accident was
found to be the concurrent negligence of the drivers of the two buses, then she and respondent Patricio and Gregorio Hufana
should have been held equally liable to the plaintiffs in the damage suits. The fact that the respondents were not sued as
principal defendants but were brought into the cases as third party defendants should not preclude a finding of their liability.

We agree with petitioner's contention. To begin with, the Court of Appeals' ruling is based on section 5 of Rule 12 of the
former Rules of Court, 1 which was adopted from Rule 14-a of the Federal Rules of Civil Procedure. While the latter provision
has indeed been held to preclude a judgment in favor of a plaintiff and against a third party defendant where the plaintiff has
not amended his complaint to assert a claim against a third party defendant,  2yet, as held in subsequent decisions, this rule
applies only to cases where the third party defendant is brought in on an allegation of liability to the defendants. The rule
does not apply where a third-party defendant is impleaded on the ground of direct liability to the plaintiffs, in which case no
amendment of the plaintiffs complaint is necessary. 3 As explained in the Atlantic Coast Line R. Co. vs. U. S. Fidelity & Guaranty
Co., 52 F. Supp. 177 (1943):

From the sources of Rule 14 and the decisions herein cited, it is clear that this rule, like the admiralty rule, "covers
two distinct subjects, the addition of parties defendant to the main cause of action, and the bringing in of a third
party for a defendant's remedy over." x x x

If the third party complaint alleges facts showing a third party's direct liability to plaintiff on the claim set out in
plaintiff's petition, then third party "shall" make his defenses as provided in Rule 12 and his counterclaims against
 plaintiff as provided in Rule 13. In the case of alleged direct liability, no amendment is necessary or required. The
subject-matter of the claim is contained in plaintiff's complaint, the ground of third party's liability on that claim is
alleged in third party complaint, and third party's defense to set up in his an to plaintiff's complaint. At that point and
without amendment, the plaintiff and third party are at issue as to their rights respecting the claim.

The provision in the rule that, "The third-party defendant may assert any defenses which the third-party plaintiff may
assert to the plaintiff's claim," applies to the other subject, namely, the alleged liability of third party defendant. The
next sentence in the rule, "The third-party defendant is bound by the adjudication of the third party plaintiff's liability
to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff," applies to both subjects. If third
party is brought in as liable only to defendant and judgment is rendered adjudicating plaintiff's right to recover
against defendant and defendant's rights to recover against third party, he is bound by both adjudications. That part
of the sentence refers to the second subject. If third party is brought in as liable to plaintiff, then third party is bound
by the adjudication as between him and plaintiff. That refers to the first subject. If third party is brought in as liable to
plaintiff and also over to defendant, then third party is bound by both adjudications. The next sentence in the rule,
"The plaintiff may amend his pleadings to assert against the third-party defendant any claim which the plaintiff might
have asserted against the third-party defendant had he been joined originally as a defendant," refers to the second
subject, that is, to bringing in third party as liable to defendant only, and does not apply to the alleged liability of third
party directly to plaintiff."

In this case the third-party complaints filed by petitioner and her driver charged respondents with direct liability to the
plaintiffs. It was contended that the accident was due "to the fault, negligence, carelessness and imprudence of the third party
defendant Gregorio Hufana" and, in petitioner's motion for leave to file a third party complaint, it was stated that "Patricio
Hufana and Gregorio Hufana were not made parties to this action, although the defendants are entitled to indemnity and/or
subrogation against them in respect of plaintiff's claim."

It should make no difference therefore whether the respondents were brought in as principal defendants or as third-party
defendants. As Chief Justice Moran points out, since the liability of the third-party defendant is already asserted in the third-
party complaint, the amendment of the complaint to assert such liability is merely a matter of form, to insist on which would
not be in keeping with the liberal spirit of the Rules of Court. 4

Nor should it make any difference that the liability of petitioner springs from contract while that of respondents arises from
quasi-delict. As early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177,5 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.

Wherefore, the decision appealed from is hereby modified in the sense that petitioner as well as respondents Patricio Hufana
and Gregorio Hufana are jointly and severally liable for the damages awarded by the trial court. The disallowance of moral
damages in the amount of P1,000.00 is correct and should be affirmed. No costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Makalintal, Zaldivar and Sanchez, JJ., concur.
Reyes, J.B.L., and Barrera, JJ., took no part.

FIRST DIVISION

[G.R. No. 116624. September 20, 1996]

BALIWAG TRANSIT, INC., petitioner, vs.  COURT OF APPEALS, DIVINA VDA. DE DIONISIO, for herself and in behalf of her
minor children MARK ANGELO and MA. LIZA, both surnamed DIONISIO, respondents.

DECISION
BELLOSILLO, J.:

The wages earned by Mario Dionisio were the lifeblood of his family - his wife Divina and their children Mark Angelo and
Ma. Liza, both minors. A work-related disruption unfortunately abruptly ended the means of livelihood of Mario prompting his
dependent family to sue his employer and a co-employee for damages.
On 2 November 1990, at about 3:30 in the afternoon, petitioner's Baliwag Transit Bus No. 117 was driven by Juanito Fidel
to its terminal on 2nd Avenue, Caloocan City, for repair of its brake system. Juanito Fidel told mechanic Mario Dionisio to
inform the headman about the matter so that proper order to the mechanics could be made. Fidel then alighted from the bus
and told the gasman to fill up the gas tank.
Shortly after, Juanito Fidel returned to the bus and sat on the driver's seat. Suddenly the bus moved; he felt something
was hit. When he went down to investigate he saw Mario Dionisio lying on the ground bleeding and convulsive, sandwiched
between Bus No. 117 and another bus parked thereat owned by the same petitioner. Fidel summoned his co-employees and
they all helped to extricate Mario Dionisio. They rushed him to St. Luke's Hospital in Quezon City. On 6 November
1990 however he expired as evidenced by his Certificate of Death issued 22 November 1990.
Thereafter a complaint for damages was lodged by private respondents Divina Vda. de Dionisio, for herself and in behalf
of her minor children Mark Angelo and Ma. Liza as heirs of the deceased, before the Regional Trial Court of Quezon City.  On 3
February 1993 the trial court rendered a decision ordering petitioner Baliwag Transit, Inc., and its employee Juanito Fidel
jointly and severally to pay the heirs of Mario Dionisio the following amounts: P50,000.00 as death indemnity, P6,691.00 as
litigation expenses, P10,000.00 as attorney's fees, P3,000.00 as funeral expenses, and costs of suit.[1]
Private respondents appealed to the Court of Appeals which on 23 March 1994 rendered a decision modifying the
appealed judgment and ordering petitioners instead to pay jointly and severally P50.000.00 as death
indemnity, P1,429,050.00 for loss of earning capacity, P3,000.00 for funeral expenses, P 60,000.00 for moral
damages, P30,000.00 for exemplary damages, P50,000.00 for attorney's fees, plus the costs of suit. [2] On 8 August 1994 the
motion to reconsider the decision was denied.[3] Hence, this petition.
Petitioners maintain that respondent Court of Appeals erred in affirming the appealed judgment despite the contributory
negligence of the deceased Mario Dionisio, i.e., in failing to take the necessary precaution while doing repair work on the
brake system of Bus No. 117, and that the increase of the award of damages is unreasonable being unsupported by law and
the evidence.
The petition must fail. The circumstances clearly show that the proximate cause of the death of Mario Dionisio was the
negligence of driver Juanito Fidel when he failed to take the necessary precaution to prevent the accident. He boarded his
bus, sat on the driver's seat and was at the steering wheel when the bus moved pinning down the deceased who was
repairing the defective brake system below. Driver Fidel should have known that his brake system was being repaired as he
was in fact the one who told Dionisio to do the repair. Fidel should have parked the bus properly and safely. After alighting
from the bus to tell the gasman to fill the tank, he should have placed a stopper or any hard object against a tire or two of the
bus. But without taking the necessary precaution he boarded Bus No. 117 causing it to move and roll, pinning down the
deceased which resulted in his serious injuries and eventual death. The reckless imprudence of Juanito Fidel makes him liable
to the heirs of offended party for damages together with his employer. Article 2176 of the Civil Code provides -

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delictand is
governed by the provisions of this Chapter.

Complementing Art. 2176 is Art. 2180 which states -

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons
for whom one is responsible x x x x

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business or industry x x x x

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.
 Article 2180, in relation to Art. 2176, of the Civil Code provides that the employer of a negligent employee is liable for the
damages caused by the latter. When an injury is caused by the negligence of an employee there instantly arises a presumption
of the law that there was negligence on the part of the employer either in the selection of his employee or in the supervision
over him after such selection. The presumption however may be rebutted by a clear showing on the part of the employer that
it had exercised the care and diligence of a good father of a family in the selection and supervision of his employee.  Hence, to
escape solidary liability for quasi-delict committed by an employee, the employer must adduce sufficient proof that it
exercised such degree of care.[4] Petitioner's failure to prove that it exercised the due diligence of a good father of a family in
the selection and supervision of its driver Juanito Fidel will make it solidarily liable with the latter for damages caused by him.
As regards the reasonableness of the damages awarded, under Art. 1764, in conjunction with Art. 2206, of the Civil Code,
as well as established jurisprudence, several factors are considered, namely: (a) life expectancy (considering the health of the
deceased and the mortality table being deemed conclusive) and loss of earning capacity; (b) pecuniary loss, loss of support
and service; and, (c) moral and mental sufferings. The loss of earning capacity is based mainly on two factors, namely, the
number of years on the basis of which the damages shall be computed, and the rate at which the loss sustained by the heirs
should be fixed.[5]
Finding discrepancies in the computation of respondent Court of Appeals, we here opine that the correct computation of
the loss of earning capacity of the deceased, considering that he was the sole bread-winner of the family and only 29 years old
when he met his untimely death, should be based on the formula: 2/3 x 51 (80 - 29 [age at time of death]) = life
expectancy. Thus -
P33,273.60 - gross annual income (P2,772.80 x 12 mos.)
Add: 4,244.64 - gross annual allowance (P353.72 x 12 mos.)
3,199.00 - 13th month pay
P40,717.24 - total annual income
Less: 6,000.00 - annual expenses (P500.00 x 12 mos.)
13,776.00 - annual pension (P1,148.00 x 12 mos.)
P20,941.24 - total annual net income
Multiply: 34 - life expectancy of Mario (2/3 x 51 [80 - 29 age at time of death])
P712,002.16 - total loss of earning capacity
Article 2206 grants the spouse, legitimate and illegitimate descendants and ascendants of the deceased moral damages
for mental anguish by reason of death. Indisputably, the heirs of Mario suffered no small amount of mental anguish brought
about by the manner he died and bearing in mind that he was the sole breadwinner of the family.
Article 2231 also awards exemplary damages if the defendant acted with gross negligence, as Juanito did, when he
moved Bus No. 117 without first ascertaining if the repair of its break system was already undertaken.  Exemplary damages
having been awarded, recovery of attorney's fees follows under Art. 2208, par. (1), of the Civil Code.
WHEREFORE, the decision and resolution of respondent Court of Appeals subject of the instant petition are MODIFIED as
follows: petitioner BALIWAG TRANSIT, INC., and JUANITO FIDEL are ordered to pay jointly and severally the heirs of Mario
Dionisio (a) P50,000.00 for death indemnity, (b) P712,002.16 for loss of earning capacity, (c) P3,000.00 for funeral expenses,
(d) P40,000.00 for moral damages, (e) P15,000.00 for exemplary damages (f) P20,000.00 for attorney's fees, and, (g) to pay
the costs of suit.
SO ORDERED.
Padilla, (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ.,  concur.
SECOND DIVISION

[G. R. No. 141089. August 1, 2002]

METRO MANILA TRANSIT CORPORATION and APOLINARIO AJOC, petitioners, vs. THE COURT OF APPEALS and COL. MARTIN
P. SABALBURO, NAPOLEON G. SABALBURO, MARTIN G. SABALBURO, JR., BABY MARIFLOR G. SABALBURO, and
MIRASOL G. SABALBURO, respondents.
DECISION
QUISUMBING, J.:

On appeal is the decision [1] of the Court of Appeals promulgated on August 25, 1999 in CA-G.R. CV No. 45002, which
affirmed in toto the judgment of the Regional Trial Court of Makati, Branch 62, in Civil Case No. 16062. The trial court found
herein petitioners liable for the death of Florentina Sabalburo in a vehicular accident involving a passenger bus owned by
petitioner Metro Manila Transit Corporation (MMTC) and driven by petitioner Apolinario Ajoc, and ordered them to pay
damages to private respondents.
The factual backdrop of this case, as found by the Court of Appeals, is as follows:

The eyewitness account of plaintiffs witness, Maria Zenaida Baylon, tends to show that in the afternoon of December 24,
1986, she, her daughter Maria Zenia and the victim, Florentina Sabalburo, were on their way to Baclaran to buy foodstuffs for
their Noche Buena. For some time, they stood on the island at the intersection of St. Andrews Street [2] and Domestic Road,
[Pasay City] waiting for the traffic light to change so they could cross to the other side of St. Andrews Street where they
intended to take a ride for Baclaran. When the traffic light turned red and the vehicles along St. Andrews Street had stopped,
the three of them stepped off the island. Just as they started to cross the street, she (Baylon) saw an MMTC bus coming from
their right (Tramo) which was moving at a fast speed. The next moment, the left front portion of the bus hit the victim on the
right side of her head. The impact was of such force that the victims right ear was slashed off and she thereupon fell on the
cement and became unconscious. The victim was brought by the bus driver, Apolinario Ajoc and the bus conductress to the
San Juan de Dios Hospital where she was given medical attention. Florentina Sabalburo never regained consciousness and it
was on January 3, 1987 that she succumbed to her injuries.[3]

On February 16, 1987, private respondents filed a complaint [4] for damages against MMTC and its driver, Ajoc, with the
Regional Trial Court of Makati. Docketed as Civil Case No. 16062, the complaint essentially alleged that Ajoc drove the MMTC
bus in a wanton and reckless manner, in gross violation of traffic rules and regulations, without due regard for the safety of
others, thus causing the untimely death of the victim.
Petitioners denied the material allegations of the complaint, disclaimed any liability for the incident, and insisted that the
accident was solely due to the victims own negligence. The appellate court summed up their version of the incident as follows:

xxx

That at the time material to this case, bus no. 033, with defendant Ajoc driving, then bound towards the direction of Baclaran
proper, was slowly accelerating speed on the outer right lane of the road, in response to the go signal of the traffic light
situated in the intersection of Domestic Road [and Andrew Avenue], while the vehicles on the inner right lane which were
going to turn left towards Domestic Road were at a stop position, the deceased FLORENTINA G. SABALBURO, whose stationary
position was then covered from Ajocs peripheral vision by a big truck then bound to MIA Road [that] was at a stop position,
suddenly, without regard to her own safety and in total defiance of traffic signs designed to protect pedestrian[s], suddenly
darted across the road; Ajoc, thus caught by surprise, tried to prevent impact by releasing his accelerator pedal and applying
his brakes but the time lag between the deceaseds negligent act and Ajocs prudent and diligent reaction to the former made
the impact a certainty.[5]

As special and affirmative defenses, petitioners also claimed that:

(1) MMTC hires its drivers, conductors and other employees only after they have successfully passed rigid and extensive
theoretical and practical examinations designed to determine their skills and competenceand imposes upon its drivers the
duty to undergo regular seminars in defensive driving techniques and road safety habits; [6]
(2) MMTC had taken every human care and foresight possible in carrying their passengers safely to their respective place
(sic) of destination as well as in avoiding harm to the life and limbs or risk against pedestrians so that they not be held liable;
[7]
 and
(3) [T]he buses of the defendant corporation, including its bus no. 033 were all properly maintainedbefore the buses left
the garage for their respective routes on that particular day, as in all other days, they were rigidly inspected and examined and
properly certified as roadworthy.[8]
 The trial court found private respondents version more credible and on August 12, 1993, decided the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against defendants as follows:

1. Ordering defendants to jointly and severally pay plaintiff Martin Sabalburo actual damages in the sum of P63,943.88
representing the unpaid expenses of plaintiff in connection with the death of Florentina Sabalburo;

2. Ordering defendants to jointly and severally pay plaintiffs the sum of P180,000.00 for the loss of the earning capacity of the
deceased for a period of ten (10) years;

3. Ordering defendants to jointly and severally pay plaintiff Martin Sabalburo the amount of P500,000.00 as moral damages;

4. Ordering defendants to jointly and severally pay plaintiff Martin Sabalburo the sum of P50,000.00 as exemplary damages;

5. Ordering defendants [to] jointly and severally pay plaintiff Martin Sabalburo the sum of P50,000.00 as attorneys fees;

6. Ordering defendants jointly and severally to pay plaintiffs the costs of this suit.

SO ORDERED.[9]

Petitioners seasonably appealed to the Court of Appeals, which docketed their appeal as CA-G.R. CV No. 45002. Before
the appellate court, petitioners insisted that the accident was solely the fault of the victim since she suddenly crossed a very
busy street with complete disregard for her safety and in violation of traffic rules and regulations designed to protect
pedestrians.
As earlier stated, the appellate court, in CA-G.R. CV No. 45002, affirmed the trial courts decision, thus:

IN JUDGMENT, we hold that the appeal interposed by appellants is not meritorious and the judgment of the lower court which
we find to be in accordance with law and the evidence is therefore AFFIRMED in toto. Costs against appellants.

SO ORDERED.[10]

Petitioners then moved for reconsideration, but the appellate court denied their motion in its resolution of December 10,
1999.[11]
Hence, the present petition.
Petitioners submit as sole issue for our resolution the following:

WHETHER OR NOT ARTICLE 2179[12] AS AN EXCEPTION TO ARTICLE 2176 [13] OF THE CIVIL CODE IS APPLICABLE IN THE INSTANT
CASE.

Petitioners insist that a closer look at the facts established by the trial court would show that the incident happened at
around 3:30 in the afternoon of December 24, 1986 or barely eight (8) hours before Christmas Eve.Thus, the victims thoughts
were naturally directed towards the Noche Buena. The victim then crossed busy Andrew Avenue for the purpose of getting a
ride to Baclaran to buy food for the Christmas Eve celebration. Since her thoughts were on the Christmas Eve feast, she
crossed where there was no pedestrian lane and while the green light for vehicular traffic was on. Petitioner MMTC submits
that petitioner Ajoc cannot be charged with negligence considering that he cannot see what is in the mind of a
pedestrian. Considering that the victims own negligence was the direct and proximate cause of her injuries and untimely
demise, it was error for the Court of Appeals not to have applied Article 2179 of the Civil Code to the instant case.
Petitioners claim that at the time of the incident, the victims mind was preoccupied with the preparations for the  Noche
Buena, is naught but pure conjecture and speculation, with nary a scintilla of proof to support it, according to
respondents. Both the trial and appellate courts established that the immediate and proximate cause of the victims death was
the negligent and careless driving by petitioner Ajoc. Therefore, the full force of Article 2176 of the Civil Code applies,
concluded respondents.
 In asking us to apply Article 2179 of the Civil Code, we note that petitioners are asking us to make a finding that the
victims own negligence was the direct and proximate cause of her death. This we cannot do. The issue of whether a person is
negligent or not is a question of fact. [14] The Supreme Court is not a trier of facts, [15] although it has the power and authority to
review and reverse the factual findings of lower courts where these do not conform to the evidence [16] or where the courts
below came up with contradictory factual findings.[17]
We have thoroughly perused the records of this case, and nowhere do we find evidence to support petitioners claim that
the victim was so engrossed in thinking about Noche Buena while crossing a busy street.Petitioners stance regarding the
victims alleged negligence is non sequitur. It simply does not follow that one who is run over by a vehicle on Christmas Eve (or
any other holiday for that matter) is negligent because his thoughts were on the holiday festivities.
Instead, the records support private respondents claim that the MMTC bus was being driven carelessly. As found by the
trial court and affirmed by the Court of Appeals, the victim and her companions were standing on the island of Andrew
Avenue, waiting for the traffic light to change so they could cross. Upon seeing the red light, the victim and her companions
started to cross. It was then when petitioner Ajoc, who was trying to beat the red light, hit the victim. As the court a
quo noted, Ajocs claim that he failed to see the victim and her companions proves his recklessness and lack of caution in
driving his vehicle.[18] Findings of fact of the trial court, especially when affirmed by the Court of Appeals, are binding and
conclusive on the Supreme Court.[19] More so, as in this case, where petitioners have not adequately shown that the courts
below overlooked or disregarded certain facts or circumstances of such import as would have altered the outcome of the
case. Contrary to petitioners insistence, the applicable law in this case is Article 2176 of the Civil Code and not Article 2179.
Petitioner MMTC next contends that the Court of Appeals erred in finding it solidarily liable for damages with its
driver/employee, Ajoc, pursuant to the relevant paragraphs of Article 2180 [20] of the Civil Code. It argues that the act of Ajoc in
bringing the victim to a hospital reflects MMTCs diligence in the selection and supervision of its drivers, particularly with
regard to safety measures. Hence, having exercised the diligence of a good father of a family in the selection and supervision
of its employees to prevent damage, MMTC should not be held vicariously liable.
It should be stressed, however, that whenever an employees negligence causes damage or injury to another, there
instantly arises a presumption juris tantum that there was negligence on the part of the employer, either in the selection of
the employee (culpa in eligiendo) or the supervision over him after the selection (culpa in vigilando).[21] Hence, to escape
solidary liability for a quasi-delict committed by his employee, an employer must rebut the presumption by presenting
convincing proof that in the selection and supervision of his employee, he has exercised the care and diligence of a good
father of a family.[22] In the present case, petitioner MMTC failed to rebut the presumption of negligence on its part.
The claim that Ajocs act of bringing the victim to the nearest medical facility shows adequate supervision by MMTC over
its employees deserves but scant consideration. For one, the act was after the fact of negligence on Ajocs part. For another,
the evidence on record shows that Ajocs act was neither voluntary nor spontaneous; he had to be prevailed upon by the
victims companions to render assistance to his victim. [23] Moreover, the evidence to show that MMTC had exercised due
diligence in the selection and supervision of its employees consisted merely of the pertinent guidelines for the screening and
selection of its drivers, as well as periodic seminars on road safety. As found by the trial court, and affirmed by the appellate
court, petitioner MMTC failed to show that its driver, Ajoc, had actually undergone such screening or had attended said
seminars. As previously held, [t]he mere formulation of various company policies on safety without showing that they were
being complied with is not sufficient to exempt (an employer) from liability arising from negligence of its employees. It is
incumbent upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures and
company policies on efficiency and safety were followed. [24] In this case, MMTC has made no satisfactory showing that it had
paid more than lip service to its guidelines and policies in hiring and supervision. Its failure to do so cannot but warrant the
proper sanctions from this Court, considering that MMTC is a government-owned public utility organized for the public
welfare. Having failed to rebut the presumption of negligence on its part, MMTC is primarily and directly liable for the
damages caused by its employee, the erring driver, Ajoc, pursuant to Article 2180 of the Civil Code, which provides as follows:

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.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children
who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their
company.
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees
in the service of the branches in which the latter are employed or on the occasion of their functions.

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.

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students
or apprentices, so long as they remain in their custody.

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.

The owners of public utilities fall within the scope of this article. [25] As earlier stated, MMTC is a public utility, organized
and owned by the government for public transport service. Hence, its liability to private respondents, for the negligent and
reckless acts of its driver, Ajoc, under Article 2180 of the Civil Code is both manifest and clear.
WHEREFORE, the instant petition is DISMISSED. The assailed decision of the Court of Appeals in CA-G.R. CV No. 45002 is
AFFIRMED. Costs against petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31, 1991, reversing the contrary
decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Eliza
Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

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. She sustained a
fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the fracture,
long leg circular casting, and case wedging were done under sedation. Her confinement in the hospital lasted from August 23
to September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a
cast for a period of three months and would have to ambulate in crutches during said period.

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.

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was
the driver of the Isuzu truck who was responsible for the accident. 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.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of action was
based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under
the Civil Code. The appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the 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. He contends that the bumping of the jeepney by the truck owned by Salva was a  caso
fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for
quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle ofres judicata does not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. 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. The first, quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual,
is premised upon the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action,
whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that
the obligor, in this case the common carrier, failed to transport his passenger safely to his destination. 2 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.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for
the damage to petitioner's jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision
between the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only
in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person
where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where
there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the
function of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard to the safety of
passengers as well as the presumption of negligence in cases of death or injury to passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and
1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in
articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault
or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed by
articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty
of petitioner to prove that he had to observe extraordinary diligence in the care of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost
diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so.
Several factors militate against petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters
from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the
R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such a manner as to obstruct or
impede the passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading
freight, obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of the jeepney, a
violation of §32(a) of the same law. It provides:

Exceeding registered capacity. — No person operating any motor vehicle shall allow more passengers or
more freight or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers
were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the
injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted to an
implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is
also true of petitioner's contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable. 3 This requires that the
following requirements be present: (a) the cause of the breach is independent of the debtor's will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation in a normal
manner, and (d) the debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the
highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find this
contention well taken.

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at
the Silliman University, majoring in Physical Education. Because of the injury, she was not able to enroll in the
second semester of that school year. She testified that she had no more intention of continuing with her
schooling, because she could not walk and decided not to pursue her degree, major in Physical Education
"because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of
her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual
bowing of the fracture side." She likewise decided not to further pursue Physical Education as her major
subject, because "my left leg . . . has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered.
Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00,
which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not
one of the items enumerated under Art. 2219 of the Civil Code. 5 As an exception, such damages are recoverable: (1) in cases in
which the mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and
(2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220. 6

In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that
petitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that petitioner's admission in
open court that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was
utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition by Verena that he was the one
at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are
AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-21438             September 28, 1966

AIR FRANCE, petitioner, 
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila  1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral
damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class
for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of
the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10,
and voted to affirm the appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30,
1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to
plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in
"first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that
he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to
be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion
ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class;
when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of
May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane. 3

1. The trust of the relief petitioner now seeks is that we review "all the findings"  4 of respondent Court of Appeals. Petitioner
charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked
to consider facts favorable to petitioner, and then, to overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing
therein clearly and distinctly the facts and the law on which it is based".  5 This is echoed in the statutory demand that a
judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based";  6 and
that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it".  7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack.  8 The law, however, solely insists that a
decision state the "essential ultimate facts" upon which the court's conclusion is drawn.  9 A court of justice is not hidebound to
write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is
it to be burdened with the obligation "to specify in the sentence the facts"which a party "considered as proved". 11 This is but a
part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with
details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary
facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to
the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere
failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not
sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without
taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would
not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters
within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate
facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16They consist of the
court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been
declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That
judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the
questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner
asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent
knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection;
that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would
depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its
third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a
right to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of business that the company should know whether or riot
the tickets it issues are to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see
plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed
plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
 A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx     xxx     xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for,
and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit
to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B",
"B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first
class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class"
accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal
understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in
Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals  in all other respects. We
hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and
"all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached
this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of
fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What
security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the
very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a
schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word
could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the
ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat
the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals
predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok,
which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that
respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to
see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if
another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is
planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad
faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the
complaint bearing on this issue are:

3. That ... plaintiff entered into a contract  of air carriage with the Philippine Air Lines for a valuable consideration, the
latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to,
 as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant
furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were
made by the plaintiff with defendant's employees.

5. That finally, defendant  failed to provide  First Class passage, but instead furnished plaintiff only TouristClass
accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelledby defendant's
employees to leave the First Class accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from
Madrid to Manila.32

xxx     xxx     xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33

xxx     xxx     xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage
covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish
first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to
leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of
which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety,
wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the
term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set
forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on
wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what
Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was oustedby petitioner's manager who
gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient
averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the
evidence. An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court
of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry
made by the purser of the plane in his notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who
was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy
that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy
for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but
defendant did neither. 37
The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken,
surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the
humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white
man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting
the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably
was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the
meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class.
Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant,
testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with
you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat
occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any
right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he
paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could
have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not
do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e),
Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the
Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out
of the plane if he did not give up his "first class" seat because the said Manager wanted to accommodate,
using the words of the witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him
from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad
faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind
affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith  in the judgment of the Court of
First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with
the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the
plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class"
seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom
he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man"
had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for
which the corresponding "first class" ticket was issued by the defendant to him. 40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law.  41 For
the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:
 ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10),
Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43And this,
because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious
language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees
towards a passenger gives the latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right
of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment
under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although
the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract
may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his
fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train
reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme
Court of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is
placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case of  quasi-delict.
Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight attendants
approached me and requested from me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also
said, "You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I
went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my
notebook." He read it and translated it to me — because it was recorded in French — "First class passenger was
forced to go to the tourist class against his will, and that the captain refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your
Honor.
 COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class
passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon
evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but
the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is
admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was
still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are
admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the
declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay
rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy
matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the
deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages — in
contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this
legal precept. And this, in addition to moral damages. 54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys'
fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We
do not intend to break faith with the tradition that discretion well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as
moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts
is primarily with the trial court.  56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest
that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof. 57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to
affirm the same. Costs against petitioner. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-48006             July 8, 1942

FAUSTO BARREDO, petitioner, 
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.
BOCOBO, J.:

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

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas, Province of Rizal, there was
a head-on collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis.
The carretela was overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died
two days later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted and
sentenced to an indeterminate sentence of one year and one day to two years of  prision correccional. The court in the
criminal case granted the petition that the right to bring a separate civil action be reserved. The Court of Appeals affirmed the
sentence of the lower court in the criminal case. Severino Garcia and Timotea Almario, parents of the deceased on March 7,
1939, brought an action in the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate
Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded damages in favor of
the plaintiffs for P2,000 plus legal interest from the date of the complaint. This decision was modified by the Court of Appeals
by reducing the damages to P1,000 with legal interest from the time the action was instituted. It is undisputed that Fontanilla
's negligence was the cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:

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

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

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

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

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

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

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

CIVIL CODE

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

xxx     xxx     xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the provisions of the Penal
Code.

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

xxx     xxx     xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable
for the damage so done.

ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal acts and
omissions, but also for those of persons for whom another is responsible.

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

Guardians are liable for damages done by minors or incapacitated persons subject to their authority and living with
them.

Owners or directors of an establishment or business are equally liable for any damages caused by their employees
while engaged in the branch of the service in which employed, or on occasion of the performance of their duties.

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

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

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

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

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly liable.
 ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability established in
subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code does not include exemption
from civil liability, which shall be enforced to the following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or insane
person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted
without discernment shall devolve upon those having such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal guardianship, or control,
or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they may have received.

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

When the respective shares can not be equitably determined, even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has been caused with
the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or
regulations.

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

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment. — In default of
persons criminally liable, innkeepers, tavern keepers, and any other persons or corporation shall be civilly liable for
crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their employees.

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

ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next preceding article
shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

xxx     xxx     xxx

ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it
been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period; if it would have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a
less serious felony, the penalty of arresto mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to cover the driver's
negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or omissions "not punishable by law." But
inasmuch as article 365 of the Revised Penal Code punishes not only reckless but even simple imprudence or negligence, the
fault or negligence under article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study shows that such a concurrence of scope in regard to negligent acts
does not destroy the distinction between the civil liability arising from a crime and the responsibility for cuasi-delitos or culpa
extra-contractual. The same negligent act causing damages may produce civil liability arising from a crime under article 100 of
the Revised Penal Code, or create an action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the Civil
Code.

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

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

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

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

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

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

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

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol. XXVII, p. 414) says:

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

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

Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains
belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the latter had been
prosecuted in a criminal case, in which the company had been made a party as subsidiarily responsible in civil damages. The
employee had been acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The
question asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del
Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece sostenible que
exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el choque
de los trenes. El titulo en que se funda la accion para demandar el resarcimiento, no puede confundirse con las
responsabilidades civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas
agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada por delito o falta en los
derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que cual la pena misma atañen al orden
publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro regimen),
dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daños o perjuicios, en que
intervenga culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de lo civil
cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del
Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la materia de
responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una
de las diferenciaciones que en el tal paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los que
sean por diversos conceptos culpables del delito o falta, las hacen extensivas a las empresas y los establecimientos al
servicio de los cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto de
los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion
que impone el articulo anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas
personas de quienes se debe responder; personas en la enumeracion de las cuales figuran los dependientes y
empleados de los establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones. Por esto
acontece, y se observa en la jurisprudencia, que las empresas, despues de intervenir en las causas criminales con el
caracter subsidiario de su responsabilidad civil por razon del delito, son demandadas y condenadas directa y
aisladamente, cuando se trata de la obligacion, ante los tribunales civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen judicial
la separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de fondo en
distintos cuerpos legales, y diferentes modos de proceder, habiendose, por añadidura, abstenido de asistir al juicio
criminal la Compañia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni
fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no
hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion quedaba legitimamente reservada para despues
del proceso; pero al declararse que no existio delito, ni responsabilidad dimanada de delito, materia unica sobre que
tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas
que la accion para pedir su cumplimiento permanece incolume, extraña a la cosa juzgada.

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

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

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

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

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

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

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

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas personas por las
que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es necesario saber, en primer
lugar, en que se funda el precepto legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi
parece a primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que las
faltas son personales, y cada uno responde de aquellas que le son imputables. La responsabilidad de que tratamos se
impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por causa del causi delito, esto es, de la
imprudencia o de la negligencia del padre, del tutor, del dueño o director del establecimiento, del maestro, etc.
Cuando cualquiera de las personas que enumera el articulo citado (menores de edad, incapacitados, dependientes,
aprendices) causan un daño, la ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de
negligencia para prevenir o evitar el daño. Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un
 hecho ajeno, sino en la apariencia; en realidad la responsabilidad se exige por un hecho propio. La idea de que esa
responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons for who one is
responsible, subsidiary or principal? In order to answer this question it is necessary to know, in the first place, on
what the legal provision is based. Is it true that there is a responsibility for the fault of another person? It seems so at
first sight; but such assertion would be contrary to justice and to the universal maxim that all faults are personal, and
that everyone is liable for those faults that can be imputed to him. The responsibility in question is imposed on the
occasion of a crime or fault, but not because of the same, but because of the cuasi-delito, that is to say, the
imprudence or negligence of the father, guardian, proprietor or manager of the establishment, of the teacher, etc.
Whenever anyone of the persons enumerated in the article referred to (minors, incapacitated persons, employees,
apprentices) causes any damage, the law presumes that the father, guardian, teacher, etc. have committed an act of
negligence in not preventing or avoiding the damage. It is this fault that is condemned by the law. It is, therefore, only
apparent that there is a responsibility for the act of another; in reality the responsibility exacted is for one's own act.
The idea that such responsibility is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español," says in Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del articulo 1902; mas
por excepcion, se responde de la ajena respecto de aquellas personas con las que media algun nexo o vinculo, que
motiva o razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de
esta clase distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo 19) y
subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa,
por el tenor del articulo que impone la responsabilidad precisamente "por los actos de aquellas personas de quienes
se deba responder."

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

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

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

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al
condonar a la compañia Electrica Madrileña al pago del daño causado con la muerte de Ramon La fuente Izquierdo,
desconoce el valor y efectos juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el
mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la
de lo criminal declrao dentro de los limites de su competencia que el hecho de que se trata no era constitutivo de
delito por no haber mediado descuido o negligencia graves, lo que no excluye, siendo este el unico fundamento del
fallo absolutorio, el concurso de la culpa o negligencia no califacadas, fuente de obligaciones civiles segun el articulo
1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los Directores de establecimientos o
 empresas por los daños causados por sus dependientes en determinadas condiciones, es manifesto que la de lo civil,
al conocer del mismo hehco baho este ultimo aspecto y al condenar a la compañia recurrente a la indemnizacion del
daño causado por uno de sus empleados, lejos de infringer los mencionados textos, en relacion con el articulo 116 de
la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion
propia, ni contrariar en lo mas minimo el fallo recaido en la causa.

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

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

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

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

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

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

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

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

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

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

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

The above case is pertinent because it shows that the same act may come under both the Penal Code and the Civil Code. In
that case, the action of the agent was unjustified and fraudulent and therefore could have been the subject of a criminal
action. And yet, it was held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be
noted that it was the employer and not the employee who was being sued.

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

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

It is contended by the defendant, as its first defense to the action that the necessary conclusion from these collated
laws is that the remedy for injuries through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the
plaintiff should have procured the arrest of the representative of the company accountable for not repairing the
track, and on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by
his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes
obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter II of Title
XVI. Section 1902 of that chapter reads:

"A person who by an act or omission causes damage to another when there is fault or negligence shall be
obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who
live with them.

xxx     xxx     xxx

"Owners or directors of an establishment or enterprise are equally liable for the damages caused by their
employees in the service of the branches in which the latter may be employed or in the performance of their
duties.

xxx     xxx     xxx

"The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage."

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our
general statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His
obligation therefore is one 'not punished by the laws' and falls under civil rather than criminal jurisprudence. But the
answer may be a broader one. We should be reluctant, under any conditions, to adopt a forced construction of these
scientific codes, such as is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants against their will from the civil courts, would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain
(Ley de Enjuiciamiento Criminal), which, though never in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might be prosecuted
jointly or separately, but while the penal action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith, unless it had been waived by the party injured
or been expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising
out of a crime that could be enforced only on private complaint, the penal action thereunder should be extinguished.
These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citation of these articles suffices to show that the
civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for a negligent act or omission, it is not required that the
injured party should seek out a third person criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of
criminal actions against his employees only while they are in process of prosecution, or in so far as they determine the
existence of the criminal act from which liability arises, and his obligation under the civil law and its enforcement in
the civil courts is not barred thereby unless by the election of the injured person. Inasmuch as no criminal proceeding
had been instituted, growing our of the accident in question, the provisions of the Penal Code can not affect this
action. This construction renders it unnecessary to finally determine here whether this subsidiary civil liability in penal
actions has survived the laws that fully regulated it or has been abrogated by the American civil and criminal
procedure now in force in the Philippines.
 The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have
arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to
the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability
of an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from
negligence punished by the law, within the meaning of articles 1902 and 1093. More than this, however, it cannot be
said to fall within the class of acts unpunished by the law, the consequence of which are regulated by articles 1902
and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those not growing out
of pre-existing duties of the parties to one another. But where relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of those duties are subject to articles 1101, 1103, and 1104
of the same code. A typical application of this distinction may be found in the consequences of a railway accident due
to defective machinery supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage, while that to the injured bystander would
originate in the negligent act itself.

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

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

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

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso vs. House and
Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion Bernal, brought a civil action
to recover damages for the child's death as a result of burns caused by the fault and negligence of the defendants. On the
evening of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to attend the same. After the procession the mother and the
daughter with two others were passing along Gran Capitan Street in front of the offices of the Tacloban Electric & Ice Plant,
Ltd., owned by defendants J. V. House, when an automobile appeared from the opposite direction. The little girl, who was
slightly ahead of the rest, was so frightened by the automobile that she turned to run, but unfortunately she fell into the
street gutter where hot water from the electric plant was flowing. The child died that same night from the burns. The trial
courts dismissed the action because of the contributory negligence of the plaintiffs. But this Court held, on appeal, that there
was no contributory negligence, and allowed the parents P1,000 in damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric plant. This Court said in part:
 Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order the
dismissal of the action because of the contributory negligence of the plaintiffs. It is from this point that a majority of
the court depart from the stand taken by the trial judge. The mother and her child had a perfect right to be on the
principal street of Tacloban, Leyte, on the evening when the religious procession was held. There was nothing
abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the
coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water.
The doctrine announced in the much debated case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still
rule. Article 1902 of the Civil Code must again be enforced. The contributory negligence of the child and her mother, if
any, does not operate as a bar to recovery, but in its strictest sense could only result in reduction of the damages.

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

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

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

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

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

"The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage."

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

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant.

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

The master is liable for the negligent acts of his servant where he is the owner or director of a business or enterprise
and the negligent acts are committed while the servant is engaged in his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18
(year 1930). The latter case was an action for damages brought by Cuison for the death of his seven-year-old son Moises. The
little boy was on his way to school with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the boy
underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an
employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless negligence and were
sentenced accordingly. This Court, applying articles 1902 and 1903, held:

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

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

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

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

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila vs. Manila Electric Co.,
52 Phil., 586 (year 1928). A collision between a truck of the City of Manila and a street car of the Manila Electric Co. took place
on June 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the
crime of damage to property and slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine
of P900, to indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to collect
the indemnity from Eustaquio, the City of Manila filed an action against the Manila Electric Company to obtain payment,
claiming that the defendant was subsidiarily liable. The main defense was that the defendant had exercised the diligence of a
good father of a family to prevent the damage. The lower court rendered judgment in favor of the plaintiff. This Court held, in
part, that this case was governed by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the provisions of the Penal Code
govern. The Penal Code in easily understandable language authorizes the determination of subsidiary liability. The
Civil Code negatives its application by providing that civil obligations arising from crimes or misdemeanors shall be
governed by the provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling under
article 604 of the Penal Code. The act of the motorman was not a wrongful or negligent act or omission not
punishable by law. Accordingly, the civil obligation connected up with the Penal Code and not with article 1903 of the
Civil Code. In other words, the Penal Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a
case of criminal negligence out of which civil liability arises and not a case of civil negligence.

xxx     xxx     xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as pointed out
by the trial judge, any different ruling would permit the master to escape scot-free by simply alleging and proving that
the master had exercised all diligence in the selection and training of its servants to prevent the damage. That would
be a good defense to a strictly civil action, but might or might not be to a civil action either as a part of or predicated
on conviction for a crime or misdemeanor. (By way of parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our deliberations to the effect that article 0902 of the Civil
Code should be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court of Appeals based its decision
in the present case on the defendant's primary responsibility under article 1903 of the Civil Code and not on his subsidiary
liability arising from Fontanilla's criminal negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is
predicated on an entirely different theory, which is the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the present case is the employer's primary
liability under article 1903 of the Civil Code. We have already seen that this is a proper and independent remedy.

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

In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil liability
established in article 1903 of the Civil Code for all who have acted with the diligence of a good father of a family, is
not applicable to the subsidiary civil liability provided in article 20 of the Penal Code.

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

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

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

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

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

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were to hold that
articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of
article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life.
Death or injury to persons and damage to property through any degree of negligence — even the slightest — would have to
be indemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would
remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than the
spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such
ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code.

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

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

At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to avoid
injury to the public. It is the masters or employers who principally reap the profits resulting from the services of these servants
and employees. It is but right that they should guarantee the latter's careful conduct for the personnel and patrimonial safety
of others. As Theilhard has said, "they should reproach themselves, at least, some for their weakness, others for their poor
selection and all for their negligence." And according to Manresa, "It is much more equitable and just that such responsibility
should fall upon the principal or director who could have chosen a careful and prudent employee, and not upon the injured
person who could not exercise such selection and who used such employee because of his confidence in the principal or
director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third
persons the employer and employee "vienen a ser como una sola personalidad, por refundicion de la del dependiente en la de
quien le emplea y utiliza." ("become as one personality by the merging of the person of the employee in that of him who
employs and utilizes him.") All these observations acquire a peculiar force and significance when it comes to motor accidents,
and there is need of stressing and accentuating the responsibility of owners of motor vehicles.

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

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

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-8171             August 16, 1956

EMILIO MANALO and CARLA SALVADOR, plaintiffs-appellees, 
vs.
ROBLES TRANSPORTATION COMPANY, INC., defendant-appellant.

Cornelio S. Ruperto and Lazaro Pormarejo for appellant.

San Juan, Africa, Yñiguez and Benedicto for appellees.

MONTEMAYOR, J.:

Robles Transportation Company, Inc., later referred to as the Company, is appealing from the decision of the Court of First
Instance of Rizal, civil case No. 2013, ordering it to pay plaintiffs Emilio Manalo and his wife, Clara Salvador, the sum of P3,000
with interest at 12 per cent per annum from November 14, 1952 plus the amount of P600 for attorney's fee and expenses of
litigation, with cost.

The facts involved in this case are simple and without dispute. On August 9, 1947, a taxicab owned and operated by defendant
appellant Company and driven by Edgardo Hernandez its driver, collided with a passenger truck at Parañaque, Rizal. In the
course of and a result of the accident, the taxicab ran over Armando Manalo, an eleven year old, causing him physical injuries
which resulted in his death several days later. Edgardo Hernandez was prosecuted for homicide through reckless imprudence
and after trial was found guilty of the charge and sentenced to one year prision correccional, to indemnify the heirs of the
deceased in the amount of P3,000, in the case of insolvency to suffer subsidiary imprisonment, and to pay costs. Edgardo
Hernandez served out his sentence but failed to pay the indemnity. Two writs of execution were issued against him to satisfy
the amount of the indemnity, but both writs were returned unsatisfied by the sheriff who certified that property, real or
personal in Hernandez" name could be found.

On February 17, 1953, plaintiffs Emilio Manalo and his wife Clara Salvador, father and mother respectively of Armando filed
the present action against the Company to enforce its subsidiary liability, pursuant to Articles 102 and 103 of the Revised
Penal Code. The Company filed its appearance and answer and later an amended answer with special defenses and
counterclaim. It also filed a motion to dismiss the complaint unless and until the convicted driver Hernandez was included as a
party defendant, the Company considering him an indispensable party. The trial court denied the motion to dismiss, holding
that Hernandez was not an indispensable party defendant. Dissatisfied with this ruling, the Company filed certiorari
proceedings with the Court of Appeals, but said appellate court held that Hernandez was not an indispensable party
defendant, and consequently, the trial court in denying the motion to dismiss acted within the proper limits of its discretion.
Eventually, the trial court rendered judgment sentencing the defendant Company to pay to plaintiffs damages in the amount
P3,000 with interest at 12 per cent per annum from November 14, 1952, plus P600 for attorney's fee and expenses for
litigation, with cost. As aforesaid, the Company is appealing from this decision.

To prove their case against the defendant Company, the plaintiffs introduced a copy of the decision in the criminal case
convicting Hernandez of homicide through reckless imprudence, the writs of execution to enforce the civil liability, and the
returns of the sheriff showing that the two writs of execution were not satisfied because of the insolvency of Hernandez, the
sheriff being unable to locate any property in his name. Over the objections of the Company, the trial court admitted this
evidence and based its decision in the present case on the same.

Defendant-appellant now contends that this kind of evidence is inadmissible and cities in support of its contention the cases
of City of Manila vs. Manila Electric Company (52 Phil., 586), and Arambulo vs. Manila Electric  decided by this tribunal in the
case of Martinez vs. Barredo (81 Phil., 1). After considering the same two cases now cited by appellant, this court held that
the judgment of conviction, in the absence of any collusion between the defendant and offended party, is binding upon the
party subsidiarily liable.

The appelant also claims that in admitting as evidence the sheriff's return of the writs of execution to prove the insolvency of
Hernandez, without requiring said opportunity to cross-examine said sheriff. A sheriff's return is an official statement made by
a public official in the performance of a duty specially enjoined by the law and forming part of official records, and is   prima
facie evidence of the facts stated therein. (Rule 39, section 11 and Rule 123, section 35, Rules of Court.) The sheriff's making
the return need not testify in court as to the facts stated in his entry. In the case of Antillon vs. Barcelon, 37 Phil., 151 citing
Wigmore on Evidence, this court said:
 To the foregoing rules with reference to the method of proving private documents an exception is made with
reference to the method of proving public documents executed before and certified to, under the land of seal of
certain public officials. The courts and the legislature have recognized the valid reason for such an exception. The
litigation is unlimited in which testimony by officials is daily needed, the occasion in which the officials would be
summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily
work something is not done in which testimony is not needed from official statements, host of official would be found
devoting the greater part of their time to attending as witness in court or delivering their depositions before an
officer. The work of Administration of government and the interest of the public having business with officials would
alike suffer in consequence.

And this Court added:

The law reposes a particular confidence in public officers that it presumes they will discharge their several trust with
accuracy and fidelity; and therefore, whatever acts they do in discharge of their public duty may be given in evidence
and shall be taken of their public duty may be given in evidence and shall be taken to be true under such a degree of
caution as the nature and circumstances of each a case may appear to require.

The appellant also contends that Article 102 and 103 of the Revised Penal Code were repealed by the New Civil Code,
promulgated in 1950, particularly, by the repealing clause under which comes Article 2270 of the said code. We find the
contention untenable. Article 2177 of the New Civil Code expressly recognizes civil liabilities arising from negligence under the
Penal Code, only that it provides that plaintiff cannot recover damages twice for the same act of omission of the defendant.

ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the
civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the
same act of omission of the defendant.

Invoking prescription, appellant claims that the present action is barred by the Statute of Limitations for the reason that it is
an action either upon a quasi delict, and that according to Article 1146 of the New Civil Code, such action must be instituted
within four years. We agree with the appellee that the present action is based upon a judgement, namely, that in the criminal
case, finding Hernandez guilty of homicide through reckless imprudence and sentencing him to indemnify the heirs of the
deceased in the sum of P3,000, and, consequently may be instituted within ten years.

As regards the other errors assigned by appellant, we find it unnecessary to discuss and rule upon them.

Finding the decision appealed from to be in accordance with law, the same is hereby affirmed, with costs.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 66102-04 August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner, 

vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO PASCUA, ET AL., respondents.

Santiago & Santiago for petitioner.

Federico R. Vinluan for private respondents.

 
MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of Appeals) dated July
29, 1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887 which reversed the decision of the Court of First Instance (now
Regional Trial Court) of Pangasinan dated December 27, 1978; and its resolution dated November 28, 1983 denying the
motion for reconsideration.

It is an established principle that the factual findings of the Court of Appeals are final and may not be reviewed by this Court
on appeal. However, this principle is subject to certain exceptions. One of these is when the findings of the appellate court are
contrary to those of the trial court (see Sabinosa v. The Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in
which case, a re-examination of the facts and evidence may be undertaken. This is Our task now.

The antecedent facts are as follows:

About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua, Caridad Pascua, Adelaida Estomo, Erlinda
Meriales, Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas boarded the jeepney owned by spouses Isidro Mangune
and Guillerma Carreon and driven by Tranquilino Manalo at Dau, Mabalacat, Pampanga bound for Carmen, Rosales,
Pangasinan to spend Christmas at their respective homes. Although they usually ride in buses, they had to ride in a jeepney
that day because the buses were full. Their contract with Manalo was for them to pay P24.00 for the trip. The private
respondents' testimonial evidence on this contractual relationship was not controverted by Mangune, Carreon and Manalo,
nor by Filriters Guaranty Assurance Corporation, Inc., the insurer of the jeepney, with contrary evidence. Purportedly riding on
the front seat with Manalo was Mercedes Lorenzo. On the left rear passenger seat were Caridad Pascua, Alejandro Morales
and Zenaida Parejas. On the right rear passenger seat were Catalina Pascua, Adelaida Estomo, and Erlinda Meriales. After a
brief stopover at Moncada, Tarlac for refreshment, the jeepney proceeded towards Carmen, Rosales, Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of the jeepney was detached, so it was running in an
unbalanced position. Manalo stepped on the brake, as a result of which, the jeepney which was then running on the eastern
lane (its right of way) made a U-turn, invading and eventually stopping on the western lane of the road in such a manner that
the jeepney's front faced the south (from where it came) and its rear faced the north (towards where it was going). The
jeepney practically occupied and blocked the greater portion of the western lane, which is the right of way of vehicles coming
from the north, among which was Bus No. 753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos
Reyes. Almost at the time when the jeepney made a sudden U-turn and encroached on the western lane of the highway as
claimed by Rabbit and delos Reyes, or after stopping for a couple of minutes as claimed by Mangune, Carreon and Manalo, the
bus bumped from behind the right rear portion of the jeepney. As a result of the collision, three passengers of the jeepney
(Catalina Pascua, Erlinda Meriales and Adelaida Estomo) died while the other jeepney passengers sustained physical injuries.
What could have been a festive Christmas turned out to be tragic.

The causes of the death of the three jeepney passengers were as follows (p. 101, Record on Appeal):

The deceased Catalina Pascua suffered the following injuries, to wit: fracture of the left parietal and temporal
regions of the skull; fracture of the left mandible; fracture of the right humenous; compound fracture of the
left radious and ullma middle third and lower third; fracture of the upper third of the right tibia and fillnea;
avulsion of the head, left internal; and multiple abrasions. The cause of her death was shock, secondary to
fracture and multiple hemorrhage. The fractures were produced as a result of the hitting of the victim by a
strong force. The abrasions could be produced when a person falls from a moving vehicles (sic) and rubs parts
of her body against a cement road pavement. . . .

Erlinda Mariles (sic) sustained external lesions such as contusion on the left parietal region of the skull;
hematoma on the right upper lid; and abrasions (sic) on the left knee. Her internal lesions were: hematoma
on the left thorax; multiple lacerations of the left lower lobe of the lungs; contusions on the left lower lobe of
the lungs; and simple fractures of the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs, left. The forcible impact of the
jeep caused the above injuries which resulted in her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy of Dr. Panlasiqui was due to shock
due to internal hemorrhage, ruptured spleen and trauma. . . .
Caridad Pascua suffered physical injuries as follows (p. 101, Record on Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on the forehead, multiple abrasions on
the forearm, right upper arm, back and right leg. . . .

The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac, upon arrival at the scene of the mishap,
prepared a sketch (common exhibit "K" for private respondents "19" for Rabbit) showing the relative positions of the two
vehicles as well as the alleged point of impact (p. 100, Record on Appeal):

. . . The point of collision was a cement pave-portion of the Highway, about six (6) meters wide, with narrow
shoulders with grasses beyond which are canals on both sides. The road was straight and points 200 meters
north and south of the point of collision are visible and unobstructed. Purportedly, the point of impact or
collision (Exh. "K-4", Pascua on the sketch Exh. "K"-Pascua) was on the western lane of the highway about 3
feet (or one yard) from the center line as shown by the bedris (sic), dirt and soil (obviously from the
undercarriage of both vehicles) as well as paint, marron (sic) from the Rabbit bus and greenish from the
jeepney. The point of impact encircled and marked with the letter "X" in Exh. "K"-4 Pascua, had a diameter of
two meters, the center of which was about two meters from the western edge of cement pavement of the
roadway. Pictures taken by witness Bisquera in the course of the investigation showed the relative positions
of the point of impact and center line (Exh. "P"-Pascua) the back of the Rabbit bus (Exh. "P"-1-Pascua"), the
lifeless body of Catalina Pascua (Exh. "P-2 Pascua"), and the damaged front part of the Rabbit bus (Exh. "P-3
Pascua"). No skid marks of the Rabbit bus was found in the vicinity of the collision, before or after the point
of impact. On the other hand, there was a skid mark about 45 meters long purportedly of the jeepney from
the eastern shoulder of the road south of, and extending up to the point of impact.

At the time and in the vicinity of the accident, there were no vehicles following the jeepney, neither were there oncoming
vehicles except the bus. The weather condition of that day was fair.

After conducting the investigation, the police filed with the Municipal Court of San Manuel, Tarlac, a criminal complaint
against the two drivers for Multiple Homicide. At the preliminary investigation, a probable cause was found with respect to
the case of Manalo, thus, his case was elevated to the Court of First Instance. However, finding no sufficiency of evidence as
regards the case of delos Reyes, the Court dismissed it. Manalo was convicted and sentenced to suffer imprisonment. Not
having appealed, he served his sentence.

Complaints for recovery of damages were then filed before the Court of First Instance of Pangasinan. In Civil Case No. 1136,
spouses Casiano Pascua and Juana Valdez sued as heirs of Catalina Pascua while Caridad Pascua sued in her behalf. In Civil
Case No. 1139, spouses Manuel Millares and Fidencia Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140, spouses
Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida Estomo.

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos Reyes were all impleaded as defendants. Plaintiffs
anchored their suits against spouses Mangune and Carreon and Manalo on their contractual liability. As against Rabbit and
delos Reyes, plaintiffs based their suits on their culpability for a quasi-delict. Filriters Guaranty Assurance Corporation, Inc. was
also impleaded as additional defendant in Civil Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to collect the aggregate amount of P70,060.00 in
damages, itemized as follows: P500.00 for burial expenses; P12,000.00 for loss of wages for 24 years; P10,000.00 for
exemplary damages; P10,000.00 for moral damages; and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad
Pascua claimed P550.00 for medical expenses; P240.00 for loss of wages for two months; P2,000.00 for disfigurement of her
face; P3,000.00 for physical pain and suffering; P2,500.00 as exemplary damages and P2,000.00 for attorney's fees and
expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses; P6,000.00 for the death of Erlinda, P63,000.00 for loss
of income; P10,000.00 for moral damages and P3,000.00 for attorney's fees or total of P80,000.00.

In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses; P6,000.00 for the death of Adelaide, P56,160.00 for loss
of her income or earning capacity; P10,000.00 for moral damages; and P3,000.00 for attorney's fees.
Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and expenses of litigation. On the other hand,
spouses Mangune and Carreon filed a cross-claim in the amount of P6,168.00 for the repair of the jeepney and P3,000.00 for
its non-use during the period of repairs.

On December 27, 1978, the trial court rendered its decision finding Manalo negligent, the dispositive portion of which reads
(pp. 113-114, Record on Appeal):

PREMISES CONSIDERED, this Court is of the opinion and so holds:

1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo thru their negligence,
breached contract of carriage with their passengers the plaintiffs' and/or their heirs, and this Court renders
judgment ordering said defendants, jointly and severally, to pay the plaintiffs —

a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs the amounts of P12,000.00 for
indemnity for loss of her life; P41,760.00 for loss of earnings; P324.40 for actual expenses and P2,000.00 for
moral damages;

b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay her the amounts of P240.00 for
loss of wages, P328.20 for actual expenses and P500.00 for moral damages;

c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs (the plaintiffs) the amount of
P12,000.00 — for indemnity for loss of her life; P622.00 for actual expenses, P60,480.00 for loss of wages or
income and P2,000.00 for moral damages;

d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or Adelaida Estomo), to pay her heirs
(the plaintiff the amount of P12,000.00 for indemnity for the loss of her life; P580.00 for actual expenses;
P53,160.00 for loss of wages or income and P2,000.00 for moral damages.

2) The defendant Filriters Guaranty Insurance Co., having contracted to ensure and answer for the obligations
of defendants Mangune and Carreon for damages due their passengers, this Court renders judgment against
the said defendants Filriters Guaranty Insurance Co., jointly and severally with said defendants (Mangune and
Carreon) to pay the plaintiffs the amount herein above adjudicated in their favor in Civil Case No. 1136 only.
All the amounts awarded said plaintiff, as set forth in paragraph one (1) hereinabove;

3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant, Isidro Mangune, Guillerma
Carreon and Tranquilino Manalo, to pay jointly and severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the
amounts of P216.27 as actual damages to its Bus No. 753 and P2,173.60 for loss of its earning.

All of the above amount, shall bear legal interest from the filing of the complaints.

Costs are adjudged against defendants Mangune, Carreon and Manalo and Filriters Guaranty.

SO ORDERED

On appeal, the Intermediate Appellate Court reversed the above-quoted decision by finding delos Reyes negligent, the
dispositive portion of which reads (pp. 55-57, Rollo):

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby REVERSED as to item No. 3 of the
decision which reads:

3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the defendants Isidro Mangune, Guillerma
Carreon and Tranquilino Manalo, to pay jointly and severally, the amounts of P216.27 as actual damages to
its Bus No. 753 and P2,173.60 for loss of its earnings.
and another judgment is hereby rendered in favor of plaintiffs-appellants Casiana Pascua, Juan Valdez and
Caridad Pascua, ordering the Philippine Rabbit Bus Lines, Inc. and its driver Tomas delos Reyes to pay the
former jointly and severally damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded

Civil Case No. 1136 —

a) Indemnity for the loss of life — P12,000.00

b) Loss of Salaries or earning capacity — 14,000.00

c) Actual damages (burial expenses) — 800.00

d) For moral damages — 10,000.00

e) Exemplary damages — 3,000.00

f) For attorney's fees — 3,000.00

—————

Total — P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua:

Civil Case No. 1136

a) Actual damages (hospitalization expenses) — P550.00

b) Moral damages (disfigurement of the

face and physical suffering — 8,000.00

c) Exemplary damages — 2,000.00

—————

Total — P10,550.00

For the death of Erlinda Arcega Meriales. the parents and/or heirs:

Civil Case No. 1139

a) Indemnity for loss of life — P12,000.00

b) Loss of Salary or Earning Capacity — 20,000.00

c) Actual damages (burial expenses) — 500.00

d) Moral damages — 15,000.00

e) Exemplary damages — 15,000.00

 f) Attorney's fees — 3,000.00

—————

Total — P65,500.00

For the death of Florida Sarmiento Estomo:

Civil Case No. 1140

a) Indemnity for loss of life — P12,000.00

b) Loss of Salary or Earning capacity — 20,000.00

c) Actual damages (burial expenses) — 500.00

d) Moral damages — 3,000.00

e) Exemplary damages — 3,000.00

f) Attorney's fees — 3,000.00

—————

Total — P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

The issue is who is liable for the death and physical injuries suffered by the passengers of the jeepney?

The trial court, in declaring that Manalo was negligent, considered the following (p. 106, Record on Appeal):

(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua that a long ways ( sic) before
reaching the point of collision, the Mangune jeepney was "running fast" that his passengers cautioned driver
Manalo to slow down but did not heed the warning: that the right rear wheel was detached causing the
jeepney to run to the eastern shoulder of the road then back to the concrete pavement; that driver Manalo
applied the brakes after which the jeepney made a U-turn (half-turn) in such a manner that it inverted its
direction making it face South instead of north; that the jeepney stopped on the western lane of the road on
the right of way of the oncoming Phil. Rabbit Bus where it was bumped by the latter;

(2) The likewise unrebutted testimony of Police Investigator Tacpal of the San Manuel (Tarlac) Police who,
upon responding to the reported collission, found the real evidence thereat indicate in his sketch (Exh. K,
Pascua ), the tracks of the jeepney of defendant Mangune and Carreon running on the Eastern shoulder
(outside the concrete paved road) until it returned to the concrete road at a sharp angle, crossing the Eastern
lane and the (imaginary) center line and encroaching fully into the western lane where the collision took
place as evidenced by the point of impact;

(3) The observation of witness Police Corporal Cacalda also of the San Manuel Police that the path of the
jeepney they found on the road and indicated in the sketch (Exh. K-Pascua) was shown by skid marks which
he described as "scratches on the road caused by the iron of the jeep, after its wheel was removed;"
 (4) His conviction for the crime of Multiple Homicide and Multiple Serious Physical Injuries with Damage to
Property thru Reckless Imprudence by the Court of First Instance of Tarlac (Exh. 24-Rabbit) upon the criminal
Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a result of the collision, and his commitment
to prison and service of his sentence (Exh. 25-Rabbit) upon the finality of the decision and his failure to
appeal therefrom; and

(5) The application of the doctrine of res-ipsa loquitar (sic) attesting to the circumstance that the collision
occured (sic) on the right of way of the Phil. Rabbit Bus.

The respondent court had a contrary opinion. Applying primarily (1) the doctrine of last clear chance, (2) the presumption that
drivers who bump the rear of another vehicle guilty and the cause of the accident unless contradicted by other evidence, and
(3) the substantial factor test. concluded that delos Reyes was negligent.

The misappreciation of the facts and evidence and the misapplication of the laws by the respondent court warrant a reversal
of its questioned decision and resolution.

We reiterate that "[t]he principle about "the last clear" chance, would call for application in a suit between the owners and
drivers of the two colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its
contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the
ground that the other driver was likewise guilty of negligence." This was Our ruling in Anuran, et al. v. Buño et al., G.R. Nos. L-
21353 and L-21354, May 20, 1966, 17 SCRA 224. 1 Thus, the respondent court erred in applying said doctrine.

On the presumption that drivers who bump the rear of another vehicle guilty and the cause of the accident, unless
contradicted by other evidence, the respondent court said (p. 49, Rollo):

. . . the jeepney had already executed a complete turnabout and at the time of impact was already facing the
western side of the road. Thus the jeepney assumed a new frontal position vis a vis, the bus, and the bus
assumed a new role of defensive driving. The spirit behind the presumption of guilt on one who bumps the
rear end of another vehicle is for the driver following a vehicle to be at all times prepared of a pending
accident should the driver in front suddenly come to a full stop, or change its course either through change of
mind of the front driver, mechanical trouble, or to avoid an accident. The rear vehicle is given the
responsibility of avoiding a collision with the front vehicle for it is the rear vehicle who has full control of the
situation as it is in a position to observe the vehicle in front of it.

The above discussion would have been correct were it not for the undisputed fact that the U-turn made by the jeepney was
abrupt (Exhibit "K," Pascua). The jeepney, which was then traveling on the eastern shoulder, making a straight, skid mark of
approximately 35 meters, crossed the eastern lane at a sharp angle, making a skid mark of approximately 15 meters from the
eastern shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos Reyes could not have anticipated the sudden U-turn
executed by Manalo. The respondent court did not realize that the presumption was rebutted by this piece of evidence.

With regard to the substantial factor test, it was the opinion of the respondent court that (p. 52, Rollo):

. . . It is the rule under the substantial factor test that if the actor's conduct is a substantial factor in bringing
about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the
harm or the manner in which it occurred does not prevent him from being liable (Restatement, Torts, 2d).
Here, We find defendant bus running at a fast speed when the accident occurred and did not even make the
slightest effort to avoid the accident, . . . . The bus driver's conduct is thus a substantial factor in bringing
about harm to the passengers of the jeepney, not only because he was driving fast and did not even attempt
to avoid the mishap but also because it was the bus which was the physical force which brought about the
injury and death to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 54-55, Rollo):

According to the record of the case, the bus departed from Laoag, Ilocos Norte, at 4:00 o'clock A.M. and the
accident took place at approximately around 12:30 P.M., after travelling roughly for 8 hours and 30 minutes.
 Deduct from this the actual stopover time of two Hours (computed from the testimony of the driver that he
made three 40-minute stop-overs), We will have an actual travelling time of 6 hours and 30 minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.) driving at an average of 56 km.
per hour would take 6 hours and 30 minutes. Therefore, the average speed of the bus, give and take 10
minutes, from the point of impact on the highway with excellent visibility factor would be 80 to 90 kms. per
hour, as this is the place where buses would make up for lost time in traversing busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at a fast speed when the accident occurred because
the speed of 80 to 90 kilometers per hour, assuming such calculation to be correct, is yet within the speed limit allowed in
highways. We cannot even fault delos Reyes for not having avoided the collision. As aforestated, the jeepney left a skid mark
of about 45 meters, measured from the time its right rear wheel was detached up to the point of collision. Delos Reyes must
have noticed the perilous condition of the jeepney from the time its right rear wheel was detached or some 90 meters away,
considering that the road was straight and points 200 meters north and south of the point of collision, visible and
unobstructed. Delos Reyes admitted that he was running more or less 50 kilometers per hour at the time of the accident.
Using this speed, delos Reyes covered the distance of 45 meters in 3.24 seconds. If We adopt the speed of 80 kilometers per
hour, delos Reyes would have covered that distance in only 2.025 seconds. Verily, he had little time to react to the situation.
To require delos Reyes to avoid the collision is to ask too much from him. Aside from the time element involved, there were
no options available to him. As the trial court remarked (pp. 107-108, Record on Appeal):

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes, could have taken either of two
options: (1) to swerve to its right (western shoulder) or (2) to swerve to its left (eastern lane), and thus steer
clear of the Mangune jeepney. This Court does not so believe, considering the existing exigencies of space
and time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted that the Western shoulder of the
road was narrow and had tall grasses which would indicate that it was not passable. Even plaintiffs own
evidence, the pictures (Exhs. P and P-2, Pascua) are mute confirmation of such fact. Indeed, it can be noticed
in the picture (Exh. P-2, Pascua) after the Rabbit bus came to a full stop, it was tilted to right front side, its
front wheels resting most probably on a canal on a much lower elevation that of the shoulder or paved road.
It too shows that all of the wheels of the Rabbit bus were clear of the roadway except the outer left rear
wheel. These observation appearing in said picture (Exh P-2, Pascua) clearly shows coupled with the finding
the Rabbit bus came to a full stop only five meters from the point of impact (see sketch, Exh. K-Pascua)
clearly show that driver de los Reyes veered his Rabbit bus to the right attempt to avoid hitting the
Mangune's jeepney. That it was not successful in fully clearing the Mangune jeepney as its (Rabbit's) left front
hit said jeepney (see picture Exh. 10-A-Rabbit) must have been due to limitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus could also have swerved to its left
(eastern lane) to avoid bumping the Mangune jeepney which was then on the western lane. Such a claim is
premised on the hypothesis (sic) that the eastern lane was then empty. This claim would appear to be good
copy of it were based alone on the sketch made after the collision. Nonetheless, it loses force it one were to
consider the time element involved, for moments before that, the Mangune jeepney was crossing that very
eastern lane at a sharp angle. Under such a situation then, for driver delos Reyes to swerve to the eastern
lane, he would run the greater risk of running smack in the Mangune jeepney either head on or broadside.

After a minute scrutiny of the factual matters and duly proven evidence, We find that the proximate cause of the accident was
the negligence of Manalo and spouses Mangune and Carreon. They all failed to exercise the precautions that are needed
precisely pro hac vice.

In culpa contractual, the moment a passenger dies or is injured, the carrier is presumed to have been at fault or to have acted
negligently, and this disputable presumption may only be overcome by evidence that he had observed extra-ordinary
diligence as prescribed in Articles 1733, 1755 and 1756 of the New Civil Code 2 or that the death or injury of the passenger was
due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).
The negligence of Manalo was proven during the trial by the unrebutted testimonies of Caridad Pascua, Police Investigator
Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and Multiple Serious Injuries with
Damage to Property thru Reckless Imprudence, and the application of the doctrine of res ipsa loquitur supra. The negligence
of spouses Mangune and Carreon was likewise proven during the trial (p. 110, Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru their witness Natalio Navarro, an
alleged mechanic, that he periodically checks and maintains the jeepney of said defendants, the last on Dec.
23, the day before the collision, which included the tightening of the bolts. This notwithstanding the right
rear wheel of the vehicle was detached while in transit. As to the cause thereof no evidence was offered. Said
defendant did not even attempt to explain, much less establish, it to be one caused by a caso fortuito. . . .

In any event, "[i]n an action for damages against the carrier for his failure to safely carry his passenger to his
destination, an accident caused either by defects in the automobile or through the negligence of its driver, is not
a caso fortuito which would avoid the carriers liability for damages (Son v. Cebu Autobus Company, 94 Phil. 892 citing
Lasam, et al. v. Smith, Jr., 45 Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).

The trial court was therefore right in finding that Manalo and spouses Mangune and Carreon were negligent. However, its
ruling that spouses Mangune and Carreon are jointly and severally liable with Manalo is erroneous The driver cannot be held
jointly and severally liable with the carrier in case of breach of the contract of carriage. The rationale behind this is readily
discernible. Firstly, the contract of carriage is between the carrier and the passenger, and in the event of contractual liability,
the carrier is exclusively responsible therefore to the passenger, even if such breach be due to the negligence of his driver (see
Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other words, the carrier can
neither shift his liability on the contract to his driver nor share it with him, for his driver's negligence is his.  4 Secondly, if We
make the driver jointly and severally liable with the carrier, that would make the carrier's liability personal instead of merely
vicarious and consequently, entitled to recover only the share which corresponds to the driver, 5 contradictory to the explicit
provision of Article 2181 of the New Civil Code. 6

We affirm the amount of damages adjudged by the trial court, except with respect to the indemnity for loss of life. Under
Article 1764 in relation to Article 2206 of the New Civil Code, the amount of damages for the death of a passenger is at least
three thousand pesos (P3,000.00). The prevailing jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see
Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al., G.R. No. 51165, June 21, 1990 citing De Lima v.
Laguna Tayabas Co., G.R. Nos. L-35697-99, April 15, 1988, 160 SCRA 70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of the Intermediate Appellate Court dated July 29, 1983 and its
resolution dated November 28, 1983 are SET ASIDE. The decision of the Court of First Instance dated December 27, 1978 is
REINSTATED MODIFICATION that only Isidro Mangune, Guillerma Carreon and Filriters Guaranty Assurance Corporation, Inc.
are liable to the victims or their heirs and that the amount of indemnity for loss of life is increased to thirty thousand pesos
(P30,000.00).

SO ORDERED.

SECOND DIVISION
MARCELO MACALINAO, G.R. No. 146635
Substituted by
ESPERANZA MACALINAO
and ANTONIO MACALINAO,
Petitioners,
Present:
 
PUNO, J.,
- versus - Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
EDDIE MEDECIELO ONG
and GENOVEVO SEBASTIAN,
Respondents. Promulgated:
December 14, 2005
x-------------------------------------------------------------------- x

DECISION
TINGA, J.:
 
Before this Court is a Petition for Review on Certiorari assailing the Decision[1] and Resolution[2] of the Court of Appeals dated
31 May 2000 and 7 September 2000, respectively, in CA-G.R. CV No. 52963. The Court of Appeals reversed the judgment of
the trial court and dismissed the complaint for damages filed by Marcelo Macalinao (Macalinao) against Eddie Medecielo Ong
(Ong) and Genovevo Sebastian (Sebastian) for insufficiency of evidence.
 
The antecedent facts follow.
 
Macalinao and Ong were employed as utility man and driver, respectively, at the Genetron International Marketing
(Genetron), a single proprietorship owned and operated by Sebastian. On 25 April 1992, Sebastian instructed Macalinao, Ong
and two truck helpers to deliver a heavy piece of machinerya reactor/motor for mixing chemicals, to Sebastians
manufacturing plant in Angat, Bulacan. While in the process of complying with the order, the vehicle driven by Ong, Genetrons
Isuzu Elf truck with plate no. PMP-106 hit and bumped the front portion of a private jeepney with plate no. DAF-922 along
Caypombo, Sta. Maria, Bulacan at around 11:20 in the morning.[3]
 
Both vehicles incurred severe damages while the passengers sustained physical injuries as a consequence of the
collision.[4] Macalinao incurred the most serious injuries
  
 
among the passengers of the truck. He was initially brought to the Sta. Maria District Hospital for first aid treatment but in
view of the severity of his condition, he was transferred to the Philippine Orthopedic Center at the instance of Sebastian. He
was again moved to the Capitol Medical Center by his parents, petitioners herein, for medical reasons and later to the
Philippine General Hospital for financial considerations.[5]
 
Macalinaos body was paralyzed and immobilized from the neck down as a result of the accident and per doctors
advice, his foot was amputated. He also suffered from bed sores and infection. His immedicable condition, coupled with the
doctors recommendation, led his family to bring him home where he died on 7 November 1992. [6]
 
Before he died, Macalinao was able to file an action for damages against both Ong and Sebastian before the Regional Trial
Court (RTC) of Quezon City, Branch 81.[7] After his death, Macalinao was substituted by his parents in the action. [8] A criminal
case for reckless imprudence
 
resulting to serious physical injuries[9] had also been instituted earlier against Ong but for reasons which do not appear in the
records of this case, trial thereon did not ensue.[10]
 
After trial in the civil action, the RTC held that based on the evidence, Ong drove the Isuzu truck in a reckless and imprudent
manner thereby causing the same to hit the private jeepney. It observed that while respondents claimed that Ong was driving
cautiously and prudently at the time of the mishap, no evidence was presented to substantiate the claim. [11] It declared Ong
negligent and at the same time, it held that Sebastian failed to exercise the diligence of a good father of a family in the
selection and supervision of Ong. Consequently, the trial court pronounced the two of them jointly liable to pay actual, moral,
and exemplary damages as well as civil indemnity for Macalinaos death. The trial court subsequently increased the monetary
award[12] upon petitioners motion for reconsideration thereof.
 
On appeal, the appellate court reversed the findings of the trial court. It held that the evidence presented by petitioners was
woefully scant to support a verdict of negligence against Ong. And since respondents liability hinged squarely on proof of Ongs
negligence, neither of them could be held liable for damages to petitioners.[13]
 
Aggrieved at the ruling, petitioners elevated the case to this Court. They herein contend that contrary to the conclusion
reached by the Court of Appeals, the evidence conclusively establish fault or negligence on the part of Ong and justify the
award of damages in their favor.
 
The petition is meritorious.
 
The issue of negligence is factual and, in quasi-delicts, crucial in the award of damages. [14] In the case at bar, the crux
of the controversy is the sufficiency of the evidence presented to support a finding of negligence against Ong. Given the
contradictory conclusions of the trial court and the appellate court on this issue, this Court is impelled to ascertain for itself
which court made the correct determination.
 
While as a rule factual findings of the Court of Appeals are deemed conclusive in cases brought to us on appeal, we
have also consistently pronounced that we may review its findings of fact in the following instances, among others:
 
(i) when the judgment of the Court of Appeals was based on a misapprehension of facts; (ii) when
the factual findings are conflicting; (iii) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties and which, if properly considered, would justify a different conclusion;
and (iv) where the findings of fact of the Court of Appeals are contrary to those of the trial court, or are
mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are
not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.[15]
 
 
Said exceptions obtain in this case thus, a departure from the application of the general rule is warranted.
In reversing the trial court and absolving respondents from liability, the appellate court made the following
pronouncement:
  
The evidence presented is woefully scant. The pictures of the collision afford no basis for
concluding that it was the fault of the defendant driver, or that he was driving recklessly. The police
report contains no findings as to the road conditions, estimates of the relative speed of the vehicles, or
their exact position at the time of the accident. And even so, entries in the police blotter should not be
given significance or probative value as they do not constitute conclusive proof of the truth thereof. Nor
were eyewitnesses presented, not even affidavits or statements to give any indication as to what actually
happened. The police investigators findings are sketchy at best, with only the phrase Isuzu lost control as
his opinion, with no explanation how he reached it. Civil cases require evidence of a lesser degree than
criminal cases, but one sentence by one who did not even witness an event, is not conclusive proof.
 
...
 
There was only the fact of the collision before the trial court. The attendant circumstances were
not established, and no fault could be determined using the evidence, both testimonial and documentary
presented.[16]
 
 
Contrary to the above conclusion of the appellate court, the evidence on record coupled with the doctrine of res ipsa
loquitur sufficiently establishes Ongs negligence.
 
We focus first on the evidence presented before the trial court.
 
The photographs of the accident which the appellate court cavalierly brushed aside as insignificant deserve
substantial cogitation. In Jose v. Court of Appeals,[17] we upheld the trial courts reliance on photographs of the accident as
opposed to a partys obviously biased testimony. In so doing, we stated:
 
In criminal cases such as murder or rape where the accused stands to lose his liberty if found guilty, this
Court has, in many occasions, relied principally upon physical evidence in ascertaining the truth. In
People v. Vasquez,[18] where the physical evidence on record ran counter to the testimonial evidence of
the prosecution witnesses, we ruled that the physical evidence should prevail. [19]
 
 
Physical evidence is a mute but an eloquent manifestation of truth which ranks high in our hierarchy of trustworthy
evidence.[20]
 
In this case, while there is a dearth of testimonial evidence to enlighten us about what actually happened,
photographs[21] depicting the relative positions of the vehicles immediately after the accident took place do exist. It is well
established that photographs, when duly verified and shown by extrinsic evidence to be faithful representations of the subject
as of the time in question, are, in the discretion of the trial court, admissible in evidence as aids in arriving at an understanding
of the evidence, the situation or condition of objects or premises or the circumstances of an accident. [22]
 
According to American courts, photographs are admissible in evidence in motor vehicle accident cases when they appear to
have been accurately taken and are proved to be a faithful and clear representation of the subject, which cannot itself be
produced, and are of such nature as to throw light upon a disputed point. [23] Before a photograph may be admitted in
evidence, however, its accuracy or correctness must be proved, and it must be authenticated or verified [24] first. In the case at
bar, the photographer testified in open court and properly identified the pictures as the ones he took at the scene of the
accident.[25]
 
An examination of said photographs clearly shows that the road where the mishap occurred is marked by a line at the
center separating the right from the left lane. Based on the motorists right of way rule, the Isuzu truck which was headed
towards Norzagaray, Bulacan[26] should have been occupying the left lane while the private jeepney which was traversing the
road to the town proper of Sta. Maria, Bulacan [27] should have been in the right lane. Exhibits L and L-4 among the
photographs, however, reveal that in the aftermath of the collision, the Isuzu truck usurped the opposite lane to such an
extent that only its right rear wheel remained in the left lane, a few inches from the demarcation line. Its two front wheels and
left rear wheel were planted squarely on the private jeepneys lane and the Isuzu truck had rotated such that its front no
longer pointed towards Norzagaray but partially faced the town proper of Sta. Maria instead.
 
While ending up at the opposite lane is not conclusive proof of fault in automobile collisions, the position of the two vehicles
gives rise to the conclusion that it was the Isuzu truck which hit the private jeepney rather than the other way around. The
smashed front of the Isuzu truck is pressed against the private jeepneys left front portion near the drivers side. The private
jeepney is positioned diagonally in the right lane; its front at the rightmost corner of the road while its rear remained a few
feet from the demarcation line. Based on the angle at which it stopped, the private jeepney obviously swerved to the right in
an unsuccessful effort to avoid the Isuzu truck. This would support the statement of the police investigator that the Isuzu truck
lost control[28] and hit the left front portion of the private jeepney. [29] It would also explain why the driver of the private
jeepney died immediately after being brought to the hospital, [30] since in such a scenario, the brunt of the collision logically
bore down on him.
 
Moreover, the unequal size and weight of the two vehicles would make it improbable for the relatively lighter private
jeepney to have stricken the heavier truck with such force as to push the latter to the formers side of the road. Had that been
the case, the two vehicles would have ended up crushed together at the center of the road or at the Isuzu trucks lane instead
of rolling to a stop at the private jeepneys lane.
 
Another piece of evidence which supports a finding of negligence against Ong is the police report of the incident denoted as
Entry No. 04-229 of the Sta. Maria Police Station. The report states that the Isuzu truck was the one which hit the left front
portion of the private jeepney.[31] This piece of evidence was disregarded by the Court of Appeals on the ground that entries in
police blotters should not be given significance or probative value as they do not constitute conclusive proof of the truth
thereof.
 
 
 
While true in most instances, it must still be remembered that although police blotters are of little probative value,
they are nevertheless admitted and considered in the absence of competent evidence to refute the facts stated therein.
[32]
 Entries in police records made by a police officer in the performance of the duty especially enjoined by law are prima
facie evidence of the fact therein stated, [33] and their probative value may be either substantiated or nullified by other
competent evidence.[34]
 
In this case, the police blotter was identified and formally offered as evidence and the person who made the entries thereon
was likewise presented in court. On the other hand, aside from a blanket allegation that the driver of the other vehicle was
the one at fault, respondents did not present any evidence to back up their charge and show that the conclusion of the police
investigator was false. Given the paucity of details in the report, the investigators observation could have been easily refuted
and overturned by respondents through the simple expedient of supplying the missing facts and showing to the satisfaction of
the
 
court that the Isuzu truck was blameless in the incident. Ong was driving the truck while the two other truck helpers also
survived the accident. Any or all of them could have given their testimony to shed light on what actually transpired, yet not
one of them was presented to substantiate the claim that Ong was not negligent.
 
Since respondents failed to refute the contents of the police blotter, the statement therein that the Isuzu truck hit the private
jeepney and not the other way around is deemed established. The prima facie nature of the police report ensures that if it
remains unexplained or uncontradicted, it will be sufficient to establish the facts posited therein. [35]
 
While not constituting direct proof of Ongs negligence, the foregoing pieces of evidence justify the application of  res ipsa
loquitur, a Latin phrase which literally means the thing or the transaction speaks for itself. [36]
Res ipsa loquitur recognizes that parties may establish prima facie negligence without direct proof, thus, it allows the principle
to substitute for specific proof of negligence. [37] It permits the plaintiff to present along with proof of the accident, enough of
the attending circumstances to invoke the doctrine, create an inference or presumption of negligence and thereby place on
the defendant the burden of proving that there was no negligence on his part.[38]
 
The doctrine can be invoked only when under the circumstances, direct evidence is absent and not readily available.
[39]
 This is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either
knows the cause of the accident or has the best opportunity of ascertaining it while the plaintiff has no such knowledge, and is
therefore compelled to allege negligence in general terms and rely upon the proof of the happening of the accident in order
to establish negligence.[40] The inference which the doctrine permits is grounded upon the fact that the chief evidence of the
true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. [41]
 
In this case, Macalinao could no longer testify as to the cause of the accident since he is dead. Petitioners, while substituting
their son as plaintiff, have no actual knowledge
 
about the event since they were not present at the crucial moment. The driver of the private jeepney who could have shed
light on the circumstances is likewise dead. The only ones left with knowledge about the cause of the mishap are the two
truck helpers who survived, both employees of Sebastian, and Ong, who is not only Sebastians previous employee but his co-
respondent in this case as well. In the circumstances, evidence as to the true cause of the accident is, for all intents and
purposes, accessible to respondents but not to petitioners. The witnesses left are unlikely to divulge to petitioners what they
knew about the cause of the accident if the same militates against the interest of their employer. This justifies the invocation
of the doctrine.
 
Under local jurisprudence, the following are the requisites for the application of  res ipsa loquitur:
 
(1) The accident is of a kind which ordinarily does not occur in the absence of someones negligence;
 
(2) It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
 
(3) The possibility of contributing conduct which would make the plaintiff responsible is eliminated. [42]
 
 
We are convinced that all the above requisites are present in the case at bar.
No two motor vehicles traversing opposite lanes will collide as a matter of course unless someone is negligent, thus,
the first requisite for the application of the doctrine is present. Ong was driving the Isuzu truck which, from the evidence
adduced, appears to have precipitated the collision with the private jeepney. Driving the Isuzu truck gave Ong exclusive
management and control over it, a fact which shows that the second requisite is also present. No contributory negligence
could be attributed to Macalinao relative to the happening of the accident since he was merely a passenger in the Isuzu truck.
Respondents allegation that Macalinao was guilty of contributory negligence for failing to take the necessary precautions to
ensure his safety while onboard the truck [43] is too specious for belief particularly as respondents did not even present any
evidence to prove such allegation. The last requisite is, therefore, likewise present.
 
There exists a fourth requisite under American jurisprudence, that is, that the defendant fails to offer any explanation
tending to show that the injury was caused by his or her want of due care. [44] In this case, while respondents claimed that Ong
drove cautiously and prudently during the time in question, no evidence was proffered to substantiate the same. In fact, Ong
did not bother to testify to explain his actuations and to show that he exercised due care when the accident happened, so
even this requisite is fulfilled.
All the requisites for the application of the rule of res ipsa loquitur  are present, thus a reasonable presumption or inference of
Ongs negligence arises. In consonance with the effect of the doctrine, the burden of proving due care at the time in question
shifts to respondents. Unfortunately, as previously discussed, aside from blanket allegations that Ong exercised prudence and
due care while driving on the day of the accident, respondents proffered no other proof. As a consequence, the  prima
faciefinding of negligence against Ong, remaining unexplained and/or uncontradicted, is deemed established. This in turn
warrants a finding that Ong is liable for damages to petitioners.
 
Such liability of Ong is solidary with Sebastian pursuant to Art. 2176 in relation to Art. 2180 of the Civil Code which provide:
 
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence is
obliged to pay for the damage done . . . .
 
Art. 2180. The obligation imposed by Art. 2176 is demandable not only for ones own acts or omissions
but also for those of persons for whom one is responsible.
...
 
Employers shall be liable for the damage 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.
 
...
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.
 
 
Whenever an employees negligence causes damage or injury to another, there instantly arises a presumption  juris
tantum that the employer failed to exercisediligentissimi patris families in the selection (culpa in eligiendo) or supervision
(culpa in vigilando) of its employees.[45] To avoid liability for a quasi-delict committed by his employee, an employer must
overcome the presumption by presenting convincing proof that he exercised the care and diligence of a good father of a
family in the selection and supervision of his employee.[46]
 
In an attempt to exculpate himself from liability, Sebastian claimed that he exercised due care in selecting Ong as a
driver. Before he hired Ong, he allegedly required him to produce police and NBI clearances and he took into account the
recommendations of Ongs previous employer and friends. [47] Sebastian also stressed that he instructed Ong to drive slowly
and carefully and to take necessary precautions. [48] He likewise admonished Ong to be careful after the latter had some minor
accidents in the parking area.[49]
 
However, Sebastians statements are not sufficient to prove that he exercised the diligence of a good father of a family
in the selection of Ong. His testimony is self-serving and devoid of corroboration as he did not bother to support the same
with document evidence. Moreover, Sebastian could not even remember whether the recommendation from Ongs previous
employer was made verbally or in writing.[50]
On the other hand, due diligence in supervision requires the formulation of rules and regulations for the guidance of
employees and the issuance of proper instructions as well as actual implementation and monitoring of consistent compliance
with the rules.[51] Admonitions to drive carefully without the corresponding guidelines and monitoring of the employee do not
satisfy the due diligence required by law either.
 
 
 
In short, Sebastians claims fall short of what is required by law to overcome the presumption of negligence in the
selection and supervision of his employee. The trial court therefore correctly held him solidarily liable with Ong to petitioners.
 
 In an obvious ploy to relieve himself from liability should the appellate courts decision be reversed, Sebastian averred
that Macalinao is not entitled to damages. He anchored his claim on the novel argument that the provisions of Art. 2180 apply
only when the injured party is a third person but it has no application to an employee like Macalinao. [52] He likewise postulated
that recovery from the Social Security System, State Insurance Fund, Employees Compensation Commission, and the
Philippine Medical Care Act, the government agencies with which petitioners filed a claim in view of Macalinaos injury and
subsequent death, preclude pursuing alternate recourse or recovering from other sources until the former claims have been
rejected.[53]
 
Sebastian is grasping at straws. Art. 2180 makes no distinction whatsoever whether the claimant is an employee or a
third person relative to the employer. Ubi lex non distinguit nec nos distinguere debemos.  Where the law does not distinguish,
neither should we.[54]
 
Moreover, petitioners claim against Sebastian is not based upon the fact of Macalinaos previous employment with
him but on the solidary liability of the latter for the negligent act of one of his employees. Such is not precluded by prior claims
with the government agencies enumerated. One is based on compulsory coverage of government benefits while the other is
based on a cause of action provided by law.
 
Additionally, respondents postulated that since it was Macalinao who sustained physical injuries and died, he was the
one who suffered pain, not petitioners so moral damages are not recoverable in this case. [55]
 
The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed from recovering moral
damages in meritorious cases. To hold otherwise would give rise to the ridiculous scenario where a defendant may be
compelled to pay moral damages in a quasi-delict causing physical injuries but will be relieved from doing so should those same
injuries cause the victims death.
 
 
 
In the case of Lambert v. Heirs of Ray Castillon,[56] we held that in quasi-delicts:
 
. . . . the award of moral damages is aimed at a restoration, within the limits possible, of the spiritual  status
quo ante; and therefore, it must be proportionate to the suffering inflicted.  The intensity of the pain
experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no
relation whatsoever with the wealth or means of the offender.[57] (Emphasis Supplied.)
The trial court awarded moral damages in the amount of P30,000.00 but since prevailing jurisprudence has fixed the same
at P50,000.00,[58] there is a need to increase the award to reflect the recent rulings.
 
Lastly, respondents claim that exemplary damages is not warranted in this case. Under the law, exemplary damages may be
granted in quasi-delicts if the defendant acted with gross negligence. [59] Gross negligence has been defined as negligence
characterized by the want of even slight care, acting or omitting to act in a situation where there is duty to act, not
inadvertently but willfully and intentionally, with a conscious indifference to consequences insofar as other persons may be
affected.[60]
 
Ongs gross negligence in driving the Isuzu truck precipitated the accident. This is lucidly portrayed in the photographs on
record and it justifies the award of exemplary damages in petitioners favor. However, the trial courts award of P10,000.00 is
insufficient, thus the Court deems it proper to increase the award to P25,000.00 under the circumstances.
 
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated 31 May 2000, as well as
its Resolution dated 7 September 2000, are hereby SET ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch
81 dated 12 April 1996 as amended by the Order dated 23 May 1996 is hereby REINSTATED with the modifications that the
award for moral damages is increased to P50,000.00 to conform with prevailing jurisprudence and
the award for exemplary damages is increased to P25,000.00. Costs against respondents.
 
SO ORDERED.