Republic of the Philippines

Regional Trial Court

Branch No. 28
San Fernando City, La Union

Mona Papa, Plaintiff

-versus- Civil Case No. 01

For Damages

Nestor Pol, Hermogenes Yapit,

Spouses Angelito and Zenaida Alviar, and
Rico Nario, Defendants
x---------------------------------------------x

MEMORANDUM FOR DEFENDANT

COMES NOW THE DEFENDANT, Hermogenes Yapit, through the undersigned

counsel, Atty. Franeli Jessa C. Jaramilla, unto this Honorable Court most respectfully
submits this Memorandum and avers that:

PREFATORY STATEMENT
He whose act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done.

STATEMENT OF THE CASE

Plaintiff filed the present action against the answering defendant herein attributing
the injuries sustained by the plaintiff to the negligence of defendant in carrying the
passengers safely.
Defendant maintains that he was in the exercise of extra-ordinary diligence required
by the circumstances on the day of the incident.

STATEMENT OF FACTS

1. Defendant Hermogenes Yapit was driving the passenger jeepney bearing plate
number DVW 426 on or about October 13, 2000.
2. Rico Nario was driving the righ-hand ten-wheeler truck bearing plate number
DFD 824 on the same date.
 3. The passenger jeepney was travelling northward when all of a sudden, the truck,
then travelling to the opposite direction, swerved to the left and collided with the
passenger jeepney.
4. The truck driver swerved his steering wheel to the left in attempt to overtake a
tricycle, thereby causing the said accident.
5. As a result thereof, the passengers of the jeepney and the driver were injured,
the latter in a serious condition, while Erlinda Papa, one of the passengers, died.

ISSUES

Given the foregoing facts and circumstances, the following issues are presented for
discussion:
1. Whether or not defendant Hermogenes Yapit may be held liable for the
commission of a quasi-delict under Art. 2176
2. Whether or not Hermogenes Yapit may be held liable for damages for the
injuries sustained by the plaintiff

ARGUMENTS

I. Defendant Hermogenes Yapit is not liable for the commission of a quasi-delict

that was the proximate cause of the injuries, the proximate cause being
contributed by the negligence of a third person

According to Art. 2176, whoever by act or omission, causes damage

to another, there being fault or negligence, is obliged to pay for the damage
done. The Supreme Court has laid down conditions in order to establish
quasi-delict under this provision: (1) the damages suffered by the plaintiff;
(2) the fault or negligence of the defendant or some other person for whose
acts he must respond; and (3) the connection of cause and effect between the
fault or negligence and damages incurred (Dy Teban Trading, Inc. v. Ching,
G.R. No. 161803). The three conditions obtain in the present case, the
negligence attributable to some other person other than the defendant who is
the truck driver, Rico Nacario.
 It was the truck driver’s negligence which was the proximate cause of
plaintiff’s injuries. As defined in Ramos v. C.O.L. Realty Corporation, G.R.
No. 184905, proximate cause is that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred. It is submitted that
there would have been no collision of the two vehicles if the truck driver did
not overtake knowing full well that a jeepney was approaching from the
opposite direction. The overtaking was done without due regard to all the
circumstances. Thus, the truck driver was negligent.

Negligence is defined as the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would do. Applying the law to the present case,
it is clear that the injury sustained by the plaintiff was not by accident. The
truck driver was bound to observe diligence in his actions while driving and
was expected to consider any approaching vehicle before overtaking. The
event was not unforeseen for any reasonable and prudent man will not
overtake a vehicle if it is not safe to do so. Passing another vehicle proceeding
on the same direction should only be resorted to by a driver if the highway is
free from incoming vehicle to permit such overtaking to be made in safety
(Section 41(a), Republic Act [No.] 4136). The collision happened because of
the recklessness and carelessness of the truck driver, Rico Nacario, who was
overtaking a tricycle. The truck driver, before deciding to overtake, must
have made sure that he has sufficient distance to return to his lane or line in
order not to endanger the vehicle being overtaken or the jeepney coming from
the opposite direction. Despite knowledge of the situation, he decided to
overtake although he could not completely maneuver safely, thereby the
collision. Clearly, had the truck driver not imprudently overtaken the tricycle
under such circumstances, the truck would not have encroached on the
jeepney, in the process hitting latter, causing the injuries and subsequent
death of Erlinda Papa.

The exercise of extraordinary diligence for the safety of passengers of

a common carrier has been considered qualified by the phrase "according to
 all the circumstances of each case". Thus, in this claim for damages, the
degree of diligence required has been considered complied with when
defendant jeepney driver was keeping the right speed while cruising the road
northwards and eventually slowed down when he saw the over-speeding
truck approaching and overtaking. It only shows that defendant jeepney
driver was free or any concurrent or contributory fault or negligence, but in
spite of such precaution, the collision occurred because of the negligence of
the truck driver.

II. Defendant Hermogenes Yapit may not be held liable for damages for want of
negligence on his part.

There is no merit in the argument of the plaintiff that defendant should

be made liable for the obligation imposed under Art. 1276 because the
proximate cause of the collision of the jeepney and truck is attributable solely
to the negligence of the driver of the truck.

The doctrine under Art. 2176 aims to provide compensation for the
harm suffered by those whose interests have been invaded owing to the
conduct of other. The law requires every negligent person who causes
damage to another to indemnify the latter for the same. However in this case,
the law should not deny relief to the defendant when there is injury sustained
but the negligence causing it was not committed by him but by another
person. Therefore, that person who caused it must be held solely liable.

Where the proximate and only cause of the accident that resulted in
the death of a passenger was the negligence of a third person whose vehicle
collided with the common carrier and over whom the common carrier's
owner had no supervision and control, the Supreme Court has recognized
that the presumption of negligence against the common carrier has been
overcome (Estrada vs. Consolacion, et. al., L-40948).

PRAYER
 WHEREFORE, premises considered, it is respectfully prayed that judgment be
rendered in favor of defendant and against the plaintiff by:
1) Denying any claims of the plaintiff against herein defendant;
2) Ordering Rico Nacario, the person solely liable for the negligence, to be liable
for the damages prayed for by the plaintiff.
Other just and equitable remedies under the circumstances are likewise prayed for.

Santa Cruz, Ilocos Sur, December 12, 2017.

ATTY. FRANELI JESSA C. JARAMILLA

Counsel for the Defendant
PTR No. 12345-09-10-17:SFC,LU.
IBP No, 12345-09-10-17:SFC, LU.
Roll No. 654321 09-10-17: Manila
Rm. 2 G/F Jaramilla Building,
Capariaan, Santa Cruz, Ilocos Sur

Copy furnished:

Atty. Marishiel Reano

Counsel for the Plaintiff
Tan Bldg., Pagdalagan Norte
San Fernando City

Atty. Janice Borja

Counsel for the Defendant Rico Nacario and Spouses Alviar
Arellano Bldg., Sevilla
San Fernando City