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G.R. No.


July 8, 1942

FAUSTO BARREDO, petitioner, vs. SEVERINO GARCIA and TIMOTEA ALMARIO, respondents. Celedonio P. Gloria and Antonio Barredo for petitioner. Jose G. Advincula for respondents. BOCOBO, J.: This case comes up from the Court of Appeals which held the petitioner herein, F austo Barredo, liable in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo. At about half past one in the morning of May 3, 1936, on the road between Malabo n and Navotas, Province of Rizal, there was a head-on collision between a taxi o f the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A crim inal action was filed against Fontanilla in the Court of First Instance of Rizal , and he was convicted and sentenced to an indeterminate sentence of one year an d one day to two years of prision correccional. The court in the criminal case g ranted the petition that the right to bring a separate civil action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal c ase. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 19 39, brought an action in the Court of First Instance of Manila against Fausto Ba rredo as the sole proprietor of the Malate Taxicab and employer of Pedro Fontani lla. On July 8, 1939, the Court of First Instance of Manila awarded damages in f avor of the plaintiffs for P2,000 plus legal interest from the date of the compl aint. This decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest from the time the action was instituted. It is un disputed that Fontanilla 's negligence was the cause of the mishap, as he was dr iving on the wrong side of the road, and at high speed. As to Barredo's responsi bility, the Court of Appeals found: ... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it is shown he was careless in employing Font anilla who had been caught several times for violation of the Automobile Law and speeding (Exhibit A) violation which appeared in the records of the Bureau of P ublic Works available to be public and to himself. Therefore, he must indemnify plaintiffs under the provisions of article 1903 of the Civil Code. The main theory of the defense is that the liability of Fausto Barredo is govern ed by the Revised Penal Code; hence, his liability is only subsidiary, and as th ere has been no civil action against Pedro Fontanilla, the person criminally lia ble, Barredo cannot be held responsible in the case. The petitioner's brief stat es on page 10: ... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to prevent damages suffered by the respondents. In other words, The Court of Appeals insists on applying in the case article 19 03 of the Civil Code. Article 1903 of the Civil Code is found in Chapter II, Tit le 16, Book IV of the Civil Code. This fact makes said article to a civil liabil ity arising from a crime as in the case at bar simply because Chapter II of Titl e 16 of Book IV of the Civil Code, in the precise words of article 1903 of the C ivil Code itself, is applicable only to "those (obligations) arising from wrongf ul or negligent acts or commission not punishable by law.

The gist of the decision of the Court of Appeals is expressed thus: ... We cannot agree to the defendant's contention. The liability sought to be im posed upon him in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of Pedro Fontanilla,), but an obligation imposed in ar ticle 1903 of the Civil Code by reason of his negligence in the selection or sup ervision of his servant or employee. The pivotal question in this case is whether the plaintiffs may bring this separ ate civil action against Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil Code as an employer of Pedro Fontan illa. The defendant maintains that Fontanilla's negligence being punishable by t he Penal Code, his (defendant's) liability as an employer is only subsidiary, ac cording to said Penal code, but Fontanilla has not been sued in a civil action a nd his property has not been exhausted. To decide the main issue, we must cut th rough the tangle that has, in the minds of many confused and jumbled together de litos and cuasi delitos, or crimes under the Penal Code and fault or negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be lost in a labyrinth, unless principles and remedies are distinctly envis aged. Fortunately, we are aided in our inquiry by the luminous presentation of t he perplexing subject by renown jurists and we are likewise guided by the decisi ons of this Court in previous cases as well as by the solemn clarity of the cons ideration in several sentences of the Supreme Tribunal of Spain. Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from delict or cri me. Upon this principle and on the wording and spirit article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely anchored. The pertinent provisions of the Civil Code and Revised Penal Code are as follows : CIVIL CODE ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and omissions which are unlawful or in which any kind of fault or negligence intervenes. x x x x x x x x x

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be gove rned by the provisions of the Penal Code. ART. 1093. Those which are derived from acts or omissions in which fault or negl igence, not punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this book. x x x x x x x x x

ART 1902. Any person who by an act or omission causes damage to another by his f ault or negligence shall be liable for the damage so done. ART. 1903. The obligation imposed by the next preceding article is enforcible, n ot only for personal acts and omissions, but also for those of persons for whom another is responsible. The father and in, case of his death or incapacity, the mother, are liable for a ny damages caused by the minor children who live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to their authority and living with them. Owners or directors of an establishment or business are equally liable for any d amages caused by their employees while engaged in the branch of the service in w hich employed, or on occasion of the performance of their duties. The State is subject to the same liability when it acts through a special agent, but not if the damage shall have been caused by the official upon whom properly devolved the duty of doing the act performed, in which case the provisions of t he next preceding article shall be applicable. Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or apprentices while they are under their custody. The liability imposed by this article shall cease in case the persons mentioned therein prove that they are exercised all the diligence of a good father of a fa mily to prevent the damage. ART. 1904. Any person who pays for damage caused by his employees may recover fr om the latter what he may have paid. REVISED PENAL CODE ART. 100. Civil liability of a person guilty of felony. liable for a felony is also civilly liable. Every person criminally

ART. 101. Rules regarding civil liability in certain cases. The exemption from c riminal liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 an d in subdivision 4 of article 11 of this Code does not include exemption from ci vil liability, which shall be enforced to the following rules: First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or insane person, and by a person under nine yea rs of age, or by one over nine but under fifteen years of age, who has acted wit hout discernment shall devolve upon those having such person under their legal a uthority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his author ity, legal guardianship, or control, or if such person be insolvent, said insane , imbecile, or minor shall respond with their own property, excepting property e xempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of article 11, the person for whos e benefit the harm has been prevented shall be civilly liable in proportion to t he benefit which they may have received. The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be liable. When the respective shares can not be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has been cause d with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of article 12, the persons u sing violence or causing the fear shall be primarily liable and secondarily, or,

if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprieto rs of establishment. In default of persons criminally liable, innkeepers, tavern keepers, and any other persons or corporation shall be civilly liable for crime s committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committ ed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by ro bbery or theft within their houses lodging therein, or the person, or for the pa yment of the value thereof, provided that such guests shall have notified in adv ance the innkeeper himself, or the person representing him, of the deposit of su ch goods within the inn; and shall furthermore have followed the directions whic h such innkeeper or his representative may have given them with respect to the c are of and vigilance over such goods. No liability shall attach in case of robbe ry with violence against or intimidation against or intimidation of persons unle ss committed by the innkeeper's employees. ART. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the next preceding article shall also apply to employers, teacher s, persons, and corporations engaged in any kind of industry for felonies commit ted by their servants, pupils, workmen, apprentices, or employees in the dischar ge of their duties. x x x x x x x x x

ART. 365. Imprudence and negligence. Any person who, by reckless imprudence, sha ll commit any act which, had it been intentional, would constitute a grave felon y, shall suffer the penalty of arresto mayor in its maximum period to prision co rreccional in its minimum period; if it would have constituted a less grave felo ny, the penalty of arresto mayor in its minimum and medium periods shall be impo sed. Any person who, by simple imprudence or negligence, shall commit an act which wo uld otherwise constitute a grave felony, shall suffer the penalty of arresto may or in its medium and maximum periods; if it would have constituted a less seriou s felony, the penalty of arresto mayor in its minimum period shall be imposed." It will thus be seen that while the terms of articles 1902 of the Civil Code see m to be broad enough to cover the driver's negligence in the instant case, never theless article 1093 limits cuasi-delitos to acts or omissions "not punishable b y law." But inasmuch as article 365 of the Revised Penal Code punishes not only reckless but even simple imprudence or negligence, the fault or negligence under article 1902 of the Civil Code has apparently been crowded out. It is this over lapping that makes the "confusion worse confounded." However, a closer study sho ws that such a concurrence of scope in regard to negligent acts does not destroy the distinction between the civil liability arising from a crime and the respon sibility for cuasi-delitos or culpa extra-contractual. The same negligent act ca using damages may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extracontractual under articles 1902-1910 of the Civil Code. The individuality of cuasi-delito or culpa extra-contractual looms clear and unm istakable. This legal institution is of ancient lineage, one of its early ancest ors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminolog y, this responsibility is often referred to as culpa aquiliana. The Partidas als o contributed to the genealogy of the present fault or negligence under the Civi l Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer e

mienda, porque, como quier que el non fizo a sabiendas en dao al otro, pero acaes cio por su culpa." The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que intervenga c ualquier genero de culpa o negligencia." Then article 1093 provides that this ki nd of obligation shall be governed by Chapter II of Title XVI of Book IV, meanin g articles 1902-0910. This portion of the Civil Code is exclusively devoted to t he legal institution of culpa aquiliana. Some of the differences between crimes under the Penal Code and the culpa aquili ana or cuasi-delito under the Civil Code are: 1. That crimes affect the public interest, while cuasi-delitos are only of priva te concern. 2. That, consequently, the Penal Code punishes or corrects the criminal act, whi le the Civil Code, by means of indemnification, merely repairs the damage. 3. That delicts are not as broad as quasi-delicts, because the former are punish ed only if there is a penal law clearly covering them, while the latter, cuasi-d elitos, include all acts in which "any king of fault or negligence intervenes." However, it should be noted that not all violations of the penal law produce civ il responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of the rules of traffic when nobody is hurt. (See Coli n and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.) Let us now ascertain what some jurists say on the separate existence of quasi-de licts and the employer's primary and direct liability under article 1903 of the Civil Code. Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica E spaola" (Vol. XXVII, p. 414) says: El concepto juridico de la responsabilidad civil abarca diversos aspectos y comp rende a diferentes personas. Asi, existe una responsabilidad civil propiamente d icha, que en ningun casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la penal que nace de todo delito o falta." The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there is a civil responsibility, properly speaking, whi ch in no case carries with it any criminal responsibility, and another which is a necessary consequence of the penal liability as a result of every felony or mi sdemeanor." Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains belonging respectively to the Ferrocarril Ca ntabrico and the Ferrocarril del Norte. An employee of the latter had been prose cuted in a criminal case, in which the company had been made a party as subsidia rily responsible in civil damages. The employee had been acquitted in the crimin al case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a ci vil action for damages against the Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513): Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, to davia menos parece sostenible que exista cosa juzgada acerca de la obligacion ci vil de indemnizar los quebrantos y menoscabos inferidos por el choque de los tre nes. El titulo en que se funda la accion para demandar el resarcimiento, no pued

e confundirse con las responsabilidades civiles nacidas de delito, siquiera exis ta en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere restituciones, reparaciones o indemnizaciones, q ue cual la pena misma ataen al orden publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido desa gravio; pero esta eventual coincidencia de los efectos, no borra la diversidad o riginaria de las acciones civiles para pedir indemnizacion. Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendri an a cuento y que tiene otro regimen), dimanan, segun el articulo 1902 del Codig o Civil, de toda accion u omision, causante de daos o perjuicios, en que interven ga culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia punitiva tenga qu e mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal , atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en termino s separados del regimen por ley comun de la culpa que se denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un para lelo entre aquellas ordenaciones, y la de la obligacion de indemnizar a titulo d e culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal paralelo se notarian. Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las resp onsabilidades civiles, entre los que sean por diversos conceptos culpables del d elito o falta, las hacen extensivas a las empresas y los establecimientos al ser vicio de los cuales estan los delincuentes; pero con caracter subsidiario, o sea , segun el texto literal, en defecto de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion qu e impone el articulo anterior es exigible, no solo por los actos y omisiones pro pios, sino por los de aquellas personas de quienes se debe responder; personas e n la enumeracion de las cuales figuran los dependientes y empleados de los estab lecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funci ones. Por esto acontece, y se observa en la jurisprudencia, que las empresas, de spues de intervenir en las causas criminales con el caracter subsidiario de su r esponsabilidad civil por razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales civiles. Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero po stulado de nuestro regimen judicial la separacion entre justicia punitiva y trib unales de lo civil, de suerte que tienen unos y otros normas de fondo en distint os cuerpos legales, y diferentes modos de proceder, habiendose, por aadidura, abs tenido de asistir al juicio criminal la Compaia del Ferrocarril Cantabrico, que s e reservo ejercitar sus acciones, parece innegable que la de indemnizacion por l os daos y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribun al del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilid ad, mostrose mas arriba, que tal accion quedaba legitimamente reservada para des pues del proceso; pero al declararse que no existio delito, ni responsabilidad d imanada de delito, materia unica sobre que tenian jurisdiccion aquellos juzgador es, se redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento permanece incolume, extraa a la cosa juzgada. As things are, apropos of the reality pure and simple of the facts, it seems les s tenable that there should be res judicata with regard to the civil obligation for damages on account of the losses caused by the collision of the trains. The title upon which the action for reparation is based cannot be confused with the civil responsibilities born of a crime, because there exists in the latter, what

ever each nature, a culpa surrounded with aggravating aspects which give rise to penal measures that are more or less severe. The injury caused by a felony or m isdemeanor upon civil rights requires restitutions, reparations, or indemnificat ions which, like the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the office of the prosecuting attorney; and it is cl ear that if by this means the losses and damages are repaired, the injured party no longer desires to seek another relief; but this coincidence of effects does not eliminate the peculiar nature of civil actions to ask for indemnity. Such civil actions in the present case (without referring to contractual faults which are not pertinent and belong to another scope) are derived, according to a rticle 1902 of the Civil Code, from every act or omission causing losses and dam ages in which culpa or negligence intervenes. It is unimportant that such action s are every day filed before the civil courts without the criminal courts interf ering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit and the social and political purposes of that Code, develop and regulate the matter of civil responsibilities arising from a crime, separately f rom the regime under common law, of culpa which is known as aquiliana, in accord ance with legislative precedent of the Corpus Juris. It would be unwarranted to make a detailed comparison between the former provisions and that regarding the obligation to indemnify on account of civil culpa; but it is pertinent and neces sary to point out to one of such differences. Articles 20 and 21 of the Penal Code, after distriburing in their own way the ci vil responsibilities among those who, for different reasons, are guilty of felon y or misdemeanor, make such civil responsibilities applicable to enterprises and establishments for which the guilty parties render service, but with subsidiary character, that is to say, according to the wording of the Penal Code, in defau lt of those who are criminally responsible. In this regard, the Civil Code does not coincide because article 1903 says: "The obligation imposed by the next prec eding article is demandable, not only for personal acts and omissions, but also for those of persons for whom another is responsible." Among the persons enumera ted are the subordinates and employees of establishments or enterprises, either for acts during their service or on the occasion of their functions. It is for t his reason that it happens, and it is so observed in judicial decisions, that th e companies or enterprises, after taking part in the criminal cases because of t heir subsidiary civil responsibility by reason of the crime, are sued and senten ced directly and separately with regard to the obligation, before the civil cour ts. Seeing that the title of this obligation is different, and the separation betwee n punitive justice and the civil courts being a true postulate of our judicial s ystem, so that they have different fundamental norms in different codes, as well as different modes of procedure, and inasmuch as the Compaa del Ferrocarril Cant abrico has abstained from taking part in the criminal case and has reserved the right to exercise its actions, it seems undeniable that the action for indemnifi cation for the losses and damages caused to it by the collision was not sub judi ce before the Tribunal del Jurado, nor was it the subject of a sentence, but it remained intact when the decision of March 21 was rendered. Even if the verdict had not been that of acquittal, it has already been shown that such action had b een legitimately reserved till after the criminal prosecution; but because of th e declaration of the non-existence of the felony and the non-existence of the re sponsibility arising from the crime, which was the sole subject matter upon whic h the Tribunal del Jurado had jurisdiction, there is greater reason for the civi l obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and is not res judicata. Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is largely based and whose provisions on cuasi-del ito or culpa extra-contractual are similar to those of the Spanish Civil Code, s

ays, referring to article 1384 of the French Civil Code which corresponds to art icle 1903, Spanish Civil Code: The action can be brought directly against the person responsible (for another), without including the author of the act. The action against the principal is ac cessory in the sense that it implies the existence of a prejudicial act committe d by the employee, but it is not subsidiary in the sense that it can not be inst ituted till after the judgment against the author of the act or at least, that i t is subsidiary to the principal action; the action for responsibility (of the e mployer) is in itself a principal action. (Laurent, Principles of French Civil L aw, Spanish translation, Vol. 20, pp. 734-735.) Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the responsibility of the employer is principal and not subsidiar y. He writes: Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es necesario saber, en primer lugar, en que se funda el precepto legal. Es que realmente se impone una responsabilida d por una falta ajena? Asi parece a primera vista; pero semejante afirmacion ser ia contraria a la justicia y a la maxima universal, segun la que las faltas son personales, y cada uno responde de aquellas que le son imputables. La responsabi lidad de que tratamos se impone con ocasion de un delito o culpa, pero no por ca usa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de l a negligencia del padre, del tutor, del dueo o director del establecimiento, del maestro, etc. Cuando cualquiera de las personas que enumera el articulo citado ( menores de edad, incapacitados, dependientes, aprendices) causan un dao, la ley p resume que el padre, el tutor, el maestro, etc., han cometido una falta de negli gencia para prevenir o evitar el dao. Esta falta es la que la ley castiga. No hay , pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad l a responsabilidad se exige por un hecho propio. La idea de que esa responsabilid ad sea subsidiaria es, por lo tanto, completamente inadmisible. Question No. 1. Is the responsibility declared in article 1903 for the acts or o missions of those persons for who one is responsible, subsidiary or principal? I n order to answer this question it is necessary to know, in the first place, on what the legal provision is based. Is it true that there is a responsibility for the fault of another person? It seems so at first sight; but such assertion wou ld be contrary to justice and to the universal maxim that all faults are persona l, and that everyone is liable for those faults that can be imputed to him. The responsibility in question is imposed on the occasion of a crime or fault, but n ot because of the same, but because of the cuasi-delito, that is to say, the imp rudence or negligence of the father, guardian, proprietor or manager of the esta blishment, of the teacher, etc. Whenever anyone of the persons enumerated in the article referred to (minors, incapacitated persons, employees, apprentices) cau ses any damage, the law presumes that the father, guardian, teacher, etc. have c ommitted an act of negligence in not preventing or avoiding the damage. It is th is fault that is condemned by the law. It is, therefore, only apparent that ther e is a responsibility for the act of another; in reality the responsibility exac ted is for one's own act. The idea that such responsibility is subsidiary is, th erefore, completely inadmissible. Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al C odigo Civil Espaol," says in Vol. VII, p. 743: Es decir, no responde de hechos ajenos, porque se responde solo de su propia cul pa, doctrina del articulo 1902; mas por excepcion, se responde de la ajena respe cto de aquellas personas con las que media algun nexo o vinculo, que motiva o ra zona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En e

l orden penal, el Codigo de esta clase distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha d e entenderse directa, por el tenor del articulo que impone la responsabilidad pr ecisamente "por los actos de aquellas personas de quienes se deba responder." That is to say, one is not responsible for the acts of others, because one is li able only for his own faults, this being the doctrine of article 1902; but, by e xception, one is liable for the acts of those persons with whom there is a bond or tie which gives rise to the responsibility. Is this responsibility direct or subsidiary? In the order of the penal law, the Penal Code distinguishes between minors and incapacitated persons on the one hand, and other persons on the other , declaring that the responsibility for the former is direct (article 19), and f or the latter, subsidiary (articles 20 and 21); but in the scheme of the civil l aw, in the case of article 1903, the responsibility should be understood as dire ct, according to the tenor of that articles, for precisely it imposes responsibi lity "for the acts of those persons for whom one should be responsible." Coming now to the sentences of the Supreme Tribunal of Spain, that court has uph eld the principles above set forth: that a quasi-delict or culpa extra-contractu al is a separate and distinct legal institution, independent from the civil resp onsibility arising from criminal liability, and that an employer is, under artic le 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee. One of the most important of those Spanish decisions is that of October 21, 1910 . In that case, Ramon Lafuente died as the result of having been run over by a s treet car owned by the "compaia Electric Madrilea de Traccion." The conductor was prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil action against the street car company, paying for damages in the amount o f 15,000 pesetas. The lower court awarded damages; so the company appealed to th e Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Co de because by final judgment the non-existence of fault or negligence had been d eclared. The Supreme Court of Spain dismissed the appeal, saying: Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al condonar a la compaia Electrica Madrilea al pago del dao causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efe ctos juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao dentr o de los limites de su competencia que el hecho de que se trata no era constitut ivo de delito por no haber mediado descuido o negligencia graves, lo que no excl uye, siendo este el unico fundamento del fallo absolutorio, el concurso de la cu lpa o negligencia no califacadas, fuente de obligaciones civiles segun el articu lo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los D irectores de establecimientos o empresas por los daos causados por sus dependient es en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al condenar a la compaia recurrente a la i ndemnizacion del dao causado por uno de sus empleados, lejos de infringer los men cionados textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Crim inal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa . Considering that the first ground of the appeal is based on the mistaken supposi tion that the trial court, in sentencing the Compaia Madrilea to the payment of th e damage caused by the death of Ramon Lafuente Izquierdo, disregards the value a nd juridical effects of the sentence of acquittal rendered in the criminal case instituted on account of the same act, when it is a fact that the two jurisdicti

ons had taken cognizance of the same act in its different aspects, and as the cr iminal jurisdiction declared within the limits of its authority that the act in question did not constitute a felony because there was no grave carelessness or negligence, and this being the only basis of acquittal, it does no exclude the c o-existence of fault or negligence which is not qualified, and is a source of ci vil obligations according to article 1902 of the Civil Code, affecting, in accor dance with article 1903, among other persons, the managers of establishments or enterprises by reason of the damages caused by employees under certain condition s, it is manifest that the civil jurisdiccion in taking cognizance of the same a ct in this latter aspect and in ordering the company, appellant herein, to pay a n indemnity for the damage caused by one of its employees, far from violating sa id legal provisions, in relation with article 116 of the Law of Criminal Procedu re, strictly followed the same, without invading attributes which are beyond its own jurisdiction, and without in any way contradicting the decision in that cau se. (Emphasis supplied.) It will be noted, as to the case just cited: First. That the conductor was not sued in a civil case, either separately or wit h the street car company. This is precisely what happens in the present case: th e driver, Fontanilla, has not been sued in a civil action, either alone or with his employer. Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is not qualified, on the part of the conductor, unde r article 1902 of the Civil Code. In the present case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil respon sibility arising from the crime, he would have been held primarily liable for ci vil damages, and Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing Barredo, on his primary responsibility bec ause of his own presumed negligence which he did not overcome under article 1903 . Thus, there were two liabilities of Barredo: first, the subsidiary one because of the civil liability of the taxi driver arising from the latter's criminal ne gligence; and, second, Barredo's primary liability as an employer under article 1903. The plaintiffs were free to choose which course to take, and they preferre d the second remedy. In so doing, they were acting within their rights. It might be observed in passing, that the plaintiff choose the more expeditious and effe ctive method of relief, because Fontanilla was either in prison, or had just bee n released, and besides, he was probably without property which might be seized in enforcing any judgment against him for damages. Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly, notwithstanding the acquittal of the employee (the cond uctor) in a previous criminal case, with greater reason should Barredo, the empl oyer in the case at bar, be held liable for damages in a civil suit filed agains t him because his taxi driver had been convicted. The degree of negligence of th e conductor in the Spanish case cited was less than that of the taxi driver, Fon tanilla, because the former was acquitted in the previous criminal case while th e latter was found guilty of criminal negligence and was sentenced to an indeter minate sentence of one year and one day to two years of prision correccional. (See also Sentence of February 19, 1902, which is similar to the one above quote d.) In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an actio n was brought against a railroad company for damages because the station agent, employed by the company, had unjustly and fraudulently, refused to deliver certa in articles consigned to the plaintiff. The Supreme Court of Spain held that thi s action was properly under article 1902 of the Civil Code, the court saying:

Considerando que la sentencia discutida reconoce, en virtud de los hechos que co nsigna con relacion a las pruebas del pleito: 1., que las expediciones facturadas por la compaia ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan tenian como fin el que este las devolviera a sus remit entes con vinos y alcoholes; 2., que llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo j ustificado y con intencion dolosa, y 3., que la falta de entrega de estas expedic iones al tiempo de reclamarlas el demandante le originaron daos y perjuicios en c antidad de bastante importancia como expendedor al por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los p edidos que se le habian hecho por los remitentes en los envases: Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que nazca del incumplimiento del contrato de transporte, toda v ez que no se funda en el retraso de la llegada de las mercancias ni de ningun ot ro vinculo contractual entre las partes contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descan sa el fallo recurrido, sino que se limita a pedir la reparaction de los daos y pe rjuicios producidos en el patrimonio del actor por la injustificada y dolosa neg ativa del porteador a la entrega de las mercancias a su nombre consignadas, segu n lo reconoce la sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compaia dema ndada como ligada con el causante de aquellos por relaciones de caracter economi co y de jurarquia administrativa. Considering that the sentence, in question recognizes, in virtue of the facts wh ich it declares, in relation to the evidence in the case: (1) that the invoice i ssued by the railroad company in favor of the plaintiff contemplated that the em pty receptacles referred to in the complaint should be returned to the consignor s with wines and liquors; (2) that when the said merchandise reached their desti nation, their delivery to the consignee was refused by the station agent without justification and with fraudulent intent, and (3) that the lack of delivery of these goods when they were demanded by the plaintiff caused him losses and damag es of considerable importance, as he was a wholesale vendor of wines and liquors and he failed to realize the profits when he was unable to fill the orders sent to him by the consignors of the receptacles: Considering that upon this basis there is need of upholding the four assignments of error, as the original complaint did not contain any cause of action arising from non-fulfillment of a contract of transportation, because the action was no t based on the delay of the goods nor on any contractual relation between the pa rties litigant and, therefore, article 371 of the Code of Commerce, on which the decision appealed from is based, is not applicable; but it limits to asking for reparation for losses and damages produced on the patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned to the plaintiff as stated by the sentence, and the carrier's r esponsibility is clearly laid down in article 1902 of the Civil Code which binds , in virtue of the next article, the defendant company, because the latter is co nnected with the person who caused the damage by relations of economic character and by administrative hierarchy. (Emphasis supplied.) The above case is pertinent because it shows that the same act may come under bo th the Penal Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore could have been the subject of a crimin al action. And yet, it was held to be also a proper subject of a civil action un der article 1902 of the Civil Code. It is also to be noted that it was the emplo yer and not the employee who was being sued.

Let us now examine the cases previously decided by this Court. In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 36 2-365 [year 1907]), the trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently failed to repair a tramway in consequence of which the rails slid off while iron was being transported, and caught the plaintiff whose leg was broken. This Court held: It is contended by the defendant, as its first defense to the action that the ne cessary conclusion from these collated laws is that the remedy for injuries thro ugh negligence lies only in a criminal action in which the official criminally r esponsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the representative of the company accountable for not repairing the track, an d on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by his employer. This reasoning misconceived the plan of the Spanish codes upon this subject. Art icle 1093 of the Civil Code makes obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter II of Title XVI. S ection 1902 of that chapter reads: "A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. "SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. "The father, and on his death or incapacity, the mother, is liable for the damag es caused by the minors who live with them. x x x x x x x x x

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

"The liability referred to in this article shall cease when the persons mentione d therein prove that they employed all the diligence of a good father of a famil y to avoid the damage." As an answer to the argument urged in this particular action it may be sufficien t to point out that nowhere in our general statutes is the employer penalized fo r failure to provide or maintain safe appliances for his workmen. His obligation therefore is one 'not punished by the laws' and falls under civil rather than c riminal jurisprudence. But the answer may be a broader one. We should be relucta nt, under any conditions, to adopt a forced construction of these scientific cod es, such as is proposed by the defendant, that would rob some of these articles of effect, would shut out litigants against their will from the civil courts, wo uld make the assertion of their rights dependent upon the selection for prosecut ion of the proper criminal offender, and render recovery doubtful by reason of t he strict rules of proof prevailing in criminal actions. Even if these articles had always stood alone, such a construction would be unnecessary, but clear ligh t is thrown upon their meaning by the provisions of the Law of Criminal Procedur e of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might be pr

osecuted jointly or separately, but while the penal action was pending the civil was suspended. According to article 112, the penal action once started, the civ il remedy should be sought therewith, unless it had been waived by the party inj ured or been expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that could be enfo rced only on private complaint, the penal action thereunder should be extinguish ed. These provisions are in harmony with those of articles 23 and 133 of our Pen al Code on the same subject. An examination of this topic might be carried much further, but the citation of these articles suffices to show that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly pro vided in the law. Where an individual is civilly liable for a negligent act or o mission, it is not required that the injured party should seek out a third perso n criminally liable whose prosecution must be a condition precedent to the enfor cement of the civil right. Under article 20 of the Penal Code the responsibility of an employer may be rega rded as subsidiary in respect of criminal actions against his employees only whi le they are in process of prosecution, or in so far as they determine the existe nce of the criminal act from which liability arises, and his obligation under th e civil law and its enforcement in the civil courts is not barred thereby unless by the election of the injured person. Inasmuch as no criminal proceeding had b een instituted, growing our of the accident in question, the provisions of the P enal Code can not affect this action. This construction renders it unnecessary t o finally determine here whether this subsidiary civil liability in penal action s has survived the laws that fully regulated it or has been abrogated by the Ame rican civil and criminal procedure now in force in the Philippines. The difficulty in construing the articles of the code above cited in this case a ppears from the briefs before us to have arisen from the interpretation of the w ords of article 1093, "fault or negligence not punished by law," as applied to t he comprehensive definition of offenses in articles 568 and 590 of the Penal Cod e. It has been shown that the liability of an employer arising out of his relati on to his employee who is the offender is not to be regarded as derived from neg ligence punished by the law, within the meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within the class of acts unpunishe d by the law, the consequence of which are regulated by articles 1902 and 1903 o f the Civil Code. The acts to which these articles are applicable are understood to be those not growing out of pre-existing duties of the parties to one anothe r. But where relations already formed give rise to duties, whether springing fro m contract or quasi contract, then breaches of those duties are subject to artic les 1101, 1103, and 1104 of the same code. A typical application of this distinc tion may be found in the consequences of a railway accident due to defective mac hinery supplied by the employer. His liability to his employee would arise out o f the contract of employment, that to the passengers out of the contract for pas sage, while that to the injured bystander would originate in the negligent act i tself. In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-ye ar-old child Salvador Bona brought a civil action against Moreta to recover dama ges resulting from the death of the child, who had been run over by an automobil e driven and managed by the defendant. The trial court rendered judgment requiri ng the defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in affirming the judgment, said in part: If it were true that the defendant, in coming from the southern part of Solana S treet, had to stop his auto before crossing Real Street, because he had met vehi cles which were going along the latter street or were coming from the opposite d irection along Solana Street, it is to be believed that, when he again started t

o run his auto across said Real Street and to continue its way along Solana Stre et northward, he should have adjusted the speed of the auto which he was operati ng until he had fully crossed Real Street and had completely reached a clear way on Solana Street. But, as the child was run over by the auto precisely at the e ntrance of Solana Street, this accident could not have occurred if the auto had been running at a slow speed, aside from the fact that the defendant, at the mom ent of crossing Real Street and entering Solana Street, in a northward direction , could have seen the child in the act of crossing the latter street from the si dewalk on the right to that on the left, and if the accident had occurred in suc h a way that after the automobile had run over the body of the child, and the ch ild's body had already been stretched out on the ground, the automobile still mo ved along a distance of about 2 meters, this circumstance shows the fact that th e automobile entered Solana Street from Real Street, at a high speed without the defendant having blown the horn. If these precautions had been taken by the def endant, the deplorable accident which caused the death of the child would not ha ve occurred. It will be noticed that the defendant in the above case could have been prosecut ed in a criminal case because his negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a proper subject-matter either of a criminal action with it s consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902 of the Civi l Code. Thus, in this jurisdiction, the separate individually of a cuasi-delito or culpa aquiliana under the Civil Code has been fully and clearly recognized, e ven with regard to a negligent act for which the wrongdoer could have been prose cuted and convicted in a criminal case and for which, after such a conviction, h e could have been sued for this civil liability arising from his crime. Years later (in 1930) this Court had another occasion to apply the same doctrine . In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Ph il., 327, the parents of the five-year-old child, Purificacion Bernal, brought a civil action to recover damages for the child's death as a result of burns caus ed by the fault and negligence of the defendants. On the evening of April 10, 19 25, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso wi th her daughter Purificacion Bernal had come from another municipality to attend the same. After the procession the mother and the daughter with two others were passing along Gran Capitan Street in front of the offices of the Tacloban Elect ric & Ice Plant, Ltd., owned by defendants J. V. House, when an automobile appea red from the opposite direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile that she turned to run, but unfortunat ely she fell into the street gutter where hot water from the electric plant was flowing. The child died that same night from the burns. The trial courts dismiss ed the action because of the contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no contributory negligence, and allowed t he parents P1,000 in damages from J. V. House who at the time of the tragic occu rrence was the holder of the franchise for the electric plant. This Court said i n part: Although the trial judge made the findings of fact hereinbefore outlined, he nev ertheless was led to order the dismissal of the action because of the contributo ry negligence of the plaintiffs. It is from this point that a majority of the co urt depart from the stand taken by the trial judge. The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on the evenin g when the religious procession was held. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could fores ee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water. The doctrine announced in the mu ch debated case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 35 9), still rule. Article 1902 of the Civil Code must again be enforced. The contr

ibutory negligence of the child and her mother, if any, does not operate as a ba r to recovery, but in its strictest sense could only result in reduction of the damages. It is most significant that in the case just cited, this Court specifically appl ied article 1902 of the Civil Code. It is thus that although J. V. House could h ave been criminally prosecuted for reckless or simple negligence and not only pu nished but also made civilly liable because of his criminal negligence, neverthe less this Court awarded damages in an independent civil action for fault or negl igence under article 1902 of the Civil Code. In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an automobile over the child. It appea red that the cause of the mishap was a defect in the steering gear. The defendan t Leynes had rented the automobile from the International Garage of Manila, to b e used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to pay P1,000 as damages to the plaintiff. On app eal this Court reversed the judgment as to Leynes on the ground that he had show n that the exercised the care of a good father of a family, thus overcoming the presumption of negligence under article 1903. This Court said: As to selection, the defendant has clearly shown that he exercised the care and diligence of a good father of a family. He obtained the machine from a reputable garage and it was, so far as appeared, in good condition. The workmen were like wise selected from a standard garage, were duly licensed by the Government in th eir particular calling, and apparently thoroughly competent. The machine had bee n used but a few hours when the accident occurred and it is clear from the evide nce that the defendant had no notice, either actual or constructive, of the defe ctive condition of the steering gear. The legal aspect of the case was discussed by this Court thus: Article 1903 of the Civil Code not only establishes liability in cases of neglig ence, but also provides when the liability shall cease. It says: "The liability referred to in this article shall cease when the persons mentione d therein prove that they employed all the diligence of a good father of a famil y to avoid the damage." From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the matter or employer either in th e selection of the servant or employee, or in supervision over him after the sel ection, or both; and (2) that presumption is juris tantum and not juris et de ju re, and consequently, may be rebutted. It follows necessarily that if the employ er shows to the satisfaction of the court that in selection and supervision he h as exercised the care and diligence of a good father of a family, the presumptio n is overcome and he is relieve from liability. This theory bases the responsibility of the master ultimately on his own neglige nce and not on that of his servant. The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently driven an automobile, which was operated by defendant as a public vehicle, that said automobile struck and damaged the pl aintiff's motorcycle. This Court, applying article 1903 and following the rule i n Bahia vs. Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is the owner or director of a business or enterprise and the negligent acts are committed wh ile the servant is engaged in his master's employment as such owner. Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cu ison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison for the death of his seven-year-old son Mo ises. The little boy was on his way to school with his sister Marciana. Some lar ge pieces of lumber fell from a truck and pinned the boy underneath, instantly k illing him. Two youths, Telesforo Binoya and Francisco Bautista, who were workin g for Ora, an employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless negligence and were sentenced accordingly. T his Court, applying articles 1902 and 1903, held: The basis of civil law liability is not respondent superior but the relationship of pater familias. This theory bases the liability of the master ultimately on his own negligence and not on that of his servant. (Bahia vs. Litonjua and Leyne s [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.) In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought an action for damages for the demolition of its whar f, which had been struck by the steamer Helen C belonging to the defendant. This Court held (p. 526): The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee contracted his services because of his reputation as a captain, according to F. C. Cadwallader. This being so, we are of the opin ion that the presumption of liability against the defendant has been overcome by the exercise of the care and diligence of a good father of a family in selectin g Captain Lasa, in accordance with the doctrines laid down by this court in the cases cited above, and the defendant is therefore absolved from all liability. It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases above set forth. He is, on the authority of these cases, primarily and directly responsible in damages under article 1903, in rel ation to article 1902, of the Civil Code. Let us now take up the Philippine decisions relied upon by the defendant. We stu dy first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A c ollision between a truck of the City of Manila and a street car of the Manila El ectric Co. took place on June 8, 1925. The truck was damaged in the amount of P1 ,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage t o property and slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788. 27, with subsidiary imprisonment in case of insolvency. Unable to collect the in demnity from Eustaquio, the City of Manila filed an action against the Manila El ectric Company to obtain payment, claiming that the defendant was subsidiarily l iable. The main defense was that the defendant had exercised the diligence of a good father of a family to prevent the damage. The lower court rendered judgment in favor of the plaintiff. This Court held, in part, that this case was governe d by the Penal Code, saying: With this preliminary point out of the way, there is no escaping the conclusion that the provisions of the Penal Code govern. The Penal Code in easily understan dable language authorizes the determination of subsidiary liability. The Civil C ode negatives its application by providing that civil obligations arising from c rimes or misdemeanors shall be governed by the provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling under article 604 of the P enal Code. The act of the motorman was not a wrongful or negligent act or omissi

on not punishable by e Penal Code and not nal Code affirms its n. This is a case of not a case of civil x x x x x x

law. Accordingly, the civil obligation connected up with th with article 1903 of the Civil Code. In other words, the Pe jurisdiction while the Civil Code negatives its jurisdictio criminal negligence out of which civil liability arises and negligence. x x x

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as pointed out by the trial judge, any different ruling would permit the master to escape scot-free by simply alleging and proving that the master had exercised all diligence in the selection and training of its serv ants to prevent the damage. That would be a good defense to a strictly civil act ion, but might or might not be to a civil action either as a part of or predicat ed on conviction for a crime or misdemeanor. (By way of parenthesis, it may be s aid further that the statements here made are offered to meet the argument advan ced during our deliberations to the effect that article 0902 of the Civil Code s hould be disregarded and codal articles 1093 and 1903 applied.) It is not clear how the above case could support the defendant's proposition, be cause the Court of Appeals based its decision in the present case on the defenda nt's primary responsibility under article 1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence. In other wor ds, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability of an employer a rising from a criminal act of his employee, whereas the foundation of the decisi on of the Court of Appeals in the present case is the employer's primary liabili ty under article 1903 of the Civil Code. We have already seen that this is a pro per and independent remedy. Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of the Manila Electric Company had been conv icted o homicide by simple negligence and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000. An action was then brought to enfor ce the subsidiary liability of the defendant as employer under the Penal Code. T he defendant attempted to show that it had exercised the diligence of a good fat her of a family in selecting the motorman, and therefore claimed exemption from civil liability. But this Court held: In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil liability established in article 1903 of the Civil Cod e for all who have acted with the diligence of a good father of a family, is not applicable to the subsidiary civil liability provided in article 20 of the Pena l Code. The above case is also extraneous to the theory of the defendant in the instant case, because the action there had for its purpose the enforcement of the defend ant's subsidiary liability under the Penal Code, while in the case at bar, the p laintiff's cause of action is based on the defendant's primary and direct respon sibility under article 1903 of the Civil Code. In fact, the above case destroys the defendant's contention because that decision illustrates the principle that the employer's primary responsibility under article 1903 of the Civil Code is di fferent in character from his subsidiary liability under the Penal Code. In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the distinction between civil liability arising from a crim e, which is governed by the Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give the imp ortance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth. Suffice it to say that the question involved was als o civil liability arising from a crime. Hence, it is as inapplicable as the two cases above discussed. The foregoing authorities clearly demonstrate the separate individuality of cuas i-delitos or culpa aquiliana under the Civil Code. Specifically they show that t here is a distinction between civil liability arising from criminal negligence ( governed by the Penal Code) and responsibility for fault or negligence under art icles 1902 to 1910 of the Civil Code, and that the same negligent act may produc e either a civil liability arising from a crime under the Penal Code, or a separ ate responsibility for fault or negligence under articles 1902 to 1910 of the Ci vil Code. Still more concretely, the authorities above cited render it inescapab le to conclude that the employer in this case the defendant-petitioner is primar ily and directly liable under article 1903 of the Civil Code. The legal provisions, authors, and cases already invoked should ordinarily be su fficient to dispose of this case. But inasmuch as we are announcing doctrines th at have been little understood in the past, it might not be inappropriate to ind icate their foundations. Firstly, the Revised Penal Code in article 365 punishes not only reckless but al so simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the li teral import of article 1093 of the Civil Code, the legal institution of culpa a quiliana would have very little scope and application in actual life. Death or i njury to persons and damage to property through any degree of negligence even th e slightest would have to be indemnified only through the principle of civil lia bility arising from a crime. In such a state of affairs, what sphere would remai n for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker an y intention to bring about a situation so absurd and anomalous. Nor are we, in t he interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the la w to smother and render almost lifeless a principle of such ancient origin and s uch full-grown development as culpa aquiliana or cuasi-delito, which is conserve d and made enduring in articles 1902 to 1910 of the Spanish Civil Code. Secondly, to find the accused guilty in a criminal case, proof of guilt beyond r easonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of cr iminal negligence which can not be shown beyond reasonable doubt, but can be pro ved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil C ode. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium. Thirdly, to hold that there is only one way to make defendant's liability effect ive, and that is, to sue the driver and exhaust his (the latter's) property firs t, would be tantamount to compelling the plaintiff to follow a devious and cumbe rsome method of obtaining relief. True, there is such a remedy under our laws, b ut there is also a more expeditious way, which is based on the primary and direc t responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for civil wrongs, because the pr ocedure indicated by the defendant is wasteful and productive of delay, it being a matter of common knowledge that professional drivers of taxis and similar pub lic conveyance usually do not have sufficient means with which to pay damages. W hy, then, should the plaintiff be required in all cases to go through this round about, unnecessary, and probably useless procedure? In construing the laws, cour ts have endeavored to shorten and facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility o f employers and their presumed negligence are principles calculated to protect s ociety. Workmen and employees should be carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who principally r eap the profits resulting from the services of these servants and employees. It is but right that they should guarantee the latter's careful conduct for the per sonnel and patrimonial safety of others. As Theilhard has said, "they should rep roach themselves, at least, some for their weakness, others for their poor selec tion and all for their negligence." And according to Manresa, "It is much more e quitable and just that such responsibility should fall upon the principal or dir ector who could have chosen a careful and prudent employee, and not upon the inj ured person who could not exercise such selection and who used such employee bec ause of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on the princ iple of representation of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the employer and e mployee "vienen a ser como una sola personalidad, por refundicion de la del depe ndiente en la de quien le emplea y utiliza." ("become as one personality by the merging of the person of the employee in that of him who employs and utilizes hi m.") All these observations acquire a peculiar force and significance when it co mes to motor accidents, and there is need of stressing and accentuating the resp onsibility of owners of motor vehicles. Fourthly, because of the broad sweep of the provisions of both the Penal Code an d the Civil Code on this subject, which has given rise to the overlapping or con currence of spheres already discussed, and for lack of understanding of the char acter and efficacy of the action for culpa aquiliana, there has grown up a commo n practice to seek damages only by virtue of the civil responsibility arising fr om a crime, forgetting that there is another remedy, which is by invoking articl es 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the more exp editious and effective remedy based on culpa aquiliana or culpa extra-contractua l. In the present case, we are asked to help perpetuate this usual course. But w e believe it is high time we pointed out to the harm done by such practice and t o restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, s o that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding of private ri ghts because it re-establishes an ancient and additional remedy, and for the fur ther reason that an independent civil action, not depending on the issues, limit ations and results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redre ss. In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs against the defendant-petitioner. Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur. G.R. No. 166869 February 16, 2010


This is a Petition for Review on Certiorari1 of the Decision of the Court of App eals in CA-G.R. CV No. 70860, promulgated on August 17, 2004, affirming with mod ification the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 102, dated March 16, 2001, in Civil Case No. Q-91-9191, ordering petitioner Phil ippine Hawk Corporation and Margarito Avila to jointly and severally pay respond ent Vivian Tan Lee damages as a result of a vehicular accident. The facts are as follows: On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of Quezon City a Complaint2 against petitioner Philippine Hawk Corporation and defendant Marga rito Avila for damages based on quasi-delict, arising from a vehicular accident that occurred on March 17, 1991 in Barangay Buensoceso, Gumaca, Quezon. The acci dent resulted in the death of respondent s husband, Silvino Tan, and caused respon dent physical injuries. On June 18, 1992, respondent filed an Amended Complaint,3 in her own behalf and in behalf of her children, in the civil case for damages against petitioner. Res pondent sought the payment of indemnity for the death of Silvino Tan, moral and exemplary damages, funeral and interment expenses, medical and hospitalization e xpenses, the cost of the motorcycle s repair, attorney s fees, and other just and eq uitable reliefs. The accident involved a motorcycle, a passenger jeep, and a bus with Body No. 11 9. The bus was owned by petitioner Philippine Hawk Corporation, and was then bei ng driven by Margarito Avila. In its Answer,4 petitioner denied liability for the vehicular accident, alleging that the immediate and proximate cause of the accident was the recklessness or lack of caution of Silvino Tan. Petitioner asserted that it exercised the dilige nce of a good father of the family in the selection and supervision of its emplo yees, including Margarito Avila. On March 25, 1993, the trial court issued a Pre-trial Order5 stating that the pa rties manifested that there was no possibility of amicable settlement between th em. However, they agreed to stipulate on the following facts: 1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff Vivian Lee T an and her husband Silvino Tan, while on board a motorcycle with [P]late No. DA5480 driven by the latter, and a Metro Bus with [P]late No. NXR-262 driven by Ma rgarito Avila, were involved in an accident; 2. As a result of the accident, Silvino Tan died on the spot while plaintiff Viv ian Lee Tan suffered physical injuries which necessitated medical attention and hospitalization; 3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee Tan an d four children, three of whom are now residents of the United States; and 4. Defendant Margarito Avila is an employee of defendant Philippine Hawk.6 The parties also agreed on the following issues: 1. Whether or not the proximate cause of the accident causing physical injuries upon the plaintiff Vivian Lee Tan and resulting in the death of the latter s husba nd was the recklessness and negligence of Margarito Avila or the deceased Silvin o Tan; and 2. Whether or not defendant Philippine Hawk Transport Corporation exercised the diligence of a good father of the family in the selection and supervision of its

driver Margarito Avila.7 Respondent testified that on March 17, 1991, she was riding on their motorcycle in tandem with her husband, who was on the wheel, at a place after a Caltex gaso line station in Barangay Buensoceso, Gumaca, Quezon on the way to Lopez, Quezon. They came from the Pasumbal Machine Shop, where they inquired about the repair of their tanker. They were on a stop position at the side of the highway; and wh en they were about to make a turn, she saw a bus running at fast speed coming to ward them, and then the bus hit a jeep parked on the roadside, and their motorcy cle as well. She lost consciousness and was brought to the hospital in Gumaca, Q uezon, where she was confined for a week. She was later transferred to St. Luke s Hospital in Quezon City, Manila. She suffered a fracture on her left chest, her left arm became swollen, she felt pain in her bones, and had high blood pressure .8 Respondent s husband died due to the vehicular accident. The immediate cause of hi s death was massive cerebral hemorrhage.9 Respondent further testified that her husband was leasing10 and operating a Calt ex gasoline station in Gumaca, Quezon that yielded one million pesos a year in r evenue. They also had a copra business, which gave them an income of P3,000.00 a month or P36,000.00 a year.11 Ernest Ovial, the driver of the passenger jeep involved in the accident, testifi ed that in the afternoon of March 17, 1991, his jeep was parked on the left side of the highway near the Pasumbal Machine Shop. He did not notice the motorcycle before the accident. But he saw the bus dragging the motorcycle along the highw ay, and then the bus bumped his jeep and sped away.12 For the defense, Margarito Avila, the driver of petitioner s bus, testified that o n March 17, 1999, at about 4:30 p.m., he was driving his bus at 60 kilometers pe r hour on the Maharlika Highway. When they were at Barangay Buensoceso, Gumaca, Quezon, a motorcycle ran from his left side of the highway, and as the bus came near, the motorcycle crossed the path of the bus, and so he turned the bus to th e right. He heard a loud banging sound. From his side mirror, he saw that the mo torcycle turned turtle ("bumaliktad"). He did not stop to help out of fear for h is life, but drove on and surrendered to the police. He denied that he bumped th e motorcycle.13 Avila further testified that he had previously been involved in sideswiping inci dents, but he forgot how many times.14 Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the left side of the bus that was running at 40 kilometers per hour.15 Domingo S. Sisperes, operations officer of petitioner, testified that, like thei r other drivers, Avila was subjected to and passed the following requirements: (1) Submission of NBI clearance; (2) Certification from his previous employer that he had no bad record; (3) Physical examination to determine his fitness to drive; (4) Test of his driving ability, particularly his defensive skill; and (5) Review of his driving skill every six months.16 Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon, testified that the bus was running on the highway on a straight path when a motorcycle, with a

woman behind its driver, suddenly emerged from the left side of the road from a machine shop. The motorcycle crossed the highway in a zigzag manner and bumped the side of the bus.17 In its Decision dated March 16, 2001, the trial court rendered judgment against petitioner and defendant Margarito Avila, the dispositive portion of which reads : ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple negligence, and judgme nt is hereby rendered in favor of the plaintiff Vivian Lee Tan and h[er] husband s heirs ordering the defendants Philippine Hawk Corporation and Margarito Avila t o pay them jointly and solidarily the sum of P745,575.00 representing loss of ea rnings and actual damages plus P50,000.00 as moral damages.18 The trial court found that before the collision, the motorcycle was on the left side of the road, just as the passenger jeep was. Prior to the accident, the mot orcycle was in a running position moving toward the right side of the highway. T he trial court agreed with the bus driver that the motorcycle was moving ahead o f the bus from the left side of the road toward the right side of the road, but disagreed that the motorcycle crossed the path of the bus while the bus was runn ing on the right side of the road.19 The trial court held that if the bus were on the right side of the highway, and Margarito Avila turned his bus to the right in an attempt to avoid hitting the m otorcyle, then the bus would not have hit the passenger jeep, which was then par ked on the left side of the road. The fact that the bus also hit the passenger j eep showed that the bus must have been running from the right lane to the left l ane of the highway, which caused the collision with the motorcycle and the passe nger jeep parked on the left side of the road. The trial court stated that since Avila saw the motorcycle before the collision, he should have stepped on the br akes and slowed down, but he just maintained his speed and veered to the left.20 The trial court found Margarito Avila guilty of simple negligence. The trial court held petitioner bus company liable for failing to exercise the d iligence of a good father of the family in the selection and supervision of Avil a, having failed to sufficiently inculcate in him discipline and correct behavio r on the road.21 On appeal, the Court of Appeals affirmed the decision of the trial court with mo dification in the award of damages. The dispositive portion of the decision read s: WHEREFORE, foregoing premises considered, the appeal is DENIED. The assailed dec ision dated March 16, 2001 is hereby AFFIRMED with MODIFICATION. Appellants Phil ippine Hawk and Avila are hereby ordered to pay jointly and severally appellee t he following amount: (a) P168,019.55 as actual damages; (b) P10,000.00 as temper ate damages; (c) P100,000.00 as moral damages; (d) P590,000.00 as unearned incom e; and (e) P50,000.00 as civil indemnity.22 Petitioner filed this petition, raising the following issues: 1) The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in passing upon an issue, which had not been raised on appeal, and which had, therefore, attained finality, in total disregard of the doctrine lai d down by this Court in Abubakar v. Abubakar, G.R. No. 134622, October 22, 1999. 2) The Court of Appeals committed reversible error in its finding that the petit ioner s bus driver saw the motorcycle of private respondent executing a U-turn on the highway "about fifteen (15) meters away" and thereafter held that the Doctri ne of Last Clear was applicable to the instant case. This was a palpable error f

or the simple reason that the aforesaid distance was the distance of the witness to the bus and not the distance of the bus to the respondent s motorcycle, as cle arly borne out by the records. 3) The Court of Appeals committed reversible error in awarding damages in total disregard of the established doctrine laid down in Danao v. Court of Appeals, 15 4 SCRA 447 and Viron Transportation Co., Inc. v. Delos Santos, G.R. No. 138296, November 22, 2000.23 In short, the issues raised by petitioner are: (1) whether or not negligence may be attributed to petitioner s driver, and whether negligence on his part was the proximate cause of the accident, resulting in the death of Silvino Tan and causi ng physical injuries to respondent; (2) whether or not petitioner is liable to r espondent for damages; and (3) whether or not the damages awarded by respondent Court of Appeals are proper. Petitioner seeks a review of the factual findings of the trial court, which were sustained by the Court of Appeals, that petitioner s driver was negligent in driv ing the bus, which caused physical injuries to respondent and the death of respo ndent s husband. The rule is settled that the findings of the trial court, especially when affirm ed by the Court of Appeals, are conclusive on this Court when supported by the e vidence on record.24 The Court has carefully reviewed the records of this case, and found no cogent reason to disturb the findings of the trial court, thus: The Court agree[s] with the bus driver Margarito that the motorcycle was moving ahead of the bus towards the right side from the left side of the road, but disa grees with him that it crossed the path of the bus while the bus was running on the right side of the highway. If the bus were on the right side of the highway and Margarito turned his bus to the right in an attempt to avoid hitting it, then the bus would not have hit th e passenger jeep vehicle which was then parked on the left side of the road. The fact that the bus hit the jeep too, shows that the bus must have been running t o the left lane of the highway from right to the left, that the collision betwee n it and the parked jeep and the moving rightways cycle became inevitable. Besid es, Margarito said he saw the motorcycle before the collision ahead of the bus; that being so, an extra-cautious public utility driver should have stepped on hi s brakes and slowed down. Here, the bus never slowed down, it simply maintained its highway speed and veered to the left. This is negligence indeed.25 Petitioner contends that the Court of Appeals was mistaken in stating that the b us driver saw respondent s motorcycle "about 15 meters away" before the collision, because the said distance, as testified to by its witness Efren Delantar Ong, w as Ong s distance from the bus, and not the distance of the bus from the motorcycl e. Petitioner asserts that this mistaken assumption of the Court of Appeals made it conclude that the bus driver, Margarito Avila, had the last clear chance to avoid the accident, which was the basis for the conclusion that Avila was guilty of simple negligence. A review of the records showed that it was petitioner s witness, Efren Delantar On g, who was about 15 meters away from the bus when he saw the vehicular accident. 26 Nevertheless, this fact does not affect the finding of the trial court that p etitioner s bus driver, Margarito Avila, was guilty of simple negligence as affirm ed by the appellate court. Foreseeability is the fundamental test of negligence. 27 To be negligent, a defendant must have acted or failed to act in such a way t hat an ordinary reasonable man would have realized that certain interests of cer tain persons were unreasonably subjected to a general but definite class of risk s.28

In this case, the bus driver, who was driving on the right side of the road, alr eady saw the motorcycle on the left side of the road before the collision. Howev er, he did not take the necessary precaution to slow down, but drove on and bump ed the motorcycle, and also the passenger jeep parked on the left side of the ro ad, showing that the bus was negligent in veering to the left lane, causing it t o hit the motorcycle and the passenger jeep. Whenever an employee s negligence causes damage or injury to another, there instan tly arises a presumption that the employer failed to exercise the due diligence of a good father of the family in the selection or supervision of its employees. 29 To avoid liability for a quasi-delict committed by his employee, an employer must overcome the presumption by presenting convincing proof that he exercised t he care and diligence of a good father of a family in the selection and supervis ion of his employee.30 The Court upholds the finding of the trial court and the Court of Appeals that p etitioner is liable to respondent, since it failed to exercise the diligence of a good father of the family in the selection and supervision of its bus driver, Margarito Avila, for having failed to sufficiently inculcate in him discipline a nd correct behavior on the road. Indeed, petitioner s tests were concentrated on t he ability to drive and physical fitness to do so. It also did not know that Avi la had been previously involved in sideswiping incidents. As regards the issue on the damages awarded, petitioner contends that it was the only one that appealed the decision of the trial court with respect to the awar d of actual and moral damages; hence, the Court of Appeals erred in awarding oth er kinds of damages in favor of respondent, who did not appeal from the trial co urt s decision. Petitioner s contention is unmeritorious. Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides: SEC. 8. Questions that may be decided. -- No error which does not affect the jur isdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly ar gued in the brief, save as the court pass upon plain errors and clerical errors. Philippine National Bank v. Rabat31 cited the book32 of Justice Florenz D. Regal ado to explain the section above, thus: In his book, Mr. Justice Florenz D. Regalado commented on this section, thus: 1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule, now includes some substantial changes in the rules on assignment of errors. The basic proced ural rule is that only errors claimed and assigned by a party will be considered by the court, except errors affecting its jurisdiction over the subject matter. To this exception has now been added errors affecting the validity of the judgm ent appealed from or the proceedings therein. Also, even if the error complained of by a party is not expressly stated in his assignment of errors but the same is closely related to or dependent on an assig ned error and properly argued in his brief, such error may now be considered by the court. These changes are of jurisprudential origin. 2. The procedure in the Supreme Court being generally the same as that in the Co urt of Appeals, unless otherwise indicated (see Secs. 2 and 4, Rule 56), it has been held that the latter is clothed with ample authority to review matters, eve

n if they are not assigned as errors on appeal, if it finds that their considera tion is necessary in arriving at a just decision of the case. Also, an unassigne d error closely related to an error properly assigned (PCIB vs. CA, et al., L-34 931, Mar. 18, 1988), or upon which the determination of the question raised by e rror properly assigned is dependent, will be considered by the appellate court n otwithstanding the failure to assign it as error (Ortigas, Jr. vs. Lufthansa Ger man Airlines, L-28773, June 30, 1975; Soco vs. Militante, et al., G.R. No. 58961 , June 28, 1983). It may also be observed that under Sec. 8 of this Rule, the appellate court is a uthorized to consider a plain error, although it was not specifically assigned b y the appellant (Dilag vs. Heirs of Resurreccion, 76 Phil. 649), otherwise it wo uld be sacrificing substance for technicalities.33 In this case for damages based on quasi-delict, the trial court awarded responde nt the sum of P745,575.00, representing loss of earning capacity (P590,000.00) a nd actual damages (P155,575.00 for funeral expenses), plus P50,000.00 as moral d amages. On appeal to the Court of Appeals, petitioner assigned as error the awar d of damages by the trial court on the ground that it was based merely on suppos itions and surmises, not the admissions made by respondent during the trial. In its Decision, the Court of Appeals sustained the award by the trial court for loss of earning capacity of the deceased Silvino Tan, moral damages for his dea th, and actual damages, although the amount of the latter award was modified. The indemnity for loss of earning capacity of the deceased is provided for by Ar ticle 2206 of the Civil Code.34 Compensation of this nature is awarded not for l oss of earnings, but for loss of capacity to earn money.35 As a rule, documentary evidence should be presented to substantiate the claim fo r damages for loss of earning capacity.36 By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence w hen: (1) the deceased is self-employed and earning less than the minimum wage un der current labor laws, in which case, judicial notice may be taken of the fact that in the deceased's line of work no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum w age under current labor laws.37 In this case, the records show that respondent s husband was leasing and operating a Caltex gasoline station in Gumaca, Quezon. Respondent testified that her husb and earned an annual income of one million pesos. Respondent presented in eviden ce a Certificate of Creditable Income Tax Withheld at Source for the Year 1990,3 8 which showed that respondent s husband earned a gross income of P950,988.43 in 1 990. It is reasonable to use the Certificate and respondent s testimony as bases f or fixing the gross annual income of the deceased at one million pesos before re spondent s husband died on March 17, 1999. However, no documentary evidence was pr esented regarding the income derived from their copra business; hence, the testi mony of respondent as regards such income cannot be considered. In the computation of loss of earning capacity, only net earnings, not gross ear nings, are to be considered; that is, the total of the earnings less expenses ne cessary for the creation of such earnings or income, less living and other incid ental expenses.39 In the absence of documentary evidence, it is reasonable to pe g necessary expenses for the lease and operation of the gasoline station at 80 p ercent of the gross income, and peg living expenses at 50 percent of the net inc ome (gross income less necessary expenses). In this case, the computation for loss of earning capacity is as follows: Net Earning Capacity = Life Expectancy

[2/3 (80-age at the time of death)] x Gross Annual Income (GAI) Reasonable and Necessary Expenses (80% of GAI) X = [2/3 (80-65)] x P1,000,000.00 P800,000.00 X = 2/3 (15) x P200,000.00 P100,000.00(Livi ng Expenses) X = 30/3 x P100,000.00 X = 10 x P100,000.00 X = P1,000,000.00 The Court of Appeals also awarded actual damages for the expenses incurred in co nnection with the death, wake, and interment of respondent s husband in the amount of P154,575.30, and the medical expenses of respondent in the amount of P168,01 9.55. Actual damages must be substantiated by documentary evidence, such as receipts, in order to prove expenses incurred as a result of the death of the victim40 or the physical injuries sustained by the victim. A review of the valid receipts su bmitted in evidence showed that the funeral and related expenses amounted only t o P114,948.60, while the medical expenses of respondent amounted only to P12,244 .25, yielding a total of P127,192.85 in actual damages. Moreover, the Court of Appeals correctly sustained the award of moral damages in the amount of P50,000.00 for the death of respondent s husband. Moral damages are not intended to enrich a plaintiff at the expense of the defendant.41 They are awarded to allow the plaintiff to obtain means, diversions or amusements that wi ll serve to alleviate the moral suffering he/she has undergone due to the defend ant s culpable action and must, perforce, be proportional to the suffering inflict ed.42 In addition, the Court of Appeals correctly awarded temperate damages in the amo unt of P10,000.00 for the damage caused on respondent s motorcycle. Under Art. 222 4 of the Civil Code, temperate damages "may be recovered when the court finds th at some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty." The cost of the repair of the motorcycle was prayed for by respondent in her Complaint. However, the evidence presented was merely a job estimate43 of the cost of the motorcycle s repair amounting to P1 7, 829.00. The Court of Appeals aptly held that there was no doubt that the dama ge caused on the motorcycle was due to the negligence of petitioner s driver. In t he absence of competent proof of the actual damage caused on the motorcycle or t he actual cost of its repair, the award of temperate damages by the appellate co urt in the amount of P10,000.00 was reasonable under the circumstances.44 The Court of Appeals also correctly awarded respondent moral damages for the phy sical injuries she sustained due to the vehicular accident. Under Art. 2219 of t he Civil Code,45 moral damages may be recovered in quasi-delicts causing physica l injuries. However, the award of P50,000.00 should be reduced to P30,000.00 in accordance with prevailing jurisprudence.46 Further, the Court of Appeals correctly awarded respondent civil indemnity for t he death of her husband, which has been fixed by current jurisprudence at P50,00 0.00.47 The award is proper under Art. 2206 of the Civil Code.48 In fine, the Court of Appeals correctly awarded civil indemnity for the death of respondent s husband, temperate damages, and moral damages for the physical injur ies sustained by respondent in addition to the damages granted by the trial cour t to respondent. The trial court overlooked awarding the additional damages, whi ch were prayed for by respondent in her Amended Complaint. The appellate court i s clothed with ample authority to review matters, even if they are not assigned as errors in the appeal, if it finds that their consideration is necessary in ar

riving at a just decision of the case.49 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated Au gust 17, 2004 in CA-G.R. CV No. 70860 is hereby AFFIRMED with MODIFICATION. Peti tioner Philippine Hawk Corporation and Margarito Avila are hereby ordered to pay jointly and severally respondent Vivian Lee Tan: (a) civil indemnity in the amo unt of Fifty Thousand Pesos (P50,000.00); (b) actual damages in the amount of On e Hundred Twenty-Seven Thousand One Hundred Ninety-Two Pesos and Eighty-Five Cen tavos ( P127,192.85); (c) moral damages in the amount of Eighty Thousand Pesos ( P80,000.00); (d) indemnity for loss of earning capacity in the amount of One Mil lion Pesos (P1,000,000.00); and (e) temperate damages in the amount of Ten Thous and Pesos (P10,000.00). Costs against petitioner. SO ORDERED [G.R. No. 161803, February 04, 2008] DY TEBAN TRADING, INC., Petitioner, vs. JOSE CHING AND/OR LIBERTY FOREST, INC. a nd CRESILITO M. LIMBAGA,Respondents. D E C I S I O N REYES, R.T., J.: THE vehicular collision resulting in damages and injuries in this case could hav e been avoided if the stalled prime mover with trailer were parked properly and equipped with an early warning device. It is high time We sounded the call for s trict enforcement of the law and regulation on traffic and vehicle registration. Panahon na para mahigpit na ipatupad ang batas at regulasyon sa trapiko at pagp apatala ng sasakyan. Before Us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) modifying that[2] of the Regional Trial Court (RTC) in Butuan C ity finding private respondents Liberty Forest, Inc. and Cresilito Limbaga liabl e to petitioner Dy Teban Trading, Inc. for damages. Facts On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora, was driving a Nissan van owned by petitioner Dy Teban Trading, Inc. along the N ational Highway in Barangay Sumilihon, Butuan City, going to Surigao City. They were delivering commercial ice to nearby barangays and municipalities. A Joana P aula passenger bus was cruising on the opposite lane towards the van. In between the two vehicles was a parked prime mover with a trailer, owned by private resp ondent Liberty Forest, Inc.[3] The night before, at around 10:00 p.m., the prime mover with trailer suffered a tire blowout. The driver, private respondent Cresilito Limbaga, parked the prime mover askew occupying a substantial portion of the national highway, on the lan e of the passenger bus. He parked the prime mover with trailer at the shoulder o f the road with the left wheels still on the cemented highway and the right whee ls on the sand and gravel shoulder of the highway.[4] The prime mover was not eq uipped with triangular, collapsible reflectorized plates, the early warning devi ce required under Letter of Instruction No. 229. As substitute, Limbaga placed a banana trunk with leaves on the front and the rear portion of the prime mover t o warn incoming motorists. It is alleged that Limbaga likewise placed kerosene l ighted tin cans on the front and rear of the trailer.[5]

To avoid hitting the parked prime mover occupying its lane, the incoming passeng er bus swerved to the right, onto the lane of the approaching Nissan van. Ortiz saw two bright and glaring headlights and the approaching passenger bus. He pump ed his break slowly, swerved to the left to avoid the oncoming bus but the van h it the front of the stationary prime mover. The passenger bus hit the rear of th e prime mover.[6] Ortiz and Catamora only suffered minor injuries. The Nissan van, however, became inoperable as a result of the incident. After the collision, SPO4 Teofilo Pame conducted an investigation and submitted a police traffic incident investigation report.[7] On October 31, 1995, petitioner Nissan van owner filed a complaint for damages[8 ] against private respondents prime mover owner and driver with the RTC in Butua n City. The Joana Paula passenger bus was not impleaded as defendant in the comp laint. RTC Disposition On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban T rading, Inc. with a fallo reading: WHEREFORE, judgment is hereby rendered directing, ordaining and ordering: a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay, jointly an d solidarily, plaintiff Dy Teban Trading, Inc. the amounts of P279,832.00 as act ual and compensatory damages, P30,000.00 as attorney s fees and P5,000.00 as expense s of litigation; b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed; c) That defendant Jose Ching is absolved from any civil liability or the case ag ainst him dismissed; d) That the counterclaim of all the defendants is dismissed; and e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to pay, jointly and solidarily, the costs.

SO ORDERED.[9] The RTC held that the proximate cause of the three-way vehicular collision was i mproper parking of the prime mover on the national highway and the absence of an early warning device on the vehicle, thus: The court finds that the proximate cause of the incidents is the negligence and carelessness attributable to the defendants. When the trailer being pulled by th e prime mover suffered two (2) flat tires at Sumilihon, the prime mover and trai ler were parked haphazardly, as the right tires of the prime mover were the only ones on the sand and gravel shoulder of the highway while the left tires and al l the tires of the trailer were on the cemented pavement of the highway, occupyi ng almost the whole of the right lane on the direction the prime mover and trail er were traveling. The statement of Limbaga that he could not park the prime mov er and trailer deeper into the sand and gravel shoulder of the highway to his ri ght because there were banana plants is contradicted by the picture marked Exhib it F. The picture shows that there was ample space on the shoulder. If defendant Limb ga was careful and prudent enough, he should have the prime mover and trailer tr aveled more distance forward so that the bodies of the prime mover and trailer w ould be far more on the shoulder rather than on the cemented highway when they w ere parked. x x x The court has some doubts on the statement of witness-driver L imbaga that there were banana trunks with leaves and lighted tin cans with crude oil placed 3 strides in front of the prime mover and behind the trailer because

the testimonies of witnesses Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of the ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show that there were no banana trunks with leaves and lighted tin cans at the scene of the incident. But even assuming that there were banana trunks with leaves but they were placed close to the prime mover and trailer as they were pl aced 3 strides away which to the mind of the court is equivalent approximately t o 3 meters and with this distance, approaching vehicles would have no sufficient time and space to make a complete stop, especially if the vehicles are heavy an d loaded. If there were lighted tin cans, it was not explained by the defendants why the driver, especially driver witness Ortiz, did not see them. x x x x

Defendant Liberty Forest, Inc. did not exercise the diligence of a good father o f a family in managing and running its business. The evidence on record shows th at it failed to provide its prime mover and trailer with the required early warning devices with reflectors and it did not keep proper maintenance and condition of th e prime mover and the trailer. The circumstances show that the trailer were prov ided with wornout tires and with only one (1) piece of spare tire. The pictures marked Exhibit 3 and 4 show that two (2) flat tires suffered by the trailer and ) tires were attached to one of the two (2) I-beams or axles attached to the rea r of the trailer which axle is very near but behind the other axle and with the location of the 2 I-beams, it would have the other I-beam that would have suffer ed the flat tires as it has to bear the brunt of weight of the D-8 bulldozer. Th e bulldozer was not loaded directly above the two (2) I-beams as 2 I-beams, as a pair, were attached at the far rear end of the trailer. x x x x However, defendant Jose Ching should be absolved of any liability as there is no showing that he is the manager or CEO of defendant Liberty Forest, Inc. Althoug h in the answer, it is admitted that he is an officer of the defendant corporati on, but it is not clarified what kind of position he is holding, as he could be an officer as one of the members of the Board of Directors or a cashier and trea surer of the corporation. Witness Limbaga in his testimony mentioned a certain B oy Ching as the Manager but it was never clarified whether or not Boy Ching and defendant Jose Ching is one and the same person.[10] Private respondents appeale d to the CA. CA Disposition On August 28, 2003, the CA reversed the RTC decision, disposing as follows: WHEREFORE, premises considered, the decision dated August 7, 2001 of the Regiona l Trial Court, Branch 2, Butuan City in Civil Case No. 4360 is hereby PARTLY MOD IFIED by absolving the defendants-appellants/appellees of any liability to plain tiffs-appellants/appellees by reason of the incident on July 4, 1995. The dismissal of the case against Jose Ching, the counterclaim of defendants-app ellants/appellees and the money claim of Rogelio Ortiz STANDS. SO ORDERED.[11] In partly reversing or partly modifying the RTC decision, the CA held that the p roximate cause of the vehicular collision was the failure of the Nissan van to g ive way or yield to the right of way of the passenger bus, thus: It was stated that the Joana Paula bus in trying to avoid a head-on collision wi th the truck, sideswept the parked trailer loaded with bulldozer. Evidently, the driver of the Joana Paula bus was aware of the presence on its la ne of the parked trailer with bulldozer. For this reason, it proceeded to occupy what was left of its lane and part of the opposite lane. The truck occupying th e opposite lane failed to give way or yield the right of way to the oncoming bus

by proceeding with the same speed. The two vehicles were, in effect, trying to beat each other in occupying a single lane. The bus was the first to occupy the said lane but upon realizing that the truck refused to give way or yield the rig ht of way, the bus, as a precaution, geared to its right where the trailer was p arked. Unfortunately, the bus miscalculated its distance from the parked trailer and its rear right side hit the protruding blade of the bulldozer then on the t op of the parked trailer. The impact of the collision on its right rear side wit h the blade of the bulldozer threw the bus further to the opposite lane, landing its rear portion on the shoulder of the opposite lane. x x x x Facts of the case reveal that when Ortiz, the driver of the truck, failed to giv e the Joana Paula bus the space on the road it needed, the latter vehicle scrape d its rear right side on the protruded bulldozer blade and the impact threw the bus directly on the path of the oncoming truck. This made plaintiffs-appellants/ appellees conclude that the Joana Paula bus occupied its lane which forced Ortiz , the driver of the truck, to swerve to its left and ram the front of the parked trailer. x x x x The trailer was parked because its two (2) rear-left tires were blown out. With a bulldozer on top of the trailer and two (2) busted tires, it would be dangerou s and quite impossible for the trailer to further park on the graveled shoulder of the road. To do so will cause the flat car to tilt and may cause the bulldoze r to fall from where it was mounted. In fact, it appeared that the driver of the trailer tried its best to park on the graveled shoulder since the right-front t ires were on the graveled shoulder of the road. The lower court erred in stating that the Joana Paula bus swerved to the left of the truck because it did not see the parked trailer due to lack of warning sign of danger of any kind that can be seen from a distance. The damage suffered by the Joana Paula bus belied this assessment. As stated before, the Joana Paula bu s, with the intention of passing first which it did, first approached the space beside the parked trailer, veered too close to the parked trailer thereby hittin g its rear right side on the protruding bulldozer blade. Since the damage was on the rear right most of the bus, it was clearly on the space which was wide enou gh for a single passing vehicle but not sufficient for two (2) passing vehicles. The bus was thrown right to the path of the truck by the impact of the collisio n of its rear right side with the bulldozer blade.[12] The CA disagreed with the RTC that the prime mover did not have an early warning device. The appellate court accepted the claim of private respondent that Limba ga placed kerosene lighted tin cans on the front and rear of the trailer which, in Baliwag Transit, Inc. v. Court of Appeals,[13] may act as substitute early wa rning device. The CA stated: Likewise, it was incorrect for the lower court to state that there was no warnin g sign of danger of any kind, most probably referring to the absence of the tria ngular reflectorized plates. The police sketch clearly indicated the stack of ba nana leaves placed at the rear of the parked trailer. The trailer s driver testified that they placed kerosene lighted tin can at the back of the parked trailer. A pair of triangular reflectorized plates is not the only early warning device a llowed by law. The Supreme Court (in Baliwag Transit, Inc. v. Court of Appeals) held that: x x x Col. Dela Cruz and Romano testified that they did not see any early warning d evice at the scene of the accident. They were referring to the triangular reflec torized plates in red and yellow issued by the Land Transportation Office. Howev er, the evidence shows that Recontique and Ecala placed a kerosene lamp or torch at the edge of the road, near the rear portion of the truck to serve as an earl

y warning device. This substantially complies with Section 34(g) of the Land Tra nsportation and Traffic Code x x x Baliwag s argument that the kerosene lamp or torch does not substantially comply wit h the law is untenable. The aforequoted law clearly allows the use not only of a n early warning device of the triangular reflectorized plates variety but also park ing lights or flares visible one hundred meters away. x x x. This Court holds that the defendants-appellants/appellees were not negligent in parking the trailer on the scene of the accident. It would have been different i f there was only one flat tire and defendant-appellant/appellee Limbaga failed t o change the same and left immediately. As such, defendants-appellants/appellees are not liable for the damages suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-appellants/appel lees suffered, they alone must bear them.[14] Issues Petitioner raises two issues[15] for Our consideration, to wit: I. THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE CONCRETE EVIDENCE, ERRONEO USLY DETERMINED THAT THERE WERE EARLY WARNING DEVICES PLACED IN FRONT OF THE DEF ENDANT-APPELLANTS/APPELLEES TRUCK AND FLAT CAR TO WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR PRESENCE. II. WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON EARLY WARNING DEVICES IN THE PUBLIC INTEREST. Our Ruling The petition is meritorious. The meat of the petition is whether or not the prime mover is liable for the dam ages suffered by the Nissan van. The RTC ruled in the affirmative holding that t he proximate cause of the vehicular collision was the negligence of Limbaga in p arking the prime mover on the national highway without an early warning device o n the vehicle. The CA reversed the RTC decision, holding that the proximate caus e of the collision was the negligence of Ortiz in not yielding to the right of w ay of the passenger bus. Article 2176 of the Civil Code provides that whoever by act or omission causes d amage to another, there being fault or negligence, is obliged to pay for the dam age done. Such fault or negligence, if there is no pre-existing contractual rela tion between the parties, is called a quasi-delict. To sustain a claim based on quasi-delict, the following requisites must concur: (a) damage suffered by plain tiff; (b) fault or negligence of defendant; and (c) connection of cause and effe ct between the fault or negligence of defendant and the damage incurred by plain tiff.[16] There is no dispute that the Nissan van suffered damage. That is borne by the re cords and conceded by the parties. The outstanding issues are negligence and pro ximate cause. Tersely put, the twin issues are: (a) whether or not prime mover d river Limbaga was negligent in parking the vehicle; and (b) whether or not his n egligence was the proximate cause of the damage to the Nissan van. Limbaga was negligent in parking the prime mover on the national highway; he fai led to prevent or minimize the risk to oncoming motorists.

Negligence is defined as the failure to observe for the protection of the intere sts of another person that degree of care, precaution, and vigilance which the c ircumstances justly demand, whereby such other person suffers injury.[17] The Su preme Court stated the test of negligence in the landmark case Picart v. Smith[1 8] as follows: The test by which to determine the existence or negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act u se that reasonable care and caution which an ordinary person would have used in the same situation? If not, then he is guilty of negligence. The law here in eff ect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liabi lity by that. (Underscoring supplied) The test of negligence is objective. We measure the act or omission of the tortf easor with that of an ordinary reasonable person in the same situation. The test , as applied to this case, is whether Limbaga, in parking the prime mover, used that reasonable care and caution which an ordinary reasonable person would have used in the same situation. We find that Limbaga was utterly negligent in parking the prime mover askew on t he right side of the national highway. The vehicle occupied a substantial portio n of the national road on the lane of the passenger bus. It was parked at the sh oulder of the road with its left wheels still on the cemented highway and the ri ght wheels on the sand and gravel shoulder of the highway. It is common sense th at the skewed parking of the prime mover on the national road posed a serious ri sk to oncoming motorists. It was incumbent upon Limbaga to take some measures to prevent that risk, or at least minimize it.

We are unable to agree with the CA conclusion it would have been dangerous and quit e impossible to further park the prime mover on the graveled shoulder of the roa d because the prime mover may tilt and the bulldozer may fall off. The photographs taken after the incident show that it could have been possible for Limbaga to pa rk the prime mover completely on the shoulder of the national road without risk to oncoming motorists. We agree with the RTC observation on this point, thus: x x x The statement of Limbaga that he could not park the prime mover and traile r deeper into the sand and gravel shoulder of the highway to his right because t here were banana plants is contradicted by the picture marked Exhibit F. The picture hows that there was ample space on the shoulder. If defendant Limbaga was carefu l and prudent enough, he should have the prime mover and trailer traveled more d istance forward so that the bodies of the prime mover and trailer would be far m ore on the shoulder rather than on the cemented highway when they were parked. A lthough at the time of the incident, it was about 4:45 in the morning and it was drizzling but there is showing that it was pitch dark that whoever travels alon g the highway must be extra careful. If the Joana Paula bus swerved to the lane on which the Nissan ice van was properly traveling, as prescribed by Traffic Rules an Regulations, it is because the driver of the bus did not see at a distance the parked prime mover and trailer on the bus proper lane because there was no warning signs of danger of any kind that can be seen from a distance.[19] Limbaga also failed to take proper steps to minimize the risk posed by the impro perly parked prime mover. He did not immediately inform his employer, private re spondent Liberty Forest, Inc., that the prime mover suffered two tire blowouts a nd that he could not have them fixed because he had only one spare tire. Instead of calling for help, Limbaga took it upon himself to simply place banana leaves on the front and rear of the prime mover to serve as warning to oncoming motori sts. Worse, Limbaga slept on the prime mover instead of standing guard beside th e vehicle. By his own account, Limbaga was sleeping on the prime mover at the ti me of the collision and that he was only awakened by the impact of the Nissan va n and the passenger bus on the prime mover.[20]

Limbaga also admitted on cross-examination that it was his first time to drive t he prime mover with trailer loaded with a D-8 caterpillar bulldozer.[21] We find that private respondent Liberty Forest, Inc. was utterly negligent in allowing a novice driver, like Limbaga, to operate a vehicle, such as a truck loaded with a bulldozer, which required highly specialized driving skills. Respondent emplo yer clearly failed to properly supervise Limbaga in driving the prime mover. The RTC noted that private respondent Liberty Forest, Inc. also failed to keep t he prime mover in proper condition at the time of the collision. The prime mover had worn out tires. It was only equipped with one spare tire. It was for this r eason that Limbaga was unable to change the two blown out tires because he had o nly one spare. The bulldozer was not even loaded properly on the prime mover, wh ich caused the tire blowouts. All told, We agree with the RTC parking the prime mover on the est, Inc. was also negligent in t the prime mover was in proper that private respondent Limbaga was negligent in national highway. Private respondent Liberty For failing to supervise Limbaga and in ensuring tha condition.

The case of Baliwag Transit, Inc. v. Court of Appeals is inapplicable; Limbaga d id not put lighted kerosene tin cans on the front and rear of the prime mover. Anent the absence of an early warning device on the prime mover, the CA erred in accepting the bare testimony of Limbaga that he placed kerosene lighted tin can s on the front and rear of the prime mover. The evidence on records belies such claim. The CA reliance on Baliwag Transit, Inc. v. Court of Appeals[22] as autho rity for the proposition that kerosene lighted tin cans may act as substitute ea rly warning device is misplaced. First, the traffic incident report did not mention any lighted tin cans on the p rime mover or within the immediate vicinity of the accident. Only banana leaves were placed on the prime mover. The report reads: VIII RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No. 7788, with Plate No . LVA-137, driven by one Temestocles Relova v. Antero, of legal age, married and a resident of San Roque, Kitcharao, Agusan del Norte, while traveling along the National Highway, coming from the east going to the west direction, as it moves along the way and upon reaching Brgy. Sumilihon, Butuan City to evade bumping t o the approaching Nissan Ice Van with Plate No. PNT-247, driven by one Rogelio C ortez y Ceneza. As the result, the Joana Paula Bus accidentally busideswept (sic ) to the parked Prime Mover with Trailer loaded with Bulldozer without early war ning device, instead placing only dry banana leaves three (3) meters at the rear portion of the Trailer, while failure to place at the front portion, and the sa id vehicle occupied the whole lane. As the result, the Joana Paula Bus hit to th e left edge blade of the Bulldozer. Thus, causing the said bus swept to the narr ow shouldering, removing the rear four (4) wheels including the differential and injuring the above-stated twelve (12) passengers and damaged to the right side fender above the rear wheel. Thus, causing damage on it. While the Nissan Ice Va n in evading, accidentally swerved to the left lane and accidentally bumped to t he front bumper of the parked Prime Mover with Trailer loaded with Bulldozer. Th us, causing heavy damage to said Nissan Ice Van including the cargoes of the sai d van.[23] Second, SPO4 Pame, who investigated the collision, testified[24] that only banan a leaves were placed on the front and rear of the prime mover. He did not see an y lighted tin cans in the immediate vicinity of the collision. Third, the claim of Limbaga that he placed lighted tin cans on the front and rea r of the prime mover belatedly surfaced only during his direct examination. No a llegation to this effect was made by private respondents in their Answer to the

complaint for damages. Petitioner s counsel promptly objected to the testimony of Li mbaga, thus: ATTY. ROSALES: Q. Now you mentioned about placing some word signs in front and at the rear of t he prime mover with trailer, will you please describe to us what this word signs are? A. We placed a piece of cloth on tin cans and filled them with crude oil. And th ese tin cans were lighted and they are like torches. These two lights or torches were placed in front and at the rear side of the prime mover with trailer. Afte r each torch, we placed banana trunk. The banana trunk is placed between the two (2) torches and the prime mover, both on the rear and on the front portion of t he prime mover. Q. How far was the lighted tin cans with wick placed in front of the prime mover . ATTY. ASIS: At this point, we will be objecting to questions particularly referring to the a lleged tin cans as some of the warning-sign devices, considering that there is n o allegation to that effect in the answer of the defendants. The answer was just limited to the numbers 4 & 5 of the answer. And, therefore, if we follow the ru le of the binding effect of an allegation in the complaint, then the party will not be allowed to introduce evidence to attack jointly or rather the same, parag raph 5 states, warning device consisting of 3 banana trunks, banana items and le aves were filed. He can be cross-examined in the point, Your Honor. COURT: Q. Put that on record that as far as this tin cans are concerned, the plaintiffs are interposing continuing objections. But the Court will allow the question.[2 5] We thus agree with the RTC that Limbaga did not place lighted tin cans on the fr ont and rear of the prime mover. We give more credence to the traffic incident r eport and the testimony of SPO4 Pame that only banana leaves were placed on the vehicle. Baliwag Transit, Inc. v. Court of Appeals[26] thus finds no application to the case at bar. The skewed parking of the prime mover was the proximate cause of the collision. Proximate cause is defined as that cause, which, in natural and continuous seque nce, unbroken by any efficient intervening cause, produces the injury, and witho ut which the result would not have occurred. More comprehensively, proximate cau se is that cause acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor , the final event in the chain immediately effecting the injury as natural and p robable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and int elligent person, have reasonable ground to expect at the moment of his act or de fault that an injury to some person might probably result therefrom.[27] There is no exact mathematical formula to determine proximate cause. It is based upon mixed considerations of logic, common sense, policy and precedent.[28] Pla intiff must, however, establish a sufficient link between the act or omission an d the damage or injury. That link must not be remote or far-fetched; otherwise, no liability will attach. The damage or injury must be a natural and probable re sult of the act or omission. In the precedent-setting Vda. de Bataclan v. Medina ,[29] this Court discussed the necessary link that must be established between t he act or omission and the damage or injury, viz.: It may be that ordinarily, when a passenger bus overturns, and pins down a passe nger, merely causing him physical injuries, if through some event, unexpected an

d extraordinary, the overturned bus is set on fire, say, by lightning, or if som e highwaymen after looting the vehicle sets it on fire, and the passenger is bur ned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case and und er the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause of the death of Bataclan was the overturning of the bus, this fo r the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpe cted; that the coming of the men with a lighted torch was in response to the cal l for help, made not only by the passengers, but most probably, by the driver an d the conductor themselves, and that because it was very dark (about 2:30 in the morning), the rescuers had to carry a light with them; and coming as they did f rom a rural area where lanterns and flashlights were not available, they had to use a torch, the most handy and available; and what was more natural than that s aid rescuers should innocently approach the overturned vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the me n with the torch was to be expected and was natural sequence of the overturning of the bus, the trapping of some of its passengers bus, the trapping of some of its passengers and the call for outside help. The ruling in Bataclan has been repeatedly cited in subsequent cases as authorit y for the proposition that the damage or injury must be a natural or probable re sult of the act or omission. Here, We agree with the RTC that the damage caused to the Nissan van was a natural and probable result of the improper parking of t he prime mover with trailer. As discussed, the skewed parking of the prime mover posed a serious risk to oncoming motorists. Limbaga failed to prevent or minimi ze that risk. The skewed parking of the prime mover triggered the series of even ts that led to the collision, particularly the swerving of the passenger bus and the Nissan van. Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages that resulted from the skewed parking of the prime mover. Their liability includ es those damages resulting from precautionary measures taken by other motorist i n trying to avoid collision with the parked prime mover. As We see it, the passe nger bus swerved to the right, onto the lane of the Nissan van, to avoid collidi ng with the improperly parked prime mover. The driver of the Nissan van, Ortiz, reacted swiftly by swerving to the left, onto the lane of the passenger bus, hit ting the parked prime mover. Ortiz obviously would not have swerved if not for t he passenger bus abruptly occupying his van s lane. The passenger bus, in turn, woul d not have swerved to the lane of the Nissan van if not for the prime mover impr operly parked on its lane. The skewed parking is the proximate cause of the dama ge to the Nissan van. In Phoenix Construction, Inc. v. Intermediate Appellate Court,[30] this Court he ld that a similar vehicular collision was caused by the skewed parking of a dump truck on the national road, thus: The conclusion we draw from the factual circumstances outlined above is that pri vate respondent Dionisio was negligent the night of the accident. He was hurryin g home that night and driving faster than he should have been. Worse, he extingu ished his headlights at or near the intersection of General Lacuna and General S antos Streets and thus did not see the dump truck that was parked askew and stic king out onto the road lane. Nonetheless, we agree with the Court of First Instance and the Intermediate Appe llate Court that the legal and proximate cause of the accident and of Dionisio s inj uries was the wrongful or negligent manner in which the dump truck was parked in o ther words, the negligence of petitioner Carbonel. That there was a reasonable r elationship between petitioner Carbonel s negligence on the one hand and the acciden t and respondent s injuries on the other hand, is quite clear. Put in a slightly dif ferent manner, the collision of Dionisio s car with the dump truck was a natural and foreseeable consequence of the truck driver s negligence.

x x x x

We believe, secondly, that the truck driver s negligence far from being a passive and tatic condition was rather an indispensable and efficient cause. The collision betw een the dump truck and the private respondent s car would in all probability not hav e occurred had the dump truck not been parked askew without any warning lights o r reflector devices. The improper parking of the dump truck created an unreasona ble risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Di onisio s negligence, although later in point of time than the truck driver s negligence and, therefore, closer to the accident, was not an efficient intervening or inde pendent cause. What the Petitioner describes as an intervening cause was no more than a foreseeable consequence of the risk created by the negligent manner in which t he truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created. Dionisio s negli gence was not of an independent and overpowering nature as to cut, as it were, t he chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. x x x (Underscoring supplied) We cannot rule on the proportionate or contributory liability of the passenger b us, if any, because it was not a party to the case; joint tortfeasors are solida rily liable.

The CA also faults the passenger bus for the vehicular collision. The appellate court noted that the passenger bus was aware of the presence of the prime mover on it lane, but it still proceeded to occupy the lane of the Nissan van. The passenge r bus also miscalculated its distance from the prime mover when it hit the vehic le. We cannot definitively rule on the proportionate or contributory liability of th e Joana Paula passenger bus vis- -vis the prime mover because it was not a party to the complaint for damages. Due process dictates that the passenger bus must b e given an opportunity to present its own version of events before it can be hel d liable. Any contributory or proportionate liability of the passenger bus must be litigated in a separate action, barring any defense of prescription or laches . Insofar as petitioner is concerned, the proximate cause of the collision was t he improper parking of the prime mover. It was the improper parking of the prime mover which set in motion the series of events that led to the vehicular collis ion. Even granting that the passenger bus was at fault, it s fault will not necessarily a bsolve private respondents from liability. If at fault, the passenger bus will b e a joint tortfeasor along with private respondents. The liability of joint tort feasors is joint and solidary. This means that petitioner may hold either of the m liable for damages from the collision. In Philippine National Construction Cor poration v. Court of Appeals,[31] this Court held: According to the great weight of authority, where the concurrent or successive n egligent acts or omission of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single i njury to a third person and it is impossible to determine in what proportion eac h contributed to the injury, either is responsible for the whole injury, even th ough his act alone might not have caused the entire injury, or the same damage m ight have resulted from the acts of the other tort-feasor x x x. In Far Eastern Shipping Company v. Court of Appeals, the Court declared that the liability of joint tortfeasors is joint and solidary, to wit: It may be said, as a general rule, that negligence in order to render a person l iable need not be the sole cause of an injury. It is sufficient that his neglige nce, concurring with one or more efficient causes other than plaintiff s, is the pro

ximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resul ted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wro ngful acts of the other concurrent tortfeasors. Where several causes producing a n injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the cause s and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more cu lpable, and that the duty owed by them to the injured person was not the same. N o actor s negligence ceases to be a proximate cause merely because it does not excee d the negligence of other actors. Each wrongdoer is responsible for the entire r esult and is liable as though his acts were the sole cause of the injury. There is no contribution between joint tortfeasors whose liability is solidary s ince both of them are liable for the total damage. Where the concurrent or succe ssive negligent acts or omissions of two or more persons, although acting indepe ndently, are in combination with the direct and proximate cause of a single inju ry to a third person, it is impossible to determine in what proportion each cont ributed to the injury and either of them is responsible for the whole injury. Wh ere their concurring negligence resulted in injury or damage to a third party, t hey become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 of the Civil Code. (Underscoring supplied) All told, all the elements of quasi delict have been proven by clear and convinc ing evidence. The CA erred in absolving private respondents from liability for t he vehicular collision. Final Note It is lamentable that the vehicular collision in this case could have been easil y avoided by following basic traffic rules and regulations and road safety stand ards. In hindsight, private respondent Limbaga could have prevented the three-wa y vehicular collision if he had properly parked the prime mover on the shoulder of the national road. The improper parking of vehicles, most especially along th e national highways, poses a serious and unnecessary risk to the lives and limbs of other motorists and passengers. Drivers owe a duty of care to follow basic t raffic rules and regulations and to observe road safety standards. They owe that duty not only for their own safety, but also for that of other motorists. We ca n prevent most vehicular accidents by simply following basic traffic rules and r egulations. We also note a failure of implementation of basic safety standards, particularly the law on early warning devices. This applies even more to trucks and big vehi cles, which are prone to mechanical breakdown on the national highway. The law, as crafted, requires vehicles to be equipped with triangular reflectorized plate s.[32] Vehicles without the required early warning devices are ineligible for re gistration.[33] Vehicle owners may also be arrested and fined for non-compliance with the law.[34] The Land Transportation Office (LTO) owes a duty to the public to ensure that al l vehicles on the road meet basic and minimum safety features, including that of early warning devices. It is most unfortunate that We still see dilapidated and rundown vehicles on the road with substandard safety features. These vehicles n ot only pose a hazard to the safety of their occupants but that of other motoris ts. The prime mover truck in this case should not have been granted registration because it failed to comply with the minimum safety features required for vehic les on the road.

It is, indeed, time for traffic enforcement agencies and the LTO to strictly enf orce all pertinent laws and regulations within their mandate. WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated August 2 8, 2003 is hereby SET ASIDE. The RTC decision dated August 7, 2001 is REINSTATED IN FULL. SO ORDERED. G.R. No. 165732 December 14, 2006

SAFEGUARD SECURITY AGENCY, INC., and ADMER PAJARILLO, petitioners, vs. LAURO TANGCO, VAL TANGCO, VERN LARRY TANGCO, VAN LAURO TANGCO, VON LARRIE TANGCO , VIEN LARI TANGCO and VIVIEN LAURIZ TANGCO, respondent. D E C I S I O N AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari filed by Safeguard Security Age ncy, Inc. (Safeguard) and Admer Pajarillo (Pajarillo) assailing the Decision1 da ted July 16, 2004 and the Resolution2 dated October 20, 2004 issued by the Court of Appeals (CA) in CA-G.R. CV No. 77462. On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to Ecology Bank, Katipunan Branch, Quezon City, to renew her time deposit per advis e of the bank's cashier as she would sign a specimen card. Evangeline, a duly li censed firearm holder with corresponding permit to carry the same outside her re sidence, approached security guard Pajarillo, who was stationed outside the bank , and pulled out her firearm from her bag to deposit the same for safekeeping. S uddenly, Pajarillo shot Evangeline with his service shotgun hitting her in the a bdomen instantly causing her death. Lauro Tangco, Evangeline's husband, together with his six minor children (respon dents) filed with the Regional Trial Court (RTC) of Quezon City, a criminal case of Homicide against Pajarillo, docketed as Criminal Case No. 0-97-73806 and ass igned to Branch 78. Respondents reserved their right to file a separate civil ac tion in the said criminal case. The RTC of Quezon City subsequently convicted Pa jarillo of Homicide in its Decision dated January 19, 2000.3 On appeal to the CA , the RTC decision was affirmed with modification as to the penalty in a Decisio n4 dated July 31, 2000. Entry of Judgment was made on August 25, 2001. Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City, a complaint5 for damages against Pajarillo for negligently shooting Evang eline and against Safeguard for failing to observe the diligence of a good fathe r of a family to prevent the damage committed by its security guard. Respondents prayed for actual, moral and exemplary damages and attorney's fees. In their Answer,6 petitioners denied the material allegations in the complaint a nd alleged that Safeguard exercised the diligence of a good father of a family i n the selection and supervision of Pajarillo; that Evangeline's death was not du e to Pajarillo's negligence as the latter acted only in self-defense. Petitioner s set up a compulsory counterclaim for moral damages and attorney's fees. Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision,7 th e dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of Evangeline Tangco, and against defendants Admer Pajarillo and Safeguard Security Agency, Inc. ordering said defendants to pay the plaintiffs, jointly and severa lly, the following: 1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED THIRTY PESOS (P157,430.00), as actual damages 2. FIFTY THOUSAND PESOS (P50,000.00) as death indemnity; 3. ONE MILLION PESOS (P1,000,000.00), as moral damages; 4. THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary damages; 5. THIRTY THOUSAND PESOS (P30,000.00), as attorney's fees; and 6. costs of suit. For lack of merit, defendants' counterclaim is hereby DISMISSED. SO ORDERED. 8 The RTC found respondents to be entitled to damages. It rejected Pajarillo's cla im that he merely acted in self-defense. It gave no credence to Pajarillo's bare claim that Evangeline was seen roaming around the area prior to the shooting in cident since Pajarillo had not made such report to the head office and the polic e authorities. The RTC further ruled that being the guard on duty, the situation demanded that he should have exercised proper prudence and necessary care by as king Evangeline for him to ascertain the matter instead of shooting her instantl y; that Pajarillo had already been convicted of Homicide in Criminal Case No. 097-73806; and that he also failed to proffer proof negating liability in the ins tant case. The RTC also found Safeguard as employer of Pajarillo to be jointly and severall y liable with Pajarillo. It ruled that while it may be conceded that Safeguard h ad perhaps exercised care in the selection of its employees, particularly of Paj arillo, there was no sufficient evidence to show that Safeguard exercised the di ligence of a good father of a family in the supervision of its employee; that Sa feguard's evidence simply showed that it required its guards to attend trainings and seminars which is not the supervision contemplated under the law; that supe rvision includes not only the issuance of regulations and instructions designed for the protection of persons and property, for the guidance of their servants a nd employees, but also the duty to see to it that such regulations and instructi ons are faithfully complied with. Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its assailed Decision, the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with the modification that Safeguard Security Agency, Inc.'s civil liability in this cas e is only subsidiary under Art. 103 of the Revised Penal Code. No pronouncement as to costs.9 In finding that Safeguard is only subsidiarily liable, the CA held that the appl icable provisions are not Article 2180 in relation to Article 2176 of the Civil Code, on quasi-delicts, but the provisions on civil liability arising from felon ies under the Revised Penal Code; that since Pajarillo had been found guilty of Homicide in a final and executory judgment and is said to be serving sentence in Muntinlupa, he must be adjudged civilly liable under the provisions of Article

100 of the Revised Penal Code since the civil liability recoverable in the crimi nal action is one solely dependent upon conviction, because said liability arise s from the offense charged and no other; that this is also the civil liability t hat is deemed extinguished with the extinction of the penal liability with a pro nouncement that the fact from which the civil action might proceed does not exis t; that unlike in civil liability arising from quasi-delict, the defense of dili gence of a good father of a family in the employment and supervision of employee s is inapplicable and irrelevant in civil liabilities based on crimes or ex-deli cto; that Article 103 of the Revised Penal Code provides that the liability of a n employer for the civil liability of their employees is only subsidiary, not jo int or solidary. Petitioners filed their Motion for Reconsideration which the CA denied in a Reso lution dated October 20, 2004. Hence, the instant Petition for Review on Certiorari with the following assignme nt of errors, to wit: The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo lia ble to respondents for the payment of damages and other money claims. The Honorable Court of Appeals gravely erred when it applied Article 103 of the Revised Penal Code in holding petitioner Safeguard solidarily [sic] liable with petitioner Pajarillo for the payment of damages and other money claims. The Honorable Court of Appeals gravely erred in failing to find that petitioner Safeguard Security Agency, Inc. exercised due diligence in the selection and sup ervision of its employees, hence, should be excused from any liability.10 The issues for resolution are whether (1) Pajarillo is guilty of negligence in s hooting Evangeline; and (2) Safeguard should be held solidarily liable for the d amages awarded to respondents. Safeguard insists that the claim for damages by respondents is based on culpa aq uiliana under Article 217611 of the Civil Code, in which case, its liability is jointly and severally with Pajarillo. However, since it has established that it had exercised due diligence in the selection and supervision of Pajarillo, it sh ould be exonerated from civil liability. We will first resolve whether the CA correctly held that respondents, in filing a separate civil action against petitioners are limited to the recovery of damag es arising from a crime or delict, in which case the liability of Safeguard as e mployer under Articles 102 and 103 of the Revised Penal Code12 is subsidiary and the defense of due diligence in the selection and supervision of employee is no t available to it. The CA erred in ruling that the liability of Safeguard is only subsidiary. The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules on Criminal Procedure, as amended, to wit: SECTION 1. Institution of criminal and civil actions. - When a criminal action i s instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil a ction prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, a nd damages under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippi nes arising from the same act or omission of the accused.

Respondents reserved the right to file a separate civil action and in fact filed the same on January 14, 1998. The CA found that the source of damages in the instant case must be the crime of homicide, for which he had already been found guilty of and serving sentence th ereof, thus must be governed by the Revised Penal Code. We do not agree. An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal Code; and (2) independent civil liabiliti es, such as those (a) not arising from an act or omission complained of as a fel ony, e.g., culpa contractual or obligations arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action und er Article 33 of the Civil Code. Either of these liabilities may be enforced aga inst the offender subject to the caveat under Article 2177 of the Civil Code tha t the offended party cannot recover damages twice for the same act or omission o r under both causes.13 It is important to determine the nature of respondents' cause of action. The nat ure of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action.14 The purpose of an action or suit and the law to govern it is to be determined not by the claim of the party filing the actio n, made in his argument or brief, but rather by the complaint itself, its allega tions and prayer for relief.15 The pertinent portions of the complaint read: 7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the Ec ology Bank Katipunan Branch, Quezon City, who was employed and under employment of Safeguard Security Agency, Inc. hence there is employer-employee relationship between co-defendants. The Safeguard Security Agency, Inc. failed to observe the diligence of a good fa ther of a family to prevent damage to herein plaintiffs. 8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought her firearm out of her bag, suddenly without exercising necessary caution/care, and in idiotic manner, with the use of his shotgun, fired and burst bullets upon Ev angeline M. Tangco, killing her instantly. x x x x x x x 16. That defendants, being employer and the employee are jointly and severally l iable for the death of Evangeline M. Tangco.16 Thus, a reading of respondents' complaint shows that the latter are invoking the ir right to recover damages against Safeguard for their vicarious responsibility for the injury caused by Pajarillo's act of shooting and killing Evangeline und er Article 2176, Civil Code which provides: ARTICLE 2176. Whoever by act or omission causes damage to another, there being f ault or negligence, is obliged to pay for the damage done. Such fault or neglige nce, if there is no pre-existing contractual relation between the parties is cal led a quasi-delict and is governed by the provisions of this Chapter.

The scope of Article 2176 is not limited to acts or omissions resulting from neg ligence. In Dulay v. Court of Appeals,17 we held: x x x Well-entrenched is the doctrine that Article 2176 covers not only acts com mitted with negligence, but also acts which are voluntary and intentional. As fa r back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that: "x x x Article 2176, where it refers to "fault or negligence," covers not only a cts "not punishable by law" but also acts criminal in character, whether intenti onal and voluntary or negligent. Consequently, a separate civil action lies agai nst the offender in a criminal act, whether or not he is criminally prosecuted a nd found guilty or acquitted, provided that the offended party is not allowed, i f he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assu ming the awards made in the two cases vary. In other words, the extinction of ci vil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas th e civil liability for the same act considered as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the cr iminal act charged has not happened or has not been committed by the accused. Br iefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana inclu des voluntary and negligent acts which may be punishable by law." (Emphasis supp lied) The civil action filed by respondents was not derived from the criminal liabilit y of Pajarillo in the criminal case but one based on culpa aquiliana or quasi-de lict which is separate and distinct from the civil liability arising from crime. 18 The source of the obligation sought to be enforced in the civil case is a qua si-delict not an act or omission punishable by law. In Bermudez v. Melencio-Herrera,19 where the issue involved was whether the civi l action filed by plaintiff-appellants is founded on crime or on quasi-delict, w e held: x x x The trial court treated the case as an action based on a crime in view of the reservation made by the offended party in the criminal case (Criminal Case N o. 92944), also pending before the court, to file a separate civil action. Said the trial court: It would appear that plaintiffs instituted this action on the assumption that de fendant Pontino's negligence in the accident of May 10, 1969 constituted a quasi -delict. The Court cannot accept the validity of that assumption. In Criminal Ca se No. 92944 of this Court, plaintiffs had already appeared as complainants. Whi le that case was pending, the offended parties reserved the right to institute a separate civil action. If, in a criminal case, the right to file a separate civ il action for damages is reserved, such civil action is to be based on crime and not on tort. That was the ruling in Joaquin vs. Aniceto, L-18719, Oct. 31, 1964 . We do not agree. The doctrine in the case cited by the trial court is inapplicab le to the instant case x x x. x x x x In cases of negligence, the injured party or his heirs has the choice between an action to enforce the civil liability arising from crime under Article 100 of t he Revised Penal Code and an action for quasi-delict under Article 2176-2194 of the Civil Code. If a party chooses the latter, he may hold the employer solidari ly liable for the negligent act of his employee, subject to the employer's defen

se of exercise of the diligence of a good father of the family. In the case at bar, the action filed by appellant was an action for damages base d on quasi-delict. The fact that appellants reserved their right in the criminal case to file an independent civil action did not preclude them from choosing to file a civil action for quasi-delict.20 (Emphasis supplied) Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already final and executory, such judgment has no relevance or importance to this case.21 It would have been entirely different if respondents' cause of acti on was for damages arising from a delict, in which case the CA is correct in fin ding Safeguard to be only subsidiary liable pursuant to Article 103 of the Revis ed Penal Code.22 As clearly shown by the allegations in the complaint, respondents' cause of acti on is based on quasi-delict. Under Article 2180 of the Civil Code, when the inju ry is caused by the negligence of the employee, there instantly arises a presump tion of law that there was negligence on the part of the master or the employer either in the selection of the servant or employee, or in the supervision over h im after selection or both. The liability of the employer under Article 2180 is direct and immediate. Therefore, it is incumbent upon petitioners to prove that they exercised the diligence of a good father of a family in the selection and s upervision of their employee. We must first resolve the issue of whether Pajarillo was negligent in shooting E vangeline. The issue of negligence is factual in nature. Whether a person is negligent or n ot is a question of fact, which, as a general rule, we cannot pass upon in a pet ition for review on certiorari, as our jurisdiction is limited to reviewing erro rs of law.23 Generally, factual findings of the trial court, affirmed by the CA, are final and conclusive and may not be reviewed on appeal. The established exc eptions are: (1) when the inference made is manifestly mistaken, absurd or impos sible; (2) when there is grave abuse of discretion; (3) when the findings are gr ounded entirely on speculations, surmises or conjectures; (4) when the judgment of the CA is based on misapprehension of facts; (5) when the findings of fact ar e conflicting; (6) when the CA, in making its findings, went beyond the issues o f the case and the same is contrary to the admissions of both appellant and appe llee; (7) when the findings of fact are conclusions without citation of specific evidence on which they are based; (8) when the CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, w ould justify a different conclusion; and (9) when the findings of fact of the CA are premised on the absence of evidence and are contradicted by the evidence on record. [24] A thorough review of the records of the case fails to show any cogent reason for us to deviate from the factual finding of the trial court and affirmed by the C A that petitioner Pajarillo was guilty of negligence in shooting Evangeline. Respondents' evidence established that Evangeline's purpose in going to the bank was to renew her time deposit.25 On the other hand, Pajarillo claims that Evang eline drew a gun from her bag and aimed the same at him, thus, acting instinctiv ely, he shot her in self-defense. Pajarillo testified that when Evangeline aimed the gun at him at a distance of a bout one meter or one arm's length26 he stepped backward, loaded the chamber of his gun and shot her.27 It is however unimaginable that petitioner Pajarillo cou ld still make such movements if indeed the gun was already pointed at him. Any m ovement could have prompted Evangeline to pull the trigger to shoot him.

Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere apprehension that Evangeline will stage a bank robbery. However, such c laim is befuddled by his own testimony. Pajarillo testified that prior to the in cident, he saw Evangeline roaming under the fly over which was about 10 meters a way from the bank28 and saw her talking to a man thereat;29 that she left the ma n under the fly-over, crossed the street and approached the bank. However, excep t for the bare testimony of Pajarillo, the records do not show that indeed Evang eline was seen roaming near the vicinity of the bank and acting suspiciously pri or to the shooting incident. In fact, there is no evidence that Pajarillo called the attention of his head guard or the bank's branch manager regarding his conc erns or that he reported the same to the police authorities whose outpost is jus t about 15 meters from the bank. Moreover, if Evangeline was already roaming the vicinity of the bank, she could have already apprised herself that Pajarillo, who was posted outside the bank, w as armed with a shotgun; that there were two guards inside the bank30 manning th e entrance door. Thus, it is quite incredible that if she really had a companion , she would leave him under the fly-over which is 10 meters far from the bank an d stage a bank robbery all by herself without a back-up. In fact, she would have known, after surveying the area, that aiming her gun at Pajarillo would not ens ure entrance to the bank as there were guards manning the entrance door. Evidence, to be believed, must not only proceed from the mouth of a credible wit ness, but it must be credible in itself such as the common experience and observ ation of mankind can approve as probable under the circumstances. We have no tes t of the truth of human testimony, except its conformity to our knowledge, obser vation and experience. Whatever is repugnant to these belongs to the miraculous and is outside judicial cognizance.31 That Evangeline just wanted to deposit her gun before entering the bank and was actually in the act of pulling her gun from her bag when petitioner Pajarillo re cklessly shot her, finds support from the contentions raised in petitioners' pet ition for review where they argued that when Evangeline approached the bank, she was seen pulling a gun from inside her bag and petitioner Pajarillo who was sud denly beset by fear and perceived the act as a dangerous threat, shot and killed the deceased out of pure instinct;32 that the act of drawing a gun is a threate ning act, regardless of whether or not the gun was intended to be used against p etitioner Pajarillo;33 that the fear that was created in the mind of petitioner Pajarillo as he saw Evangeline Tangco drawing a gun from her purse was suddenly very real and the former merely reacted out of pure self-preservation.34 Considering that unlawful aggression on the part of Evangeline is absent, Pajari llo's claim of self-defense cannot be accepted specially when such claim was unc orroborated by any separate competent evidence other than his testimony which wa s even doubtful. Pajarillo's apprehension that Evangeline will shoot him to stag e a bank robbery has no basis at all. It is therefore clear that the alleged thr eat of bank robbery was just a figment of Pajarillo's imagination which caused s uch unfounded unlawful aggression on his part. Petitioners argue that Evangeline was guilty of contributory negligence. Althoug h she was a licensed firearm holder, she had no business bringing the gun in suc h establishment where people would react instinctively upon seeing the gun; that had Evangeline been prudent, she could have warned Pajarillo before drawing the gun and did not conduct herself with suspicion by roaming outside the vicinity of the bank; that she should not have held the gun with the nozzle pointed at Pa jarillo who mistook the act as hold up or robbery. We are not persuaded. As we have earlier held, Pajarillo failed to substantiate his claim that Evangel

ine was seen roaming outside the vicinity of the bank and acting suspiciously pr ior to the shooting incident. Evangeline's death was merely due to Pajarillo's n egligence in shooting her on his imagined threat that Evangeline will rob the ba nk. Safeguard contends that it cannot be jointly held liable since it had adequately shown that it had exercised the diligence required in the selection and supervi sion of its employees. It claims that it had required the guards to undergo the necessary training and to submit the requisite qualifications and credentials wh ich even the RTC found to have been complied with; that the RTC erroneously foun d that it did not exercise the diligence required in the supervision of its empl oyee. Safeguard further claims that it conducts monitoring of the activities of its personnel, wherein supervisors are assigned to routinely check the activitie s of the security guards which include among others, whether or not they are in their proper post and with proper equipment, as well as regular evaluations of t he employees' performances; that the fact that Pajarillo loaded his firearm cont rary to Safeguard's operating procedure is not sufficient basis to say that Safe guard had failed its duty of proper supervision; that it was likewise error to s ay that Safeguard was negligent in seeing to it that the procedures and policies were not properly implemented by reason of one unfortunate event. We are not convinced. Article 2180 of the Civil Code provides: Art. 2180. The obligation imposed by Article 2176 is demandable not only for one 's own acts or omissions, but also for those of persons for whom one is responsi ble. x x x x Employers shall be liable for the damages caused by their employees and househol d helpers acting within the scope of their assigned tasks, even though the forme r are not engaged in any business or industry. x x x x The responsibility treated of in this article shall cease when the persons herei n mentioned prove that they observed all the diligence of a good father of a fam ily to prevent damage. As the employer of Pajarillo, Safeguard is primarily and solidarily liable for t he quasi-delict committed by the former. Safeguard is presumed to be negligent i n the selection and supervision of his employee by operation of law. This presum ption may be overcome only by satisfactorily showing that the employer exercised the care and the diligence of a good father of a family in the selection and th e supervision of its employee. In the selection of prospective employees, employers are required to examine the m as to their qualifications, experience, and service records.35 On the other ha nd, due diligence in the supervision of employees includes the formulation of su itable rules and regulations for the guidance of employees and the issuance of p roper instructions intended for the protection of the public and persons with wh om the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be w arranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and mon itoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly repo rt on their supervisory functions.36 To establish these factors in a trial invol

ving the issue of vicarious liability, employers must submit concrete proof, inc luding documentary evidence. We agree with the RTC's finding that Safeguard had exercised the diligence in th e selection of Pajarillo since the record shows that Pajarillo underwent a psych ological and neuro-psychiatric evaluation conducted by the St. Martin de Porres Center where no psychoses ideations were noted, submitted a certification on the Pre-licensing training course for security guards, as well as police and NBI cl earances. The RTC did not err in ruling that Safeguard fell short of the diligence require d in the supervision of its employee, particularly Pajarillo. In this case, whil e Safeguard presented Capt. James Camero, its Director for Operations, who testi fied on the issuance of company rules and regulations, such as the Guidelines of Guards Who Will Be Assigned To Banks,37 Weapons Training,38 Safeguard Training Center Marksmanship Training Lesson Plan,39 Disciplinary/Corrective Sanctions,40 it had also been established during Camero's cross-examination that Pajarillo w as not aware of such rules and regulations.41 Notwithstanding Camero's clarifica tion on his re-direct examination that these company rules and regulations are l esson plans as a basis of guidelines of the instructors during classroom instruc tions and not necessary to give students copy of the same,42 the records do not show that Pajarillo had attended such classroom instructions. The records also failed to show that there was adequate training and continuous evaluation of the security guard's performance. Pajarillo had only attended an i n-service training on March 1, 1997 conducted by Toyota Sta. Rosa, his first ass ignment as security guard of Safeguard, which was in collaboration with Safeguar d. It was established that the concept of such training was purely on security o f equipments to be guarded and protection of the life of the employees.43 It had not been established that after Pajarillo's training in Toyota, Safeguard had ever conducted further training of Pajarillo when he was later assigned to guard a bank which has a different nature of business with that of Toyota. In fa ct, Pajarillo testified that being on duty in a bank is different from being on duty in a factory since a bank is a very sensitive area.44 Moreover, considering his reactions to Evangeline's act of just depositing her f irearm for safekeeping, i.e., of immediately shooting her, confirms that there w as no training or seminar given on how to handle bank clients and on human psych ology. Furthermore, while Safeguard would like to show that there were inspectors who g o around the bank two times a day to see the daily performance of the security g uards assigned therein, there was no record ever presented of such daily inspect ions. In fact, if there was really such inspection made, the alleged suspicious act of Evangeline could have been taken noticed and reported. Turning now to the award of damages, we find that the award of actual damages in the amount P157,430.00 which were the expenses incurred by respondents in conne ction with the burial of Evangeline were supported by receipts. The award of P50 ,000.00 as civil indemnity for the death of Evangeline is likewise in order. As to the award of moral damages, Article 2206 of the Civil Code provides that t he spouse, legitimate children and illegitimate descendants and ascendants of th e deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moral damages are awarded to enable the injured party to obtain m eans, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable action. Its award is aimed at restoration, as much as possible, of the spiritual status quo ante; th us it must be proportionate to the suffering inflicted.45 The intensity of the p

ain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the wealth or means of the offender.46 In this case, respondents testified as to their moral suffering caused by Evange line's death was so sudden causing respondent Lauro to lose a wife and a mother to six children who were all minors at the time of her death. In People v. Teeha nkee, Jr.,47 we awarded one million pesos as moral damages to the heirs of a sev enteen-year-old girl who was murdered. In Metro Manila Transit Corporation v. Co urt of Appeals,48 we likewise awarded the amount of one million pesos as moral d amages to the parents of a third year high school student and who was also their youngest child who died in a vehicular accident since the girl's death left a v oid in their lives. Hence, we hold that the respondents are also entitled to the amount of one million pesos as Evangeline's death left a void in the lives of h er husband and minor children as they were deprived of her love and care by her untimely demise. We likewise uphold the award of exemplary damages in the amount of P300,000.00. Under Article 2229 of the Civil Code, exemplary damages are imposed by way of ex ample or correction for the public good, in addition to moral, temperate, liquid ated or compensatory damages.49 It is awarded as a deterrent to socially deleter ious actions. In quasi-delict, exemplary damages may be granted if the defendant acted with gross negligence.50 Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered whe n, as in the instant case, exemplary damages are awarded. Hence, we affirm the a ward of attorney's fees in the amount of P30,000.00. WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 o f the Court of Appeals is AFFIRMED with MODIFICATION that the civil liability of petitioner Safeguard Security Agency, Inc. is SOLIDARY and PRIMARY under Articl e 2180 of the Civil Code. SO ORDERED. [G.R. No. 144274. September 20, 2004] NOSTRADAMUS VILLANUEVA petitioner, vs. PRISCILLA R. DOMINGO and LEANDRO LUIS R. DOMINGO, respondents. D E C I S I O N CORONA, J.: This is a petition to review the decision[1] of the Court of Appeals in CA-G.R. CV No. 52203 affirming in turn the decision of the trial court finding petitione r liable to respondent for damages. The dispositive portion read: WHEREFORE, the appealed decision is hereby AFFIRMED except the award of attorney s fees including appearance fees which is DELETED. SO ORDERED.[2] The facts of the case, as summarized by the Court of Appeals, are as follows: [Respondent] Priscilla R. Domingo is the registered owner of a silver Mitsubishi Lancer Car model 1980 bearing plate No. NDW 781 91 with [co-respondent] Leandro Luis R. Domingo as authorized driver. [Petitioner] Nostradamus Villanueva was t hen the registered owner of a green Mitsubishi Lancer bearing Plate No. PHK 201 91. On 22 October 1991 at about 9:45 in the evening, following a green traffic light , [respondent] Priscilla Domingo s silver Lancer car with Plate No. NDW 781 91 then

driven by [co-respondent] Leandro Luis R. Domingo was cruising along the middle lane of South Superhighway at moderate speed from north to south. Suddenly, a green Mitsubishi Lancer with plate No. PHK 201 91 driven by Renato Dela Cruz Ocfe mia darted from Vito Cruz Street towards the South Superhighway directly into th e path of NDW 781 91 thereby hitting and bumping its left front portion. As a re sult of the impact, NDW 781 91 hit two (2) parked vehicles at the roadside, the s econd hitting another parked car in front of it. Per Traffic Accident Report prepared by Traffic Investigator Pfc. Patrocinio N. Acido, Renato dela Cruz Ocfemia was driving with expired license and positive f or alcoholic breath. Hence, Manila Assistant City Prosecutor Oscar A. Pascua re commended the filing of information for reckless imprudence resulting to (sic) d amage to property and physical injuries. The original complaint was amended twice: first, impleading Auto Palace Car Exc hange as commercial agent and/or buyer-seller and second, impleading Albert Jau cian as principal defendant doing business under the name and style of Auto Pala ce Car Exchange. Except for Ocfemia, all the defendants filed separate answers to the complaint. [Petitioner] Nostradamus Villanueva claimed that he was no longer the owner of the car at the time of the mishap because it was swapped with a Pajero owned by Albert Jaucian/Auto Palace Car Exchange. For her part, Linda Gonzales declared that her presence at the scene of the accident was upon the request of the actua l owner of the Mitsubishi Lancer (PHK 201 91) [Albert Jaucian] for whom she had b een working as agent/seller. On the other hand, Auto Palace Car Exchange repres ented by Albert Jaucian claimed that he was not the registered owner of the car. Moreover, it could not be held subsidiary liable as employer of Ocfemia becaus e the latter was off-duty as utility employee at the time of the incident. Neit her was Ocfemia performing a duty related to his employment.[3] After trial, the trial court found petitioner liable and ordered him to pay resp ondent actual, moral and exemplary damages plus appearance and attorney s fees: WHEREFORE, judgment is hereby rendered for the plaintiffs, ordering Nostradamus Villanueva to pay the amount of P99,580 as actual damages, P25,000.00 as moral d amages, P25,000.00 as exemplary damages and attorney s fees in the amount of P10,0 00.00 plus appearance fees of P500.00 per hearing with legal interest counted fr om the date of judgment. In conformity with the law on equity and in accordance with the ruling in First Malayan Lending and Finance Corporation vs. Court of A ppeals (supra), Albert Jaucian is hereby ordered to indemnify Nostradamus Villan ueva for whatever amount the latter is hereby ordered to pay under the judgment. SO ORDERED.[4] The CA upheld the trial court s decision but deleted the award for appearance and attorney s fees because the justification for the grant was not stated in the body of the decision. Thus, this petition for review which raises a singular issue: MAY THE REGISTERED OWNER OF A MOTOR VEHICLE BE HELD LIABLE FOR DAMAGES ARISING F ROM A VEHICULAR ACCIDENT INVOLVING HIS MOTOR VEHICLE WHILE BEING OPERATED BY THE EMPLOYEE OF ITS BUYER WITHOUT THE LATTER S CONSENT AND KNOWLEDGE?[5] Yes. We have consistently ruled that the registered owner of any vehicle is directly and primarily responsible to the public and third persons while it is being oper ated.[6] The rationale behind such doctrine was explained way back in 1957 in Er ezo vs. Jepte[7]:

The principle upon which this doctrine is based is that in dealing with vehicles registered under the Public Service Law, the public has the right to assume or presume that the registered owner is the actual owner thereof, for it would be d ifficult for the public to enforce the actions that they may have for injuries c aused to them by the vehicles being negligently operated if the public should be required to prove who the actual owner is. How would the public or third perso ns know against whom to enforce their rights in case of subsequent transfers of the vehicles? We do not imply by his doctrine, however, that the registered owne r may not recover whatever amount he had paid by virtue of his liability to thir d persons from the person to whom he had actually sold, assigned or conveyed the vehicle. Under the same principle the registered owner of any vehicle, even if not used f or a public service, should primarily be responsible to the public or to third p ersons for injuries caused the latter while the vehicle is being driven on the h ighways or streets. The members of the Court are in agreement that the defendan t-appellant should be held liable to plaintiff-appellee for the injuries occasio ned to the latter because of the negligence of the driver, even if the defendant -appellant was no longer the owner of the vehicle at the time of the damage beca use he had previously sold it to another. What is the legal basis for his (defe ndant-appellant s) liability? There is a presumption that the owner of the guilty vehicle is the defendant-app ellant as he is the registered owner in the Motor Vehicles Office. Should he no t be allowed to prove the truth, that he had sold it to another and thus shift t he responsibility for the injury to the real and actual owner? The defendant hol ds the affirmative of this proposition; the trial court held the negative. The Revised Motor Vehicle Law (Act No. 3992, as amended) provides that no vehicl e may be used or operated upon any public highway unless the same is property re gistered. It has been stated that the system of licensing and the requirement t hat each machine must carry a registration number, conspicuously displayed, is o ne of the precautions taken to reduce the danger of injury to pedestrians and ot her travelers from the careless management of automobiles. And to furnish a mea ns of ascertaining the identity of persons violating the laws and ordinances, re gulating the speed and operation of machines upon the highways (2 R.C.L. 1176). Not only are vehicles to be registered and that no motor vehicles are to be used or operated without being properly registered for the current year, but that de alers in motor vehicles shall furnish thee Motor Vehicles Office a report showin g the name and address of each purchaser of motor vehicle during the previous mo nth and the manufacturer s serial number and motor number. (Section 5(c), Act No. 3992, as amended.) Registration is required not to make said registration the operative act by whic h ownership in vehicles is transferred, as in land registration cases, because t he administrative proceeding of registration does not bear any essential relatio n to the contract of sale between the parties (Chinchilla vs. Rafael and Verdagu er, 39 Phil. 888), but to permit the use and operation of the vehicle upon any p ublic highway (section 5 [a], Act No. 3992, as amended). The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, re sponsibility therefore can be fixed on a definite individual, the registered own er. Instances are numerous where vehicles running on public highways caused acc idents or injuries to pedestrians or other vehicles without positive identificat ion of the owner or drivers, or with very scant means of identification. It is to forestall these circumstances, so inconvenient or prejudicial to the public, that the motor vehicle registration is primarily ordained, in the interest of th e determination of persons responsible for damages or injuries caused on public highways:

One of the principal purposes of motor vehicles legislation is identification of the vehicle and of the operator, in case of accident; and another is that the k nowledge that means of detection are always available may act as a deterrent fro m lax observance of the law and of the rules of conservative and safe operation. Whatever purpose there may be in these statutes, it is subordinate at the last to the primary purpose of rendering it certain that the violator of the law or of the rules of safety shall not escape because of lack of means to discover him . The purpose of the statute is thwarted, and the displayed number becomes a sha re and delusion, if courts would entertain such defenses as that put forward by a ppellee in this case. No responsible person or corporation could be held liable for the most outrageous acts of negligence, if they should be allowed to pace a middleman between them and the public, and escape liability by the manner in whic h they recompense servants. (King vs. Brenham Automobile Co., Inc. 145 S.W. 278, 279.) With the above policy in mind, the question that defendant-appellant poses is: s hould not the registered owner be allowed at the trial to prove who the actual a nd real owner is, and in accordance with such proof escape or evade responsibili ty by and lay the same on the person actually owning the vehicle? We hold with the trial court that the law does not allow him to do so; the law, with its aim and policy in mind, does not relieve him directly of the responsibility that the law fixes and places upon him as an incident or consequence of registration. W ere a registered owner allowed to evade responsibility by proving who the suppos ed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially f or the damage or injury done. A victim of recklessness on the public highways i s usually without means to discover or identify the person actually causing the injury or damage. He has no means other than by a recourse to the registration i n the Motor Vehicles Office to determine who is the owner. The protection that the law aims to extend to him would become illusory were the registered owner gi ven the opportunity to escape liability by disproving his ownership. If the pol icy of the law is to be enforced and carried out, the registered owner should no t be allowed to prove the contrary to the prejudice of the person injured, that is, to prove that a third person or another has become the owner, so that he may thereby be relieved of the responsibility to the injured person. The above policy and application of the law may appear quite harsh and would see m to conflict with truth and justice. We do not think it is so. A registered o wner who has already sold or transferred a vehicle has the recourse to a third-p arty complaint, in the same action brought against him to recover for the damage or injury done, against the vendee or transferee of the vehicle. The inconveni ence of the suit is no justification for relieving him of liability; said inconv enience is the price he pays for failure to comply with the registration that th e law demands and requires. In synthesis, we hold that the registered owner, the defendant-appellant herein, is primarily responsible for the damage caused to the vehicle of the plaintiffappellee, but he (defendant-appellant) has a right to be indemnified by the rea l or actual owner of the amount that he may be required to pay as damage for the injury caused to the plaintiff-appellant.[8] Petitioner insists that he is not liable for damages since the driver of the veh icle at the time of the accident was not an authorized driver of the new (actual ) owner of the vehicle. He claims that the ruling in First Malayan Leasing and F inance Corporation vs. CA[9] implies that to hold the registered owner liable fo r damages, the driver of the vehicle must have been authorized, allowed and perm itted by its actual owner to operate and drive it. Thus, if the vehicle is drive n without the knowledge and consent of the actual owner, then the registered own er cannot be held liable for damages.

He further argues that this was the underlying theory behind Duavit vs. CA[10] w herein the court absolved the registered owner from liability after finding that the vehicle was virtually stolen from the owner s garage by a person who was neit her authorized nor employed by the owner. Petitioner concludes that the ruling i n Duavit and not the one in First Malayan should be applicable to him. Petitioner s argument lacks merit. Whether the driver is authorized or not by the actual owner is irrelevant to determining the liability of the registered owner who the law holds primarily and directly responsible for any accident, injury or death caused by the operation of the vehicle in the streets and highways. To re quire the driver of the vehicle to be authorized by the actual owner before the registered owner can be held accountable is to defeat the very purpose why motor vehicle legislations are enacted in the first place. Furthermore, there is nothing in First Malayan which even remotely suggests that the driver must be authorized before the registered owner can be held accountab le. In First Malayan, the registered owner, First Malayan Corporation, was held liable for damages arising from the accident even if the vehicle involved was al ready owned by another party: This Court has consistently ruled that regardless of who the actual owner is of a motor vehicle might be, the registered owner is the operator of the same with respect to the public and third persons, and as such, directly and primarily res ponsible for the consequences of its operation. In contemplation of law, the ow ner/operator of record is the employer of the driver, the actual operator and e mployer being considered merely as his agent (MYC-Agro-Industrial Corporation v s. Vda. de Caldo, 132 SCRA 10, citing Vargas vs. Langcay, 6 SCRA 174; Tamayo vs. Aquino, 105 Phil. 949). We believe that it is immaterial whether or not the driver was actually employed by the operator of record. It is even not necessary to prove who the actual owne r of the vehicle and the employer of the driver is. Granting that, in this case , the father of the driver is the actual owner and that he is the actual employe r, following the well-settled principle that the operator of record continues to be the operator of the vehicle in contemplation of law, as regards the public a nd third person, and as such is responsible for the consequences incident to its operation, we must hold and consider such owner-operator of record as the emplo yer, in contemplation of law, of the driver. And, to give effect to this policy of law as enunciated in the above cited decisions of this Court, we must now ex tend the same and consider the actual operator and employer as the agent of the operator of record. [11] Contrary to petitioner s position, the First Malayan ruling is applicable to him s ince the case involves the same set of facts ? the registered owner had previous ly sold the vehicle to someone else and was being driven by an employee of the n ew (actual) owner. Duavit is inapplicable since the vehicle there was not transf erred to another; the registered and the actual owner was one and the same perso n. Besides, in Duavit, the defense of the registered owner, Gilberto Duavit, was that the vehicle was practically stolen from his garage by Oscar Sabiano, as af firmed by the latter: Defendant Sabiano, in his testimony, categorically admitted that he took the jee p from the garage of defendant Duavit without the consent and authority of the l atter. He testified further that Duavit even filed charges against him for the t heft of the jeep but which Duavit did not push through as his (Sabiano s) parents apologized to Duavit on his behalf.[12] As correctly pointed out by the CA, the Duavit ruling is not applicable to petit ioner s case since the circumstance of unauthorized use was not present. He in fac

t voluntarily delivered his car to Albert Jaucian as part of the downpayment for a vehicle he purchased from Jaucian. Thus, he could not claim that the vehicle was stolen from him since he voluntarily ceded possession thereof to Jaucian. It was the latter, as the new (actual) owner, who could have raised the defense of theft to prove that he was not liable for the acts of his employee Ocfemia. Thu s, there is no reason to apply the Duavit ruling to this case. The ruling in First Malayan has been reiterated in BA Finance Corporation vs. CA [13] and more recently in Aguilar, Sr. vs. Commercial Savings Bank.[14] In BA Fi nance, we held the registered owner liable even if, at the time of the accident, the vehicle was leased by another party and was driven by the lessee s employee. In Aguilar, the registered owner-bank answered for damages for the accident even if the vehicle was being driven by the Vice-President of the Bank in his privat e capacity and not as an officer of the Bank, as claimed by the Bank. We find n o reason to deviate from these decisions. The main purpose of vehicle registration is the easy identification of the owner who can be held responsible for any accident, damage or injury caused by the ve hicle. Easy identification prevents inconvenience and prejudice to a third party injured by one who is unknown or unidentified. To allow a registered owner to e scape liability by claiming that the driver was not authorized by the new (actua l) owner results in the public detriment the law seeks to avoid. Finally, the issue of whether or not the driver of the vehicle during the accide nt was authorized is not at all relevant to determining the liability of the reg istered owner. This must be so if we are to comply with the rationale and princi ple behind the registration requirement under the motor vehicle law. WHEREFORE, the petition is hereby DENIED. The January 26, 2000 decision of the Court of Appeals is AFFIRMED. SO ORDERED. G.R. No. 122039 May 31, 2000 VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents. MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Court of App eals, dated March 31, 1991, reversing the contrary decision of the Regional Tria l Court, Branch 36, Dumaguete City, and awarding damages instead to private resp ondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage. The facts, as found by the Court of Appeals, are as follows: At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeur che G. Sunga, then a college freshman majoring in Physical Education at the Sili man University, took a passenger jeepney owned and operated by petitioner Vicent e Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga w as 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 Iglec

erio Verena and owned by Francisco Salva bumped the left rear portion of the jee pney. As a result, Sunga was injured. She sustained a fracture of the "distal th ird of the left tibia-fibula with severe necrosis of the underlying skin." Close d reduction of the fracture, long leg circular casting, and case wedging were do ne under sedation. Her confinement in the hospital lasted from August 23 to Sept ember 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic su rgeon, certified she would remain on a cast for a period of three months and wou ld have to ambulate in crutches during said period. On October 9, 1989, Sunga filed a complaint for damages against Calalas, allegin g 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, file d 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 abs olved Calalas of liability, holding that it was the driver of the Isuzu truck wh o was responsible for the accident. It took cognizance of another case (Civil Ca se No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in wh ich Branch 37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney. On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of action was based on a contract of carriage, no t quasi-delict, and that the common carrier failed to exercise the diligence req uired under the Civil Code. The appellate court dismissed the third-party compla int against Salva and adjudged Calalas liable for damages to Sunga. The disposit ive portion of its decision reads: WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and anot her one is entered ordering defendant-appellee Vicente Calalas to pay plaintiffappellant: (1) (2) (3) (4) (5) P50,000.00 as actual and compensatory damages; P50,000.00 as moral damages; P10,000.00 as attorney's fees; and P1,000.00 as expenses of litigation; and to pay the costs.

SO ORDERED. Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate cause of the accident negates h is liability and that to rule otherwise would be to make the common carrier an i nsurer of the safety of its passengers. He contends that the bumping of the jeep ney 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 ev idence. The petition has no merit. The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding th e driver and the owner of the truck liable for quasi-delict ignores the fact tha t she was never a party to that case and, therefore, the principle of res judica ta does not apply. Nor are the issues in Civil Case No. 3490 and in the present case the same. The

issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On the other ha nd, the issue in this case is whether petitioner is liable on his contract of ca rriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra co ntractual, has as its source the negligence of the tortfeasor. The second, breac h of contract or culpa contractual, is premised upon the negligence in the perfo rmance of a contractual obligation. Consequently, in quasi-delict, the negligence or fault should be clearly establi shed because it is the basis of the action, whereas in breach of contract, the a ction can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in this case the common carrier, failed to transport his passenger safely to his destination.2 In case of death or injuries to passengers , Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This pro vision necessarily shifts to the common carrier the burden of proof. There is, thus, no basis for the contention that the ruling in Civil Case No. 34 90, finding Salva and his driver Verena liable for the damage to petitioner's je epney, 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 quasidelict, not in actions involving breach of contract. The doctrine is a device fo r imputing liability to a person where there is no relation between him and anot her party. In such a case, the obligation is created by law itself. But, where t here is a pre-existing contractual relation between the parties, it is the parti es themselves who create the obligation, and the function of the law is merely t o regulate the relation thus created. Insofar as contracts of carriage are conce rned, some aspects regulated by the Civil Code are those respecting the diligenc e required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to passengers. It pro vides: Art. 1733. Common carriers, from the nature of their business and for reaso ns of public policy, are bound to observe extraordinary diligence in the vigilan ce over the goods and for the safety of the passengers transported by them, acco rding to all the circumstances of each case. Such extraordinary diligence in the vigilance over the goods is further expresse d in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary di ligence for the safety of the passengers is further set forth in articles 1755 a nd 1756. Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very caut ious persons, with due regard for all the circumstances. Art. 1756. In case of death of or injuries to passengers, common carriers a re presumed to have been at fault or to have acted negligently, unless they prov e that they observed extraordinary diligence as prescribed by articles 1733 and 1755. In the case at bar, upon the happening of the accident, the presumption of negli gence at once arose, and it became the duty of petitioner to prove that he had t o observe extraordinary diligence in the care of his passengers. Now, did the driver of jeepney carry Sunga "safely as far as human care and fore sight could provide, using the utmost diligence of very cautious persons, with d ue regard for all the circumstances" as required by Art. 1755? We do not think s

o. Several factors militate against petitioner's contention. First, as found by the Court of Appeals, the jeepney was not properly parked, it s rear portion being exposed about two meters from the broad shoulders of the hi ghway, and facing the middle of the highway in a diagonal angle. This is a viola tion of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Co de, which provides: Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such a manner as to obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct t he free passage of other vehicles on the highway. Second, it is undisputed that petitioner's driver took in more passengers than t he allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It provides: Exceeding registered capacity. No person operating any motor vehicle shall allow more passengers or more freight or cargo in his vehicle than its registered cap acity. The fact that Sunga was seated in an "extension seat" placed her in a peril grea ter than that to which the other passengers were exposed. Therefore, not only wa s petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually neg ligent in transporting passengers. We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas s hould not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner's c ontention that the jeepney being bumped while it was improperly parked constitut es caso fortuito. A caso fortuito is an event which could not be foreseen, or wh ich, though foreseen, was inevitable.3 This requires that the following requirem ents be present: (a) the cause of the breach is independent of the debtor's will ; (b) the event is unforeseeable or unavoidable; (c) the event is such as to ren der it impossible for the debtor to fulfill his obligation in a normal manner, a nd (d) the debtor did not take part in causing the injury to the creditor.4 Petitioner should have foreseen the danger of parking his jeepney wit h its body protruding two meters into the highway. Finally, petitioner challenges the award of moral damages alleging that it is ex cessive and without basis in law. We find this contention well taken. In awarding moral damages, the Court of Appeals stated: Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she was not able to enroll in the second semes ter of that school year. She testified that she had no more intention of continu ing with her schooling, because she could not walk and decided not to pursue her degree, major in Physical Education "because of my leg which has a defect alrea dy." Plaintiff-appellant likewise testified that even while she was under confinement , she cried in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of the frac ture side." She likewise decided not to further pursue Physical Education as her major subject, because "my left leg . . . has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article 2219 of the Civil Code, she is ent itled to recover moral damages in the sum of P50,000.00, which is fair, just and reasonable. As a general rule, moral damages are not recoverable in actions for damages pred icated on a breach of contract for it is not one of the items enumerated under A rt. 2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6 In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that petitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that petitioner 's admission in open court that the driver of the jeepney failed to assist her i n going to a nearby hospital cannot be construed as an admission of bad faith. T he fact that it was the driver of the Isuzu truck who took her to the hospital d oes not imply that petitioner was utterly indifferent to the plight of his injur ed passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the accident. WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its r esolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that th e award of moral damages is DELETED. SO ORDERED. [G.R. No. 125483. February 1, 2001] LUDO AND LUYM CORPORATION, petitioner, vs. COURT OF APPEALS, GABISAN SHIPPING LI NES, INC. and/or ANSELMO OLASIMAN respondents. D E C I S I O N QUISUMBING, J.: This petition for review[1] under Rule 45 of the Revised Rules of Court seeks t o annul and set aside the decision[2] dated January 10, 1996 of the Court of App eals which reversed and set aside the decision of the Regional Trial Court of Ce bu City, Branch IX, and the resolution[3] dated June 11, 1996, denying petitione r s motion for reconsideration. Petitioner Ludo & Luym Corporation is a domestic corporation engaged in copra pr ocessing with plant and business offices in Cebu City. Private Respondent Gabisa n Shipping Lines was the registered owner and operator of the motor vessel MV Mi guela, while the other private respondent, Anselmo Olasiman, was its captain. Petitioner owns and operates a private wharf used by vessels for loading and unl oading of copra and other processed products. Among its wharf s facilities are fen der pile clusters for docking and mooring. On May 21, 1990, at around 1:30 P.M., while MV Miguela was docking at petitioner s wharf, it rammed and destroyed a fender pile cluster. Petitioner demanded damag es from private respondents. The latter refused. Hence, petitioner filed a comp laint for damages before the Regional Trial Court of Cebu. Petitioner s evidence during trial showed that on May 21, 1990, at 1:30 P.M., MV M iguela came to dock at petitioner s wharf. Ireneo Naval, petitioner s employee, gui ded the vessel to its docking place. After the guide (small rope) was thrown fr om the vessel and while the petitioner s security guard was pulling the big rope t

o be tied to the bolar, MV Miguela did not slow down. The crew did not release t he vessel s anchor. Naval shouted Reverse to the vessel s crew, but it was too late wh en the latter responded, for the vessel already rammed the pile cluster. The imp act disinclined the pile cluster and deformed the cable wires wound around it. N aval immediately informed the vessel s captain and its chiefmate of the incident, and instructed the guard-on-duty, Alfredo Espina, to make a spot report. The inc ident was reported to Atty. Du, petitioner s vice-president for legal and corporat e affairs. Atty. Du in turn sent formal demand letters to private respondents. M arine surveyor Carlos Degamo inspected the damage on the pile cluster and found that one post was uprooted while two others were loosened and that the pile clus ter was leaning shoreward. Degamo hired skin diver Marvin Alferez, who found tha t one post was broken at about 7 inches from the seabed and two other posts rose and cracked at the bottom. Based on these findings, Degamo concluded that the t wo raised posts were also broken under the seabed and estimated the cost of repa ir and replacement at P95,000.00. Private respondents denied the incident and the damage. Their witnesses claimed that the damage, if any, must have occurred prior to their arrival and caused by another vessel or by ordinary wear and tear. They averred that MV Miguela start ed to slow down at 100 meters and the crew stopped the engine at 50 meters from the pier; that Capt. Anselmo Olasiman did not order the anchor s release and chief mate Manuel Gabisan did not hear Naval shout Reverse . Respondents claimed that N aval had no business in the vessels maneuvering. When Naval informed the vessel s o fficers of the incident, Olasiman sent their bodega man, Ronilo Lazara, to dive on the same afternoon to check on the alleged damage. Lazara told Olasiman that there was no damage. However, during direct examination, Lazara testified that h e found a crack on the side of the pile cluster, one post detached from the seab ed at a distance of about 7 inches, and seashells and seaweeds directly undernea th the uprooted post. There were scattered pieces of copra at the place where MV Miguela docked, which indicated the prior docking by other vessels. After MV M iguela left, another vessel docked in the same area. Petitioner did not prevent MV Miguela from departing. When chiefmate Gabisan went to Atty. Du, the latter t old him not to mind the incident. On rebuttal, petitioner presented Atty. Du who testified that Gabisan never went to his office after receiving the letter-complaint; that petitioner never recei ved any reply to its demand letters; and that the first time Atty. Du saw Gabisa n was during the pre-trial. On May 14, 1993, the trial court disposed the case in favor of petitioner, thus: WHEREFORE, premises considered, this court hereby renders judgment in favor of t he plaintiff, ordering the defendants, jointly and severally, to pay the plainti ff the following: 1) Php 70,000.00 actual damages, plus interest at the rate of 12% per annum from the time the decision is received by defendants until fully paid; 2) Php 15,000.00 exemplary damages; 3) Php 15,000.00 attorney s fees; 4) Php 10,000.00 litigation expenses. COSTS AGAINST THE DEFENDANTS. SO ORDERED.[4] In finding in favor of petitioner, the trial court found that it was able to pro ve by preponderance of evidence that MV Miguela rammed and damaged the pile clus

ter; that petitioner s witnesses, Naval and Espina, actually saw the incident; tha t respondents failed to refute the testimony of marine surveyor Degamo and skin diver Alferez on the damages; that the officers and crew of MV Miguela were ne gligent; and that respondents are solidarily liable for the damages. Upon priva te respondent s appeal, the Court of Appeals reversed the trial court on January 1 0, 1996, in its decision that reads: WHEREFORE, in view of the foregoing, judgment is rendered REVERSING and SETTING aside the decision of the Court a quo, hereby entering a new one DISMISSING the Complaint for lack of merit. No pronouncement as to costs. SO ORDERED.[5] The CA found that petitioner s eyewitness Naval was incompetent to testify on the negligence of the crew and officers of MV Miguela; that there were other vessels that used the wharf for berthing and petitioner s evidence did not positively pro ve that it was MV Miguela that rammed the pile cluster; that the photographs of the pile cluster taken after the incident showed no visible damages; that, as sh own by private respondents witness, there were seashells and seaweeds directly un der the uprooted post, which indicated that the breaking happened a long time ag o. The CA denied the motion for reconsideration. Hence, this petition for review w here petitioner assigns the following errors: A. THE COURT OF APPEALS ACTED IN EXCESS OF ITS JURISDICTION WHEN IT WENT BEYOND THE ISSUES RAISED IN THE ASSIGNMENT OF ERRORS OF PRIVATE RESPONDENT. B. THE DECISION OF THE COURT OF APPEALS IS GROUNDED ON SPECULATION, SURMISES AND CONJECTURES AND HAS DEPARTED FROM THE RULES ON EVIDENCE. C. THE COURT OF APPEALS MISAPPREHENDED THE FACTS AND ITS FINDINGS IS TOTALLY NOT IN ACCORD WITH THE EVIDENCE ON RECORD. D. THE COURT OF APPEALS DEPARTED FROM THE RULE OF RES IPSA LOQUITUR.[6] The issues for resolution can be reduced into three: 1. Did the CA go beyond the issues raised? 2. Can this Court review factual questions in this case? 3. Is the doctrine of res ipsa loquitur applicable to this case? On the first issue, petitioner argues that private respondents did not assign as an error eyewitness Ireneo Naval s incompetence to testify on the negligence of MV Miguela s officers and crew. Private respondent s brief contained nothing but gen eral statements and reproductions of excerpts of the transcript of stenographic notes (TSN) which could not pass for a valid assignment of errors. We note that Naval s incompetence was not one of the assigned errors in private re spondents brief.[7] However, private respondents raised it in connection with the issue of their negligence, which appeared in the second assigned error. In repr oducing the portion of the TSN consisting of Naval s cross examination, private re spondents counsel was indirectly attacking Naval s competence and invoking it vis a vis the trial court s finding, based on Naval s testimony, that MV Miguela was sail ing at a speed unusual for a docking vessel.[8] The CA did not err in addressing the matter. An appellate court can consider an unassigned error on which depend

s the determination of the question in the properly assigned error.[9] The issue of negligence of MV Miguela s officers and crew depends significantly on the det ermination of whether Naval is competent to testify on the maneuvering of a doc king vessel. The second issue is whether or not we can review questions of fact. Petitioner, in its second and third assigned errors, claims that the appellate court relied on speculations and conjectures when it ruled that MV Miguela could not have ram med the pile cluster because of the presence of other vessels; that petitioner s e vidence, corroborated by those of private respondents, is positive and sufficien t to prove respondents' liability; that evidence on record showed the negligence and recklessness of MV Miguela s officers and crew; and that the crew were grossl y incompetent and incapable to man the vessel. Private respondents claim that the above are conclusions of fact which this Cour t may not review. While the rule is that this Court is limited only to questions ion for review, there are exceptions, among which are when the of the Court of Appeals and the trial court conflict, and when rt based its conclusion entirely on speculations, surmises, or of law in a petit factual findings the appellate cou conjectures. [10]

Our review of the records constrains us to conclude that indeed MV Miguela ramme d and damaged petitioner s fender pile cluster. Naval and Espina witnessed the in cident, saw the impact and heard cracking sounds thereafter. The trial court fou nd them credible. We respect this observation of the trial court, for in the app reciation of testimonial evidence and attribution of values to the declaration o f witnesses, it is the trial judge who had the chance to observe the witnesses a nd was in a position to determine if the witnesses are telling the truth or not. [11] Further, private respondents witnesses, Olasiman and Gabisan, acknowledged t hat Naval was at the pier waving a handkerchief to direct them to their berthing place.[12] Private respondents claim that they could not have rammed and damaged the pile cl uster because other vessels used the same area for berthing is a mere speculatio n unworthy of credence. Petitioner s witnesses, marine surveyor Degamo and diver Alferez, confirmed the d amage. Degamo had eighteen years of experience as marine surveyor and belonged t o an independent survey company. Alferez was hired and directly supervised by De gamo for the task.[13] The latter testified during trial that he examined the pi le cluster at the portion above the water line by going near it and found that o ne cluster pile was moving, two were loose, and the whole pile cluster was leani ng shoreward and misalligned.[14] Alferez, under oath, testified that he dived t wo or three times and saw one broken post and two slightly uprooted ones with a crack on each.[15] On the other hand, private respondents evidence on this matter was contradictory. As testified by Olasiman, when he asked Lazara on the result of his diving, the latter said that there was no damage.[16] However, when Lazara testified in cou rt, he said he found a crack on the side of the pile cluster, with one pile no l onger touching the seabed and directly underneath it were seashells and seaweeds . Further, he said that he informed the captain about this.[17] We find Lazara s t estimony as an afterthought, lacking credibility. In addition, Leonilo Lazara, was a mere bodegero of MV Miguela. He could not possibly be a competent witness on marine surveys.[18] Finally, is the doctrine of res ipsa loquitur applicable to this case? Petitione r argues that the Court of Appeals erred when it reversed the trial court for th e latter s heavy reliance on Naval s testimony. The appellate court overlooked the f

act that aside from Naval s testimony, the trial court also relied on the principl e of res ipsa loquitur to establish private respondents negligence. The doctrine of res ipsa loquitur was explained in Batiquin vs. Court of Appeals , 258 SCRA 334 (1996), thus: Where the thing which causes injury is shown to be under the management of the d efendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable e vidence, in the absence of an explanation by the defendant, that the accident ar ose from want of care. The doctrine recognizes that parties may establish prima facie negligence withou t direct proof and allows the principle to substitute for specific proof of negl igence. This is invoked when under the circumstances, direct evidence is absent and not readily available.[19] In our view, all the requisites for recourse to this doctrine exist. First, MV Miguela was under the exclusive control of its officers and crew. Petitioner did not have direct evidence on what transpired within as the officers and crew man euvered the vessel to its berthing place. We note the Court of Appeals finding th at Naval and Espina were not knowledgeable on the vessel s maneuverings, and could not testify on the negligence of the officers and crew. Second, aside from the testimony that MV Miguela rammed the cluster pile, private respondent did not s how persuasively other possible causes of the damage. Applying now the above, there exists a presumption of negligence against private respondents which we opine the latter failed to overcome. Additionally, petitio ner presented tangible proof that demonstrated private respondents negligence. As testified by Capt. Olasiman, from command of slow ahead to stop engine , the vessel will still travel 100 meters before it finally stops. However, he ordered stop en gine when the vessel was only 50 meters from the pier. Further, he testified that before the vessel is put to slow astern, the engine has to be restarted. Howeve r, Olasiman can not estimate how long it takes before the engine goes to slow as tern after the engine is restarted. From these declarations, the conclusion is t hat it was already too late when the captain ordered reverse. By then, the vess el was only 4 meters from the pier,[20] and thus rammed it. Respondent company s negligence consists in allowing incompetent crew to man its v essel. As shown also by petitioner, both Captain Olasiman and Chief Mate Gabisan did not have a formal training in marine navigation. The former was a mere elem entary graduate[21] while the latter is a high school graduate. Their experience in navigation[22]was only as a watchman and a quartermaster, respectively. WHEREFORE, the petition is GRANTED. The decision and resolution of the Court of Appeals are ANNULLED AND SET ASIDE, and the decision of the Regional Trial Court of Cebu City, Branch IX, is hereby REINSTATED. Costs against private respondents. SO ORDERED. [G.R. No. 131541. October 20, 2000] THERMOCHEM INCORPORATED and JEROME O. CASTRO, petitioners, vs. LEONORA NAVAL and THE COURT OF APPEALS, respondents. D E C I S I O N YNARES-SANTIAGO, J.: This damage suit arose from a collision of vehicles based on the following facts

: "(O)n May 10, 1992, at around 12:00 o'clock midnight, Eduardo Edem[1] was drivin g a "Luring Taxi" along Ortigas Avenue, near Rosario, Pasig, going towards Caint a. Prior to the collision, the taxicab was parked along the right side of Ortiga s Avenue, not far from the Rosario Bridge, to unload a passenger. Thereafter, th e driver executed a U-turn to traverse the same road, going to the direction of EDSA. At this point, the Nissan Pathfinder traveling along the same road going t o the direction of Cainta collided with the taxicab. The point of impact was so great that the taxicab was hit in the middle portion and was pushed sideward, ca using the driver to lose control of the vehicle. The taxicab was then dragged in to the nearby Question Tailoring Shop, thus, causing damage to the said tailorin g shop, and its driver, Eduardo Eden, sustained injuries as a result of the inci dent."[2] Private respondent, as owner of the taxi, filed a damage suit against petitioner , Thermochem Incorporated, as the owner of the Nissan Pathfinder, and its driver , petitioner Jerome Castro. After trial, the lower court adjudged petitioner Cas tro negligent and ordered petitioners, jointly and severally, to pay private res pondent actual, compensatory and exemplary damages plus attorney's fees and cost s of suit. The dispositive portion of the Decision of the Regional Trial Court, Branch 150 of Makati City dated September 25, 1995, reads: In view of all the foregoing, judgment is hereby rendered ordering the defendant s, jointly and severally, to pay plaintiff the following: 1. The amount of P47,850.00 as actual damages; 2. The amount of P45,000.00 as compensatory damages for unrealized income; 3. The amount of P10,000.00 as exemplary damages; 4. The amount of P10,000.00 as and for attorney's fees; and 5. Cost of suit. SO ORDERED.[3] On appeal, the Court of Appeals affirmed the judgment of the court a quo.[4] Hen ce, this petition for review on certiorari. The petition was denied on February 2, 1998 for failure to submit an explanation why no personal service of copies o f certain pleadings was made as required by Rule 13, Section 11 of the 1997 Rule s of Civil Procedure.[5] Upon petitioners' motion for reconsideration, the petit ion was reinstated and private respondent was required to file her Comment in a Resolution dated June 22, 1998.[6] A copy of the said Resolution was sent by reg istered mail to private respondent's counsel but the same was returned to sender .[7] In a separate Resolution issued on the same date, this Court ordered that a copy of the June 22, 1998 Resolution be served personally on private respondent 's counsel.[8] As the said Resolution was also returned unserved, "the Court Res olved to consider the said Resolution as SERVED."[9] After more than a year, no Comment has been filed. Considering that private respondent was given only ten ( 10) days to file her Comment, that period had already lapsed ten days after the June 23, 1999 Resolution which stated that the June 22, 1998 resolution as "serv ed". Service of notice or other pleadings which are required by the rules to be furni shed to the parties must be made on their last address on record. If they are re presented by counsel, such notices shall be sent instead to the counsel's last g iven address on record in the absence of a proper and adequate notice to the cou rt of a change of address,[10] unless service upon the party himself is ordered

by the court.[11] It is the party and his counsel's responsibility to device a s ystem for the receipt of mail intended for them[12] just as it is the duty of co unsel to inform the court of a change in his address. In the case at bar, privat e respondent's counsel never notified the Court of any change of his address or whether he no longer holds office in his last address of record. Neither was the Court informed if his ties with his client has been severed. Insofar as the Cou rt is concerned, the last address on record is the place where all notices shall be served until the Court is officially informed to the contrary. What is the e ffect of the failure of a private respondent to comply with a court order to fil e Comment? Courts are given the option to dispense with the filing of the Comment and consi der the case as deemed submitted for decision. Under Rule 46, Section 7 of the 1 997 Rules of Civil Procedure,[13] when the respondent in an original action file d with the court fails to file its comment, the case may be decided on the basis of the evidence on record without prejudice to disciplinary action against the disobedient party. Concomitant thereto is the rule that pursuant to Rule 51, Sec tion 1(B)(1),[14] where no comment is filed upon the expiration of the period to comment in an original action or a petition for review, the case shall be deeme d submitted for decision. Both provisions are applicable to a petition for revie w filed with the Supreme Court as provided in Rule 56, Section 2(a) of the Rules .[15] Moreover, a lawyer who fails to submit the required Comment manifests will ful disobedience to a lawful order of the Supreme Court, a clear violation of th e Canon of Professional Ethics.[16] Counsel must remember that his actions and o missions are binding on his client.[17] He should not neglect legal matters entr usted to him as his negligence therefrom shall render him liable.[18] The petition lacks merit. The issue of whether a party is negligent is a question of fact. It is a time-ho nored precept that the Supreme Court is not a trier of facts,[19] although it ha s authority to review and reverse factual findings of lower courts if these do n ot conform to evidence.[20] It is also settled that findings of fact of the tria l court, particularly when affirmed by the Court of Appeals, is binding on the S upreme Court[21] and generally conclusive,[22] especially if it has not been ade quately shown that no significant facts and circumstances were overlooked or dis regarded which when considered would have altered the outcome of the disposition . The driver of the oncoming Nissan Pathfinder vehicle was liable and the driver o f the U-turning taxicab was contributorily liable. Contrary to petitioners' cont ention, the fact that a party had no opportunity to avoid the collision is of hi s own making and this should not relieve him of liability.[23] From petitioner C astro's testimonial admissions, it is established that he was driving at a speed faster than 50 kilometers per hour because it was a downhill slope coming from the Rosario bridge. But as he allegedly stepped on the brake, it locked causing his Nissan Pathfinder to skid to the left and consequently hit the taxicab. The sudden malfunction of the vehicle's brake system is the usual excuse of drivers involved in collisions which are the result of speedy driving, particularly when the road is downhill. Malfunction or loss of brake is not a fortuitous event. Between the owner and hi s driver, on the one hand, and third parties such as commuters, drivers and pede strians, on the other, the former is presumed to know about the conditions of hi s vehicle and is duty bound to take care thereof with the diligence of a good fa ther of the family. A mechanically defective vehicle should avoid the streets. A s petitioner's vehicle was moving downhill, the driver should have slowed down s ince a downhill drive would naturally cause the vehicle to accelerate. Moreover, the record shows that the Nissan Pathfinder was on the wrong lane when the coll ision occurred. This was a disregard of traffic safety rules. The law considers

what would be reckless, blameworthy or negligent in a man of ordinary diligence and prudence and determines liability by that.[24] Even assuming arguendo that l oss of brakes is an act of God, by reason of their negligence, the fortuitous ev ent became humanized, rendering the Nissan driver liable for the ensuing damages .[25] As mentioned earlier, the driver of the taxi is contributorily liable. U-turns a re not generally advisable particularly on major streets. The taxi was hit on it s side which means that it had not yet fully made a turn to the other lane. The driver of the taxi ought to have known that vehicles coming from the Rosario bri dge are on a downhill slope. Obviously, there was lack of foresight on his part, making him contributorily liable. Most public utility drivers disregard signs a nd traffic rules especially during the night when traffic enforcers manning the streets disappear with the light. In driving vehicles, the primary concern shoul d be the safety not only of the driver or his passengers, but also his fellow mo torists. Considering the contributory negligence of the driver of private respondent's ta xi, the award of P47,850.00, for the repair of the taxi, should be reduced in ha lf. All other awards for damages are deleted for lack of merit. WHEREFORE, based on the foregoing, the assailed decision is MODIFIED. Petitioner s are ordered to pay, jointly and severally, to private respondent the amount of P23,925.00 as actual damages. All other awards are DELETED. SO ORDERED. G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, JR., defendant-appellee. Alejo Mabanag for appellant. G. E. Campbell for appellee. STREET, J.: In this action the plaintiff, Amado Picart, seeks to recover of the defendant, F rank Smith, jr., the sum of P31,000, as damages alleged to have been caused by a n automobile driven by the defendant. From a judgment of the Court of First Inst ance of the Province of La Union absolving the defendant from liability the plai ntiff has appealed. The occurrence which gave rise to the institution of this action took place on D ecember 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over sai d bridge. Before he had gotten half way across, the defendant approached from th e opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and b lew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to hi m that the man on horseback before him was not observing the rule of the road. The plaintiff, it appears, saw the automobile coming and heard the warning signa ls. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right si de of the bridge instead of going to the left. He says that the reason he did th is was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.8

0 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defenda nt assumed that the horseman would move to the other side. The pony had not as y et exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach di rectly toward the horse without diminution of speed. When he had gotten quite ne ar, there being then no possibility of the horse getting across to the other sid e, the defendant quickly turned his car sufficiently to the right to escape hitt ing the horse alongside of the railing where it as then standing; but in so doin g the automobile passed in such close proximity to the animal that it became fri ghtened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with so me violence. From the evidence adduced in the case we believe that when the acci dent occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a resu lt of its injuries the horse died. The plaintiff received contusions which cause d temporary unconsciousness and required medical attention for several days. The question presented for decision is whether or not the defendant in maneuveri ng his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the rig ht to assume that the horse and the rider would pass over to the proper side; bu t as he moved toward the center of the bridge it was demonstrated to his eyes th at this would not be done; and he must in a moment have perceived that it was to o late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. Th e control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there wer e no other persons on the bridge, to take the other side and pass sufficiently f ar away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we thi nk, deceived into doing this by the fact that the horse had not yet exhibited fr ight. But in view of the known nature of horses, there was an appreciable risk t hat, if the animal in question was unacquainted with automobiles, he might get e xited and jump under the conditions which here confronted him. When the defendan t exposed the horse and rider to this danger he was, in our opinion, negligent i n the eye of the law. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act u se that person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplie d by the imaginary conduct of the discreet paterfamilias of the Roman law. The e xistence of negligence in a given case is not determined by reference to the per sonal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable me n govern their conduct by the circumstances which are before them or known to th em. They are not, and are not supposed to be, omniscient of the future. Hence th ey can be expected to take care only when there is something before them to sugg

est or warn of danger. Could a prudent man, in the case under consideration, for esee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight o f harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the pr oper criterion for determining the existence of negligence in a given case is th is: Conduct is said to be negligent when a prudent man in the position of the to rtfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he w as pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circu mstances the law imposed on the defendant the duty to guard against the threaten ed harm. It goes without saying that the plaintiff himself was not free from fault, for h e was guilty of antecedent negligence in planting himself on the wrong side of t he road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and dire ctly responsible. It will be noted that the negligent acts of the two parties we re not contemporaneous, since the negligence of the defendant succeeded the negl igence of the plaintiff by an appreciable interval. Under these circumstances th e law is that the person who has the last fair chance to avoid the impending har m and fails to do so is chargeable with the consequences, without reference to t he prior negligence of the other party. The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep ., 359) should perhaps be mentioned in this connection. This Court there held th at while contributory negligence on the part of the person injured did not const itute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The def endant company had there employed the plaintiff, as a laborer, to assist in tran sporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narro w track. At certain spot near the water's edge the track gave way by reason of t he combined effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg wa s caught and broken. It appeared in evidence that the accident was due to the ef fects of the typhoon which had dislodged one of the supports of the track. The c ourt found that the defendant company was negligent in having failed to repair t he bed of the track and also that the plaintiff was, at the moment of the accide nt, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on accoun t of the contributory negligence in the plaintiff. As will be seen the defendant 's negligence in that case consisted in an omission only. The liability of the c ompany arose from its responsibility for the dangerous condition of its track. I n a case like the one now before us, where the defendant was actually present an d operating the automobile which caused the damage, we do not feel constrained t o attempt to weigh the negligence of the respective parties in order to apportio n the damage according to the degree of their relative fault. It is enough to sa y that the negligence of the defendant was in this case the immediate and determ ining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case. A point of minor importance in the case is indicated in the special defense plea

ded in the defendant's answer, to the effect that the subject matter of the acti on had been previously adjudicated in the court of a justice of the peace. In th is connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the p eace charging the defendant with the infliction of serious injuries (lesiones gr aves). At the preliminary investigation the defendant was discharged by the magi strate and the proceedings were dismissed. Conceding that the acquittal of the d efendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arisi ng from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Ba nzuela, 31 Phil. Rep., 564.) From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the plaintiff recover of the defenda nt the sum of two hundred pesos (P200), with costs of other instances. The sum h ere awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and law ful interest on the whole to the date of this recovery. The other damages claime d by the plaintiff are remote or otherwise of such character as not to be recove rable. So ordered. Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur. Johnson, J., reserves his vote. Separate Opinions MALCOLM, J., concurring: After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents. This r ule cannot be invoked where the negligence of the plaintiff is concurrent with t hat of the defendant. Again, if a traveler when he reaches the point of collisio n is in a situation to extricate himself and avoid injury, his negligence at tha t point will prevent a recovery. But Justice Street finds as a fact that the neg ligent act of the interval of time, and that at the moment the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negl igence in reaching that position becomes the condition and not the proximate cau se of the injury and will not preclude a recovery. (Note especially Aiken vs. Me tcalf [1917], 102 Atl., 330.)