Case digest: TORTS Phil. Bank of Commerce v. CA G.R. No.

97626, March 14, 1997 The negligence must be the proximate cause of the loss

FACTS: Rommels Marketing Corporation (RMC) maintained two separate current accounts with PBC in connection with its business of selling appliances. The RMC General Manager Lipana entrusted to his secretary, Irene Yabut, RMC funds amounting to P300,000+ for the purpose of depositing the same to RMCs account with PBC. However, it turned out that Yabut deposited the amounts in her husbands account instead of RMC. Lipana never checked his monthly statement of accounts regularly furnished by PBC so that Yabuts modus operandi went on for the span of more than one year. ISSUE: What is the proximate cause of the loss Lipanas negligence in not checking his monthly statements or the banks negligence through its teller in validating the deposit slips? HELD: The bank teller was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by Yabut, despite the glaring fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit slips, original or duplicate. The bank tellers negligence, as well as the negligence of the bank in the selection and supervision of its bank teller, is the proximate cause of the loss suffered by the private respondent, not the latters entrusting cash to a dishonest employee. Xxx Even if Yabut had the fraudulent intention to misappropriate the funds, she would not have been able to deposit those funds in her husbands current account, and then make plaintiff believe that it was in the latters accounts wherein she had deposited them, had it not been for the bank tellers aforesaid gross and reckless negligence. Doctrine of Last Clear Chance where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. It means that the antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by exercise of due diligence. (Phil. Bank of Commerce v. CA, supra)

PLDT vs CA

G.R. No. L-57079 September 29, 1989

Facts: A jeep driven by private respondent Esteban fell into an open trench, the excavation was due to the installation of an underground conduit system by PLDT, the said open trench was without cover and any warning signs.

As a result the private respondent and his wife sustained injuries, and their vehicle was also damaged.

PLDT in its defense, imputes the injuries to the private respondents own negligence. Also, it alleges that L.R. Barte and company acting as an independent contractor, should be responsible for the excavation was performed by them.

As for Barte, they alleged that they have complied with the due standards in performing their work, and that it was not aware of the accident involving the Estebans.

Court of Appeals held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages.

Upon respondents second motion to reconsideration, CA reversed its decision, following he decision of Trial Court and held PLDT liable for damages.

Issue: Whether or not PLDT is liable

Held:

NO

We find no error in the findings of the respondent court in its original decision that the accident which befell private respondents was due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT.

The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform and warn the public of the presence of excavations on the site. The private respondents already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury. It is basic that private respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his imprudence.

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail. Amonoy vs Spouses Gutierrez G.R. No. 140420 / February 15, 2001 Attorneys Fees

The case had its roots in special proceedings, for the settlement of the estate of the deceased Julio Catolos, involving 6 parcels of land situated in Tanay, Rizal. Amonoy was the counsel therein for Francisca Catolos, Agnes Catolos, Asuncion Pasamba, and Alfonso Fornilda. On January 12, 1965, the project of partition submitted was approved and 2 of the said lots were adjudicated to Asuncion Pasamba and Aldonso Fornilda. The attorneys fee charged by Amonoy was P27,600.00 and on January 20, 1965, Asuncion Pasamba and Alfonso Fornilda executed a deed of real estate mortgage on the said 2 lots in favor of Amonoy to secure the payment of his attorneys fees. But it was only August 6, 1969 after the taxes had been paid, the claims of settled and the property adjudicated, that the estate was declared closed and terminated. Asuncion and Alfonso died, among the heirs of the latter was his daughter, plaintiff-appellant Angela Gutierrez. Thereafter, on Amonoys motion, the orders were issued for the demolition of structures in the said lots, including the house of Gutierrez spouses. A complaint for damages in connection with the destruction of their house was filed by respondents against petitioner.

ISSUE: Whether or not the CA was correct in deciding that the petitioner was liable to respondents for damages.

HELD: Clearly, the demolition of respondents house by petitioner, despite his receipt of the TRO, was not only an abuse but also an unlawful exercise of such right. In insisting on his alleged right, he wantonly violated this courts order and wittingly caused the destruction of respondents house. In the ultimate analysis, petitioners liability is premised on the obligation to repair or to make whole the damage caused to another by reason of ones act or omission, whether done intentionally or negligently and whether or punishable by law. The court ruled against Amonoy. Amonoy v. Gutierrez February 15, 2001 FACTS: The lot on which the Gutierrez spouses built their house was bought by Amonoy in an auction sale. Amonoy was granted an order for the demolition of the house. However, a temporary restraining order was granted enjoining the demolition. The SC then made the TRO permanent. However, by the time the decision was rendered, the house was already destroyed. The Gutierrez spouses then filed a suit for damages. ISSUE: WON Amonoy was liable for damages. YES HELD: Even though Amonoys actions were legally justified at the start, their continuation even after the TRO was issued amounted to an abuse of his right. The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. Amonoys acts constituted not only an abuse of a right, but an invalid exercise of a right that was suspended. C L A S S N O T E S Rule: Action which was originally legal can become illegal if exercised abusively. The legal principle applied in this case is damnum absque injuria. What we have here is an illegal act. There was no more right for him to abuse! This is not a case of abuse of right. A19 presupposes an existing r ight; What Amonoy did was contempt of court Problem: relied upon Testimony solely of Guitierrez (when it is self-serving)

PHILIPPINE RABBIT BUS LINES vs. IAC Facts: Catalina Pascua with several others boarded the jeep owned by spouses Isidro Mangune and Guillerma Carreon and driven by Tranquilino Manalo bound for Carmen, Rosales, Pangasinan. Upon reaching 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 and was hit by the petitioner companys bus causing the death of Catalina Pascua and two other passengers. Issue: Wether or not the Doctrine of Last Clear Chance applies in the case at bar? Held: No, The 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." 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. The bus driver's conduct is not a substantial factor in bringing about harm to the passengers of the jeepney. 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. 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. 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. 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, contradictory to the explicit provision of Article 2181 of the New Civil Code.

Bacarro vs. Castano Bacarro vs. Castano (GR L-34597, 5 November 1982)

FACTS: Respondent Castano boarded a jeep driven by Petitioner Montefalcon who thereafter drove it at around 40 kilometers per hour. While approaching Sumasap Bridge at the said speed, a cargo truck coming from behind, blowing its horn to signal its intention to overtake the jeep. The jeep, without changing its speed, gave way by swerving to the right, such that both vehicles ran side by side for a distance of around 20 meters. Thereafter as the jeep was left behind, its driver was unable to return it to its former lane and instead it obliquely or diagonally ran down an inclined terrain towards the right until it fell into a ditch pinning down and crushing Castanos right leg in the process. Castano filed a case for damages against Rosita Bacarro, William Sevilla, and Felario Montefalcon. Defendants alleged that the jeepney was sideswiped by the overtaking cargo truck. After trial, the CFI of Misamis Oriental ordered Bacarro, et.al. to jointly and severally pay Castano. It was affirmed by the CA upon appeal. ISSUES:

1. Whether or not there was a contributory negligence on the part of the jeepney driver. 2. Whether or not extraordinary diligence is required of the jeepney driver. 3. Whether or not the sideswiping is a fortuitous event. HELD: 1.) Yes. X x x. The fact is, petitioner-driver Montefalcon did not slacken his speed but instead continued to run the jeep at about forty (40) kilometers per hour even at the time the overtaking cargo truck was running side by side for about twenty (20) meters and at which time he even shouted to the driver of the truck. Thus, had Montefalcon slackened the speed of the jeep at the time the truck was overtaking it, instead of running side by side with the cargo truck, there would have been no contact and accident. He should have foreseen that at the speed he was running, the vehicles were getting nearer the bridge and as the road was getting narrower the truck would be to close to the jeep and would eventually sideswiped it. Otherwise stated, he should have slackened his jeep when he swerved it to the right to give way to the truck because the two vehicles could not cross the bridge at the same time. 2.) Yes. x x x [T]he fact is, there was a contract of carriage between the private respondent and the herein petitioners in which case the Court of Appeals correctly applied Articles 1733, 1755 and 1766 of the Civil Code which require the exercise of extraordinary diligence on the part of petitioner Montefalcon. Indeed, the hazards of modern transportation demand extraordinary diligence. A common carrier is vested with public interest. Under the new Civil Code, instead of being required to exercise mere ordinary diligence a common carrier is exhorted to carry the passengers safely as far as human care and foresight can provide "using the utmost diligence of very cautious persons." (Article 1755). Once a passenger in the course of travel is injured, or does not reach his destination safely, the carrier and driver are presumed to be at fault. 3.) The third assigned error of the petitioners would find fault upon respondent court in not freeing petitioners from any liability, since the accident was due to a fortuitous event. But, We repeat that the alleged fortuitous event in this case - the sideswiping of the jeepney by the cargo truck, was something which could have been avoided considering the narrowness of the Sumasap Bridge which was not wide enough to admit two vehicles. As found by the Court of Appeals, Montefalcon contributed to the occurrence of the mishap.

Bacarro vs. Castano (HR L-34597, 5 November 1982) First Division, Relova (J): 4 concur, 1 on leave Facts: In the afternoon of 1 April 1960, Gerundio B. Castano boarded a jeep as a paying passenger at Oroquieta bound for Jimenez, Misamis Occidental. It was then filled to capacity, with 12 passengers in all. The jeep was driven by Felario Montefalcon at around 40 kilometers per hour. While approaching Sumasap Bridge at the said speed, a cargo truck (owned by Te Tiong, alias Chinggim; and driven by Nicostrato Digal) coming from behind, blowing its horn to signal its intention to overtake the jeep. The jeep, without changing its speed, gave way by swerving to the right, such that both vehicles ran side by side for a distance of around

20 meters. Thereafter as the jeep was left behind, its driver was unable to return it to its former lane and instead it obliquely or diagonally ran down an inclined terrain towards the right until it fell into a ditch pinning down and crushing Castanos right leg in the process. Castano filed a case for damages against Rosita Bacarro, William Sevilla, and Felario Montefalcon. Defendants alleged that the jeepney was sideswiped by the overtaking cargo truck. After trial, the CFI of Misamis Oriental ordered Bacarro, et.al. to jointly and severally pay Castano the sum of (1) P973.10 for medical treatment and hospitalization; (2)P840.20 for loss of salary during treatment; and (3) P2,000.00 for partial permanent deformity, with costs against Bacarro, et.al. Transportation Law, 2004 ( 265 ) Haystacks (Berne Guerrero) Appeal was taken by Bacarro, et. al. to the Court of Appeals, which, on 30 September 1971, affirmed that of the trial court. Hence, the appeal by certiorari. The Supreme Court affirmed the decision of the Court of Appeals; with costs. 1. Contributory negligence of Montefalcon Herein, driver Montefalcon did not slacken his speed but instead continued to run the jeep at about 40 kilometers per hour even at the time the overtaking cargo truck was running side by side for about 20 meters and at which time he even shouted to the driver of the truck. Had Montefalcon slackened the speed of the jeep at the time the truck was overtaking it, instead of running side by side with the cargo truck, there would have been no contact and accident. He should have foreseen that at the speed he was running, the vehicles were getting nearer the bridge and as the road was getting narrower the truck would be too close to the jeep and would eventually sideswipe it. Otherwise stated, he should have slackened his jeep when he swerved it to the right to give way to the truck because the two vehicles could not cross the bridge at the same time. 2. Jeepney driver failed to exercise extraordinary diligence, human care, foresight and utmost diligence of a very cautious person ; Article 1763 The jeepney driver failed to exercise extraordinary diligence, human care, foresight and utmost diligence of a very cautious person, when the diligence required pursuant to Article 1763 of the Civil Code is only that of a good father of a family. Whether the proximate cause of the accident was the negligence of the driver of the truck, as alleged, is immaterial. As there was a contract of carriage between Castano and Bacarro, et. al., the Court of Appeals correctly applied Articles 1733, 1755 and 1766 of the Civil Code which require the exercise of extraordinary diligence on the part of Montefalcon. 3. Article 1733 NCC Article 1733 provides that 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. 4. Article 1755 NCC Article 1755 provides that 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 a due regard for all the circumstances. 5. Article 1766 NCC Article 1766 provides that In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws. 6. Common carrier vested with public interest, required utmost diligence of very cautious persons;

Presumption of fault The hazards of modern transportation demand extraordinary diligence. A common carrier is vested with public interest. Under the new Civil Code, instead of being required to exercise mere ordinary diligence a common carrier is exhorted to carry the passengers safely as far as human care and foresight can provide using the utmost diligence of very cautious persons. (Article 1755). Once a passenger in the course of travel is injured, or does not reach his destination safely, the carrier and driver are presumed to be at fault. 7. Sideswiping of jeepney foreseeable, not fortuitous event The accident was not due to a fortuitous event. The alleged fortuitous event in the case, i.e. the sideswiping of the jeepney by the cargo truck, was something which could have been avoided considering the narrowness of Sumasap Bridge which was not wide enough to admit two vehicles. Herein, Montefalcon contributed to the occurrence of the mishap.

PHOENIX CONSTRUCTION, and ARMANDO U. CARBONEL vs THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO G.R. No. L-65295 March 10, 1987

FACTS:

Respondent Leonardo Dionisio was driving on his way home from a cocktail-and-dinner party, from which he had a shot or two of liquor. He had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati when allegedly his car headlights suddenly failed.

He switched his headlights on "bright" and saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street, facing the oncoming traffic. It also did not have any lights nor any so-called "early warning" reflector devices.

Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. Due to the event therefore the herein private respondent filed an action for Damages on the grounds that the legal and proximate cause of his injuries was the negligent manner in which Phoenix had allowed its truck to be parked.

Petitioners defense: that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a

curfew pass. Phoenix also sought to establish that it had exercised due rare in the selection and supervision of the dump truck driver.

The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained.

Trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel.

Intermediate Appellate Court confirmed.

ISSUE:

Whether or not Phoenixs negligence is the proximate cause? HELD: YES. We agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence.

The truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in an probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices.

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines).

Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio.

Phoenix Construction Inc. v IAC FACTS: A dump truck, owned by Phoenix, was parked askew on the right hand side of the street in such a manner as to stick out onto General Lacuna St., partly blocking the way of oncoming traffic. There were no early warning devices placed near the truck. At 1:30AM, Dionisio was on his way home when his car headlights allegedly suddenly failed. He switched his headlights on bright and saw the truck looming 2 meters away from his car. His car smashed into the dump truck. ISSUE: What was the proximate cause of the accident? HELD: The wrongful and negligent parking of the truck, and not the negligence of Dionisio, was the proximate cause of the accident. The truck drivers negligence was far from being a passive and static condition and was rather an indispensable and efficient cause. The collision of Dionisios car with the dump truck was a natural and foreseeable consequence of the truck drivers negligence. The improper parking of the truck created an unreasonable risk of injury for anyone driving down General Lacuna St. and for having so created this risk, the truck driver must be held liable. What the petitioners describe as an intervening cause was no more than a foreseeable consequence of the risk created by the negligent manner in which the truck driver had parked the dump truck. Quoting Posser and Keeton on Foreseeable intervening causes: If the intervening cause is one which in ordinary human experience is reasonable to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent xxx because of failure to guard against it; or the defendant may e negligent only for that reason. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendants negligence. Note: Court mentioned foreseeability.

BUSTAMANTE vs. CA Facts: A collision occurred between a gravel and sand truck, and a Mazda passenger bus along the national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of the truck sideswiped the left side wall of the passenger bus, ripping off the said wall from the driver's seat to the last rear seat. Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries they sustained, Among those killed were Rogelio Bustamante and his spouse and children, and several others. During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant Del Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was registered in the name of defendant Novelo but was owned and/or operated as a passenger bus jointly by defendants Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran, Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on November 8, 1981, and which the latter

transferred to Serrado (Cerrado) on January 18, 1983. After a careful perusal of the circumstances of the case, the trial court reached the conclusion "that the negligent acts of both drivers contributed to or combined with each other in directly causing the accident which led to the death of the aforementioned persons. It could not be determined from the evidence that it was only the negligent act of one of them which was the proximate cause of the collision. In view of this, the liability of the two drivers for their negligence must be solidary. From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and driver, respectively, of the sand and gravel truck have interposed an appeal before the respondent Court of Appeals, which set aside the trial courts decision. Hence the present petition. Issue: Whether the respondent court has properly and legally applied the doctrine of "last clear chance" in the present case despite its own finding that appellant cargo truck driver Edilberto Montesiano was admittedly negligent in driving his cargo truck very fast on a descending road and in the presence of the bus driver coming from the opposite direction. Held: The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165). The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799). All premises considered, the Court is convinced that the respondent Court committed an error of law in applying the doctrine of last clear chance as between the defendants, since the case at bar is not a suit between the owners and drivers of the colliding vehicles but a suit brought by the heirs of the deceased passengers against both owners and drivers of the colliding vehicles. Therefore, the respondent court erred in absolving the owner and driver of the cargo truck from liability.

CALALAS vs. CA Facts: Private respondent Eliza 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. 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 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. 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. Issue: Should be petitioner be absolved if his contentions are considered? Held: No. There is 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. 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. 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. 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. First, 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. The petitioner's driver took in more passengers than the allowed seating capacity of the jeepney. These are violations of the Land Transportation and Traffic Code. Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. 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. 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.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.

Ilocos Norte v CA FACTS: After a 2-day typhoon, Isabel went out of her house to check on her grocer store. She waded in waistdeep flood and got electrocuted. According to the NPC Engr, there were no INELCO linemen who were going around. HELD: Court said that contrary to petitioners claim, the maxim violenti non fit injuria does not apply here. Isabel should not be punished for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal in injury. A person is excused from the force of the rule, that when he voluntarily assents to a known danger, he must abide by the consequence, if an emergency is found to exist, or if the life or property of another is in peril or when he seeks to rescue his endangered property. C L A S S N O T E S Rule is the Emergency Rule: A person is excused from the force of the assumption of risk rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril, or when he seeks to rescue his endangered property. *SANGCO (pp.81-84) NOTES: VIOLENTI NON FIT INJURIA: applies to noncontractual relations; 3 requisites: (1) plaintiff had actual knowledge of the damage; (2) he understood an appreciated the risk from danger; (3) he voluntarily exposed himself to such risk.

ILOCOS NORTE ELECTRIC COMPANY VCA (LUIS ET AL) 179 SCRA 5PARAS; November 6, 1989 FACTS - 5- 6AM June 29, 1967 - strong typhoon "Gening" inIlocos Norte brought floods and heavy rain. Isabel Lao Juan, (Nana Belen) went to her store, Five SistersEmporium, to look after the merchandise to see if theywere damaged. Wading in waist-deep flood, Juansuddenly screamed "Ay" and quickly sank into thewater. Her companions, two girls (sales girlls)attempted to help, but were afraid because they sawan electric wire dangling from a post and moving insnake-like fashion in the water. Yabes, the son-in law,upon hearing the electrocution of his mother-in-law,passed by the City Hall of Laoag to request the policeto ask Ilocos Norte Electric Company or INELCO to cutoff the electric current. The body was recovered abouttwo meters from an electric post.- 4AM June 29, 1967- Engineer Juan, Power PlantEngineer of NPC at the Laoag Diesel-Electric Plant,noticed certain fluctuations in their electric meter whichindicated such abnormalities as grounded or short-circuited lines.- 6-6:30AM June 29, 1967- he set out of the Laoag NPCCompound on an inspection and saw grounded anddisconnected lines. Electric lines were hanging from theposts to the ground. When he went to INELCO office, hecould not see any INELCO lineman.- Engr. Juan attempted to resuscitate Nana Belen buthis efforts proved futile. Rigor mortis was setting in. Onthe left palm of the deceased, there was a hollowwound. In the afternoon, the dangling wire was nolonger there Dr. Castro examined the body and noted that the skinwas grayish or cyanotic, which indicated death byelectrocution. On the left palm, the doctor found an"electrically charged wound" or a first degree burn.About the base of the thumb on the left hand was aburned wound. The cause of' death was ,'circulatoryshock electrocution"- In defense and exculpation, INELCO presented thetestimonies of its officers and employees, which soughtto prove that (1) on and even before June 29, 1967 theelectric service system of the INELCO in the wholefranchise area did not suffer from any defect that mightconstitute a hazard to life and property. (2) The servicelines and devices had been newly-installed prior to thedate in question. (3) Also, safety devices were installedto prevent and avoid injuries to persons and damage toproperty in case of natural calamities such as floods,typhoons, fire and others. (4) 12 linesmen are chargedwith the duty of making a round-the-clock check-up of the areas respectively assigned to them. (5) They alsopresented own medical expert and said that cyanosiscould not have been the noted 3 hours after the deathbecause it is only manifest in live persons. (6) Lastly,the deceased could have died simply either bydrowning or by electrocution due to negligenceattributable only to herself and not to INELCO becauseof the installation of a burglar deterrent by connectinga wire from the main house to the iron gate and fenceof steel matting, thus, charging the latter with electriccurrent whenever the switch is on. The switch musthave been left on, hence, causing the deceased'selectrocution when she tried to open her gate that earlymorning of June 29, 1967- CFI: awarded P25,000 moral damages; P45,000 attysfees- CA: P30,229.45 in actual damages (i.e., P12,000 forthe victim's death and P18,229.45 for funeralexpenses); P50,000 in compensatory damages,computed in accordance with the formula set in theVilla-Rey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of the deceased;P10,000 in exemplary damages; P3,000 attorney's fees ISSUE WON the legal principle of "assumption of risk" barsprivate respondents from collecting damages fromINELCO

HELD NO Ratio The maxim "volenti non fit injuria" relied upon bypetitioner finds no application in the case at bar. It isimperative to note the surrounding circumstanceswhich impelled the deceased to leave the comforts of aroof and brave the subsiding typhoon. As testified bythe salesgirls, the deceased went to the Five StarEmporium "to see to it that the goods were notflooded." As such, shall We punish her for exercisingher right to protect her property from the floods byimputing upon her the unfavorable presumption thatshe assumed the risk of personal injury? Definitely not.For it has been held that a person is excused from theforce of the rule, that when he voluntarily assents to aknown danger he must abide by the consequences, if an emergency is found to exist or if the life or propertyof another is in peril, or when he seeks to rescue hisendangered property. Clearly, an emergency was athand as the deceased's property, a source of herlivelihood, was faced with an impending loss.Furthermore, the deceased, at the time the fatalincident occurred, was at a place where she had a rightto be without regard to INELCOs consent as she was onher way to protect her merchandise. Hence, privaterespondents, as heirs, may not be barred fromrecovering damages as a result of the death caused byINELCOs negligence Reasoning - INELCO can be exonerated from liability sincetyphoons and floods are fortuitous events. While it istrue that typhoons and floods are considered Acts of God for which no person may be held responsible, itwas not said eventuality which directly caused thevictim's death. It was through the intervention of petitioner's negligence that death took place.- In times of calamities such as the one which occurredin Laoag City on the night of June 28 until the earlyhours of June 29, 1967, extraordinary diligence requiresa supplier of electricity to be in constant vigil to preventor avoid any probable incident that might imperil life orlimb. The evidence does not show that defendant didthat. On the contrary, evidence discloses that therewere no men (linemen or otherwise) policing the area,nor even manning its office.- INELCO was negligent in seeing that no harm is doneto the general public"... considering that electricity isan agency, subtle and deadly, the measure of carerequired of electric companies must be commensuratewith or proportionate to the danger. The duty of exercising this high degree of diligence and careextends to every place where persons have a right tobe" The negligence of petitioner having been shown, itmay not now absolve itself from liability by arguing thatthe victim's death was solely due to a fortuitous event."When an act of God combines or concurs with thenegligence of the defendant to produce an injury, thedefendant is liable if the injury would not have resultedbut for his own negligent conduct or omission" Disposition CA decision, except for the slightmodification that actual damages be increased toP48,229.45, is AFFIRMED.

CASUPANAN vs. LAROYA Posted on February 12, 2011 by mclairgarcia G.R. No. 145391 August 26, 2002 CASUPANAN vs. LAROYA Facts: Two vehicles, one driven by Laroya and the other owned by Capitulo and driven by Casupanan, figured in an accident. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict. When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping considering the pendency of the criminal case. The MCTC granted the motion and dismissed the civil case. On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the criminal case. ISSUE: WON an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case. HELD: Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action. Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused may be litigated in a separate civil action. This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasidelict, the prescriptive period may set in since the period continues to run until the civil action for quasidelict is filed.

Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous.

Casupanan v Laroya Posted by ladymaridel on June 20, 2008 Two vehicles, one (Laroya) other owned by (Capitulo )driven by (Casupanan) Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property Casupanan and Capitulo filed a civil case against Laroya for quasi-delict, When the civil case was filed, the criminal case was then at its preliminary investigation stage. FORUM SHOPPING-dismisssed civil case Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the criminal case. RTC>order of dismissal issued by the MCTC is a final order which disposes of the case and therefore the proper remedy should have been an appeal. The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion. Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the Resolution of August 24, 2000. Issue raised is whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case.

aggrieved party may file an appropriate special civil action under Rule 65. Clearly, the Capas RTCs order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous. Forum-Shopping The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Forum-shopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought. However, there is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action.

they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure (2000 Rules for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit: SECTION 1. Institution of criminal and civil actions. (a) x x x. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (Emphasis supplied) Conclusion Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action. The two cases can proceed simultaneously and independently of each other. Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect HELD > Petition for review is GRANTED.Civil Case No. 2089 is REINSTATED.

KRAMER VS CA (TRANS-ASIA SHIPPINGLINES) 178 SCRA 289GANCAYCO; October 13, 1989 FACTS - The F/B Marjolea, a fishing boat owned by ErnestoKramer, Jr. and Marta Kramer, was navigating its wayfrom Marinduque to Manila. Somewhere nearMaricabon Island and Cape Santiago, the boat figuredin a collision with an inter-island vessel, the M/V AsiaPhilippines owned byTrans-Asia Shipping Lines, Inc. Asa consequence of the collision, the F/B Marjolea sank,taking with it its fish catch.- The Board concluded that the loss of the F/B Marjoleaand its fish

catch was due to the negligence of theemployees of Trans-Asia. The Kramers instituted aComplaint for damages against the private respondentbefore Branch 117 of the Regional Trial Court in PasayCity.

Trans-Asia filed a motion seeking the dismissal of the Complaint on the ground of prescription. Heargued that under Article 1146 of the Civil Code, theprescriptive period for instituting a Complaint fordamages arising from a quasi-delict like a maritimecollision is four years. He maintained that thepetitioners should have filed their Complaint within fouryears from the date when their cause of action accrued,i.e., from April 8, 1976 when the maritime collision tookplace, and that accordingly, the Complaint filed on May30, 1985 was instituted beyond the four-yearprescriptive period. Petitioners claim:that maritime collisions have peculiarities andcharacteristics which only persons with special skill,training and experience like the members of the Boardof Marine Inquiry can properly analyze and resolve- that the running of the prescriptive period was tolledby the filing of the marine protest and that their causeof action accrued only on April 29, 1982, the date whenthe Decision ascertaining the negligence of the crew of the M/V Asia Philippines had become final, and that thefour-year prescriptive period under Article 1146 of theCivil Code should be computed from the said date. ISSUE WON a Complaint for damages instituted by thepetitioners against the private respondent arising froma marine collision is barred by presciption HELD YES- Under A1146 CC, an action based upon a quasi-delictmust be instituted within four (4) years. Theprescriptive period begins from the day the quasi-delictis committed. In Paulan vs. Sarabia, this Court ruledthat in an action for damages arising from the collisionof two (2) trucks, the action being based on a quasi-delict, the four (4) year prescriptive period must becounted from the day of the collision.- In Espanol vs. Chairman, Philippine VeteransAdministration, this Court held: The right of actionaccrues when there exists a cause of action, whichconsists of 3 elements, namely: a) a right in favor of theplaintiff by whatever means and under whatever law itarises or is created; b) an obligation on the part of defendant to respect such right; and c) an act oromission on the part of such defendant violative of theright of the plaintiff ... It is only when the last elementoccurs or takes place that it can be said in law that acause of action has arisen. From the foregoing ruling, itis clear that the prescriptive period must be countedwhen the last element occurs or takes place, that is,the time of the commission of an act or omissionviolative of the right of the plaintiff, which is the timewhen the cause of action arises. It is therefore clearthat in this action for damages arising from the collisionof 2 vessels the 4 year prescriptive period must becounted from the day of the collision. The aggrievedparty need not wait for a determination by anadministrative body like a Board of Marine Inquiry, thatthe collision was caused by the fault or negligence of the other party before he can file an action fordamages. Immediately after the collision the aggrievedparty can seek relief from the courts by alleging suchnegligence or fault of the owners, agents or personnelof the other vessel. Thus, the respondent courtcorrectly found that the action of petitioner hasprescribed. The collision occurred on April 8, 1976. Thecomplaint for damages was filed in court only on May30, 1 985, was beyond the 4 year prescriptive period. Disposition petition is dismissed. Kramer v CA FACTS: 1976: 2 vessels collided - 1981: Phil Coast Guard concluded that the collision was due to M/V Asias negligence -1982: Coast Guard suspended 2nd mate of M/V Asia.

-1985: Petitioners instituted complaint for damages against respondent. Motion to dismiss was filed on the basis of prescription. HELD: SC dismissed the case, saying that according to Art. 1146, action based on quasi-delict must be instituted within 4 yrs. Prescriptive period begins from the day the quasi-delict was committed.

NPC v CA (PHESCO INC.) 294 CRA 209 ROMERO; August 14, 1998 NATURE Petition for review on certiorari FACTS - On July 22, 1979, a convoy of four dump trucks owned by the National Power Corporation (NPC) left Marawi City bound for Iligan City. Unfortunately, enroute to its destination, one of the trucks driven by Gavino Ilumba figured in a head-on-collision with a Toyota Tamaraw. The incident resulted in the death of three persons riding in the Toyota Tamaraw, as well as physical injuries to seventeen other passengers. - The heirs of the victims filed a complaint for damages against NPC and PHESCO Incorporated (PHESCO is a contractor of NPC with the main duty of supplying workers and technicians for the latter's projects, but in this case it was alleged that they own the dump trucks). - The trial court rendered a decision absolving NPC of any liability. PHESCO appealed to the Court of Appeals, which reversed the trial court's judgment absolving PHESCO and sentencing NPC to pay damages. ISSUE WON NPC is the employer of Ilumba, driver of the dump truck, which should be solidarily liable for the damages to the victims HELD YES - In the provisions of the "Memorandum of Understanding" entered into by PHESCO and NPC, we are convinced that PHESCO was engaged in "labor only" contracting. In a "labor only" contract, the person acting as contractor is considered merely as an agent or intermediary of the principal who is responsible to the workers in the same manner and to the same extent as if they had been directly employed by him. Finding that a contractor was a "labor-only" contractor is equivalent to a finding that an employer-employee relationship existed between the owner (principal contractor) and the "labor-only" contractor, including the latter's workers. - Article 2180 of the Civil Code explicitly provides: "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." - In this regard, NPC's liability is direct, primary and solidary with PHESCO and the driver. Of course, NPC, if the judgment for damages is satisfied by it, shall have recourse against PHESCO and the driver who committed the negligence which gave rise to the action. DISPOSITION Assailed decision affirmed.

COCA-COLA BOTTLERS PHILS V CA (GERONIMO) 227 SCRA 292 DAVIDE, JR.; October 18, 1993 NATURE

Petition for review on certiorari of the decision of the Court of Appeals FACTS - Lydia Geronimo was engaged in the business of selling food and drinks to children in the Kindergarten Wonderland Canteen located in Dagupan. - August 12, 1989 - A group of parents complained that they found fibrous material in the bottles of Coke and Sprite that their children bought from Geronimos store. Geronimo examined her stock of softdrinks and found that there were indeed fibrous materials in the unopened soda bottles. She brought the bottles to the Department of Health office in their region and was informed that the soda samples she sent were adulterated. - Because of this, Geronimos sales plummeted with her regular sales of 10 cases day dwindling to about 2 or 3 cases. Her losses amounted to P200 to P300 a day which later on forced her to close down her business on December 12, 1989. - She demanded payment of damages from plaintiff Coca-Cola but the latter did not accede to her demands. - The trial court ruled in favor of Coca-Cola, stating that the complaint was based on a contract and not a quasidelict because of pre-existing relation between the parties. Thus the complaint should have been filed within 6 months from the delivery of the thing sold. - The trial court however annulled the questioned orders of the RTC and directed it to conduct further proceedings in the civil case. According to the CA: the allegations in the complaint plainly show that it is an action for damages arising from respondents act of recklessly and negligently manufacturing adulterated food items intended to be sol for public consumption. It also noted that the availability of an action for breach of warranty does not bar an action for torts in a sale of defective goods. Petitioners Claim: - Coca-Cola moved to dismiss the complaint on the grounds of failure to exhaust administrative remedies and prescription. - Since the complaint is for breach of warranty (under A1561, CC), it should have been brought within 6 months from the delivery of the goods. Respondents Comments: - Geronimo alleges that her complaint is one for damages which does not involve an administrative action. - Her cause of action is based on an injury to plaintiffs right which can be brought within 4 years (based on A1146, CC). ISSUE WON the complaint is founded on a quasi-delict and pursuant to A1146(12), CC, the action prescribes in 4

years HELD YES Reasoning - The vendees remedies against a vendor with respect to the warranties against hidden defects or encumbrances upon the thing sold are not limited to those prescribed in A1567. The vendee may also ask for the annulment of the contract upon proof of error or fraud in which case the ordinary rule on obligations shall be applicable. - Under American law, the liabilities of the manufacturer or seller of injury-causing products may be based on negligence, breach of warranty, tort or other grounds. DISPOSITION The instant petition is denied for lack of merit. COCA-COLA BOTTLERS PHILIPPINES, INC. vs. CA and MS. LYDIA GERONIMO COCA-COLA BOTTLERS PHILIPPINES, INC. vs. CA and MS. LYDIA GERONIMO G.R. No. 110295 October 18, 1993 Petition for review on certiorari (under Rule45) the decision of the CA DAVIDE, JR., J.: FACTS: Private respondent was the proprietress of Kindergarten Wonderland Canteen in Dagupan City. In August 1989, some parents of the students complained to her that the Coke and Sprite soft drinks sold by her contained fiber-like matter and other foreign substances. She brought the said bottles for examination to DOH and it was found out that the soft drinks are adulterated. As a result, her per day sales of soft drinks severely plummeted that she had to close her shop on 12 December 1989 for losses. She demanded damages from petitioner before the RTC which dismissed the same on motion by petitioner based on the ground of Prescription. On appeal, the CA annulled the orders of the RTC. ISSUE: WON the action for damages by the proprietress against the soft drinks manufacturer should be treated as one for breach of implied warranty under article 1561 of the CC which prescribes after six months from delivery of the thing sold. RULING: Petition Denied. The SC agrees with the CAs conclusion that the cause of action in the case at bar is found on quasi delict under Article 1146 of the CC which prescribes in four years and not on breach of warranty under article 1562 of the same code. This is supported by the allegations in the complaint which makes reference to the reckless and negligent manufacture of "adulterated food items intended to be sold for public consumption."

VALENZUELA v CA (LI and ALEXANDER COMMERCIAL, INC.) 253 SCRA 303 KAPUNAN; February 7, 1996 NATURE Petition for review on certiorari FACTS - Ma. Lourdes Valenzuela was driving when she realized she had a flat tire. She parked along the sidewalk of Aurora Blvd., put on her emergency lights, alighted from the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by a car driven by defendant Richard Li and registered in the name of defendant Alexander Commercial, Inc.

- Because of the impact plaintiff was thrown against the windshield of the car of the defendant, which was destroyed, and then fell to the ground. She was pulled out from under defendant's car. Plaintiff's left leg was severed up to the middle of her thigh, with only some skin and sucle connected to the rest of the body. She was confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg. She filed a claim for damages against defendant. - Lis alibi was that he was driving at 55kph when he was suddenly confronted with a speeding car coming from the opposite direction. He instinctively swerved to the right to avoid colliding with the oncoming vehicle, and bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parking lights or early warning device, and the area was poorly lighted. Defendants counterclaimed for damages, alleging that plaintiff was the one who was reckless or negligent. -RTC found Li and Alexander solidarily liable. CA absolved Alexander. ISSUE 1. WON Li was grossly negligent in driving the company issued car 2. WON Valenzuela was guilty of contributory negligence 3. WON Alexander Commercial is liable as Lis employer HELD 1. YES - The average motorist alert to road conditions will have no difficulty applying the brakes to a car traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing conditions of the road if he were alert as every driver should be to those conditions. Driving exacts a more than usual toll on the senses. Physiological "fight or flight" mechanisms are at work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc. Li's failure to react in a manner which would have avoided the accident could therefore have been only due to either or both of the two factors: 1) that he was driving at a "very fast" speed as testified by one of the witneses; and 2) that he was under the influence of alcohol. Either factor working independently would have diminished his responsiveness to road conditions, since normally he would have slowed down prior to reaching Valenzuela's car, rather than be in a situation forcing him to suddenly apply his brakes. - Li was, therefore, negligent in driving his companyissued Mitsubishi Lancer 2. NO - Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals, an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. - While the emergency rule applies to those cases in which reflective thought or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates thoroughful care, but by the over-all nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where she would likely find no one to help her. - Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others. It is the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 3. YES - Since important business transactions and decisions may occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a company car therefore principally serves the business and goodwill of a company and only incidentally the private purposes of the individual who actually uses the car, the managerial employee or company sales agent. As such, in providing for a company car for business use and/or for the purpose of

furthering the company's image, a company owes a responsibility to the public to see to it that the managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able to use the company issue capably and responsibly. - In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to whether or not the company took the steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a company car. Not having been able to overcome the burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the accident. DISPOSITION Judgment of RTC reinstated.

Torts and Damages Case Digest: Valenzuela v. CA (1996) Thursday, October 20, 2011 G.R.No. 115024 February 7, 1996 Lessons Applicable: Calculation of Risk (Torts and Damages) Factors in Determining Amount (Torts and Damages)

FACTS: June 24, 1990 2 am: While driving from her restaurant at Araneta avenue towards the direction of Manila, Ma. Lourdes Valenzuela noticed that she had a flat tire so she parked along the sidewalk about 1 1/2 feet away, place her emergency lights and seeked help o She was with her companion Cecilia Ramon While she was pointing her tools to the man who will help her fixed the tires, she was suddenly hit by another Mitsubishi Lancer driven by Richard Li who was intoxicated and she slammed accross his windshield and fell to the ground She was sent to UERM where she stayed for 20 days and her leg was amputated and was replaced with an artificial one. o Her expenses totalled 147, 000 [120,000 php (confinement) + 27, 000 (aritificial leg)] RTC: Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. Alexander Commercial, Inc., Lis employer, jointly and severally liable for damages pursuant to Article 2180 P41,840 actual damages, P37,500 unrealized profits because of the stoppage of plaintiffs Bistro La Conga restaurant 3 weeks after the accident on June 24, 1990, P20,000 a month as unrealized profits of Bistro La Conga restaurant, from August, 1990 until the date of this judgment, P30,000.00, a month, for unrealized profits in 2 Beauty salons, P1,000,000 in moral damages, P50,000, as exemplary damages, P60,000, as reasonable attorneys fees and costs. CA: there was ample evidence that the car was parked at the side but absolved Li's employer o Li: 55 kph - self serving and uncorraborated o Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident: Valenzuelas car parked parallel and very near the sidewalk and Li was driving on a very fast speed and there was only a drizzle (NOT heavy rain) ISSUE: 1. W/N Li was driving at 55 kph - NO

2. W/N Valenzuela was guilty of contributory negligence - NO 3. W/N Alexander Commercial, Inc. as Li's employer should be held liable - YES 4. W/N the awarding of damages is proper. - YES.

HELD: CA modified with reinstating the RTC decision 1. NO If Li was running at only about 55 kph then despite the wet and slippery road, he could have avoided hitting the Valenzuela by the mere expedient or applying his brakes at the proper time and distance it was not even necessary for him to swerve a little to the right in order to safely avoid a collision with the on-coming car since there is plenty of space for both cars, since Valenzuela car was running at the right lane going towards Manila and the on-coming car was also on its right lane going to Cubao 2. NO. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection emergency rule o an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence She is not expected to run the entire boulevard in search for a parking zone or turn on a dark Street or alley where she would likely find no one to help her She stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed she parked along the sidewalk, about 1 feet away, behind a Toyota Corona Car 3. YES. Not the principle of respondeat superior, which holds the master liable for acts of the servant (must be in the course of business), but that of pater familias, in which the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the family in the selection and supervision of his employees Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the performance of the latters assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in relation to Article 2176 of the Civil Code. o situation is of a different character, involving a practice utilized by large companies with either their employees of managerial rank or their representatives. Moreover, Lis claim that he happened to be on the road on the night of the accident because he was coming from a social visit with an officemate in Paraaque was a bare allegation which was never corroborated in the court below. It was obviously self-serving. Assuming he really came from his officemates place, the same could give rise to speculation that he and his officemate had just been from a work-related function, or they were together to discuss sales and other work related strategies.

Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good father of the family in entrusting its company car to Li 4. YES. As the amount of moral damages are subject to this Courts discretion, we are of the opinion that the amount of P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury -. physical and psychological - suffered by Valenzuela as a result of Lis grossly negligent driving of his Mitsubishi Lancer in the early morning hours of the accident. o the damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented, are painful.

Read more: http://incessantlylearn.blogspot.com/2011/10/torts-and-damages-casedigest_20.html#ixzz1qrjxtOxM

UE v. Jader February 17, 2000 FACTS: Jader was a law student at the University of the East. He failed to take the regular exam for Practice Court I so he was given an incomplete grade. He took the removals but he was given a grade of five. Jader attended the graduation and prepared for the bar. He later learned of his deficiency. Jader sued UE for damages. UEs defense was that Jader should have verified grade! ISSUE: WON UE was liable for damages. YES HELD: UE had the contractual obligation to inform its students as to whether or not all the requirements for the conferment of a degree have been met. It also showed bad faith in belatedly informing Jader of the result of his removals, particularly when he was already preparing for the bar. ABSENCE OF GOOD FAITH MUST BE SUFFICIENTLY ESTABLISHED FOR A SUCCESSFUL PROSECUTION BY THE AGGRIEVED PARTY IN A SUIT FOR ABUSE OF RIGHT UNDER ARTICLE 19 . Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious. On Art. 19:-intended to expand the concept of torts by granting adequate legal remedy for the untold moral wrongs which is impossible for human foresight to provide specifically in statutory law. -the ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society -A person should be protected only when he acts with providence and in GF, but not when he acts with negligence or abuse NOTES: -does not adhere strictly to the 3 elements -seems to say that Art. 19 can be committed via negligence - abuse of duty is not a right C L A S S N O T E S Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Petitioner (university) cannot just give out its

students grades at any time Can you sue professor for not giving grades on time? No. Should be the school.

So Ping Bun v CA FACTS: Tek Hua Trading originally entered into a lease agreement with DC Chuan covering stalls in Binondo. The contracts were initially for 1 year but were continued on month to month basis upon expiration of the 1 yr. Tek Hua was dissolved, original members of Tek Hua formed Tek Hua Enterprises (THE) with Manuel Tiong as one of the incorporators. However, the stalls were occupied by the grandson (So Ping Bun) of one of the original incorporators of Tek Hua under business name Trendsetter Marketing. -new lease contracts with increase in rent were sent to THE, although not signed. -THE through Tiong asked So Ping Bun to vacate the stalls so THE would be able to go back to business BUT instead, SO PING BUN SECURED A NEW LEASE AGEEMENT WITH DC CHUAN. ISSUE: WON So Ping Bun was guilty of tortuous interference of contract HELD: Yes. A duty which the law on torts is concerned with is respect for the property of others, and a cause of action ex delicto may be predicated upon an unlawful interference by one party of the enjoyment of the other of his private property. In the case at bar, petitioner, Trendsetter asked DC Chuan to execute lease contracts in its favor, and as a result petitioner deprived respondent of the latters property right. - Damage is the loss, hurt, or harm which results from injury, and damages are the recompense or compensation awarded for the damage suffered. nontrespassory invasion of anothers interest in the private use and enjoyment of asset if: a) the other has property rights and privileges with respect to the use or enjoyment interfered with; b) the invasion is substantial; c) the defendants conduct is a legal cause of the invasion; d) the invasion is either intentional and unreasonable or unintentional and actionable under the general negligence rules. - elements of tort interference: a) existence of a valid contract b) knowledge on the part of the third party of its existence c) interference of the third party is without legal justification or excuse - Since there were existing lease contracts between Tek Hua and DC Chuan, Tek Hua in fact had property rights over the leased stalls. The action of Trendsetter in asking DC Chuan to execute the contracts in their favor was unlawful interference. - The SC handled the question of whether the interference may be justified considering that So acted solely for the purpose of furthering his own financial or economic interest. It stated that it is sufficient that the impetus of his conduct lies in a proper business interest rather than in wrongful motives to conclude that So was not a malicious interferer. Nothing on the record imputes deliberate wrongful motives or malice on the part of So. Hence the lack of malice precludes the award of damages. - The provision in the Civil Code with regard tortuous interference is Article 1314. C L A S S N O T E S Did not include malice as one of the elements under A1314. Then discussed Gilchrist in saying that to award damages, there should be malice but it was never mentioned in Gilchrist in the first place. Implied malice as an element. De Leon included malice as an element.

 Sir said as guidance: If we apply Gilchrist and So Ping Bun, we need malice in 1314. But if question is just on the elements, just answer the three elements given by So Ping Bun. So Ping Bun was okay had it not cited Gilchrist Sir said that it seems this is the case right now: You can compete in Business Contracts as long as intention is financial interest and there is no malice. If this is the case, then one cannot recover from 1314 as against the third party. AQUINO, (pp. 795-801) Interference with contracts: A. Statutory provision and rationale: Under Article 1314 of the Civil Code, a third party may sue a third party not for breach of contract but for inducing another to commit such breach. This tort is known as interference with contractual relations. Such interference is considered tortious because it violates the rights of the contacting parties to fulfill the contract and to have it fulfilled, to reap the profits resulting therefrom, and to compel the performance by the other party. The theory is that a right derived from a contract is a property right that entitles each party to protection against all the world and any damage to said property should be compensated. B. History: This particular tort started in the UK in Lumley vs, Gye in 1853 and was first adopted in the Philippines in 1915 in Gilchrist vs Cuddy. C. Elements: 1. Existence of a valid contract: This existence is necessary and the breach must occur because of the alleged act of interference. No tort is committed if the party had already broken the contract. Neither can action be maintained if the contract is void. However, there is authority for the view that an action for interference can be maintained even if the contract is unenforceable. The view is that inducement, if reprehensible in an enforceable contracts, is equally reprehensible in an unenforceable one. 2. Knowledge on the part of the third party of the existence of the contract: The elements do not include malice as a necessary act in interference. However, the Supreme Court in its various rulings have held that the aggrieved party will only be entitled to damages if malice was present in the commission of the tortious act. It was held that mere competition is not sufficient unless it is considered unfair competition or the dominant purpose is to inflict harm or injury. 3. Interference of the third party without legal justification or excuse: In general, social policy permits a privilege or justification to intentionally invade the legally protected interests of others only if the defendant acts to promote the interests of others or himself if the interest which he seeks to advance is superior to the interest invaded in social importance. Competition in business also affords a privilege to interfere provided that the defendants purpose is a justifiable one and the defendant does not employ fraud or deception which are regarded as unfair. D. Extent of liability: The rule is that the defendant found guilty of interference with contractual relations cannot be held liable for more than the amount for which the party who was induced to break the contract can be held liable. This is consistent with Article 2202 if the contracting party who was induced to break the contract was in bad faith. However, when there is good faith, the party who breached the contract is only liable for consequence that can be foreseen. In fact, it is possible for the contracting party to be not liable at all, as in the case where the defendant prevented him from performing his obligation through force or fraud.

So Ping Bun v. CA 314 SCRA 751 (1999) Facts:

Tek Hua Trading Co (THTC) through its managing partner, So Pek Giok, entered intolease agreements of 4 lots in Binondo with lessor DCCSI. Tek Hua used the areas tostore its textiles. When the contracts expired, parties did not renew contracts but Tek Hua continued to occupy the premises. In 1976, THTC was dissolved and replaced by Tek Hua Enterprising Copr (THEC) owned by original members of THTC. So Pek Giok died in 1986 and was replaced by his grandson, petitioner So Ping Bun who occupied thewarehouse for his own textile business, Trendsetter Marketing. Soon however, THECthrough Manuel Tiong, requested petitioner to vacate his business from the warehousefor the company will use it. Petitioner refused to vacate and requested formal contractsof lease with DCCSI in favor of his business. He claimed that after the death of hisgrandfather he had been occupying the premises for his textile business and religiously paid rent. DCCSI acceded to petitioner's request. The lease contracts in favor of Trendsetter were executed. In the suit for injunction, private respondents pressed forthe nullification of the lease contracts between DCCSI and petitioner. They also claimedfor damages. Issue : Whether or not damages are to be awarded in this case. Held :Damage is the loss, hurt, or harm which results from injury, and damages are therecompense or compensation awarded for the damage suffered. The elements of tortinterference are: (1) existence of a valid contract; (2) knowledge on the part of the thirdperson of the existence of contract; and (3) interference of the third person is withoutlegal justification or excuse. This may pertain to a situation where a third personinduces a party to renege on or violate his undertaking under a contract. In the casebefore us, petitioner's Trendsetter Marketing asked DCCSI to execute lease contracts inits favor, and as a result petitioner deprived respondent corporation of the latter'sproperty right.Petitioner argues that damage is an essential element of tort interference, and since thetrial court and the appellate court ruled that private respondents were not entitled toactual, moral or exemplary damages, it follows that he ought to be absolved of any liability, including attorney's fees. It is true that the lower courts did not award damages,but this was only because the extent of damages was not quantifiable. We had a similarsituation in Gilchrist , where it was difficult or impossible to determine the extent of damage and there was nothing on record to serve as basis thereof. In that case werefrained from awarding damages. We believe the same conclusion applies in this caseand petitioner is guilty of tort interference as all the said requisites are present. Whilewe do not encourage tort interferers seeking their economic interest to intrude intoexisting contracts at the expense of others, however, we find that the conduct herein

complained of did not transcend the limits forbidding an obligatory award for damagesin the absence of any malice. Lack of malice precludes damages. But it does not relievepetitioner of the legal liability for entering into contracts and causing breach of existingones. The respondent appellate court correctly confirmed the permanent injunction andnullification of the lease contracts between DCCSI and Trendsetter Marketing, withoutawarding damages. The injunction saved the respondents from further damage or injury caused by petitioner's interference. G.R. No. 149149 October 23, 2003

ERNESTO SYKI, petitioner, vs. SALVADOR BEGASA, respondent. DECISION CORONA, J.: Assailed in the instantthis petition for review under Rule 45 of the Rules of Court is the decision dated January 31, 2001 of the Court of Appeals, affirming the decision dated May 5, 1998 of the Regional Trial Court of Negros Occidental, Branch 48, Bacolod City, in Civil Case No. 7458 for damages. The trial court awarded actual and moral damages to herein respondent Salvador Begasa who suffered injuries in an accident due to the negligence of Elizalde Sablayan, the truck driver of petitioner Ernesto Syki. The facts follow. On June 22, 1992, around 11:20 a.m., near the corner of Araneta and Magsaysay Streets, Bacolod City, respondent Salvador Begasa and his three companions flagged down a passenger jeepney driven by Joaquin Espina and owned by Aurora Pisuena. While respondent was boarding the passenger jeepney (his right foot already inside while his left foot still on the boarding step of the passenger jeepney), a truck driven by Elizalde Sablayan and owned by petitioner Ernesto Syki bumped the rear end of the passenger jeepney. Respondent fell and fractured his left thigh bone (femur). He also suffered lacerations and abrasions in his left leg, thusas follows: 1. Fracture left femur, junction of middle and distal third, comminuted. 2. Lacerated wounds, left poplitial 10 cm. left leg anterior 2.5 cm. 3. Abrasion left knee.2 On October 29, 1992, respondent filed a complaint for damages for breach of common carriers contractual obligations and quasi-delict against Aurora Pisuena, the owner of the passenger jeepney;, herein petitioner Ernesto Syki, the owner of the truck;, and Elizalde Sablayan, the driver of the truck. After hearing, the trial court dismissed the complaint against Aurora Pisuena, the owner and operator of the passenger jeepney, but ordered petitioner Ernesto Syki and his truck driver, Elizalde Sablayan, to pay respondent Salvador Begasa, jointly and severally, actual and moral damages plus attorneys fees as follows: 1. Actual damages of P48,308.20 less the financial assistance given by defendant Ernesto Syki to plaintiff Salvador Begasa in the amount of P4,152.55 or a total amount of P44,155.65; 2. The amount of P30,000.00 as moral damages; 3. The amount of P20,000.00 as reasonable attorneys fees.
3 1

Petitioner Syki and his driver appealed to the Court of Appeals. However, the appellate court found no 4 reversible error in the decision of the trial court and affirmed the same in toto. The appellate court also 5 denied their motion for reconsideration. Aggrieved, petitioner Ernesto Syki filed the instant petition for review, arguing that the Court of Appeals erred in not finding respondent Begasa guilty of contributory negligence. Hence, the damages awarded to him (respondent) should have been decreased or mitigated. Petitioner also contends that the appellate

court erred in ruling that he failed to observe the diligence of a good father of a family in the selection and supervision of his driver. He asserts that he presented sufficient evidence to prove that he observed the diligence of a good father of a family in selecting and supervising the said employee, thus he should not be held liable for the injuries sustained by respondent. The petition has no merit. Article 2180 of the Civil Code provides: . . . . . . . . .x x x x x 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. xxxxxxxxx . . . . . . . . .The responsibility treated in this article shall cease when the persons herein mentioned prove they observed all the diligence of a good father of a family to prevent damage. From the above provision, when an injury is caused by the negligence of an employee, a legal presumption instantly arises that the employer was negligent, either or both, in the selection and/or supervision of his said employeeduties. The said presumption may be rebutted only by a clear showing on the part of the employer that he had exercised the diligence of a good father of a family in the selection and supervision of his employee. If the employer successfully overcomes the legal presumption of negligence, he is relieved of liability.6 In other words, the burden of proof is on the employer. The question is: how does an employer prove that he had indeed exercised the diligence of a good father of a family in the selection and supervision of his employee? The case of Metro Manila Transit Corporation vs. Court of Appeals7 is instructive: 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. . .In making proof in its or his case, it is paramount that the best and most complete evidence is formally entered.1vvphi1.nt 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, 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. Petitioners attempt to prove its "deligentissimi 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. 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. vs. ExMeralco Employees Transportation Co., et. al., set amidst an almost identical factual setting, where we held that: 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 therefore 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. x x x (R)educing the testimony of Albert to its proper proportion, we do not have enough trustworthy evidence left to go by. We are of the considerable opinion, therefore, that the believable evidence on the degree of care 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. (emphasis ours) The above 1993 ruling in Metro Manila Transit Corporation vs. Court of Appeals was reiterated in a recent 8 case again involving the Metro Manila Transit Corporation, thus: In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. On the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence. In this case, MMTC sought to prove that it exercised the diligence of a good father of a family with respect to the selection of employees by presenting mainly testimonial evidence on its hiring procedure. According to MMTC, applicants are required to submit professional driving licenses, certifications of work experience, and clearances from the National Bureau of Investigation; to undergo tests of their driving skills, concentration, reflexes, and vision; and, to complete training programs on traffic rules, vehicle maintenance, and standard operating procedures during emergency cases. . . . . . . . . .x x x x x x x x x Although testimonies were offered that in the case of Pedro Musa all these precautions were followed, the records of his interview, of the results of his examinations, and of his service were not presented. . . [T]here is no record that Musa attended such training programs and passed the said examinations before he was employed. No proof was presented that Musa did not have any record of traffic violations. Nor were records of daily inspections, allegedly conducted by supervisors, ever presented. . . The failure of MMTC to present such documentary proof puts in doubt the credibility of its witnesses. x x x x x x x x x. . . . . . . . . It is noteworthy that, in another case involving MMTC, testimonial evidence of identical content, which MMTC presented to show that it exercised the diligence of a good father of a family in the selection and supervision of employees and thus avoid vicarious liability for the negligent acts of its employees, was held to be insufficient to overcome the presumption of negligence against it. (emphasis ours) Based therefore on jurisprudential law, the employer must not merely present testimonial evidence to prove that he had observed the diligence of a good father of a family in the selection and supervision of his employee, but he must also support such testimonial evidence with concrete or documentary evidence.1awphi1.nt The reason for this is to obviate the biased nature of the employers testimony or 9 that of his witnesses. In this case, petitioners evidence consisted entirely of testimonial evidence. He testified that before he hired Elizalde Sablayan, he required him to submit a police clearance in order to determine if he was ever involved in any vehicular accident. He also required Sablayan to undergo a driving test with conducted by his mechanic, Esteban Jaca. Petitioner claimed that he, in fact, accompanied Sablayan during the driving

test and that during the test, Sablayan was taught to read and understand traffic signs like "Do Not Enter," "One Way," "Left Turn," and "Right Turn." Petitioners mechanic, Esteban Jaca, on the other hand, testified that Sablayan passed the driving test and had never figured in any vehicular accident except the one in question. He also testified that he maintained in good condition all the trucks of petitioner by checking the brakes, horns and tires thereof before leaving forproviding hauling services.10 Petitioner, however, never presented the alleged police clearance given to him by Sablayan, nor the results of Sablayans driving test. Petitioner also did not present records of the regular inspections that his mechanic allegedly conducted. The unsubstantiated and self-serving testimonies of petitioner and his mechanic arewere, without doubt, insufficient to overcome the legal presumption that petitioner was negligent in the selection and supervision of his driver. Accordingly, we affirm the ruling of the Court of Appeals that petitioner is liable for the injuries suffered by respondent. It should be emphasized that the legal obligation of employers to observe due diligence in the selection and supervision of their employees provided under in Article 2180 of the Civil Code is not an empty provision or a mere formalism since the non-observance thereof actually becomes the basis of the 11 employers vicarious liability. Employers should thus seriously observe such a degree of diligence (and must presentprove it in court by sufficient and concrete evidence) in court showing such observance in order to be freethat would exculpate them from liability. Petitioner next contends that, even if he is liable, the award of damages given to respondent should be decreased or mitigated because respondent was guilty of contributory negligence. Petitioner claims that his driver was allegedly caught unaware when the passenger jeepney hailed by respondent suddenly stopped at the intersection of a national highway. Petitioner argues that, had respondent flagged down the passenger jeepney at the proper place, the accident could have been avoided.12 Petitioners contention has no merit. Article 2179 provides: When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. The underlying precept of the above article on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be and is not entitled to recover damages in full but must bear the consequences of his own negligence. Inferrably, tThe defendant must thus be held liable only for the damages actually caused by his negligence.13 In the present case, was respondent partly negligent and thus, should not recover the full amount of the damages awarded by the trial court? We rule in the negative. There was no evidence that respondent Begasa and his three companions flagged down the passenger jeepney at in a prohibited area. All Tthe facts only showed was that the passenger jeepney was near the corner of Araneta and Magsaysay Streets, Bacolod City when petitioners driver bumped it from the rear. No city resolution, traffic regulation or DPWH memorandum were was presented to show that the passenger jeepney picked up respondent and his three companions at in a prohibited area. In fact, the trial court dismissed the case against the driver and/or owner of the passenger jeepney on the ground that they were not liable, which meansing, that no negligence could be attributed to them. The trial court also found no negligence on the part of respondent Begasa. This factual finding was affirmed in toto by 14 the Court of Appeals.

It must be emphasized that petitions for review under Rule 45 of the Rules of Court should deals only with questions of law. The factual conclusions of the Court of Appeals are given great weight and even finality by the Supreme Court, especially when, as in the present case, the appellate court upholds the findings of fact of the trial court. The factual findings of the Court of Appeals can only be overturned if it is shown that such findings are obviously whimsical, capricious and arbitrary, or are contrary with to the factual 15 findings of the trial court. In this case, we find no reason to overturn the factual findings of the Court of Appeals. Thus, we affirm the appellate courts finding that there was no contributory negligence on the part of respondent. In sum, the sole and proximate cause of the accident was the negligence of petitioners driver who, as found by the lower courts, did not slow down even when he was already approaching a busy intersection 16 within the city proper. The passenger jeepney had long stopped to pick up respondent and his three companions and, in fact, respondent was already partly inside the jeepney, when petitioners driver bumped the rear end ofrear-ended it. The impact was so strong such that respondent fell and fractured his left thigh bone (femur), and suffered severely woundeds in his left knee and leg. No doubt that respondentpetitioners driver was reckless speeding. Since the negligence of petitioners driver was the sole and proximate cause of the accident, in the present case, petitioner is liable, under Article 2180 of the Civil Code, to pay damages to respondent Begasa for the injuries sustained by latterhim. WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals is AFFIRMED. SO ORDERED. SPOUSES HERNANDEZ et al, vs. SPOUSES DOLOR et al. Posted on February 10, 2011 by mclairgarcia G.R. No. 160286 SPOUSES HERNANDEZ et al, vs. SPOUSES DOLOR et al. FACTS: Lorenzo Menard Boyet Dolor, Jr. was driving an owner-type jeepney owned by her mother, Margarita, towards Anilao, Batangas. As he was traversing the road his vehicle collided with a passenger jeepney, driven Juan Gonzales and owned by Francisco Hernandez. Dolor and one of his passengers died, while others who are on board suffered, suffered physical injuries. The collision also damaged the passenger jeepney of Hernandez and caused physical injuries to its passengers. Respondents commenced an action for damages against petitioners, alleging that driver Juan Gonzales was guilty of negligence and lack of care and that the Hernandez spouses were guilty of negligence in the selection and supervision of their employees. Petitioners countered that the proximate cause of the death and injuries sustained by the passengers of both vehicles was the recklessness of Dolor, who was driving in a zigzagging manner under the influence of alcohol. Petitioners also alleged that Gonzales was not the driver-employee of the Hernandez spouses as the former only leased the passenger jeepney on a daily basis. ISSUE:

WON an employer-employee relationship exist between Spouses Hernandez and Gonzales for them to be held solidarily liable. HELD: We hold that an employer-employee relationship exists between the Hernandez spouses and Gonzales. To exempt from liability the owner of a public vehicle who operates it under the boundary system on the ground that he is a mere lessor would be not only to abet flagrant violations of the Public Service Law, but also to place the riding public at the mercy of reckless and irresponsible drivers reckless because the measure of their earnings depends largely upon the number of trips they make and, hence, the speed at which they drive; and irresponsible because most if not all of them are in no position to pay the damages they might cause.

G.R. No. 116617 November 16, 1998 METRO MANILA TRANSIT CORPORATION (MMTC), PEDRO A. MUSA, CONRADO TOLENTINO, FELICIANA CELEBRADO and THE GOVERNMENT SERVICE INSURANCE SYSTEM, petitioners, vs. COURT OF APPEALS, SPS. RODOLFO V. ROSALES and LILY R. ROSALES, respondents. G.R. No. 126395 November 16, 1998 RODOLFO V. ROSALES, and LILY R. ROSALES, petitioners, vs. THE COURT OF APPEALS, METRO MANILA TRANSIT CORPORATION, (MMTC) PEDRO A. MUSA, CONRADO TOLENTINO, FELICIANA CELEBRADO and THE GOVERNMENT SERVICE INSURANCE SYSTEM, respondents.

MENDOZA, J.: These are appeals brought, on the one hand, by the Metro Manila Transit Corporation (MMTC) and Pedro Musa and, on the other, by the spouses Rodolfo V. Rosales and Lily R. Rosales from the decision, 1 dated August 5, 1994, of the Court of Appeals, which affirmed with modification the judgment of the Regional Trial Court of Quezon City holding MMTC and Musa liable to the spouses Rosales for actual, moral, and exemplary damages, attorney's fees, and the costs of suit for the death of the latter's daughter. MMTC and Musa in G.R. No. 116617 appeal insofar as they are held liable for damages, while the spouses Rosales in G.R. No. 126395 appeal insofar as the amounts awarded are concerned. The facts are as follows: MMTC is the operator of a fleet of passenger buses within the Metro Manila area. Musa was its driver assigned to MMTC Bus No. 27. The spouses Rosales were parents of Liza Rosalie, a third-year high school student at the University of the Philippines Integrated School. At around a quarter past one in the afternoon of August 9, 1986, MMTC Bus No. 27, which was driven by Musa, hit Liza Rosalie who was then crossing Katipunan Avenue in Quezon City. An eye witness said the 2 girl was already near the center of the street when the bus, then bound for the south, hit her. She fell to the ground upon impact, rolled between the two front wheels of the bus, and was run over by the left rear

tires thereof. 3 Her body was dragged several meters away from the point of impact. Liza Rosalie was 4 taken to the Philippine Heart Center, but efforts to revive her proved futile. Pedro Musa was found guilty of reckless imprudence resulting in homicide and sentenced to imprisonment for a term of 2 years and 4 months, as minimum, to 6 years, as maximum, by the Regional Trial Court of Quezon City. 5 The trial court found: All told, this Court, therefore, holds that the accused, who was then, the driver of MMTC Bus No. 027, is criminally responsible for the death of the girl victim in violation of Article 365 (2) of the Revised Penal Code. For, in the light of the evidence that the girl victim was already at the center of the Katipunan Road when she was bumped, and, therefore, already past the right lane when the MMTC Bus No. 027 was supposed to have passed; and, since the said bus was then running at a speed of about 25 kilometers per hour which is inappropriate since Katipunan road is a busy street, there is, consequently, sufficient proof to show that the accused was careless, reckless and imprudent in the operation of his MMTC Bus No. 027, which is made more evident by the circumstance that the accused did not blow his horn at the time of the accident, and he did not even know that he had bumped the girl victim and had ran over her, demonstrating thereby that he did not exercise diligence and take the necessary precaution to avoid injury to persons in the operation of his vehicle, as, in fact, he ran over the girl victim who died as a result thereof. 6 The spouses Rosales filed an independent civil action for damages against MMTC, Musa, MMTC Acting General Manager Conrado Tolentino, and the Government Service Insurance System (GSIS). They subsequently amended their complaint to include Feliciana Celebrado, a dispatcher of the MMTC, as a defendant therein. The counsel of MMTC and Musa attempted to introduce testimony that Musa was not negligent in driving Bus No. 27 but was told by the trial judge: COURT: That is it. You can now limit your question to the other defendant here but to re-try again the actual facts of the accident, this Court would not be in the position. It would be improper for this Court to make any findings with respect to the negligence of herein driver. You ask questions only regarding the civil aspect as to the other defendant but not as to the accused. 7 The counsel submitted to the ruling of the court.
8

In a decision rendered on March 6, 1990, the Regional Trial Court of Quezon City found MMTC and Musa guilty of negligence and ordered them to pay damages and attorney's fees, as follows: WHEREFORE, foregoing premises considered, judgment is hereby rendered ordering defendant Metro Manila Transit Corporation primarily and defendant Pedro Musa subsidiarily liable to plaintiffs-spouses Rodolfo V. Rosales and Lily R. Rosales as follows: 1. Actual damages in the amount of P150,000.00; 2. Moral damages in the amount of P500,000.00; 3. Exemplary damages in the amount of P100,000.00;

4. Attorney's fees in the amount of P50,000.00; and 5. Costs of suit. 9 Both parties appealed to the Court of Appeals. On August 5, 1994, the Court of Appeals affirmed the decision of the trial court with the following modification: WHEREFORE, except for the modification deleting the award of P150,000.00 as actual damages and awarding in lieu thereof the amount of P30,000.00 as death indemnity, the 10 decision appealed from is, in all other aspects, hereby AFFIRMED. The spouses Rosales filed a motion for reconsideration, which the appellate court, in a resolution, dated September 12, 1996, partly granted by increasing the indemnity for the death of Liza Rosalie from P30,000.00 to P50,000.00. Hence, these appeals. In G.R. No. 116617, MMTC and Musa assail the decision of the Court of Appeals on the following grounds: PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE COURT A QUO'S DECISION PARTICULARLY IN NOT HOLDING THAT APPELLANT MMTC EXERCISED THE DILIGENCE OF A GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS DRIVERS. THIS BEING THE CASE, APPELLANT MMTC IS ENTITLED TO BE ABSOLVED FROM ANY LIABILITY OR AT LEAST TO A REDUCTION OF THE RECOVERABLE DAMAGES. THE PUBLIC RESPONDENT COURT OF APPEALS, JUST LIKE THE COURT A QUO, OVERLOOKED THE FACT THAT PETITIONER MMTC, A GOVERNMENT-OWNED CORPORATION, COMMITTED NO FRAUD, MALICE, BAD FAITH, NOR WANTON, FRAUDULENT, OPPRESSIVE AND MALEVOLENT ACTUATIONS AGAINST HEREIN RESPONDENTS-APPELLEES. THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE COURT A QUO'S DECISION TO HOLD PETITIONER-APPELLANT MMTC PRIMARILY LIABLE TO PRIVATE RESPONDENTS-APPELLEES IN THE AMOUNT OF P500,000 AS MORAL DAMAGES, P100,000 AS EXEMPLARY DAMAGES AND P30,000 BY WAY OF DEATH INDEMNITY. THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE COURT A QUO'S DECISION IN RENDERING JUDGMENT FOR ATTORNEY'S FEES IN THE AMOUNT OF P50,000.00 IN FAVOR OF PRIVATE RESPONDENTS-APPELLEES. On the other hand, in G.R. No. 126395, the spouses Rosales contend: The Court of Appeals erred in: First, considering that death indemnity which this Honorable Court set at P50,000.00 is akin to actual damages; Second, not increasing the amount of damages awarded; Third, refusing to hold all the defendants, now private respondents, solidarily liable.

MMTC and Musa do not specifically question the findings of the Court of Appeals and the Regional Trial Court of Quezon City that Liza Rosalie was hit by MMTC Bus No. 27. Nonetheless, their petition contains 11 discussions which cast doubts on this point. Not only can they not do this as the rule is that an appellant may not be heard on a question not specifically assigned as error, but the rule giving great weight, and even finality, to the factual conclusions of the Court of Appeals which affirm those of the trial court bars a reversal of the finding of liability against petitioners MMTC and Musa. Only where it is shown that such findings are whimsical, capricious, and arbitrary can they be overturned. To the contrary, the findings of both the Court of Appeals and the Regional Trial Court are solidly anchored on the evidence 12 submitted by the parties. We, therefore, regard them as conclusive in resolving the petitions at bar. Indeed, as already stated, petitioners' counsel submitted to the ruling of the court that the finding of the trial court in the criminal case was conclusive on them with regard to the questions of whether Liza Rosalie was hit by MMTC Bus No. 27 and whether its driver was negligent. Rather, the issue in this case turns on Art. 2180 of the Civil Code, which provides that "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 responsibility of employers for the negligence of their employees in the performance of their duties is primary, that is, the injured party may recover from the employers directly, regardless of the solvency of their employees. 13 The rationale for the rule on vicarious liability has been adumbrated thus: What has emerged as the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the tort of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prides, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in the selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely.
14

In Campo v. Camarote, 15 we explained the basis of the presumption of negligence in this wise: The reason for the law is obvious. It is indeed difficult for any person injured by the carelessness of a driver to prove the negligence or lack of due diligence of the owner of the vehicle in the choice of the driver. Were we to require the injured party to prove the owner's lack of diligence, the right will in many cases prove illusory, as seldom does a person in the community, especially in the cities, have the opportunity to observe the conduct of all possible car owners therein. So the law imposes the burden of proof of innocence on the vehicle owner. If the driver is negligent and causes damage, the law presumes that the owner was negligent and imposes upon him the burden of proving the contrary. Employers may be relieved of responsibility for the negligent acts of their employees within the scope of their assigned tasks only if they can show that "they observed all the diligence of a good father of a family to prevent damage." 16 For this purpose, they have the burden of proving that they have indeed exercised such diligence, both in the selection of the employee who committed the quasi-delict and in the supervision of the performance of his duties. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. 17 On the other hand, with respect to the supervision of employees, employers should formulate standard operating, procedures, monitor their implementation,

and impose disciplinary measures for breaches thereof. 18 To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.

19

In this case, MMTC sought to prove that it exercised the diligence of a good father of a family with respect to the selection of employees by presenting mainly testimonial evidence on its hiring procedure. According to MMTC, applicants are required to submit professional driving licenses, certifications of work experience, and clearances from the National Bureau of Investigation; to undergo tests of their driving skills, concentration, reflexes, and vision; and, to complete training programs on traffic rules, vehicle maintenance, and standard operating procedures during emergency cases. 20 MMTC's evidence consists entirely of testimonial evidence (1) that transport supervisors are assigned to oversee field operations in designated areas; (2) that the maintenance department daily inspects the engines of the vehicles; and, (3) that for infraction of company rules there are corresponding penalties. 21 Although testimonies were offered that in the case of Pedro Musa all these precautions were followed, 22 the records of his interview, of the results of his examinations, and of his service were not presented. MMTC submitted brochures and programs of seminars for prospective employees on vehicle maintenance, traffic regulations, and driving skills and claimed that applicants are given tests to 23 determine driving skills, concentration, reflexes, and vision, but there is no record that Musa attended such training programs and passed the said examinations before he was employed. No proof was presented that Musa did not have any record of traffic violations. Nor were records of daily inspections, allegedly conducted by supervisors, ever presented. Normally, employers' keep files concerning the qualifications, work experience, training evaluation, and discipline of their employees. The failure of MMTC to present such documentary proof puts in doubt the credibility of its witnesses. What was said in Central Taxicab Corporation v. Ex-Meralco Employees Transportation Corporation 24 applies to this case: 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. .... Albert also testified that he kept records of the preliminary and final tests given by 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. It is noteworthy that, in another case involving MMTC, testimonial evidence of identical content, which MMTC presented to show that it exercised the diligence of a good father of a family in the selection and supervision of employees and thus avoid vicarious liability for the negligent acts of its employees, was held to be insufficient to overcome the presumption of negligence against it. In Metro Manila Transit Corp. v. Court of Appeals, 25 this Court said:

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. 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. Having found both MMTC and its driver Pedro Musa liable for negligence for the death of Liza Rosalie on August 9, 1986; we now consider the question of damages which her parents, the spouses Rosales, are entitled to recover, which is the subject of the appeal in G.R. No. 126395. Indemnity for Death. Art. 2206 provides for the payment of indemnity for death caused by a crime or quasi-delict. Initially fixed in said article of the Civil Code at P3,000.00, the amount of the indemnity has through the years been gradually increased based on the value of the peso. At present, it is fixed at P50,000.00. 26 To conform to this new ruling, the Court of Appeals correctly increased the indemnity it had originally ordered the spouses Rosales to be paid from P30,000.00 to P50,000.00 in its resolution, dated September 12, 1996. Actual Damages. Art. 2199 provides that "except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved." The spouses Rosales are claiming actual damages in the amount of P239,245.40. However, during the trial, they submitted receipts showing that expenses for the funeral, wake, and interment of Liza Rosalie amounted only to P60,226.65 itemized as follows: 27 Medical Attendance P 739.65 Funeral Services 5,100.00 Wreaths 2,500.00 Embalment 1,000.00 Obituaries 7,125.00 Interment fees 2,350.00 Expenses during wake 14,935.00 Mourning clothes 5,000.00 Photography 3,500.00 Video Coverage 10,000.00 Printing of invitation cards 7,977.00 TOTAL 60,226.65

Hence, apart from the indemnity for death, the spouses Rosales are entitled to recover the above amount as actual damages. Moral Damages. Under Art. 2206, the "spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased." The reason for the grant of moral damages has been explained thus: . . . the award of moral damages is aimed at a restoration, within the limits of the 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 28 the wealth or means of the offender. In the instant case, the spouses Rosales presented evidence of the intense moral suffering they had gone through as a result of the loss of Liza Rosalie who was their youngest child. Rodolfo Rosales recounted the place of Liza Rosalie in the family and their relationship with her in the following words: Q: Mr. Rosales, how was Liza to you as a daughter? A: Well, Liza as a daughter was the greatest joy of the family; she was our pride, and everybody loved her all her brothers and sisters because she was sweet and unspoiled. . . . She was soft-spoken to all of us; and she still slept with us at night although she had her own room. Sometimes in the middle of the night she would open our door and ask if she could sleep with us. So we let her sleep with us, as she was the 29 youngest. The death of Liza Rosalie left a void in their lives. Rodolfo Rosales testified on the devastating effect of the death of Liza Rosalie: Q: And after she died, what changes, if any, did you feel in your family? A: Well, there is something hollow in our family, something is missing. She used to greet me when I came home and smell if I was drunk and would tell me to dress up and take a shower before her mommy could see me. She would call me up at the office and say: "Daddy, come home, please help me with my homework." Now, all these things, I am missing, you know. . . I do not feel like going home early. Sometimes my wife would complain and ask: "Where did you go?" But I cannot explain to her how I feel. 30 Lily Rosales described life without Liza Rosalie thus: Q: Now, your life without Liza, how would you describe it, Dr. Rosales? A: You know it is very hard to describe. The family was broken apart. We could not go together because we remember Liza. Every time we go to the cemetery we try as much as possible not to go together. So, we go to the cemetery one at a time, sometimes, my husband and I, or my son and another one, but we never go together because we remember Liza. But before her death we would always be together, the whole family on weekends and on our days off. My husband works very hard, I also work

very hard and my children go to school. They study very hard. Now we 31 cannot go together on outings because of the absence of Liza. The spouses Rosales claim moral damages in the amount of P5,000,000.00. In People v. Teehankee, Jr., 32 this Court awarded P1 million as moral damages to the heirs of a seventeen-year-old girl who was murdered. This amount seems reasonable to us as moral damages for the loss of a minor child, whether he or she was a victim of a crime or a quasi-delict. Hence, we hold that the MMTC and Musa are solidarily liable to the spouses Rosales in the amount of P1,000,000.00 as moral damages for the death of Liza Rosalie. Exemplary Damages. Art. 2231 provides that exemplary damages may be recovered in cases involving quasi-delicts if "the defendant acted with gross negligence." This circumstance obtains in the instant case. The records indicate that at the time of the mishap, there was a pending criminal case against Musa for reckless imprudence resulting in slight physical injuries with another branch of the Regional Trial Court, Quezon City. 33 The evidence also shows that he failed to stop his vehicle at once even after eye witnesses shouted at him. The spouses Rosales claim exemplary damages in the amount of P5,000,000.00. Under the circumstances, we deem it reasonable to award the spouses Rosales exemplary damages in the amount of five hundred thousand pesos (P500,000.00). Attorney's Fees. Pursuant to Art. 2208, attorney's fees may be recovered when, as in the instant case, exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals, 34 which involved the death of a minor child in the sinking of a vessel, we held an award of P50,000.00 as attorney's fees to be reasonable. Hence, we affirm the award of attorney's fees made by the Court of Appeals to the spouses Rosales in that amount. Compensation for Loss of Earning Capacity. Art. 2206 of the Civil Code provides that in addition to the indemnity for death caused by a crime or quasi delict, the "defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; . . ." Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. 35 Evidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession. 36 In People v. Teehankee 37 no award of compensation for loss of earning capacity was granted to the heirs of a college freshman because there was no sufficient evidence on record to show that the victim would eventually become a professional pilot. 38 But compensation should be allowed for loss of earning capacity resulting from the death of a minor who has not yet commenced employment or training for a specific profession if sufficient evidence is presented to establish the amount thereof. In the United States it has been observed: This raises the broader question of the proper measure of damages in death cases involving children, housewives, the old, and others who do not have market income so that there is no pecuniary loss to survivors or to the estate of the decedent. The traditional approach was to award no or merely nominal damages in such cases. . . . Increasingly, however, courts allow expert testimony to be used to project those lost earnings. 39 Thus, in Haumersen v. Ford Motor Co., the court allowed the heirs of a seven-year-old boy who was killed in a car accident to recover compensation for loss of earning capacity: Considerable evidence was presented by plaintiffs in an effort to give the jury a foundation on which to make an award. Briefly stated, this evidence showed Charles Haumersen was a seven-year-old of above average characteristics. He was described as "very intelligent" and "all-American." He received high marks in school. He was active in church affairs and participated in recreational and athletic events, often with, children older than himself. In addition, he had an unusual talent for creating numerous cartoons and other drawings, some of which plaintiffs introduced at trial.
40

The record does not disclose passion and prejudice. The key question is whether the verdict of $100,000 has support in the evidence. Upon analysis of the record, we conclude that we should not disturb the award. The argument for allowing compensation for loss of earning capacity of a minor is even stronger if he or she was a student, whether already training for a specific profession or still engaged in general studies. In 41 Krohmer v. Dahl, the court, in affirming the award by the jury of $85,000.00 to the heirs of an eighteenyear-old college freshman who died of carbon monoxide poisoning, stated as follows: There are numerous cases that have held admissible evidence of prospective earnings of a student or trainee. . . . The appellants contend that such evidence is not admissible unless the course under study relates to a given occupation or profession and it is shown that the student is reasonably certain to follow that occupation or profession. It is true that the majority of these decisions deal with students who are studying for a specific occupation or profession. However, not one of these cases indicate that evidence of one's education as a guide to future earnings is not admissible where the student is engaged in general studies or whose education does not relate to a specific occupation. In sharp contrast with the situation obtaining in People v. Teehankee, where the prosecution merely presented evidence to show the fact of the victim's graduation from high school and the fact of his enrollment in a flying school, spouses Rosales did not content themselves with simply establishing Liza Rosalie's enrollment at UP Integrated School. They presented evidence to show that Liza Rosalie was a good student, promising artist, and obedient child. She consistently performed well in her studies since grade school. 42 A survey taken in 1984 when Liza Rosalie was twelve years old showed that she had 43 good study habits and attitudes. Cleofe Chi, guidance counselor of the University of the Philippines Integrated School, described Liza Rosalie as personable, well-liked, and with a balanced personality. 44 Professor Alfredo Rebillon, a faculty member of the University of the Philippines College of Fine Arts, who organized workshops which Liza Rosalie attended in 1982 and 1983, testified that Liza Rosalie had the potential of eventually becoming an artist. 45 Professor Rebillon's testimony is more than sufficiently established by the 51 samples of Liza Rosalie's watercolor, charcoal, and pencil drawings submitted as exhibits by the spouses Rosales. 46 Neither MMTC nor Pedro Musa controverted this evidence. Considering her good academic record, extra-curricular activities, and varied interests, it is reasonable to assume that Liza Rosalie would have enjoyed a successful professional career had it not been for her untimely death. Hence, it is proper that compensation for loss of earning capacity should be awarded to her heirs in accordance with the formula established in decided cases 47 for computing net earning capacity, to wit: Net Earning = Life [Gross Necessary Capacity Expectancy x [Annual Living [Income Expenses Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and the age of 48 the deceased. Since Liza Rosalie was 16 at the time of her death, her life expectancy was 44 more 49 years. Her projected gross annual income, computed based on the minimum wage for workers in the non-agricultural sector in effect at the time of her death, 50 then fixed at P37.00, 51 is P14,630.46. 52 Allowing for necessary living expenses of fifty percent (50%) of her projected gross annual income, 53 her total net earning capacity amounts to P321,870.12. 54 Finally, the spouses Rosales argue that the Court of Appeals erred in absolving Conrado Tolentino, Feliciana Celebrado, and the GSIS of liability. The Spouses Rosales alleged that Tolentino, as Acting

General Manager of the MMTC, and Celebrado, as a dispatcher thereof, were charged with the supervision of Musa and should, therefore, be held vicariously liable under Art. 2180 of the Civil Code. With respect to the GSIS, they contend that it was the insurer in a contract for third party liability it had with the MMTC. Although the fourth paragraph of Art. 2180 mentions "managers" among those made responsible for the negligent acts of others, it is settled that this term is used in the said provision in the sense of "employers." 55 Thus, Tolentino and Celebrado cannot be held liable for the tort of Pedro Musa. In Vda. de Maglana v. Consolacion, 56 it was ruled that an insurer in an indemnity contract for third party liability is directly liable to the injured party up to the extent specified in the agreement, but it cannot be held solidarily liable beyond that amount. The GSIS admitted in its answer that it was the insurer of the MMTC for third party liability with respect to MMTC Bus No. 27 to the extent of P50,000.00. 57 Hence, the spouses Rosales have the option either to claim the said amount from the GSIS and the balance of the award from MMTC and Musa or to enforce the entire judgment against the latter, subject to reimbursement from the former to the extent of the insurance coverage. 58 One last word. The Regional Trial Court of Quezon City erred in holding MMTC primarily and Musa secondarily liable for damages arising from the death of Liza Rosalie. It was error for the appellate court to affirm this aspect of the trial court's decision. As already stated, MMTC is primarily liable for damages for the negligence of its employee in view of Art. 2180. Pursuant to Art. 2181, it can recover from its employee what it may pay. This does not make the employee's liability subsidiary. It only means that if the judgment for damages is satisfied by the common carrier, the latter has a right to recover what it has paid from its employee who committed the fault or 59 negligence which gave rise to the action based on quasi-delict. Hence, the spouses Rosales have the option of enforcing the judgment against either MMTC or Musa. From another point of view, Art. 2194 provides that "the responsibility of two or more persons who are liable for a quasi-delict is solidary." We ruled in Gelisan v. Alday 60 that "the registered owner/operator of a public service vehicle is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries sustained in the operation of said vehicle." In Baliwag Transit 61 Inc. v. Court of Appeals it was held that "to escape solidary liability for a quasi-delict committed by an employee, the employer must adduce sufficient proof that it exercised such degree of care." Finally, we held in the recent case of Philtranco Service Enterprises, Inc. v. Court of Appeals 62 that "the liability of the registered owner of a public service vehicle . . . for damages arising from the tortious acts of the driver is primary, direct, and joint and several or solidary with the driver." WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED holding the Metro Manila Transit Corporation and Pedro Musa jointly and severally liable for the death of Liza Rosalie R. Rosales and ORDERING them as such to pay to the spouses Rodolfo V. Rosales and Lily R. Rosales the following amounts: 1) death indemnity in the amount of fifty-thousand pesos (P50,000,00); 2) actual damages in the amount of sixty thousand two hundred twenty six pesos and sixty five centavos (P60,226.65); 3) moral damages in the amount of one million pesos (P1,000,000.00); 4) exemplary damages in the amount of five hundred thousand pesos (P500,000.00); 5) attorney's fees in the amount of fifty thousand pesos (P50,000.00);

6) compensation for loss of earning capacity in the amount of three hundred twenty-one thousand eight hundred seventy pesos and twelve centavos (P321,870.12); and 7) the costs of suit. SO ORDERED DUAVIT v COURT OF APPEALS May 18, 1989 FACTS: The jeep being driven by defendant Sabiniano collided with another jeep, which had then 2 passengerson it. As a result of the collision the passengers of the other jeep suffered injury and the automobileitself had to be repaired because of the extensive damage. A case was filed against Sabiniano as driver and against Duavit as owner of the jeep. Duavit admitted ownership of the jeep but denied that Sabiniano was his employee. Sabiniano himself admitted that he took Duavits jeep from the garage without consent or authority of the owner. He testified further that Duavit even filed charges against him for theft of the jeep, but whichDuavit did not push through as the parents of Sabiniano apologized to Duavit on his behalf. TC found Sabiniano negligent in driving the vehicle but absolved Duavit on the ground that there wasno employer-employee relationship between them, and that former took the vehicle without consent or authority of the latter. CA held the two of them jointly and severally liable. ISSUE: Won the owner of a private vehicle which figured in an accident can be held liable under Article2180 of the CC when the said vehicle was neither driven by an employee of the owner nor taken with theconsent of the latter. HELD: NO In Duquillo v Bayot (1939), SC ruled that an owner of a vehicle cannot be held liable for an accidentinvolving a vehicle if the same was driven without his consent or knowledge and by a person notemployed by him.This ruling is still relevant and applicable, and hence, must be upheld. CAs reliance on the cases of Erezo v Jepte and

Vargas v Langcay is misplaced and cannot besustained.In Erezo v Jepte case , defendant Jepte was held liable for the death of Erezo even if he was not reallythe owner of the truck that killed the latter because he represented himself as its owner to the Motor Vehicles Office and had it registered under his name; he was thus estopped from later on denying suchrepresentation.In Vargas , Vargas sold her jeepney to a 3rd person, but she did not surrender to the Motor VehiclesOffice the corresponding AC plates. So when the jeepney later on figured in an accident, she was heldliable by the court. holding that the operator of record continues to be the operator of vehicle incontemplation of law, as regards the public and 3rd persons.

The circumstances of the above cases are entirely different from those in the present case. Hereinpetitioner does not deny ownership of vehicle but denies having employed or authorized the driver Sabiniano. The jeep was virtually stolen from the petitioners garage. Decision and resolution annulled and set aside G.R. No. 77716 February 17, 1988 HEIRS OF THE LATE DOCTOR CORAZON DIAZ-LEUS, namely, her husband, CLETO P. LEUS and children, CEZAR LEUS, DRA. CORAZON D. LEUS, JR., and CLARISSA LEUS, petitioners, vs. HERNANI MELVIDA, ALMARIO ROSAS, VICTORY LINER, INC., SPOUSES LEONISA GALI and JESUS GALI and COURT OF APPEALS, respondents. GANCAYCO, J.: Almario Rosas and Hernani Melvida were charged of the crime of Reckless Imprudence resulting in Double Homicide, Serious and Slight Physical Injuries and Damage to Property allegedly committed in the following manner: That on or about the 30th day of June, 1972, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Hernani Melvida and Almario C. Rosas, being then the chauffeurs and the persons in charge of Plymouth car bearing plate No. 99-OW-Caloocan City 1971 and a Victory Liner bus with body number 512 and bearing plate No. 27-55 PUB Caloocan City 1972, respectively, did then and there wilfully, unlawfully and feloniously drive and operate their respective motor vehicles along the North Expressway (Marcelo H. Del Pilar Highway) towards opposite directions in the said municipality, in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and regulations and the weather conditions, and without taking the necessary precaution to avoid injuries to persons and damage to property, causing by such negligence, carelessness and imprudence the said Plymouth car bearing plate No. 99-OWL-Caloocan City 1971 driven

by the said accused Hernani Melvida to swerve to its left, cross the island, and move onto the lane for the opposite traffic, and the said Victory Liner bus with body number 512 and bearing plate No. 27-55 PUB Caloocan City 1972 to hit and bump the said Plymouth car, thereby inflicting on DRA. Corazon Diaz-Leus, Florencio Carbilledo Y Canhagas and Mrs. Leonisa Gali, passengers of the said Plymouth car, serious physical injuries, which directly caused the death of the said Dra. Corazon Diaz-Leus and Florencio Carbilledo Y Canhagas, to the damage and prejudice of the legal heirs of the said deceased Dra. Corazon Diaz-Leus and Florencio Carbilledo Y Canhagas, and incapacitated the said Mrs. Leonisa Gali from performing her customary labor and required her medical attendance for a period of more than 30 days and also inflicting slight physical injuries on Leonisa Payumo, passenger of the said Victory Liner bus, which required medical attendance and incapacitated her from performing her customary labor for a period of not more than 9 days, and further causing damages to the said Plymouth car and the said Victory liner Bus, to the damage and prejudice of their owners, Jesus Gali and the Victory Liner Bus Lines Inc., respectively. Contrary to law. 1 Upon arraignment Rosas and Melvida entered a plea of not guilty and after trial a decision was rendered by the trial court, the dispositive portion of which reads FOR ALL THE FOREGOING, the Court finds the accused Hernani Melvida guilty beyond reasonable doubt of the offense charged and he is hereby sentenced to suffer imprisonment of an indeterminate penalty of from SIX (6) MONTHS of arresto mayor; as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum, with the accessory penalties prescribed by law; to indemnity (sic) the legal heirs of the deceased Dra. Corazon Diaz-Leus and Florencio Carbilledo the sum of P12,000.00. each; to pay the legal heirs of Dra. Leus the amount of P14,000.00 as funeral and death expenses; to pay the said legal heirs of the amount of P200,000.00 as moral damages, without subsidiary imprisonment in case of insolvency, and to pay the costs. For failure to establish the guilt of accused Almario Rosas beyond reasonable doubt, he is hereby acquitted of the offense charged. With costs. 2 From said decision Cleto Leus and his children as legal heirs appealed to the Court of Appeals only with respect to the civil aspect. The vital issue raised to the Court of Appeals is whether or not accusedappellee Almario Rosas could still be held civilly liable despite his acquittal in the criminal case. 3 They also contend that the Victory Liner and Jesus Gali owners of the colliding vehicles, are subsidiarily liable for damages. The Court of Appeals made the following finding of facts: The facts adduced from the evidence presented by the prosecution shows that in the afternoon of June 30, 1972, a vehicular accident happened along the North Expressway. A Plymouth car bearing plate No. 99-OWL-Caloocan City figured in the accident. The car was driven by accused Hernani Melvida and the passengers were the victim Mrs. Leonisa Gali and the deceased Dra. Corazon Diaz-Leus, wife of complainant Atty. Cleto Leus and Florencio Carbilledo. The Plymouth car driven by accused came from a Quezon City hospital and was on its way home to Bulacan taking the North Expressway. Accused Melvida drove the car at a fast speed and in a negligent manner causing it to swerve to the left, traversing the grassy island which separates the North and the South lanes of the Expressway until it reached a portion of the left lane more or less two (2) feet from the asphalted portion of the south lane on the left side facing South going to Manila as shown in Exhibit 'C', 'C-2' and 'C-3' when it was bumped on the rear portion by a Victory Liner bus and dragged about 50 meters off the cemented road to the grassy island where it was crash-landed on by the front portion of said Victory Liner bus. Said

bus bearing plate No. 27-55 PUB-Caloocan City 1972 was driven by accused Almario Rosas, travelling South towards Manila in an imprudent and negligent manner without due regard to traffic rules and regulations and to the weather condition which was then stormy. It also appears that before the accident, the bus driven by accused Rosas overtook the car of Dr. Romeo San Diego which was running at the speed of 80 kilometers per hour. The said bus when it overtook the car of Dr. San Diego was running at a fast speed thus creating a 'whizzing sound'. As a result of the vehicular accident, Dra. Corazon Diaz-Leus was pinned to death inside the car together with another passenger Carbilledo. Thereafter it was held Upon review of the whole records WE find as the lower court did that the accident in question cannot be attributed to any negligence of appellee Rosas. The stubborn and undisputed facts reveal that appellee Rosas was driving his bus on his own lane of the highway going south when the Plymouth car suddenly encroached on his (Rosas) lane in front of its path after crossing the wise grassy strip of land separating the North and the South lane of the expressway. Appellee Rosas who was properly traversing his own lane should not be expected to anticipate and/or foresee that a private car coming from the North lane would be thrown to his path. Even, assuming as alleged that appellee Rosas was driving at a very fast speed, had the Plymouth car remained on its proper lane collision would not have occurred. The proximate cause of the accident is the Plymouth car's leaving its proper (north) lane, swerving to its left and intruding into the south-bound lane. The collision which resulted in the destruction of the Plymouth car had not been due to any negligence on appellee Rosas part. It was a fortuitous event which appellee Rosas could not prevent. And, since appellants appeal on the civil aspect is predicated upon appellee Rosas negligence which does not exist, it follows that his acquittal in the criminal case carries with it the extinction of his civil liability and therefore the offended parties, herein appellants may no longer appeal and recover damages from said appellee Rosas. As a consequence, the rule that--extinction of the penal action does not carry with it extinction of the civil,' . . .; (Sec. 3, (c), Rule III, Rules of Court) does not apply to the present instance. The case falls squarely under the exception that , unless the extinction proceeds from a declaration in a (sic) initial judgment that the fact from which the civil might arise did not exist. . . . . (Sec-3, (c), Rules of Court). It has been held that where the judgment of acquittal in a criminal prosecution for arson through reckless imprudence states that the offense was caused by fortuitous event, the civil action to recover damages is barred.(Cf. Tan vs. Standard Vacuum Oil Co., 48 O.G. 2745). The decision appealed from which is final and executory as regards its criminal phase, has not only acquitted accused, but also declared that the collision, which resulted in the destruction of appellants' car, had not been due to any negligence on his part. Since appellants' civil action is predicated upon accused alleged negligence, which does not exist, according to said final judgment, it follows necessarily that his acquittal in the criminal action carries with it the extinction of the civil responsibility arising therefrom.(Faraon vs. Priela G.R. L23129, August 2, 1968, 24 SCRA 582). Appellant's also alleged that the lower court committed error in not considering the loss of earning capacity of the deceased Dra. Leus. According to appellants, the deceased as a doctor had an average earning of P600.00 covering the year 1971 and for six (6) months from January to June 1972 and an average earnings in business for the years 1971 and 1972, the sum of P1,010. The deceased Dra. Leus was 59 years of age when she died. At such age the normal life expectancy is 14 years, according to the formula (2/ 3 x [80-301 adopted by the Supreme Court in the case of Villa Rey transit Inc. vs. Court of Appeals, 31 SCRA 511 on the basis

of the American Expectancy Table of Mortality or the Actualrial (sic) Combined Experience Table of Morality. In the computation of the amount recoverable by the heirs of the victim of tort, the loss of the entire earnings is not considered. It is only the net earnings lease expenses necessary in the creation of such earnings or income and less living and other incidental expenses. In the case at bar, the earnings after computing was P904.96 a year and deduction of P200.00 a month as necessary expenses to the creation of such income is reasonable. The amount of P704.96 net yearly income multiplied by 14 years, or P9,869.44 is the amount which should be awarded to appellants. (Davila vs. Phil. Air Lines, 49 SCRA 497; People vs. Henson, CA-G.R. No. 12521-CR, May 25, 1973). Then to, We believe that the award of damages for the death of Dra. Leus in the amount of P200,000.00 without interest is reasonable and We find no justification to modify. In view thereof, appellee Melvida is hereby ordered to pay complainant--appellants additional sum of P9,869.44. WHEREFORE, with the modification as to the award of damages, the decision appealed from is hereby AFFIRMED in all other respects. 4 Petitioner now comes before this Court raising the legal issue whether or not the trial court should be ordered to determine the civil liability of Rosas and subsidiary civil liability of the owners of the car and the bus to the heirs of Dra. Diaz-Leus in accordance with Article 29 of the Civil Code which provides-Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Petitioner also invokes the ruling of this Court in Paman vs. Seneris, 5 where it was held Moreover, it has been invariably held that a judgment of conviction sentencing a defendant employer to pay an indemnity in the absence of any collusion between the defendant and the offended party, is conclusive upon the employer in an action for the enforcement of the latter's subsidiary liability not only with regard to the civil liability, but also with regard to its amount. This being the case, this Court stated in Rotea vs. Halili, 109 Phil. 495 that the court has no other function than to render decision based upon the indemnity awarded in the criminal case and has no power to amend or modify it even if in its opinion an error has been committed in the decision. A separate and independent action is, therefore, unnecessary and would only unduly prolong the agony of the victim.' (115 SCRA, P. 715). The findings of the Court of Appeals were a complete exoneration of Rosas. Since petitioner's appeal on the civil aspect is predicated upon Rosas' alleged negligence which has been found not to exist, this Court must likewise uphold the Court of Appeals' ruling that Rosas' acquittal in the criminal case carries with it the extinction of his civil liability which bars herein petitioners from recovering damages from Rosas. Since Rosas is absolved from any act of negligence which in effect prevents further recovery of

any damages, the same is likewise true with respect to his employer victory Liner, Inc. which at most would have been only subsidiarily liable. Nor can the spouses Jesus Gali and Leonisa Gali as employers of respondent Hernani Melvida be subsidiarily liable. Art. 103 of the Revised Penal Code provides, 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. In order that employers may be held liable under the above-quoted provision of law, the following requisites must exist. (1) That an employee has committed a mime in the discharge of his duties; (2) that said employee is insolvent and has not satisfied his civil liability; and (3) that the employer is engaged in some kind of industry.
6

The preceding requisites are not present in the case of the Gali spouses. They are not engaged in any kind of industry. Industry has been defined as any department or branch of art, occupation or business, especially, one which employs much labor and capital and is a distinct branch of trade, as the sugar industry. 7 Thus, the Gali spouses cannot be held subsidiarily liable. As We stated in a previous case: "Where the defendant is admittedly a private person who has no business or industry, and uses his automobile for private purposes, he is not also subsidiarily liable to the plaintiff for the damages to the latter's car caused by the reckless imprudence of his insolvent driver." 8 WHEREFORE, the petition is DENIED. No costs. SO ORDERED.