FIRST DIVISION

[G.R. No. 141910. August 6, 2002.]

FGU INSURANCE CORPORATION, Petitioner, v. G.P. SARMIENTO TRUCKING

CORPORATION and LAMBERT M. EROLES, Respondents.

DECISION

VITUG, J.:

G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994 thirty
(30) units of Condura S.D. white refrigerators aboard one of its Isuzu truck, driven by
Lambert Eroles, from the plant site of Concepcion Industries, Inc., along South
Superhighway in Alabang, Metro Manila, to the Central Luzon Appliances in Dagupan
City. While the truck was traversing the north diversion road along McArthur highway in
Barangay Anupol, Bamban, Tarlac, it collided with an unidentified truck, causing it to
fall into a deep canal, resulting in damage to the cargoes. chanrob1es virtua1 1aw 1ibrary

FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion

Industries, Inc., the value of the covered cargoes in the sum of P204,450.00. FGU, in
turn, being the subrogee of the rights and interests of Concepcion Industries, Inc.,
sought reimbursement of the amount it had paid to the latter from GPS. Since the
trucking company failed to heed the claim, FGU filed a complaint for damages and
breach of contract of carriage against GPS and its driver Lambert Eroles with the a
Regional Trial Court, Branch 66, of Makati City. In its answer, respondents asserted
that GPS was the exclusive hauler only of Concepcion Industries, Inc., since 1988, and
it was not so engaged in business as a common carrier. Respondents further claimed
that the cause of damage was purely accidental.

The issues having thus been joined, FGU presented its evidence, establishing the extent
of damage to the cargoes and the amount it had paid to the assured. GPS, instead of
submitting its evidence, filed with leave of court a motion to dismiss the complaint by
way of demurrer to evidence on the ground that petitioner had failed to prove that it
was a common carrier. chanrob1es virtua1 1aw 1ibrary

The trial court, in its order of 30 April 1996, 1 granted the motion to dismiss, explaining
thusly:jgc:chanrobles.com.ph

"Under Section 1 of Rule 131 of the Rules of Court, it is provided that ‘Each party must
prove his own affirmative allegation, . . .’
"In the instant case, plaintiff did not present any single evidence that would prove that
defendant is a common carrier.

"x x x

"Accordingly, the application of the law on common carriers is not warranted and the
presumption of fault or negligence on the part of a common carrier in case of loss,
damage or deterioration of goods during transport under 1735 of the Civil Code is not
availing.

"Thus, the laws governing the contract between the owner of the cargo to whom the
plaintiff was subrogated and the owner of the vehicle which transports the cargo are
the laws on obligation and contract of the Civil Code as well as the law on quasi delicts.

"Under the law on obligation and contract, negligence or fault is not presumed. The law
on quasi delict provides for some presumption of negligence but only upon the
attendance of some circumstances. Thus, Article 2185 provides: chanrob1es virtual 1aw library

‘Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating any
traffic regulation.’

"Evidence for the plaintiff shows no proof that defendant was violating any traffic
regulation. Hence, the presumption of negligence is not obtaining.

"Considering that plaintiff failed to adduce evidence that defendant is a common carrier
and defendant’s driver was the one negligent, defendant cannot be made liable for the
damages of the subject cargoes." 2

The subsequent motion for reconsideration having been denied, 3 plaintiff interposed an
appeal to the Court of Appeals, contending that the trial court had erred (a) in holding
that the appellee corporation was not a common carrier defined under the law and
existing jurisprudence; and (b) in dismissing the complaint on a demurrer to evidence.
virtua1 1aw 1ibrary
chanrob1es

The Court of Appeals rejected the appeal of petitioner and ruled in favor of GPS. The
appellate court, in its decision of 10 June 1999, 4 discoursed, among other things, that
—

". . . in order for the presumption of negligence provided for under the law governing
common carrier (Article 1735, Civil Code) to arise, the appellant must first prove that
the appellee is a common carrier. Should the appellant fail to prove that the appellee is
a common carrier, the presumption would not arise; consequently, the appellant would
have to prove that the carrier was negligent.

"x x x

"Because it is the appellant who insists that the appellees can still be considered as a
common carrier, despite its limited clientele, (assuming it was really a common carrier),
it follows that it (appellant) has the burden of proving the same. It (plaintiff-appellant)
‘must establish his case by a preponderance of evidence, which means that the
evidence as a whole adduced by one side is superior to that of the other.’ (Summa
Insurance Corporation v. Court of Appeals, 243 SCRA 175). This, unfortunately, the
appellant failed to do — hence, the dismissal of the plaintiffs complaint by the trial court
is justified.

"x x x

"Based on the foregoing disquisitions and considering the circumstances that the
appellee trucking corporation has been ‘its exclusive contractor, hauler since 1970,
defendant has no choice but to comply with the directive of its principal,’ the inevitable
conclusion is that the appellee is a private carrier. chanrob1es virtua1 1aw 1ibrary

"x x x

". . . the lower court correctly ruled that ‘the application of the law on common carriers
is not warranted and the presumption of fault or negligence on the part of a common
carrier in case of loss, damage or deterioration of good[s] during transport under
[article] 1735 of the Civil Code is not availing.’ . . .

"Finally, We advert to the long established rule that conclusions and findings of fact of a
trial court are entitled to great weight on appeal and should not be disturbed unless for
strong and valid reasons." 5

Petitioner’s motion for reconsideration was likewise denied; 6 hence, the instant
petition, 7 raising the following issues:
chanrob1es virtual 1aw library

WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON CARRIER AS

DEFINED UNDER THE LAW AND EXISTING JURISPRUDENCE.

II

WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A PRIVATE

CARRIER, MAY BE PRESUMED TO HAVE BEEN NEGLIGENT WHEN THE GOODS IT
UNDERTOOK TO TRANSPORT SAFELY WERE SUBSEQUENTLY DAMAGED WHILE IN ITS
PROTECTIVE CUSTODY AND POSSESSION.

III

WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN THE INSTANT

CASE.

On the first issue, the Court finds the conclusion of the trial court and the Court of
Appeals to be amply justified. GPS, being an exclusive contractor and hauler of
Concepcion Industries, Inc., rendering or offering its services to no other individual or
entity, cannot be considered a common carrier. Common carriers are persons,
corporations, firms or associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for hire or compensation, offering
their services to the public, 8 whether to the public in general or to a limited clientele in
particular, but never on an exclusive basis. 9 The true test of a common carrier is the
carriage of passengers or goods, providing space for those who opt to avail themselves
of its transportation service for a fee. 10 Given accepted standards, GPS scarcely falls
within the term "common carrier." cralaw virtua1aw library

The above conclusion notwithstanding, GPS cannot escape from liability.

In culpa contractual, upon which the action of petitioner rests as being the subrogee of
Concepcion Industries, Inc., the mere proof of the existence of the contract and the
failure of its compliance justify, prima facie, a corresponding right of relief. 11 The law,
recognizing the obligatory force of contracts, 12 will not permit a party to be set free
from liability for any kind of misperformance of the contractual undertaking or a
contravention of the tenor thereof. 13 A breach upon the contract confers upon the
injured party a valid cause for recovering that which may have been lost or suffered.
The remedy serves to preserve the interests of the promisee that may include his
"expectation interest," which is his interest in having the benefit of his bargain by being
put in as good a position as he would have been in had the contract been performed, or
his "reliance interest," which is his interest in being reimbursed for loss caused by
reliance on the contract by being put in as good a position as he would have been in
had the contract not been made; or his "restitution interest," which is his interest in
having restored to him any benefit that he has conferred on the other party. 14 Indeed,
agreements can accomplish little, either for their makers or for society, unless they are
made the basis for action. 15 The effect of every infraction is to create a new duty, that
is, to make recompense to the one who has been injured by the failure of another to
observe his contractual obligation 16 unless he can show extenuating circumstances,
like proof of his exercise of due diligence (normally that of the diligence of a good
father of a family or, exceptionally by stipulation or by law such as in the case of
common carriers, that of extraordinary diligence) or of the attendance of fortuitous
event, to excuse him from his ensuing liability. cralaw : red

Respondent trucking corporation recognizes the existence of a contract of carriage

between it and petitioner’s assured, and admits that the cargoes it has assumed to
deliver have been lost or damaged while in its custody. In such a situation, a default
on, or failure of compliance with, the obligation — in this case, the delivery of the goods
in its custody to the place of destination — gives rise to a presumption of lack of care
and corresponding liability on the part of the contractual obligor the burden being on
him to establish otherwise. GPS has failed to do so.

Respondent driver, on the other hand, without concrete proof of his negligence or fault,
may not himself be ordered to pay petitioner. The driver, not being a party to the
contract of carriage between petitioner’s principal and defendant, may not be held liable
under the agreement. A contract can only bind the parties who have entered into it or
their successors who have assumed their personality or their juridical position. 17
Consonantly with the axiom res inter alios acta aliis neque nocet prodest, such contract
can neither favor nor prejudice a third person. Petitioner’s civil action against the driver
can only be based on culpa aquiliana, which, unlike culpa contractual, would require the
claimant for damages to prove negligence or fault on the part of the defendant. 18

A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner, holds a
defendant liable where the thing which caused the injury complained of is shown to be
under the latter’s management and the accident is such that, in the ordinary course of
things, cannot be expected to happen if those who have its management or control use
proper care. It affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from want of care. 19 It is not a rule of substantive
law and, as such, it does not create an independent ground of liability. Instead, it is
regarded as a mode of proof, or a mere procedural convenience since it furnishes a
substitute for, and relieves the plaintiff of, the burden of producing specific proof of
negligence. The maxim simply places on the defendant the burden of going forward
with the proof. 20 Resort to the doctrine, however, may be allowed only when (a) the
event is of a kind which does not ordinarily occur in the absence of negligence; (b)
other responsible causes, including the conduct of the plaintiff and third persons, are
sufficiently eliminated by the evidence; and (c) the indicated negligence is within the
scope of the defendant’s duty to the plaintiff. 21 Thus, it is not applicable when an
unexplained accident may be attributable to one of several causes, for some of which
the defendant could not be responsible. 22 chanrob1es virtua1 1aw 1ibrary

Res ipsa loquitur generally finds relevance whether or not a contractual relationship
exists between the plaintiff and the defendant, for the inference of negligence arises
from the circumstances and nature of the occurrence and not from the nature of the
relation of the parties. 23 Nevertheless, the requirement that responsible causes other
than those due to defendant’s conduct must first be eliminated, for the doctrine to
apply, should be understood as being confined only to cases of pure (non-contractual)
tort since obviously the presumption of negligence in culpa contractual, as previously so
pointed out, immediately attaches by a failure of the covenant or its tenor. In the case
of the truck driver, whose liability in a civil action is predicated on culpa acquiliana,
while he admittedly can be said to have been in control and management of the vehicle
which figured in the accident, it is not equally shown, however, that the accident could
have been exclusively due to his negligence, a matter that can allow, forthwith, res ipsa
loquitur work against him.

If a demurrer to evidence is granted but on appeal the order of dismissal is reversed,

the movant shall be deemed to have waived the right to present evidence. 24 Thus,
respondent corporation may no longer offer proof to establish that it has exercised due
care in transporting the cargoes of the assured so as to still warrant a remand of the
case to the trial court.
chanrob1es virtua1 1aw library

WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of
Makati City, and the decision, dated 10 June 1999, of the Court of Appeals, are
AFFIRMED only insofar as respondent Lambert M. Eroles is concerned, but said assailed
order of the trial court and decision of the appellate court are REVERSED as regards
G.P. Sarmiento Trucking Corporation which, instead, is hereby ordered to pay FGU
Insurance Corporation the value of the damaged and lost cargoes in the amount of
P204,450.00. No costs.

SO ORDERED.
Davide, Jr., C.J., Kapunan, Ynares-Santiago and Austria-Martinez, JJ., concur.

Endnotes:

1. Rollo, p. 14.

2. Rollo, pp. 14-15.

3. Rollo, p. 17

4. Rollo, p. 20.

5. Rollo, pp. 24-28.

6. Rollo, p. 32.

7. Rollo, p. 3.

8. Article 1732, Civil Code.

9. Sec. 13[b], Public Service Act as amended; see also Guzman v. Court of Appeals,
G.R. L-47822, 22 December 1988.

10. National Steel Corporation v. Court of Appeals, 283 SCRA 45.

11. Calalas v. Court of Appeals, 332 SCRA 356; Sabena Belgian World Airlines v. Court
of Appeals, 255 SCRA 38.

12. See Articles 1159, 1308, 1315, 1356, Civil Code.

13. Anson on Contracts, 1939, p. 424; 17A Am Jur 2d, p. 728 citing Parks v. Parks, 187
P2d 145.

14. Restatement, Second, Contracts, �344.

15. Fuller and Purdue, The Reliance Interest in Contract Damages, 46 Yale L.J.61
(1936).

16. Richardson on Contracts, 1951, p. 309.

17. Article 1311, Civil Code.

18. Calalas v. Court of Appeals, supra; See Article 2176, Civil Code.

19. Africa v. Caltex (Phils.) Inc., 16 SCRA 448; Layugan v. Intermediate Appellate
Court, 167 SCRA 376.
20. Ramos v. Court of Appeals, 321 SCRA 600.

21. Sangco, Torts and Damages V.1, 1993, p. 29, citing 58 Am Jur 2d, pp. 56-58. See
Ramos v. Court of Appeals, supra.

22. Words and Phrases Vol. 37, p. 483.

23. 57B Am Jur 2d, p. 496.

24. Section 1, Rule 35, Rules of Court; Section 1, Rule 33, 1997 Rules of Civil
Procedure.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20761 July 27, 1966

LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET AL., respondents.

G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.

Ahmed Garcia for respondents.

BARRERA, J.:

La Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R. No. 23267-R,
holding it liable for quasi-delict and ordering it to pay to respondents Mariano Beltran, et al.,
P6,000.00 for the death of his minor daughter Raquel Beltran, plus P400.00 as actual damages.

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

On December 20, 1953, at about noontime, plaintiffs, husband and wife, together with their
minor daughters, namely, Milagros, 13 years old, Raquel, about 4½ years old, and Fe, over 2
years old, boarded the Pambusco Bus No. 352, bearing plate TPU No. 757 (1953
Pampanga), owned and operated by the defendant, at San Fernando, Pampanga, bound for
Anao, Mexico, Pampanga. At the time, they were carrying with them four pieces of baggages
containing their personal belonging. The conductor of the bus, who happened to be a half-
brother of plaintiff Mariano Beltran, issued three tickets (Exhs. A, B, & C) covering the full
fares of the plaintiff and their eldest child, Milagros. No fare was charged on Raquel and Fe,
since both were below the height at which fare is charged in accordance with the appellant's
rules and regulations.
 After about an hour's trip, the bus reached Anao whereat it stopped to allow the passengers
bound therefor, among whom were the plaintiffs and their children to get off. With respect to
the group of the plaintiffs, Mariano Beltran, then carrying some of their baggages, was the
first to get down the bus, followed by his wife and his children. Mariano led his companions
to a shaded spot on the left pedestrians side of the road about four or five meters away from
the vehicle. Afterwards, he returned to the bus in controversy to get his other bayong, which
he had left behind, but in so doing, his daughter Raquel followed him, unnoticed by her
father. While said Mariano Beltran was on the running board of the bus waiting for the
conductor to hand him his bayong which he left under one of its seats near the door, the bus,
whose motor was not shut off while unloading, suddenly started moving forward, evidently to
resume its trip, notwithstanding the fact that the conductor has not given the driver the
customary signal to start, since said conductor was still attending to the baggage left behind
by Mariano Beltran. Incidentally, when the bus was again placed into a complete stop, it had
travelled about ten meters from the point where the plaintiffs had gotten off.

Sensing that the bus was again in motion, Mariano Beltran immediately jumped from the
running board without getting his bayong from the conductor. He landed on the side of the
road almost in front of the shaded place where he left his wife and children. At that precise
time, he saw people beginning to gather around the body of a child lying prostrate on the
ground, her skull crushed, and without life. The child was none other than his daughter
Raquel, who was run over by the bus in which she rode earlier together with her parents.

For the death of their said child, the plaintiffs commenced the present suit against the
defendant seeking to recover from the latter an aggregate amount of P16,000 to cover moral
damages and actual damages sustained as a result thereof and attorney's fees. After trial on
the merits, the court below rendered the judgment in question.

On the basis of these facts, the trial court found defendant liable for breach of contract of carriage
and sentenced it to pay P3,000.00 for the death of the child and P400.00 as compensatory damages
representing burial expenses and costs.

On appeal to the Court of Appeals, La Mallorca claimed that there could not be a breach of contract
in the case, for the reason that when the child met her death, she was no longer a passenger of the
bus involved in the incident and, therefore, the contract of carriage had already terminated. Although
the Court of Appeals sustained this theory, it nevertheless found the defendant-appellant guilty
of quasi-delict and held the latter liable for damages, for the negligence of its driver, in accordance
with Article 2180 of the Civil Code. And, the Court of Appeals did not only find the petitioner liable,
but increased the damages awarded the plaintiffs-appellees to P6,000.00, instead of P3,000.00
granted by the trial court.

In its brief before us, La Mallorca contends that the Court of Appeals erred (1) in holding it liable
for quasi-delict, considering that respondents complaint was one for breach of contract, and (2) in
raising the award of damages from P3,000.00 to P6,000.00 although respondents did not appeal
from the decision of the lower court.

Under the facts as found by the Court of Appeals, we have to sustain the judgement holding
petitioner liable for damages for the death of the child, Raquel Beltran. It may be pointed out that
although it is true that respondent Mariano Beltran, his wife, and their children (including the
deceased child) had alighted from the bus at a place designated for disembarking or unloading of
passengers, it was also established that the father had to return to the vehicle (which was still at a
stop) to get one of his bags or bayong that was left under one of the seats of the bus. There can be
no controversy that as far as the father is concerned, when he returned to the bus for
his bayong which was not unloaded, the relation of passenger and carrier between him and the
petitioner remained subsisting. For, the relation of carrier and passenger does not necessarily cease
where the latter, after alighting from the car, aids the carrier's servant or employee in removing his
baggage from the car.1The issue to be determined here is whether as to the child, who was already
led by the father to a place about 5 meters away from the bus, the liability of the carrier for her safety
under the contract of carriage also persisted.

It has been recognized as a rule that the relation of carrier and passenger does not cease at the
moment the passenger alights from the carrier's vehicle at a place selected by the carrier at the point
of destination, but continues until the passenger has had a reasonable time or a reasonable
opportunity to leave the carrier's premises. And, what is a reasonable time or a reasonable delay
within this rule is to be determined from all the circumstances. Thus, a person who, after alighting
from a train, walks along the station platform is considered still a passenger.2 So also, where a
passenger has alighted at his destination and is proceeding by the usual way to leave the company's
premises, but before actually doing so is halted by the report that his brother, a fellow passenger,
has been shot, and he in good faith and without intent of engaging in the difficulty, returns to relieve
his brother, he is deemed reasonably and necessarily delayed and thus continues to be a passenger
entitled as such to the protection of the railroad and company and its agents.3

In the present case, the father returned to the bus to get one of his baggages which was not
unloaded when they alighted from the bus. Raquel, the child that she was, must have followed the
father. However, although the father was still on the running board of the bus awaiting for the
conductor to hand him the bag or bayong, the bus started to run, so that even he (the father) had to
jump down from the moving vehicle. It was at this instance that the child, who must be near the bus,
was run over and killed. In the circumstances, it cannot be claimed that the carrier's agent had
exercised the "utmost diligence" of a "very cautions person" required by Article 1755 of the Civil
Code to be observed by a common carrier in the discharge of its obligation to transport safely its
passengers. In the first place, the driver, although stopping the bus, nevertheless did not put off the
engine. Secondly, he started to run the bus even before the bus conductor gave him the signal to go
and while the latter was still unloading part of the baggages of the passengers Mariano Beltran and
family. The presence of said passengers near the bus was not unreasonable and they are, therefore,
to be considered still as passengers of the carrier, entitled to the protection under their contract of
carriage.

But even assuming arguendo that the contract of carriage has already terminated, herein petitioner
can be held liable for the negligence of its driver, as ruled by the Court of Appeals, pursuant to
Article 2180 of the Civil Code. Paragraph 7 of the complaint, which reads —

That aside from the aforesaid breach of contract, the death of Raquel Beltran, plaintiffs'
daughter, was caused by the negligence and want of exercise of the utmost diligence of a
very cautious person on the part of the defendants and their agent, necessary to transport
plaintiffs and their daughter safely as far as human care and foresight can provide in the
operation of their vehicle.

is clearly an allegation for quasi-delict. The inclusion of this averment for quasi-delict, while
incompatible with the other claim under the contract of carriage, is permissible under Section 2 of
Rule 8 of the New Rules of Court, which allows a plaintiff to allege causes of action in the alternative,
be they compatible with each other or not, to the end that the real matter in controversy may be
resolved and determined.4

The plaintiffs sufficiently pleaded the culpa or negligence upon which the claim was predicated when
it was alleged in the complaint that "the death of Raquel Beltran, plaintiffs' daughter, was caused by
the negligence and want of exercise of the utmost diligence of a very cautious person on the part of
the defendants and their agent." This allegation was also proved when it was established during the
trial that the driver, even before receiving the proper signal from the conductor, and while there were
still persons on the running board of the bus and near it, started to run off the vehicle. The
presentation of proof of the negligence of its employee gave rise to the presumption that the
defendant employer did not exercise the diligence of a good father of the family in the selection and
supervision of its employees. And this presumption, as the Court of Appeals found, petitioner had
failed to overcome. Consequently, petitioner must be adjudged peculiarily liable for the death of the
child Raquel Beltran.

The increase of the award of damages from P3,000.00 to P6,000.00 by the Court of Appeals,
however, cannot be sustained. Generally, the appellate court can only pass upon and consider
questions or issues raised and argued in appellant's brief. Plaintiffs did not appeal from that portion
of the judgment of the trial court awarding them on P3,000.00 damages for the death of their
daughter. Neither does it appear that, as appellees in the Court of Appeals, plaintiffs have pointed
out in their brief the inadequacy of the award, or that the inclusion of the figure P3,000.00 was
merely a clerical error, in order that the matter may be treated as an exception to the general
rule.5 Herein petitioner's contention, therefore, that the Court of Appeals committed error in raising
the amount of the award for damages is, evidently, meritorious. 1äwphï1.ñët

Wherefore, the decision of the Court of Appeals is hereby modified by sentencing, the petitioner to
pay to the respondents Mariano Beltran, et al., the sum of P3,000.00 for the death of the child,
Raquel Beltran, and the amount of P400.00 as actual damages. No costs in this instance. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.
Makalintal, J., concurs in the result.

Footnotes

1
Ormond v. Hayer, 60 Tex. 180, cited in 10 C.J. 626.

2
Keefe v. Boston, etc., R. Co., 142 Mass. 251, 7 NE 874.

3
Layne v. Chesapeake, etc. R. Co., 68 W. Va. 213, 69 SE 700, 31 LRANS 414.

4
Melayan, et al. v. Melayan, et al., G.R. No. L-14518, Aug. 29, 1960.

5
Sec. 7, Rule 51, new Rules of Court.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA, NAPOLEON
VIRATA, ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA VIRATA, and
EVANGELINA VIRATA, petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF CAVITE, 7th
JUDICIAL DISTRICT, BRANCH V, stationed at BACOOR, CAVITE, respondents.

Remulla, Estrella & Associates for petitioners

Exequil C. Masangkay for respondents.

FERNANDEZ, J.:

This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V, in
Civil Case No. B-134 granting the motion of the defendants to dismiss the complaint on the ground
that there is another action pending between the same parties for the same cause. 1

The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been
bumped while walking along Taft Avenue, Pasay City by a passenger jeepney driven by Maximo
Borilla and registered in the name Of Victoria Ochoa; that Borilla is the employer of Ochoa; that for
the death of Arsenio Virata, a action for homicide through reckless imprudence was instituted on
September 25, 1975 against Maximo Borilla in the Court of First Instance of Rizal at Pasay City,
docketed as C Case No. 3162-P of said court; that at the hearing of the said criminal case on
December 12, 1975, Atty. Julio Francisco, the private prosecutor, made a reservation to file a
separate civil action for damages against the driver on his criminal liability; that on February 19,
1976 Atty. Julio Francisco filed a motion in said c case to withdraw the reservation to file a separate
civil action; that thereafter, the private prosecutor actively participated in the trial and presented
evidence on the damages; that on June 29, 1976 the heirs of Arsenio Virata again reserved their
right to institute a separate civil action; that on July 19, 1977 the heirs of Arsenio Virata, petitioners
herein, commenced Civil No. B-134 in the Court of First Instance of Cavite at Bacoor, Branch V, for
damages based on quasi-delict against the driver Maximo Borilla and the registered owner of the
jeepney, Victorio Ochoa; that on August 13, 1976 the defendants, private respondents filed a motion
to dismiss on the ground that there is another action, Criminal Case No. 3162-P, pending between
the same parties for the same cause; that on September 8, 1976 the Court of First Instance of Rizal
at Pasay City a decision in Criminal Case No. 3612-P acquitting the accused Maximo Borilla on the
ground that he caused an injury by name accident; and that on January 31, 1977, the Court of First
Instance of Cavite at Bacoor granted the motion to Civil Case No. B-134 for damages. 2

The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the
damages based on quasi-delict against Maximo Borilla and Victoria Ochoa, driver and owner,
respectively on the passenger jeepney that bumped Arsenio Virata.

It is settled that in negligence cases the aggrieved parties may choose between an action under the
Revised Penal Code or of quasi-delict under Article 2176 of the Civil Code of the Philippines. What is
prohibited by Article 2177 of the Civil Code of the Philippines is to recover twice for the same
negligent act.

The Supreme Court has held that:

 According to the Code Commission: 'The foregoing provision (Article 2177) though at
first sight startling, is not so novel or extraordinary when we consider the exact
nature of criminal and civil negligence. The former is a violation of the criminal law,
while the latter is a 'culpa aquiliana' or quasi-delict, of ancient origin, having always
had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and 'culpa extra-contractual' or quasi-delito
has been sustained by decision of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent
civil action, not for civil liability arising from criminal negligence, but for damages due
to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.
(Report of the Code Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bocobo about construction that upholds
'the spirit that given life' rather than that which is literal that killeth the intent of the
lawmaker should be observed in applying the same. And considering that the
preliminary chapter on human relations of the new Civil Code definitely establishes
the separability and independence of liability in a civil action for acts criminal in
character (under Articles 29 to 32) from the civil responsibility arising from crime fixed
by Article 100 of the Penal Code, and, in a sense, the Rules of Court, under Sections
2 and 3(c), Rule 111, contemplate also the same separability, it is 'more congruent'
with the spirit of law, equity and justice, and more in harmony with modern progress',
to borrow the felicitous language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. to
359, to hod as We do hold, that Article 2176, where it refers to 'fault covers not only
acts 'not punishable by law' but also criminal in character, whether intentional and
voluntary or consequently, a separate civil action lies against the in a criminal act,
whether or not he is criminally prosecuted and found guilty and acquitted, provided
that the offended party is not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled in such eventuality only to
the bigger award of the, two assuming the awards made in the two cases vary. In
other words the extinction of civil liability refereed to in Par. (c) of Section 13, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act considered as a quasi-delict only
and not as a crime is not extinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been committed by the
accused. Brief stated, We hold, in reitration of Garcia, that culpa aquilina includes
voluntary and negligent acts which may be punishable by law. 3

The petitioners are not seeking to recover twice for the same negligent act. Before Criminal Case
No. 3162-P was decided, they manifested in said criminal case that they were filing a separate civil
action for damages against the owner and driver of the passenger jeepney based on quasi-
delict. The acquittal of the driver, Maximo Borilla, of the crime charged in Criminal Case No. 3162-P
is not a bar to the prosecution of Civil Case No. B-134 for damages based on quasi-delict The
source of the obligation sought to be enforced in Civil Case No. B-134 is quasi-delict, not an act or
omission punishable by law. Under Article 1157 of the Civil Code of the Philippines, quasi-delict and
an act or omission punishable by law are two different sources of obligation.

Moreover, for the petitioners to prevail in the action for damages, Civil Case No. B-134, they have
only to establish their cause of action by preponderance of the evidence.
WHEREFORE, the order of dismissal appealed from is hereby set aside and Civil Case No. B-134 is
reinstated and remanded to the lower court for further proceedings, with costs against the private
respondents.

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz Palma and Guerrero, JJ., concur.

Footnotes

1 Annex "A", Rollo, pp. 38-42.

2 Comment of Respondents, Rollo, pp. 48-51.

3 Elcano vs. Hill. 77 SCRA 98, 105-107.

SECOND DIVISION

[G.R. No. 104408. June 21, 1993.]

METRO MANILA TRANSIT CORPORATION, Petitioner, v. THE COURT OF

APPEALS and NENITA CUSTODIO, Respondents.

Office of the Government Corporate Counsel for Petitioner.

Renato P. Decena and Restituto Abjero for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT; BY THE TRIAL COURT; MAY BE

REVIEWED BY THE COURT OF APPEALS. — At this juncture, it suffice to note that
factual findings of the trial court may be reversed by the Court of Appeals, which is
vested by law with the power to review both legal and factual issues, if on the
evidence of record, it appears that the trial court may have been mistaken
particularly in the appreciation of evidence, which is within the domain of the Court
of Appeals.

2. ID.; ID.; ID.; BY THE COURT OF APPEALS; RULE AND EXCEPTIONS;

APPLICATION IN CASE AT BAR. — The general rule laid down in a plethora of cases
is that such findings of fact by the Court of Appeals are conclusive upon and beyond
the power of review of the Supreme Court. However, it is now well-settled that
while the findings of fact of the Court of Appeals are entitled to great respect, and
even finality at times, that rule is not inflexible and is subject to well established
exceptions, to wit: (1) when the conclusion is a finding grounded entirely on
speculation, surmises and conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) where there is grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; (5) when the findings
of fact are conflicting; (6) when the Court of Appeals, in making its findings, went
beyond the issues of the case and the same are contrary to the admissions of both
appellant and appellee; (7) when the findings of the Court of Appeals are contrary
to those of the trial court; (8) when the findings of the fact are conclusions without
citation of specific evidence on which they are based; (9) when the facts set forth in
the petition, as well as in the petitioner’s main and reply briefs, are not disputed by
the respondents; and (10) when the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and are contradicted by the
evidence on record. When, as in this case, the findings of the Court of Appeals and
the trial court are contrary to each other, this court may scrutinize the evidence on
record, in order to arrive at a correct finding based thereon.

3. ID.; ID.; BURDEN OF PROOF; REST UPON THE PARTY WHO MADE AN
AFFIRMATIVE ASSERTION. — It is procedurally required for each party in a case to
prove his own affirmative assertion by the degree of evidence required by law. In
civil cases, the degree of evidence required of a party in order to support his claim
is preponderance of evidence, or that evidence adduced by one party which is more
conclusive and credible than that of the other party. It is, therefore, incumbent on
the plaintiff who is claiming a right to prove his case. Corollarily, defendant must
likewise prove its own allegation to buttress its claim that it is not liable.
(Stronghold Insurance Company, Inc. v. Court of Appeals, Et Al., 173 SCRA 619
[1989]) In fine, the party, whether plaintiff or defendant, who asserts the
affirmative of the issue has the burden of presenting at the trial such amount of
evidence required by law to obtain a favorable judgment. It is entirely within each
of the parties’ discretion, consonant with the theory of the case it or he seeks to
advance and subject to such procedural strategy followed thereby, to present all
available evidence at its or his disposal in the manner which may be deemed
necessary and beneficial to prove its or his position, provided only that the same
shall measure up to the quantum of evidence required by law. In making proof in
its or his case, it is paramount that the best and most complete evidence be
formally entered.

4. ID.; ID.; ID.; ID.; OBSERVANCE OF THE DILIGENCE OF A GOOD FATHER OF A

FAMILY, AS A DEFENSE; NOT ESTABLISHED IN CASE AT BAR. — While there is no
rule which requires that testimonial evidence, to hold sway, must be corroborated
by documentary evidence, or even object evidence for that matter, inasmuch as the
witnesses’ testimonies dwelt on mere generalities, we cannot consider the same as
sufficiently persuasive proof that there was observance of due diligence in the
selection and supervision of employees. Petitioner’s attempt to prove its
diligentissimi patris familias in the selection and supervision of employees through
oral evidence must fail as it was unable to buttress the same with any other
evidence, object or documentary, which might obviate the apparent biased nature
of the testimony. Whether or not the diligence of a good father of a family has been
observed by petitioner is a matter of proof which under the circumstances in the
case at bar has not been clearly established. It is not felt by the Court that there is
enough evidence on record as would overturn the presumption of negligence, and
for failure to submit all evidence within its control, assuming the putative existence
thereof, petitioner MMTC must suffer the consequences of its own inaction and
indifference. Due diligence in the supervision of employees, includes the
formulation of suitable rules and regulations for the guidance of employees and the
issuance of proper instructions intended for the protection of the public and persons
with whom the employer has relations through his or its employees and the
imposition of necessary disciplinary measures upon employees in case of breach or
as may be warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer. (Filamer Christian Institute v.
Intermediate Appellate Court, Et Al., 212 SCRA 637 [1992]) To this, we add that
actual implementation and monitoring of consistent compliance with said rules
should be the constant concern of the employer, acting through dependable
supervisors who should regularly report on their supervisory functions. In order that
the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of
said company guidelines and policies on hiring and supervision. As the negligence
of the employee gives rise to the presumption of negligence on the part of the
employer, the latter has the burden of proving that it has been diligent not only in
the selection of employees but also in the actual supervision of their work. The
mere allegation of the existence of hiring procedures and supervisory policies,
without anything more, is decidedly not sufficient to overcome such presumption.
We emphatically reiterate our holding, as a warning to all employees, that" (t)he
mere formulation of various company policies on safety without showing that they
were being complied with is not sufficient to exempt petitioner 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." (Pantranco North Express, Inc. v.
Baesa, 179 384 [1989]. See also Franco, Et. Al. v. Intermediate Appellate Court, Et
Al., 178 SCRA 31 [1989]) Paying lip-service to these injunctions or merely going
through the motions of compliance therewith will warrant stern sanctions from the
Court.

5. CIVIL LAW; QUASI-DELICT; ELEMENTS. — The case at bar is clearly within the
coverage of Articles 2176 and 2177, in relation to Article 2180 of the Civil Code
provisions on quasi-delicts, as all the elements thereof are present, to wit: (1)
damages suffered by the plaintiff, (2) fault or negligence of the defendant or some
other person for whose act he must respond, and (3) the connection of cause and
effect between fault or negligence of the defendant and the damages incurred by
plaintiff.

6. ID.; ID.; LIABILITY OF EMPLOYER; DEFENSE AVAILABLE; CASE AT BAR. —

Whether or not engaged in any business or industry, the employer under Article
2180 is liable for torts committed by his employees within the scope of their
assigned tasks. But, it is necessary first to establish the employment relationship.
Once this is done, the plaintiff must show, to hold the employer liable, that the
employee was acting within the scope of his assigned task when the tort
complained of was committed. It is only then that the defendant, as employer, may
find it necessary to interpose the defense of due diligence in the selection and
supervision of employees. The diligence of a good father of a family required to be
observed by employers to prevent damages under Article 2180 refers to due
diligence in the selection and supervision of employees in order to protect the
public. With the allegation and subsequent proof of negligence against the
defendant driver and of an employer-employee relation between him and his co-
defendant MMTC in this instance, the case is undoubtedly based on a quasi-delict
under Article 2180. When the employee causes damage due to his own negligence
while performing his own duties, there arises the juris tantum presumption that the
employer is negligent, rebuttable only by proof of observance of the diligence of a
good father of a family. For failure to rebut such legal presumption of negligence in
the selection and supervision of employees, the employer is likewise responsible for
damages, the basis of the liability being the relationship of pater familias or on the
employer’s own negligence. As early as the case of Gutierrez v. Gutierrez, (56 Phil.
177 [1931]) and thereafter, we have consistently held that where the injury is due
to the concurrent negligence of the drivers of the colliding vehicles, the drivers and
owners of the said vehicles shall be primarily, directly and solidarily liable for
damages and it is immaterial that one action is based on quasi-delict and the other
on culpa contractual, as the solidarity of the obligation is justified by the very
nature thereof. (Art. 1207, Civil Code) It should be borne in mind that the legal
obligation of employers to observe due diligence in the selection and supervision of
employees is not to be considered as an empty play of words or a mere formalism,
as appears to be the fashion of the times, since the non-observance thereof
actually becomes the basis of their vicarious liability under Article 2180.

DECISION

REGALADO, J.:

This appeal calls for a review of the legal validity and sufficiency of petitioner’s
invocation of due diligence in the selection and supervision of employees as its
defense against liability resulting from a vehicular collision. With the facility by
which such a defense can be contrived and our country having reputedly the
highest traffic accident rate in its geographical region, it is indeed high time for us
to once again address this matter which poses not only a litigation issue for the
courts but affects the very safety of our streets.
The facts of the case at bar are recounted for us by respondent court, thus —

"At about six o’clock in the morning of August 28, 1979, plaintiff-appellant Nenita
Custodio boarded as a paying passenger a public utility jeepney with plate No. D7
305 PUJ Pilipinas 1979, then driven by defendant Agudo Calebag and owned by his
co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated
located in Bicutan, Taguig, Metro Manila, where she then worked as a machine
operator earning P16.25 a day. While the passenger jeepney was travelling at (a)
fast clip along DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving
vehicle, a Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z
307 PUB (Philippines) ‘79 driven by defendant Godofredo C. Leonardo was
negotiating Honeydew Road, Bicutan, Taguig, Metro Manila bound for its terminal at
Bicutan. As both vehicles approached the intersection of DBP Avenue and
Honeydew Road they failed to slow down and slacken their speed; neither did they
blow their horns to warn approaching vehicles. As a consequence, a collision
between them occurred, the passenger jeepney ramming the left side portion of the
MMTC bus. The collision impact caused plaintiff-appellant Nenita Custodio to hit the
front windshield of the passenger jeepney and (she) was thrown out therefrom,
falling onto the pavement unconscious with serious physical injuries. She was
brought to the Medical City Hospital where she regained consciousness only after
one (1) week. Thereat, she was confined for twenty-four (24) days, and as a
consequence, she was unable to work for three and one half months (3 1/2)." 1

A complaint for damages 2 was filed by herein private respondent, who being then
a minor was assisted by her parents, against all of therein named defendants
following their refusal to pay the expenses incurred by the former as a result of the
collision.

Said defendants denied all the material allegations in the complaint and pointed an
accusing finger at each other as being the party at fault. Further, herein petitioner
Metro Manila Transit Corporation (MMTC), a government-owned corporation and
one of the defendants in the court a quo, along with its driver, Godofredo Leonardo,
contrarily averred in its answer with cross-claim and counterclaim 3 that the MMTC
bus was driven in a prudent and careful manner by driver Leonardo and that it was
the passenger jeepney which was driven recklessly considering that it hit the left
middle portion of the MMTC bus, and that it was defendant Lamayo, the owner of
the jeepney and employer of driver Calebag, who failed to exercise due diligence in
the selection and supervision of employees and should thus be held solidarily liable
for damages caused to the MMTC bus through the fault and negligence of its
employees. chanrobles law library : red

Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and
counterclaim 4 that the damages suffered by therein plaintiff should be borne by
defendants MMTC and its driver, Godofredo Leonardo, because the latter’s
negligence was the sole and proximate cause of the accident and that MMTC failed
to exercise due diligence in the selection and supervision of its employees.
By order of the trial court, defendant Calebag was declared in default for failure to
file an answer. 5 Thereafter, as no amicable settlement was reached during the
pre-trial conference, 6 trial on the merits ensued with the opposing parties
presenting their respective witnesses and documentary evidence.

Herein private respondent Nenita Custodio, along with her parents, were presented
as witnesses for the prosecution. In addition, Dr. Edgardo del Mundo, the attending
physician, testified on the cause, nature and extent of the injuries she sustained as
a result of the vehicular mishap 7 On the other hand, defendant MMTC presented as
witnesses Godofredo Leonardo, Christian Bautista and Milagros Garbo. Defendant
Lamayo, however, failed to present any witness. chanrobles.com:cralaw:red

Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the
selection of the company’s bus drivers, conducting for this purpose a series of
training programs and examinations. According to her, new applicants for job
openings at MMTC are preliminarily required to submit certain documents such as
National Bureau of Investigation (NBI) clearance, birth or residence certificate, ID
pictures, certificate or diploma of highest educational attainment, professional
driver’s license, and work experience certification. Re-entry applicants, aside from
the foregoing requirements, are additionally supposed to submit company clearance
for shortages and damages and revenue performance for the preceding year. Upon
satisfactory compliance with said requisites, applicants are recommended for and
subjected to a preliminary interview, followed by a record check to find out whether
they are included in the list of undesirable employees given by other companies. chanrobles.com.ph : virtual law library

Thereafter, she continued, if an applicant is found to be acceptable, a final interview

by the Chief Supervisor is scheduled and followed by a training program which
consists of seminars and actual driving and psycho-physical tests and X-ray
examinations. The seminars, which last for a total of eighteen (18) days, include
familiarization with assigned routes, existing traffic rules and regulations,
Constabulary Highway Patrol Group (CHPG) seminar on defensive driving,
preventive maintenance, proper vehicle handling, interpersonal relationship and
administrative rules on discipline and on-the-job training. Upon completion of all
the seminars and tests, a final clearance is issued, an employment contract is
executed and the driver is ready to report for duty. 8

MMTC’s Transport Supervisor, Christian Bautista, testified that it was his duty to
monitor the daily operation of buses in the field, to countercheck the dispatcher on
duty prior to the operation of the buses in the morning and to see to it that the bus
crew follow written guidelines of the company, which include seeing to it that its
employees are in proper uniform, briefed in traffic rules and regulations before the
start of duty, fit to drive and, in general, follow other rules and regulations of the
Bureau of Land Transportation as well as of the company. 9

The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers
of the colliding vehicles concurrently negligent for non-observance of appropriate
traffic rules and regulations and for failure to take the usual precautions when
approaching an intersection. As joint tortfeasors, both drivers, as well as defendant
Lamayo, were held solidarily liable for damages sustained by plaintiff Custodio.
Defendant MMTC, on the bases of the evidence presented was, however, absolved
from liability for the accident on the ground that it was not only careful and diligent
in choosing and screening applicants for job openings but was also strict and
diligent in supervising its employees by seeing to it that its employees were in
proper uniforms, briefed in traffic rules and regulations before the start of duty, and
that it checked its employees to determine whether or not they were positive for
alcohol and followed other rules and regulations and guidelines of the Bureau of
Land Transportation and of the company. chanrobles.com.ph : virtual law library

The trial court accordingly ruled: jgc:chanrobles.com.ph

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing

the complaint against the Metro Manila Transit Corporation and ordering defendants
Agudo P. Calebag, Victorino Lamayo and Godofredo C. Leonardo to pay plaintiffs,
jointly and severally, the following: chanrob1es virtual 1aw library

a) the sum of P10,000.00 by way of medical expenses;

b) the sum of P5,000.00 by way of expenses of litigation;

c) the sum of P15,000.00 by way of moral damages;

d) the sum of P2,672.00 by way of loss of earnings;

e) the sum of P5,000.00 by way of exemplary damages;

f) the sum of P6,000.00 by way of attorney’s fees; and

g) costs of suit.

SO ORDERED." 11

Plaintiff’s motion to have that portion of the trial court’s decision absolving MMTC
from liability reconsidered 12 having been denied for lack of merit, 13 an appeal
was filed by her with respondent appellate court. After consideration of the
appropriate pleadings on appeal and finding the appeal meritorious, the Court of
Appeals modified the trial court’s decision by holding MMTC solidarily liable with the
other defendants for the damages awarded by the trial court because of their
concurrent negligence, concluding that while there is no hard and fast rule as to
what constitutes sufficient evidence to prove that an employer has exercised the
due diligence required of it in the selection and supervision of its employees, based
on the quantum of evidence adduced the said appellate court was not disposed to
say that MMTC had exercised the diligence required of a good father of a family in
the selection and supervision of its driver, Godofredo Leonardo. 14

The Court of Appeals was resolute in its conclusion and denied the motions for
reconsideration of appellee Custodio and appellant MMTC in a resolution dated
February 17, 1982, 15 thus prompting MMTC to file the instant petition invoking the
review powers of this Court over the decision of the Court of Appeals, raising as
issues for resolution whether or not (1) the documentary evidence to support the
positive testimonies of witnesses Garbo and Bautista are still necessary; (2) the
testimonies of witnesses Garbo and Bautista may still be disturbed on appeal; and
(3) the evidence presented during the trial with respect to the proof of due
diligence of petitioner MMTC in the selection and supervision of its employees,
particularly driver Leonardo, is sufficient.

Prefatorily, private respondent questions the timeliness of the filing of the petition
at bar in view of the procedural stricture that the timely perfection of an appeal is
both a mandatory and jurisdictional requirement. This is a legitimate concern on
the part of private respondent and presents an opportune occasion to once again
clarify this point as there appears to be some confusion in the application of the
rules and interpretative rulings regarding the computation of reglementary periods
at the stage of the proceedings. chanroblesvirtualawlibrary

The records of this case reveal that the decision of respondent Court of Appeals,
dated October 31, 1991, was received by MMTC on November 18, 1991 16 and it
seasonably filed a motion for the reconsideration thereof on November 28, 1991.
17 Said motion for reconsideration was denied by respondent court in its resolution
dated February 17, 1992, which in turn was received by MMTC on March 9, 1992.
18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen
(15) days therefrom or up to March 24, 1992 within which to file a petition for
review on certiorari. Anticipating, however, that it may not be able to file said
petition before the lapse of the reglementary period therefor, MMTC filed a motion
on March 19, 1992 for an extension of thirty (30) days to file the present petition,
with proof of service of copies thereof to respondent court and the adverse parties.
The Court granted said motion, with the extended period to be counted from the
expiration of the reglementary period. 19 Consequently, private respondent had
thirty (30) days from March 24, 1992 within which to file its petition, or up to April
23, 1992, and the eventual filing of said petition on April 14, 1992 was well within
the period granted by the Court. chanrobles.com:cralaw:red

We digress to reiterate, in view of erroneous submissions that we continue to

receive, that in the case of a petition for review on certiorari from a decision
rendered by the Court of Appeals, Section 1, Rule 45 of the Rules of Court, which
has long since been clarified in Lacsamana v. The Hon. Second Special Cases
Division of the Intermediate Appellate Court, Et Al., 20 allows the same to be filed
"within fifteen (15) days from notice of judgment or of the denial of the motion for
reconsideration filed in due time, and paying at the same time the corresponding
docket fee." In other words, in the event a motion for reconsideration is filed and
denied, the period of fifteen (15) days begins to run all over again from notice of
the denial resolution. Otherwise put, if a motion for reconsideration is filed, the
reglementary period within which to appeal the decision of the Court of Appeals to
the Supreme Court is reckoned from the date the party who intends to appeal
received the order denying the motion for reconsideration. 21 Furthermore, a
motion for extension of time to file a petition for review may be filed with this Court
within said reglementary period, paying at the same time the corresponding docket
fee.

1. The first two issues raised by petitioner shall be correlatively discussed in view of
their interrelation.

In its present petition, MMTC insists that the oral testimonies of its employees who
were presented as witnesses in its behalf sufficiently prove, even without the
presentation of documentary evidence, that driver Leonardo had complied with all
the hiring and clearance requirements and had undergone all trainings, tests and
examinations preparatory to actual employment, and that said positive testimonies
spell out the rigid procedure for screening of job applicants and the supervision of
its employees in the field. It underscored the fact that it had indeed complied with
the measure of diligence in the selection and supervision of its employees as
enunciated in Campo, Et. Al. v. Camarote, Et. Al. 22 requiring an employer, in the
exercise of the diligence of a good father of a family, to carefully examine the
applicant for employment as to his qualifications, experience and record service,
and not merely be satisfied with the possession of a professional driver’s license. chanrobles virtual lawlibrary

It goes on to say that since the testimonies of these witnesses were allegedly
neither discredited nor impeached by the adverse party, they should be believed
and not arbitrarily disregarded or rejected nor disturbed on appeal. It assiduously
argues that inasmuch as there is no law requiring that facts alleged by petitioner be
established by documentary evidence, the probative force and weight of their
testimonies should not be discredited with the further note that the lower court
having passed upon the relevancy of the oral testimonies and considered the same
as unrebutted, its consideration should no longer be disturbed on appeal. 23

Private respondent, on the other hand, retorts that the factual findings of
respondent court are conclusive upon the High Court which cannot be burdened
with the task of analyzing and weighing the evidence all over again. 24

At this juncture, it suffices to note that factual findings of the trial court may be
reversed by the Court of Appeals, which is vested by law with the power to review
both legal and factual issues, if on the evidence of record, it appears that the trial
court may have been mistaken, 25 particularly in the appreciation of evidence,
which is within the domain of the Court of Appeals. 26 The general rule laid down in
a plethora of cases is that such findings of fact by the Court of Appeals are
conclusive upon and beyond the power of review of the Supreme Court. 27
However, it is now well-settled that while the findings of fact of the Court of
Appeals are entitled to great respect, and even finality at times, that rule is not
inflexible and is subject to well established exceptions, to wit: (1) when the
conclusion is a finding grounded entirely on speculation, surmises and conjectures;
(2) when the inference made is manifestly mistaken, absurd or impossible; (3)
where there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the
Court of Appeals, in making its findings, went beyond the issues of the case and the
same are contrary to the admissions of both appellant and appellee; (7) when the
findings of the Court of Appeals are contrary to those of the trial court; (8) when
the findings of fact are conclusions without citation of specific evidence on which
they are based; (9) when the facts set forth in the petition, as well as in the
petitioner’s main and reply briefs, are not disputed by the respondents; and (10)
when the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and are contradicted by the evidence on record. 28

When, as in this case, the findings of the Court of Appeals and the trial court are
contrary to each other, this court may scrutinize the evidence on record, 29 in
order to arrive at a correct finding based thereon. 30

A perusal of the same shows that since there is no dispute as to the finding of
concurrent negligence on the part of the defendant Calebag, the driver of the
passenger jeepney, and co-defendant Leonardo, the bus driver of petitioner MMTC,
both of whom were solidarily held liable with defendant Lamayo, the owner of the
jeepney, we are spared the necessity of determining the sufficiency of evidence
establishing the fact of negligence. 31 The contrariety is in the findings of the two
lower courts, and which is the subject of this present controversy, with regard to
the liability of MMTC as employer of one the erring drivers.

The trial court, in absolving MMTC from liability ruled that —

"On the question as to whether defendant MMTC was successful in proving its
defense that indeed it had exercised the due diligence of a good father of a family
in the selection and supervision of defendant Leonardo, this Court finds that based
on the evidence presented during the trial, defendant MMTC was able to prove that
it was not only careful and diligent in choosing and screening applicants for job
openings but also strict (and) diligent in supervising its employees by seeing to it
that its employees were in proper uniforms, briefed in traffic rules and regulations
before the start of duty, checked employees to determine whether they were
positive for alcohol and followed other rules and regulations and guidelines of the
Bureau of Land Transportation as well as its company. Having successfully proven
such defense, defendant MMTC, therefore, cannot be held liable for the accident.

"Having reached this conclusion, the Court now holds that defendant MMTC be
totally absolved from liability and that the complaint against it be dismissed . . ."
32

whereas respondent court was of the opinion that —

"It is surprising though that witness Milagros Garbo did not testify nor present any
evidence that defendant-appellee’s driver, defendant Godofredo Leonardo has
complied with or has undergone all clearances and trainings she referred to. The
clearances, result of seminars and tests which Godofredo Leonardo submitted and
complied with, if any, were not presented in court despite the fact that they are
obviously in the possession and control of defendant-appellee. Instead, it resorted
to generalities. This Court has ruled that due diligence in (the) selection and
supervision of employee(s) are not proved by mere testimonies to the effect that its
applicant has complied with all the company requirements before one is admitted
as an employee but without proof thereof. . . ..

"On the part of Christian Bautista, the transport supervisor of defendant-appellee,

he testified that it is his duty to monitor the operation of buses in the field; to
countercheck the dispatchers duty prior to the operation of the buses in the
morning; to see to it that bus crew follows written guidelines of the company
(t.s.n., April 29, 1988, 00 4-5), but when asked to present in court the alleged
written guidelines of the company he merely stated that he brought with him a
‘wrong document’ and defendant-appellee’s counsel asked for reservation to
present such written guidelines in the next hearing but the same was (sic) never
presented in court." 33

A thorough and scrupulous review of the records of this case reveals that the
conclusion of respondent Court of Appeals is more firmly grounded on jurisprudence
and amply supported by the evidence of record than that of the court below.

It is procedurally required for each party in a case to prove his own affirmative
assertion by the degree of evidence required by law. 34 In civil cases, the degree of
evidence required of a party in order to support his claim is preponderance of
evidence, or that evidence adduced by one party which is more conclusive and
credible than that of the other party. It is therefore, incumbent on the plaintiff who
is claiming a right to prove his case. Corollarily, defendant must likewise prove its
own allegation to buttress its claim that it is not liable. 35

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the
issue has the burden of presenting at the trial such amount of evidence required by
law to obtain a favorable judgment. 36 It is entirely within each of the parties
discretion, consonant with the theory of the case it or he seeks to advance and
subject to such procedural strategy followed thereby, to present all available
evidence at its or his disposal in the manner which may be deemed necessary and
beneficial to prove its or his position, provided only that the same shall measure up
to the quantum of evidence required by law. In making proof in its or his case, it is
paramount that the best and most complete evidence be formally entered. 37

Coming now to the case at bar, while there is no rule which requires that
testimonial evidence, to hold sway, must be corroborated by documentary
evidence, or even object evidence for that matter, inasmuch as the witnesses’
testimonies dwelt on mere generalities, we cannot consider the same as sufficiently
persuasive proof that there was observance of due diligence in the selection and
supervision of employees. 38 Petitioner’s attempt to prove its diligentissimi patris
familias in the selection and supervision of employees through oral evidence must
fail as it was unable to buttress the same with any other evidence, object or
documentary, which might obviate the apparent biased nature of the testimony. 39

Our view that the evidence for petitioner MMTC falls short of the required
evidentiary quantum as would convincingly and undoubtedly prove its observance
of the diligence of a good father of a family has its precursor in the underlying
rationale pronounced in the earlier case of Central Taxicab Corp. v. Ex-Meralco
Employees Transportation Co., Et Al., 40 set amidst an almost identical factual
setting, where we held that: jgc:chanrobles.com.ph

". . . This witness spoke of an ‘affidavit of experience’ which a driver-applicant must

accomplish before he is employed by the company, a written ‘time schedule’ for
each bus, and a record of the inspections and thorough checks pertaining to each
bus before it leaves the car barn; yet no attempt was ever made to present in
evidence any of these documents, despite the fact that they were obviously in the
possession and control of the defendant company.

x x x

"Albert also testified that he kept records of the preliminary and final tests given
him as well as a record of the qualifications and experience of each of the drivers of
the company. It is rather strange, therefore, that he failed to produce in court the
all important record of Roberto, the driver involved in this case.

"The failure of the defendant company to produce in court any ‘record’ or other
documentary proof tending to establish that it had exercised all the diligence of a
good father of a family in the selection and supervision of its drivers and buses,
notwithstanding the calls therefor by both the trial court and the opposing counsel,
argues strongly against its pretensions.

"We are fully aware that there is no hard-and-fast rule on the quantum of evidence
needed to prove due observance of all the diligence of a good father of a family as
would constitute a valid defense to the legal presumption of negligence on the part
of an employer or master whose employee has by his negligence, caused damage
to another. xxx (R)educing the testimony of Albert to its proper proportions, we do
not have enough thrustworthy evidence left to go by. We are of the considered
opinion, therefore, that the believable evidence on the degree of case and diligence
that has been exercised in the selection and supervision of Roberto Leon y Salazar,
is not legally sufficient to overcome the presumption of negligence against the
defendant company." cralaw virtua1aw library

Whether or not the diligence of a good father of a family has been observed by
petitioner is a matter of proof which under the circumstances in the case at bar has
not been clearly established. It is not felt by the Court that there is enough
evidence on record as would overturn the presumption of negligence, and for failure
to submit all evidence within its control, assuming the putative existence thereof,
petitioner MMTC must suffer the consequences of its own inaction and indifference. cralawnad

2. In any event, we do not find the evidence presented by petitioner sufficiently

convincing to prove the diligence of a good father of a family, which for an
employer doctrinally translates into its observance of due diligence in the selection
and supervision of its employees but which mandate, to use an oft-quoted phrase,
is more often honored in the breach than in the observance.
Petitioner attempted to essay in detail the company’s procedure for screening job
applicants and supervising its employees in the field, through the testimonies of
Milagros Garbo, as its training officer, and Christian Bautista, as its transport
supervisor, both of whom naturally and expectedly testified for MMTC. It then
concluded with its sweeping pontifications that "thus, there is no doubt that
considering the nature of the business of petitioner, it would not let any applicant-
drivers to be (sic) admitted without undergoing the rigid selection and training
process with the end (in) view of protecting the public in general and its passengers
in particular; . . . thus, there is no doubt that applicant had fully complied with the
said requirements otherwise Garbo should not have allowed him to undertake the
next set of requirements . . . and the training conducted consisting of seminars and
actual driving tests were satisfactory otherwise he should have not been allowed to
drive the subject vehicle." 41

These statements strike us as both presumptuous and in the nature of petitio

principii, couched in generalities and shorn of any supporting evidence to boost
their verity. As earlier observed, respondent court could not but express surprise,
and thereby its incredulity, that witness Garbo neither testified nor presented any
evidence that driver Leonardo had complied with or had undergone all the
clearances and trainings she took pains to recite and enumerate. The supposed
clearances, results of seminars and tests which Leonardo allegedly submitted and
complied with were never presented in court despite the fact that, if true, then they
were obviously in the possession and control of petitioner. 42

The case at bar is clearly within the coverage of Articles 2176 and 2177, in relation
to Article 2180, of the Civil Code provisions on quasi-delicts, as all the elements
thereof are present, to wit: (1) damages suffered by the plaintiff, (2) fault or
negligence of the defendant or some other person for whose act he must respond,
and (3) the connection of cause and effect between fault or negligence of the
defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner
was originally sued as employer of driver Leonardo under Article 2180, the
pertinent parts of which provide that: jgc:chanrobles.com.ph

"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

"Employers shall be liable for 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

"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." cralaw virtua1aw library

The basis of the employer’s vicarious liability has been explained under this
ratiocination:jgc:chanrobles.com.ph

"The responsibility imposed by this article arises by virtue of a presumption juris

tantum of negligence on the part of the persons made responsible under the article,
derived from their failure to exercise due care and vigilance over the acts of
subordinates to prevent them from causing damage. Negligence is imputed to them
by law, unless they prove the contrary. Thus, the last paragraph of the article says
that such responsibility ceases if it is proved that the persons who might be held
responsible under it exercised the diligence of a good father of a family
(diligentissimi patris familias) to prevent damage. It is clear, therefore, that it is not
representation, nor interest, nor even the necessity of having somebody else
answer for the damages caused by the persons devoid of personality, but it is the
non-performance of certain duties of precaution and prudence imposed upon the
persons who become responsible by civil bond uniting the actor to them, which
forms the foundation of such responsibility." 44

The above rule is, of course, applicable only where there is an employer-employee
relationship, although it is not necessary that the employer be engaged in business
or industry. Whether or not engaged in any business or industry, the employer
under Article 2180 is liable for torts committed by his employees within the scope
of their assigned tasks. But, it is necessary first to establish the employment
relationship. Once this is done, the plaintiff must show, to hold the employer liable,
that the employee was acting within the scope of his assigned task when the tort
complained of was committed. It is only then that the defendant, as employer, may
find it necessary to interpose the defense of due diligence in the selection and
supervision of employees. 45 The diligence of a good father of a family required to
be observed by employers to prevent damages under Article 2180 refers to due
diligence in the selection and supervision of employees in order to protect the
public. 46

With the allegation and subsequent proof of negligence against the defendant driver
and of an employer-employee relation between him and his co-defendant MMTC in
this instance, the case is undoubtedly based on a quasi-delict under Article 2180.
47 When the employee causes damage due to his own negligence while performing
his own duties, there arises the juris tantum presumption that the employer is
negligent, 48 rebuttable only by proof of observance of the diligence of a good
father of a family. For failure to rebut such legal presumption of negligence in the
selection and supervision of employees, the employer is likewise responsible for
damages, 49 the basis of the liability being the relationship of pater familias or on
the employer’s own negligence. 50

As early as the case of Gutierrez v. Gutierrez, 51 and thereafter, we have

consistently held that where the injury is due to the concurrent negligence of the
drivers of the colliding vehicles, the drivers and owners of the said vehicles shall be
primarily, directly and solidarily liable for damages and it is immaterial that one
action is based on quasi-delict and the other on culpa contractual, as the solidarity
of the obligation is justified by the very nature thereof. 52

It should be borne in mind that the legal obligation of employers to observe due
diligence in the selection and supervision of employees is not to be considered as
an empty play of words or a mere formalism, as appears to be the fashion of the
times, since the non-observance thereof actually becomes the basis of their
vicarious liability under Article 2180. chanrobles virtual lawlibrary

On the matter of selection of employees, Cambo v. Camarote, supra, lays down this
admonition.

". . .. In order that the owner of a vehicle may be considered as having exercised
all 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 experience and
record of service. These steps appellant failed to observe; he has therefore, failed
to exercise all due diligence required of a good father of a family in the choice or
selection of driver."
cralaw virtua1aw library

Due diligence in the supervision of employees, on the other hand, includes the
formulation of suitable rules and regulations for the guidance of employees and the
issuance of proper instructions intended for the protection of the public and persons
with whom the employer has relations through his or its employees and the
imposition of necessary disciplinary measures upon employees in case of breach or
as may be warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer. 53 To this, we add that actual
implementation and monitoring of consistent compliance with said rules should be
the constant concern of the employer, acting through dependable supervisors who
should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of
employees may be deemed sufficient and plausible, it is not enough to emptily
invoke the existence of said company guidelines and policies on hiring and
supervision. As the negligence of the employee gives rise to the presumption of
negligence on the part of the employer, the latter has the burden of proving that it
has been diligent not only in the selection of employees but also in the actual
supervision of their work. The mere allegation of the existence of hiring procedures
and supervisory policies, without anything more, is decidedly not sufficient to
overcome such presumption. | chanrobles law library

We emphatically reiterate our holding, as a warning to all employers, that" (t)he

mere formulation of various company policies on safety without showing that they
were being complied with is not sufficient to exempt petitioner 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." 54 Paying lip-service to these
injunctions or merely going through the motions of compliance therewith will
warrant stern sanctions from the Court. chanrobles virtual lawlibrary

These obligations, imposed by the law and public policy in the interests and for the
safety of the commuting public, herein petitioner failed to perform. Respondent
court was definitely correct in ruling that." . . due diligence in the selection and
supervision of employee (sic) not proved by mere testimonies to the effect that its
applicant has complied with all the company requirements before one is admitted
as an employee but without proof thereof." 55 It is further a distressing
commentary on petitioner that it is a government-owned public utility, maintained
by public funds, and organized for the public welfare.

The Court feels it is necessary to once again stress the following rationale behind
these all-important statutory and jurisprudential mandates, for it has been
observed that despite its pronouncement in Kapalaran Bus Line v. Coronado, Et Al.,
supra, there has been little improvement in the transport situation in the country: jgc:chanrobles.com.ph

"In requiring the highest possible degree of diligence from common carriers and
creating a presumption of negligence against them, the law compels them to curb
the recklessness of their drivers. While the immediate beneficiaries of the standard
of extraordinary diligence are, of course, the passengers and owners of the cargo
carried by a common carrier, they are not the only persons that the law seeks to
benefit. For if common carriers carefully observe the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but
simultaneously benefit pedestrians and the owners and passengers of other vehicles
who are equally entitled to the safe and convenient use of our roads and highways.
The law seeks to stop and prevent the slaughter and maiming of people (whether
passengers or not) and the destruction of property (whether freight or not) on our
highways by buses, the very size and power of which seem often to inflame the
minds of their drivers. . . .."
cralaw virtua1aw library

Finally, we believe that respondent court acted in the exercise of sound discretion
when it affirmed the trial court’s award, without requiring the payment of interest
thereon as an item of damages just because of delay in the determination thereof,
especially since private respondent did not specifically pray therefor in her
complaint. Article 2211 of the Civil Code provides that in quasi-delicts, interest as a
part of the damages may be awarded in the discretion of the court, and not as a
matter of right. We do not perceive that there have been intentional dilatory
maneuvers or any special circumstances which would justify that additional award
and, consequently, we find no reason to disturb said ruling.

WHEREFORE, the impugned decision of respondent Court of Appeals is hereby

AFFIRMED.

SO ORDERED.

Narvasa, C.J. and Nocon, J., concur.

Padilla, J., is on leave.

Endnotes:

1. Rollo, 24-25.

2. Civil Case No. C-8176, entitled "Nenita R. Custodio assisted by her parents,
Rodolfo A. Custodio and Gloria R. Custodio v. Agudo R. Calebag, Victorino Lamayo,
Godofredo C. Leonardo, and Metro Manila Transit Corporation," Court of First
Instance of Rizal, Branch 35, Caloocan City; Original Record, 1-4.

3. Ibid., 17-22.

4. Ibid., 36-41.

5. Ibid., 54.

6. Ibid., 57.

7. TSN, September 2, 1982, 4-16.

8. Ibid., June 10, 1988, 3-12.

9. Ibid., April 29, 1988, 2-8.

10. Civil Case No. 8176, Regional Trial Court, Branch 125, Caloocan City; Judge
Geronimo S. Mangay, presiding.

11. Original Record, 177.

12. Ibid., 178-181.

13. Ibid., 195.

14. CA-G.R. CV No. 24680; per Justice Regina G. Ordoñez-Benitez, with Justices
Jose A.R. Melo and Emilio C. Cui, concurring; Rollo, 24-30.

15. Rollo, 33-34.

16. Ibid., 2.

17. Ibid., CA-G.R. CV No. 24680, 63-72.

18. Rollo, 2.
19. Ibid., 7.

20. 143 SCRA 643 (1986).

21. American General Insurance Co. v. Intermediate Appellate Court, Et Al., 150
SCRA 133 (1987).

22. 100 Phil. 459 (1956).

23. Memorandum for Petitioner, 11-15; Rollo, 16-21.

24. Comment of Private Respondent, 3-4; Rollo, 47-48.

25. San Miguel Corporation v. Court of Appeals, Et Al., 195 SCRA 722 (1990).

26. Medina v. Asistio, Jr., Et Al., 191 SCRA 218 (1990).

27. Cathay Insurance Co. v. Court of Appeals, Et Al., 151 SCRA 710 (1987);
Hernandez v. Court of Appeals, Et Al., 160 SCRA 821 (1988); Philippine National
Bank v. Court of Appeals, Et Al., 183 SCRA 133 (1990); BA Finance Corporation v.
Court of Appeals, Et Al., 201 SCRA 157 (1991).

28. Manlapaz v. Court of Appeals, Et Al., 147 SCRA 236 (1987); Medina v. Asistio,
Jr., supra; Calalang v. Intermediate Appellate Court, Et Al., 194 SCRA 514 (1991).

29. Valenzuela, Et. Al. v. Court of Appeals, Et Al., 191 SCRA 1 (1991).

30. Roman Catholic Bishop of Malolos, Et. Al. v. Intermediate Appellate Court, Et
Al., 191 SCRA 411 (1990).

31. Cea v. Villanueva, 18 Phil. 538 (1911); Barcelo, etc. v. The Manila Electric
Railroad and Light Company, 29 Phil. 351 (1915); De la Riva v. Molina, 32 Phil. 277
(1915); Agdoro v. Philippine Mining Industrial Co., 45 Phil. 816 (1924).

32. Annex C, Petition; Rollo, 41-42.

33. Annex B, ibid., id., 28-29.

34. Section 1, Rule 131, Rules of Court.

35. Stronghold Insurance Company, Inc. v. Court of Appeals, Et Al., 173 SCRA 619
(1989).

36. Republic v. Court of Appeals, Et Al., 182 SCRA 290 (1990), citing Tai Tong
Chuache & Co. v. The Insurance Commission, Et Al., 158 SCRA 366 (1988);
Republic v. Court of Appeals, Et Al., 204 SCRA 160 (1991).

37. U.S. v. Tria, 17 Phil. 303 (1910).

38. See Pleno v. Court of Appeals, Et Al., 161 SCRA 160 (1991).

39. See Garcia, Et. Al. v. Gonzales, Et Al., 183 SCRA 72 (1990).

40. 54 O.G., No. 31, 7415 (1958).

41. Petition, 6-7; Rollo, 14-15.

42. Supra, Fn. 34.

43. Andamo, Et. Al. v. Intermediate Appellate Court, Et Al., 191 SCRA 195 (1990).

44. Tolentino, A., Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. V, 1959 ed., 519.

45. Martin v. Court of Appeals, Et Al., 205 SCRA 591 (1992).

46. Barredo v. Garcia, 73 Phil. 607 (1942).

47. Lanuzo v. Ping, Et Al., 100 SCRA 205 (1980).

48. Bahia v. Litonjua, Et Al., 30 Phil. 624 (1915); Campo v. Camarote, supra;
Phoenix Construction, Inc. v. Intermediate Appellate Court, Et Al., 148 SCRA 353
(1987); McKee, Et. Al. v. Intermediate Appellate Court, Et Al., 211 SCRA 517
(1992).

49. Lanuzo v. Ping, Et Al., supra, and cases cited therein.

50. Bahia v. Litonjua, Et Al., supra; Yamada v. Manila Railroad Co., 33 Phil. 8
(1915); McKee, Et. Al. v. Intermediate Appellate Court, Et Al., supra.

51. 56 Phil. 177 (1931); Cf. Barredo v. Garcia, supra; Viluan v. Court of Appeals, Et
Al., 16 SCRA 742 (1966); Anuran v. Buño, 17 SCRA 224 (1966); Malipol v. Tan, 55
SCRA 202 (1974); Poblete v. Fabron, 93 SCRA 200 (1979); Pleno v. Court of
Appeals, Et Al., supra; Kapalaran Bus Line v. Coronado, 176 SCRA 792 (1989).

52. Art. 1207, Civil Code.

53. Filamer Christian Institute v. Intermediate Appellate Court, Et Al., 212 SCRA
637 (1992).

54. Pantranco North Express Inc. v. Baesa, 179 SCRA 384 (1989). See also Franco,
Et. Al. v. Intermediate Appellate Court, Et Al., 178 SCRA 331 (1989).

55. Rollo, 28.