Republic of the Philippines

FIRST JUDICIAL REGION

REGIONAL TRIAL COURT
City of San Fernando, La Union
Branch ____

Mona Papa, Plaintiff

Civil Case No. 1

-versus- FOR: Damages for death, attorneys
fees and cost of suit
Nestor Pol, HermogenesYapit,
Spouses Angelito and Zenaida Alviar,
and Rico Nacario, Defendants
x---------------------------------------------x

MEMORANDUM FOR THE DEFENDANT

DEFENDANT Rico Nacario by and through the undersigned counsel

and unto this Honorable Court respectfully avers:

STATEMENT OF FACTS AND THE CASE

In order that this Honorable Court may be enlightened and guided in

the judicious disposition of the above-entitled case, cite hereunder the

material, relevant and pertinent facts of the case, to wit:

1. Plaintiff is Mona Papa, of legal age, married and a resident of San Juan,

La Union while the defendant are Rico Nacario, Nelson Pol,

Hermogenes Yapit and Spouses Angelito and Zenaida Alviar. Rico

Nacario is of legal age, a native of Iriga City and presently residing at

San Roque, San Antonio Valley, Paranaque, Metro Manila and the

authorized driver of Spouses Angelito and Zenaida Alviar. Spouses

Alviar are engaged in trucking business with address at Paranaque,

 Metro Manila. They are the registered owners of a ten wheeler truck

with plate number PFD 824. Nelson Pol is the owner of the public

utility jeepney with plate number DVW 426, plying the route San

Fernando to Bacnotan, La Union and vice versa. Hermogenes Yapit is

of legal age, married and a resident of Panicsican, San Juan, La Union.

He is the authorized driver of Nelson Pol;

2. On October 13, 2014, while the truck being driven by Rico Nacario

along the National Highway, Baroro (South of the Baroro Bridge),

Bacnotan, La Union proceeding southwards, collided with the

passenger jeepney then proceeding northwards, driven by Hermogenes

Yapit causing the said accident;

3. As a result of the accident, Erlinda Papa, a passenger of the jeepney

died. The jeepney was also wrecked with an estimated damage of

P225,000.00. The truck also incurred damages;

4. Plaintiff claimed that defendants negligence was the proximate cause

of Erlinda Papas death;

5. Defendant Rico Nacario specifically denied the plaintiff claim the truth

being that the incident was merely an accident. In fact the truck being

driven by the defendant was cruising within the legal limits. The

defendant was also sober on the day of accident.

6. Plaintiff failed to allege any rights of Mona Papa violated by the

defendant, present any rights of her to be enforced, or seek in her behalf

any rights to the avails of suit Papa.

 ISSUES

The issues as embodied in the Pre-Trial Order are the following:

1. Whether or Not the defendant is negligent hence, liable for the damages

for death, attorneys fees and cost of suit; and

2. Whether or Not the plaintiff is the proper party in interest to initiate the

action for damages.

ARGUMENTS/DISCUSSION

1. On the first issue, defendant is not negligent for defendant acted

reasonable and use due care while driving the ten wheeler truck. And

that the incident was merely an accident and was not brought about by

defendants own negligence, that is, the defendant swerved to the left

to avoid collision to an unidentified tricycle that suddenly encroached

into his lane but in doing so, the truck he was driving collided with the

passenger jeepney;

2. The truck being driven by the defendant was cruising within the legal

limits. The defendant was also sober on the day of accident. Moreover,

the plaintiff failed to allege that the answering defendant is negligent,

one of the essential elements in claiming for damages.

Under Article 2176 of the New Civil Code, it provides that whoever by

act or omission causes damage to another, there being fault or

negligence, is obliged to pay for the damage done. Such fault or

negligence, if there is no pre-existing contractual relation between the

parties, is called a quasi-delict and is governed by the provisions of this

Chapter.
 The truck driver Nacario acted on an emergency, that is, he had to

swerve the truck to the left to avoid collision with an unidentified

tricycle that intruded into the lane of the truck but in doing so, the truck

collided with the passenger jeepney. As held in Gan v. Court of

Appeals (G.R. No. L-44264 September 19, 1988), one who suddenly

finds himself in a place of danger, and is required to act without time to

consider the best means that may be adopted to avoid the impending

danger, is not guilty of negligence if he fails to adopt what subsequently

and upon reflection may appear to have been a better method unless the

emergency in which he finds himself is brought about by his own

negligence.

There is danger confronting defendant which was real and imminent,

threatening his very existence. He had no opportunity for rational

thinking but only enough time to heed the very powerful instinct of self-

preservation. Hence, the answering defendant is not liable for the

damages claimed by the petitioner there being no negligence on his

part;

3. The co-defendants Nestor Pol and Hermogenes Yapit should be liable

to the plaintiff Mona Papa for the death of Erlinda Papa and moral

damages due to the negligent act of the jeepney driver having the duty

to act reasonable and use due care while driving especially that the

jeepney was a common carrier. Under Article 1733 of the New Civil

Code, 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. On the second issue, Mona Papa is not the proper party in interest to

commence an action for damages because neither rights of Mona Papa

were violated by the defendant nor present any rights of her to be

enforced, or seek in her behalf any rights to the avails of suit. In short,

the plaintiff claims nothing, and for nothing.

Section 2, Rule 3 of the 1997 Rules of Civil Procedure requires that

every action must be prosecuted and defended in the name of the real

party in interest. A real party in interest is the party who stands to be

benefited or injured by the judgment in the suit, or the party entitled to

the avails of the suit. Interest within the meaning of the rule means

material interest, an interest in issue and to be affected by the decree,

as distinguished from mere interest in the question involved, or a mere

incidental interest. This means that the action must be brought by the

person who, by substantive law, possesses the right sought to be

enforced. (Tan v. Court of Appeals, GR No. 127210, August 7, 2003)

It is fundamental that there cannot be a cause of action without an

antecedent primary legal right conferred by law upon a person.

Evidently, there can be no wrong without a corresponding right, and no

breach of duty by one person without corresponding right belonging to

some other person. Thus, the essential elements of a cause of action are

legal right of the plaintiff, correlative obligation of the defendant, an

act or omission of the defendant in violation of the aforesaid legal right.

 (Sulo ng Bayan, Inc. v. Araneta, Inc.) Consequently, the complaint must

be dismissed on the ground that the complaint states no cause of action,

instituted as it was by a person who was not a real party in interest.

PRAYER

WHEREFORE, premises considered and in the interest of justice and fair

play, it is most respectfully prayed of this Honorable Court that the case be

dismissed for failure to state cause of action and the negligence of the

defendant was not proven by preponderance of evidene.

Other relief and remedies deemed just and equitable under the premises

are likewise prayed for.

San Fernando City, La Union, December 12, 2017.

ATTY. JANICE P. BORJA

Counsel for the Defendant
PTR No. 3216549 / 01-03-2017/SFC, LU.
Lifetime IBP No. 06037
Lifetime Roll No. 60317
MCLE Compliance No. III-00827/10-16/17
Rm. 6 3/F Arellano Building, Sevilla, San
Fernando City, La Union

Copy furnished:
By Personal Service

ATTY. MARISHIEL R. REAO

(Counsel for the Plaintiff)
Rm. 4 2/F Tan Building, Pagdalagan Norte,
San Fernando City, La Union
ATTY. DEMIELIZ NUDO
(Counsel for the Defendant Spouses Angelito and Zenaida Alviar )
Rm. 7 2/F Jaramilla Building, Pagdalagan Norte,
San Fernando City, La Union

ATTY. ACE N. SANTIAGO

(Counsel for the Defendant Nestor Pol)
Rm. 5 2/F Tan Building, Pagdalagan Norte,
San Fernando City, La Union

ATTY. FRANELLI JESSA JARAMILLA

(Counsel for the Defendant Hermogenes Yapit)
Rm. 2 G/F Jaramilla Building, Capariaan,
Sta. Cruz, Ilocos Sur