cases to be digested for oblicon

8/8/2019 Cases to Be Digested for Oblicon

1/29

May 28, 1970

G.R. No. L-25906

PEDRO D. DIOQUINO, plaintiff-appellee,vs.

FEDERICO LAUREANO, AIDA DE LAUREANO and JUANITO

LAUREANO, defendants-appellants.

Pedro D. Dioquino in his own behalf. Arturo E. Valdomero, Jose L. Almario and Rolando S. Relova fordefendants-appellants.

Fernando, J.:

The present lawsuit had its origin in a relationship, if it could be called

such, the use of a car owned by plaintiff Pedro D. Dioquino by defendantFederico Laureano, clearly of a character casual and temporary but

unfortunately married by an occurrence resulting in its windshield being

damaged. A stone thrown by a boy who, with his other companions, wasthus engaged in what undoubtedly for them must have been mistakenly

thought to be a none too harmful prank did not miss its mark. Plaintiff

would hold defendant Federico Laureano accountable for the loss thussustained, including in the action filed the wife, Aida de Laureano, and the

father, Juanito Laureano. Plaintiff prevail in the lower court, the judgment

however going only against the principal defendant, his spouse and hisfather being absolved of any responsibility. Nonetheless, all three of themappealed directly to us, raising two questions of law, the first being the

failure of the lower court to dismiss such a suit as no liability could havebeen incurred as a result of a fortuitous event and the other being itsfailure to award damages against plaintiff for the unwarranted inclusion of

the wife and the father in this litigation. We agree that the lower courtought to have dismissed the suit, but it does not follow that therebydamages for the inclusion of the above two other parties in the complaint

should have been awarded appellants.

The facts as found by the lower court follow: "Attorney Pedro Dioquino, apracticing lawyer of Masbate, is the owner of a car. On March 31, 1964,

he went to the office of the MVO, Masbate, to register the same. He met

the defendant Federico Laureano, a patrol officer of said MVO office, whowas waiting for a jeepney to take him to the office of the Provincial

Commander, PC, Masbate. Attorney Dioquino requested the defendant

Federico Laureano to introduce him to one of the clerks in the MVO Office,who could facilitate the registration of his car and the request wasgraciously attended to. Defendant Laureano rode on the car of Atty.

Dioquino on his way to the P.C. Barracks at Masbate. While about to reachtheir destination, the car driven by plaintiff's driver and with defendantFederico Laureano as the sole passenger was stoned by some

'mischievous boys,' and its windshield was broken. Defendant FedericoLaureano chased the boys and he was able to catch one of them. The boywas taken to Atty. Dioquino [and] admitted having thrown the stone that

broke the car's windshield. The plaintiff and the defendant FedericoLaureano with the boy returned to the P.C. barracks and the father of the


2/29

boy was called, but no satisfactory arrangements [were] made about thedamage to the

windshield." 1

It was likewise noted in the decision now on appeal: "The defendant

Federico Laureano refused to file any charges against the boy and hisparents because he thought that the stone-throwing was merely

accidental and that it was due to force majeure. So he did not want totake any action and after delaying the settlement, after perhapsconsulting a lawyer, the defendant Federico Laureano refused to pay the

windshield himself and challenged that the case be brought to court for judicial adjudication. There is no question that the plaintiff tried toconvince the defendant Federico Laureano just to pay the value of the

windshield and he even came to the extent of asking the wife to convince

her husband to settle the matter amicably but the defendant FedericoLaureano refused to make any settlement, clinging [to] the belief that he

could not be held liable because a minor child threw a stone accidentally

on the windshield and therefore, the same was due to force majeure." 2

1. The law being what it is, such a belief on the part of defendant Federico

Laureano was justified. The express language of Art. 1174 of the presentCivil Code which is a restatement of Art. 1105 of the Old Civil Code,

except for the addition of the nature of an obligation requiring the

assumption of risk, compels such a conclusion. It reads thus: "Except incases expressly specified by the law, or when it is otherwise declared bystipulation, or when the nature of the obligation requires the assumption

of risk, no person shall be responsible for those events which could notbe, foreseen, or which, though foreseen were inevitable." Even under theold Civil Code then, as stressed by us in the first decision dating back to

1908, in an opinion by Justice Mapa, the rule was well-settled that in theabsence of a legal provision or an express covenant, "no one should beheld to account for fortuitous cases." 3 Its basis, as Justice Moreland

stressed, is the Roman law principle major casus est, cui humanainfirmitas resistere non potest. 4 Authorities of repute are in agreement,

more specifically concerning an obligation arising from contract "thatsome extraordinary circumstance independent of the will of the obligor, or

of his employees, is an essential element of a caso fortuito." 5 If it could

be shown that such indeed was the case, liability is ruled out. There is norequirement of "diligence beyond what human care and foresight can

provide." 6

The error committed by the lower court in holding defendant FedericoLaureano liable appears to be thus obvious. Its own findings of fact repel

the motion that he should be made to respond in damages to the plaintifffor the broken windshield. What happened was clearly unforeseen. It wasa fortuitous event resulting in a loss which must be borne by the owner of

the car. An element of reasonableness in the law would be manifestlylacking if, on the circumstances as thus disclosed, legal responsibilitycould be imputed to an individual in the situation of defendant Laureano.

Art. 1174 of the Civil Code guards against the possibility of its beingvisited with such a reproach. Unfortunately, the lower court was of a


3/29

different mind and thus failed to heed its command.

It was misled, apparently, by the inclusion of the exemption from the

operation of such a provision of a party assuming the risk, consideri ng thenature of the obligation undertaken. A more careful analysis would have

led the lower court to a different and correct interpretation. The very

wording of the law dispels any doubt that what is therein contemplated isthe resulting liability even if caused by a fortuitous event where the party

charged may be considered as having assumed the risk incident in thenature of the obligation to be performed. It would be an affront, not onlyto the logic but to the realities of the situation, if in the ligh t of what

transpired, as found by the lower court, defendant Federico Laureanocould be held as bound to assume a risk of this nature. There was no suchobligation on his part.

Reference to the leading case of Republic v. Luzon Stevedoring Corp. 7will illustrate when the nature of the obligation is such that the risk could

be considered as having been assumed. As noted in the opinion of Justice

J.B.L. Reyes, speaking for the Court: "The appellant strongly stresses theprecautions taken by it on the day in question: that it assigned two of its

most powerful tugboats to tow down river its barge L-1892; that it

assigned to the task the more competent and experienced among itspatrons, had the towlines, engines and equipment double -checked and

inspected; that it instructed its patrons to take extra-precautions; and

concludes that it had done all it was called to do, and that the accident,therefore, should be held due to force majeure or fortuitous event." Itsnext paragraph explained clearly why the defense of caso fortuito or force

majeure does not lie. Thus: "These very precautions, however, completelydestroy the appellant's defense. For caso fortuito or force majeure (whichin law are identical in so far as they exempt an obligor from liability) by

definition, are extraordinary events not foreseeable or avoidable, 'eventsthat could not be foreseen, or which, though foreseen, were inevitable'(Art. 1174, Civil Code of the Philippines). It is, therefore, not enough that

the event should not have been foreseen or participated, as is commonlybelieved, but it must be one impossible to foresee or to avoid. The mere

difficulty to foresee the happening is not impossibility to foresee thesame: un hecho no constituye caso fortuito por la sola circunstancia de

que su existencia haga mas dificil o mas onerosa la accion diligente del

presente ofensor' (Peirano Facio, Responsibilidad Extra-contractual, p.465; Mazeaud, Traite de la Responsibilite Civile, Vol. 2, sec. 1569). The

very measures adopted by appellant prove that the possibility of danger

was not only foreseeable, but actually foreseen, and was not casofortuito."

In that case then, the risk was quite evident and the nature of theobligation such that a party could rightfully be deemed as having assumedit. It is not so in the case before us. It is anything but that. If the lower

court, therefore, were duly mindful of what this particular legal provisioncontemplates, it could not have reached the conclusion that defendantFederico Laureano could be held liable. To repeat, that was clear error on

its part.


4/29

2. Appellants do not stop there. It does not suffice for them thatdefendant Federico Laureano would be freed from liability. They would gofarther. They would take plaintiff to task for his complaint having joined

the wife, Aida de Laureano, and the father, Juanita Laureano. They werefar from satisfied with the lower court's absolving these two from any

financial responsibility. Appellants would have plaintiff pay damages for

their inclusion in this litigation. We are not disposed to view the matterthus.

It is to be admitted, of course, that plaintiff, who is a member of the bar,ought to have exercised greater care in selecting the parties against

whom he would proceed. It may be said that his view of the law thatwould consider defendant Federico Laureano liable on the facts as thusdisclosed, while erroneous, is not bereft of plausibility. Even the lower

court, mistakenly of course, entertained similar view. For plaintiff,

however, to have included the wife and the father would seem to indicatethat his understanding of the law is not all that it ought to have been.

Plaintiff apparently was not entirely unaware that the inclusion in the suitfiled by him was characterized by unorthodoxy. He did attempt to lend

some color of justification by explicitly setting forth that the father was

joined as party defendant in the case as he was the administrator of theinheritance of an undivided property to which defendant Federico

Laureano could lay claim and that the wife was likewise proceeded against

because the conjugal partnership would be made to respond for whateverliability would be adjudicated against the husband.

It cannot be said that such an attempt at justification is impressed with ahigh persuasive quality. Far from it. Nonetheless, mistaken as plaintiffapparently was, it cannot be concluded that he was prompted solely by

the desire to inflict needless and unjustified vexation on them.Considering the equities of the situation, plaintiff having suffered apecuniary loss which, while resulting from a fortuitous event, perhaps

would not have occurred at all had not defendant Federico Laureanoborrowed his car, we, feel that he is not to be penalized further by his

mistaken view of the law in including them in his complaint. Well-worthparaphrasing is the thought expressed in a United States Supreme Court

decision as to the existence of an abiding and fundamental principle that

the expenses and annoyance of litigation form part of the social burden ofliving in a society which seeks to attain social control through law. 8

WHEREFORE, the decision of the lower court of November 2, 1965 insofaras it orders defendant Federico Laureano to pay plaintiff the amount ofP30,000.00 as damages plus the payment of costs, is hereby reversed. It

is affirmed insofar as it dismissed the case against the other twodefendants, Juanita Laureano and Aida de Laureano, and declared that nomoral damages should be awarded the parties. Without pronouncement as

to costs.


5/29

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

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

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

BARRERA, J.:

La Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R. No. 23267-R, holding it liable for quasi-delictand ordering it to pay to respondents Mariano Beltran, et al.,P6,000.00 for the death of his minor daughter Raquel Beltran, plusP400.00 as actual damages.

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

On December 20, 1953, at about noontime, plaintiffs, husband andwife, together with their minor daughters, namely, Milagros, 13years old, Raquel, about 4 years old, and Fe, over 2 years old,boarded the Pambusco Bus No. 352, bearing plate TPU No. 757(1953 Pampanga), owned and operated by the defendant, at SanFernando, Pampanga, bound for Anao, Mexico, Pampanga. At thetime, they were carrying with them four pieces of baggagescontaining their personal belonging. The conductor of the bus, who

happened to be a half-brother of plaintiff Mariano Beltran, issuedthree tickets (Exhs. A, B, & C) covering the full fares of the plaintiffand their eldest child, Milagros. No fare was charged on Raqueland Fe, since both were below the height at which fare is chargedin accordance with the appellant's rules and regulations.

After about an hour's trip, the bus reached Anao whereat itstopped to allow the passengers bound therefor, among whomwere the plaintiffs and their children to get off. With respect to thegroup of the plaintiffs, Mariano Beltran, then carrying some of their

baggages, was the first to get down the bus, followed by his wifeand his children. Mariano led his companions to a shaded spot onthe left pedestrians side of the road about four or five meters awayfrom the vehicle. Afterwards, he returned to the bus in controversyto get his otherbayong, which he had left behind, but in so doing,his daughter Raquel followed him, unnoticed by her father. Whilesaid Mariano Beltran was on the running board of the bus waitingfor the conductor to hand him his bayongwhich he left under one


6/29

of its seats near the door, the bus, whose motor was not shut offwhile unloading, suddenly started moving forward, evidently toresume its trip, notwithstanding the fact that the conductor has notgiven the driver the customary signal to start, since said conductorwas still attending to the baggage left behind by Mariano Beltran.

Incidentally, when the bus was again placed into a complete stop,it had travelled about ten meters from the point where the plaintiffshad gotten off.

Sensing that the bus was again in motion, Mariano Beltranimmediately jumped from the running board without getting hisbayong from the conductor. He landed on the side of the roadalmost in front of the shaded place where he left his wife andchildren. At that precise time, he saw people beginning to gatheraround the body of a child lying prostrate on the ground, her skull

crushed, and without life. The child was none other than hisdaughter Raquel, who was run over by the bus in which she rodeearlier together with her parents.

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

On the basis of these facts, the trial court found defendant liablefor breach of contract of carriage and sentenced it to payP3,000.00 for the death of the child and P400.00 as compensatorydamages representing burial expenses and costs.

On appeal to the Court of Appeals, La Mallorca claimed that therecould not be a breach of contract in the case, for the reason thatwhen the child met her death, she was no longer a passenger ofthe bus involved in the incident and, therefore, the contract ofcarriage had already terminated. Although the Court of Appeals

sustained this theory, it nevertheless found the defendant-appellant guilty of quasi-delict and held the latter liable fordamages, for the negligence of its driver, in accordance withArticle 2180 of the Civil Code. And, the Court of Appeals did notonly find the petitioner liable, but increased the damages awardedthe plaintiffs-appellees to P6,000.00, instead of P3,000.00 grantedby the trial court.


7/29

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

court.

Under the facts as found by the Court of Appeals, we have tosustain the judgement holding petitioner liable for damages for thedeath of the child, Raquel Beltran. It may be pointed out thatalthough it is true that respondent Mariano Beltran, his wife, andtheir children (including the deceased child) had alighted from thebus at a place designated for disembarking or unloading ofpassengers, it was also established that the father had to return tothe vehicle (which was still at a stop) to get one of his bags or

bayong that was left under one of the seats of the bus. There canbe no controversy that as far as the father is concerned, when hereturned to the bus for his bayong which was not unloaded, therelation of passenger and carrier between him and the petitionerremained subsisting. For, the relation of carrier and passengerdoes not necessarily cease where the latter, after alighting fromthe car, aids the carrier's servant or employee in removing hisbaggage from the car.1 The issue to be determined here is whetheras to the child, who was already led by the father to a place about5 meters away from the bus, the liability of the carrier for her safety

under the contract of carriage also persisted.

It has been recognized as a rule that the relation of carrier andpassenger does not cease at the moment the passenger alightsfrom the carrier's vehicle at a place selected by the carrier at thepoint of destination, but continues until the passenger has had areasonable time or a reasonable opportunity to leave the carrier'spremises. And, what is a reasonable time or a reasonable delaywithin this rule is to be determined from all the circumstances.Thus, a person who, after alighting from a train, walks along thestation platform is considered still a passenger. 2 So also, where apassenger has alighted at his destination and is proceeding by theusual way to leave the company's premises, but before actuallydoing so is halted by the report that his brother, a fellowpassenger, has been shot, and he in good faith and without intentof engaging in the difficulty, returns to relieve his brother, he isdeemed reasonably and necessarily delayed and thus continues tobe a passenger entitled as such to the protection of the railroad


8/29

and company and its agents.3

In the present case, the father returned to the bus to get one of hisbaggages which was not unloaded when they alighted from thebus. Raquel, the child that she was, must have followed the father.

However, although the father was still on the running board of thebus awaiting for the conductor to hand him the bag or bayong, thebus started to run, so that even he (the father) had to jump downfrom the moving vehicle. It was at this instance that the child, whomust be near the bus, was run over and killed. In thecircumstances, it cannot be claimed that the carrier's agent hadexercised the "utmost diligence" of a "very cautions person"required by Article 1755 of the Civil Code to be observed by acommon carrier in the discharge of its obligation to transport safelyits passengers. In the first place, the driver, although stopping the

bus, nevertheless did not put off the engine. Secondly, he startedto run the bus even before the bus conductor gave him the signalto go and while the latter was still unloading part of the baggagesof the passengers Mariano Beltran and family. The presence ofsaid passengers near the bus was not unreasonable and they are,therefore, to be considered still as passengers of the carrier,entitled to the protection under their contract of carriage.

But even assuming arguendo that the contract of carriage hasalready terminated, herein petitioner can be held liable for thenegligence of its driver, as ruled by the Court of Appeals, pursuantto Article 2180 of the Civil Code. Paragraph 7 of the complaint,which reads

That aside from the aforesaid breach of contract, the death ofRaquel Beltran, plaintiffs' daughter, was caused by the negligenceand want of exercise of the utmost diligence of a very cautiousperson on the part of the defendants and their agent, necessary totransport plaintiffs and their daughter safely as far as human careand foresight can provide in the operation of their vehicle.

is clearly an allegation for quasi-delict. The inclusion of thisaverment for quasi-delict, while incompatible with the other claimunder the contract of carriage, is permissible under Section 2 ofRule 8 of the New Rules of Court, which allows a plaintiff to allegecauses of action in the alternative, be they compatible with eachother or not, to the end that the real matter in controversy may beresolved and determined.4


9/29

The plaintiffs sufficiently pleaded the culpa or negligence uponwhich the claim was predicated when it was alleged in thecomplaint that "the death of Raquel Beltran, plaintiffs' daughter,was caused by the negligence and want of exercise of the utmostdiligence of a very cautious person on the part of the defendants

and their agent." This allegation was also proved when it wasestablished during the trial that the driver, even before receivingthe proper signal from the conductor, and while there were stillpersons on the running board of the bus and near it, started to runoff the vehicle. The presentation of proof of the negligence of itsemployee gave rise to the presumption that the defendantemployer did not exercise the diligence of a good father of thefamily in the selection and supervision of its employees. And thispresumption, as the Court of Appeals found, petitioner had failedto overcome. Consequently, petitioner must be adjudged

peculiarily liable for the death of the child Raquel Beltran.

The increase of the award of damages from P3,000.00 toP6,000.00 by the Court of Appeals, however, cannot be sustained.Generally, the appellate court can only pass upon and considerquestions or issues raised and argued in appellant's brief. Plaintiffsdid not appeal from that portion of the judgment of the trial courtawarding them on P3,000.00 damages for the death of theirdaughter. Neither does it appear that, as appellees in the Court ofAppeals, plaintiffs have pointed out in their brief the inadequacy of

the award, or that the inclusion of the figure P3,000.00 was merelya clerical error, in order that the matter may be treated as anexception to the general rule.5 Herein petitioner's contention,therefore, that the Court of Appeals committed error in raising theamount of the award for damages is, evidently, meritorious. 1wph1.t

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


10/29

G.R. No. L-22533 February 9, 1967

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,vs.PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRESBONIFACIO, respondents.

Placido B. Ramos and Renato L. Ramos for petitioners.Trinidad& Borromeo for respondents.

BENGZON, J.P., J.:

On June 30, 1958 Placido and Augusto Ramos sued Pepsi-ColaBottling Co. of the P.I.1 and Andres Bonifacio in the Court of FirstInstance of Manila as a consequence of a collision, on May 10,1958, involving the car of Placido Ramos and a tractor-truck andtrailer of PEPESI-COLA. Said car was at the time of the collisiondriven by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor-truck was then driven by its driver and co-defendant Andres Bonifacio.

After trial the Court of First Instance rendered judgment on April15, 1961, finding Bonifacio negligent and declaring that PEPSI-COLA had not sufficiently proved its having exercised the duediligence of a good father of a family to prevent the damage.PEPSI-COLA and Bonifacio, solidarily, were ordered to pay theplaintiffs P2,638.50 actual damages; P2,000.00 moral damages;

P2,000.00 as exemplary damages; and, P1,000.00 attorney's fees,with costs.

Not satisfied with this decision, the defendants appellee to theCourt of Appeals.

Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant Bonifacio negligent, butmodified it by absolving defendant PEPSI-COLA from liability,finding that, contrary to the plaintiffs' contention, PEPSI-COLA

sufficiently proved due diligence in the selection of its driverBonifacio.

Plaintiffs thereupon appealed to Us through this petition for reviewof the Court of Appeals' decision. And appellants would arguebefore this Court that defendant PEPSI-COLA's evidence failed toshow that it had exercised due diligence in the selection of itsdriver in question.


11/29

Said point, as stated, was resolved by the Court of Appeals inPEPSI-COLA's favor, thus:

The uncontradicted testimony of Juan T. Anasco, personnelmanager of defendant company, was to the effect that defendant

driver was first hired as a member of the bottle crop in theproduction department; that when he was hired as a driver, 'wehad size [sic] him by looking into his background, asking him tosubmit clearances, previous experience, physical examination andlater on, he was sent to the pool house to take the usual driver'sexamination, consisting of: First, theoretical examination andsecond, the practical driving examination, all of which he hadundergone, and that the defendant company was a member of theSafety Council. In view hereof, we are of the sense that defendantcompany had exercised the diligence of a good father of a family in

the choice or selection of defendant driver'. In the case ofCampovs. Camarote No. L-9147 (1956), 53 O.G. 2794, cited in appellee'sbrief, our Supreme Court had occasion to put it down as a rule that"In order that the defendant may be considered as havingexercised all the diligence of a good father of a family, he shouldnot have been satisfied with the mere possession of a professionaldriver's license; he should have carefully examined the appl icantfor employment as to his qualifications, his experiences and recordof service." Defendant Company has taken all these steps .2

Appellants herein seek to assail the foregoing portion of thedecision under review by taking issue with the testimony of Anascoupon which the findings of due diligence aforestated are rested.Thus, it is now contended that Aasco being PEPSI-COLA'semployee, is a biased and interested witness; and that histestimony is not believable.

It is rather clear, therefore, that appellants would raise herein anissue of fact and credibility, something as to which this Court hasconsistently respected the findings of the Court of Appeals, withsome few exceptions, which do not obtain herein. 3

Stated differently, Aascos credibility is not for this Court now tore-examine. And said witness having been found credible by theCourt of Appeals, his testimony, as accepted by said Court, cannotat this stage be assailed. As We said in Co Tao vs. Court of

Appeals, L-9194, April 25, 1957, assignments of error involving thecredibility of witnesses and which in effect dispute the findings of


12/29

fact of the Court of Appeals, cannot be reviewed in theseproceedings. For a question to be one of law it must involve noexamination of the probative value of the evidence presented bythe litigants or any of them. 4 And the distinction is well -known:There is a question of law in a given case when the doubt or

difference arises as to what the law is on a certain state of facts;there is a question of fact when the doubt or difference arises as tothe truth or the falsehood of alleged facts.5

From all this it follows that for the purposes of this appeal, it mustbe taken as established that, as testified to by Aasco, PEPSI -COLA did in fact carefully examine the driver-applicant Bonifacioas to his qualifications, experiences and record of service, takingall steps mentioned by the Court of Appeals in its decision alreadyquoted.1wph1.t

Such being the case, there can be no doubt that PEPSI-COLAexercised the required due diligence in the selection of its driver. As ruled by this Court in Campo vs. Camarote 53 O.G. 2794,2797: "In order that the defendant may be considered as havingexercised all diligence of a good father of a family, he should notbe satisfied with the mere possession of a professional driver'slicense; he should have carefully examined the applicant foremployment as to his qualifications, his experience and record ofservice."

It should perhaps be stated that in the instant case no question israised as to due diligence in the supervision by PEPSI-COLA of itsdriver. Article 2180 of the Civil Code provides inter alia:

... The owners and managers of an establishment or enterprise arelikewise responsible for damages caused by their employees in theservice of the branches in which the latter are employed or on theoccasion of their functions.

x x x x x x x x x

The responsibility treated of in this Article shall cease when thepersons herein mentioned prove that they observed all thediligence of a good father of a family to prevent damage.

And construing a similar provision of the old Civil Code, this Courtsaid in Bahia vs. Litonjua, 30 Phil. 624, 627:


13/29

From this article two things are apparent: (1) That when an injury iscaused by the negligence of a servant or employee there instantlyarises a presumption of law that there was negligence on the partof the master or employer either in the selection of the servant oremployee, or in supervision over him after the selection, or both;

and (2) that the presumption is juris tantum and notjuris et de jure,and consequently may be rebutted. It follows necessarily that if theemployer shows to the satisfaction of the court that in selectionand supervision he has exercised the care and diligence of a goodfather of a family, the presumption is overcome and he is relievedfrom liability.

As pointed out, what appellants here contend as not duly provedby PEPSI-COLA is only due diligence in the selection of its driver.And, parenthetically, it is not surprising that appellants thus confine

their arguments to this aspect of due diligence, since the record as even appellants' brief (pp. 13-17) reflects in quoting in part thetestimony of PEPSI-COLA's witness would show sufficientevidence to establish due diligence in the supervision by PEPSI-COLA of its drivers, including Bonifacio.

Appellants' other assignment of errors are likewise outside thepurview of this Court's reviewing power. Thus, the question ofwhether PEPSI- COLA violated the Revised Motor Vehicle Lawand rules and regulations related thereto, not having been raisedand argued in the Court of Appeals, cannot be ventilated herein forthe first time. 6 And the matter of whether or not PEPSI-COLA didacts to ratify the negligent act of its driver is a factual issue notproper herein.

Wherefore, the decision of the Court of Appeals is hereby affirmed,with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,Zaldivar, Sanchez and Castro, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION

May 16, 1967

BENGZON, J.P., J.:

Petitioners seek a reconsideration1 of Our decision2 in the instantcase affirming in toto the challenged decision of the Court of


14/29

Appeals absolving respondent PEPSI-COLA from liability. In Ourdecision, We refrained from passing on the merits of the questionwhether PEPSI-COLA, in operating the tractor-truck and trailer,violated the Rev. Motor Vehicle Law3 and the rules and regulationsrelated thereto, for the procedural reason that it did not appear to

have been raised before the Court of Appeals.

It now appears, however, that said question was raised in a motionto reconsider filed with the Court of Appeals which resolved thesame against petitioners. Due consideration of the matter on itsmerits, convinces Us that the decision of the Court of Appealsshould still be affirmed in toto.

Petitioners impute to PEPSI-COLA the violation of subpars. 1 and4(d), par. (a), Sec. 27 of M.V.O. Administrative Order No. 1, dated

Sept. 1, 1951, in that at the time of the collision, the trailer-truck,which had a total weight of 30,000 kgms., was (a) being driven at aspeed of about 30 k.p.h. or beyond the 15 k.p.h. limit set and (b)was not equipped with a rear-vision mirror nor provided with ahelper for the driver.

The cited provisions read:

SECTION 27. Registration, operation, and inspection of truck-trailer combinations, semi-trailers, and tractors.

(a) No trailer or semi-trailer having a gross weight of more than2,000 kilograms and is not equipped with effective brakes on atleast two opposite wheels of the rear axle and are so controlledthat the brakes will act in unison with or preceding the effectiveaction of the brakes of the tractor-truck shall be registered foroperation on public highways of the Philippines; provided, that thetrialers without brakes may be registered from year to year foroperation under the following conditions:

1. No such trailer shall be operated at any time at a speed in

excess of 15 kilometers per hour in conjunction with a tractor-truck,the actual gross weight of which is less than twice the weight of thetrailer.

x x x x x x x x x

4(d) Tractor-trucks shall be either equipped with rear-vision mirrorto enable the driver to see vehicles approaching mirror the rear or


15/29

shall carry a helper who shall be so stationed on the truck or trailerthat he will constantly have a view of the rear. He shall be providedwith means of effectively signalling to the driver to give way toovertaking vehicles.

4(e) No truck and trailer combination shall be operated at a speedgreater than 30 kilometers per hour.

It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refersonly to trailers or semi-trailers having a gross weight of more than2,000 kgms., AND which are "not equipped with effective brakeson at least two opposite wheels, of the rear axle and are socontrolled that the brakes will act in unison with or preceding theeffective action of the brakes of the tractor-truck..." This is thecondition set in the proviso in par. (a), supra, wherein "trailers

without [such] brakes may be registered from year to year foroperation ..." i.e., they should not "be operated at any time at aspeed in excess of 15 kilometers per hour in conjunction with atractor-truck ...". But there was no finding by the Court of Appealsthat the truck-trailer here did not have such brakes. In the absenceof such fact, it is subpar. 4(e), supra, that will apply. Andpetitioners admit that the truck-trailer was being driven at about 30k.p.h.

It is a fact that driver Bonifacio was not accompanied by a helperon the night of the collision since he was found to be driving alone.However, there is no finding that the tractor-truck did not have arear-vision mirror. To be sure, the records disclose that Pat.Rodolfo Pahate, the traffic policeman who went to the collisionscene, testified that he saw the tractor-truck there but he does notrememberif it had any rear vision mirror.4 This cannot prove lackof rear-vision mirror. And the cited provision subpar. 4(d) iscomplied if either of the two alternatives, i.e., having a rear-visionmirror or a helper, is present. Stated otherwise, said provision isviolated only where there is a positive finding that the tractor-truckdid not have both rear-vision mirror and a helper for the driver.

Petitioners also charge PEPSI-COLA with having violated par. (b)of Sec. 8-A of the Rev. Motor Vehicle Law, providing that:

No motor vehicle operating as a single unit shall exceed thefollowing dimensions:

Overall width ................ 2.5 meters.


16/29

x x x x x x x x x

since there was an express finding that the truck-trailer was 3meters wide. However, Sec. 9 (d) of the same law, as amended,providing that

SEC. 9. Special permits, fees for.-The chief of the Motor VehiclesOffice with the approval of the Secretary of Public Works andCommunications shall establish regulations and a tariff ofadditional fees under which special permits may be issued in thediscretion of the Chief of the Motor Vehicles Office or his deputies, for each of the following special cases, and without such specialpermit, no such motor vehicles shall be operated on the publichighways.

x x x x x x x x x

(d) For registration or use of a motor vehicle exceeding the limit of permissible dimensions specified in subsections (b) and (c) ofsection eight-A hereof. (Emphasis supplied)

x x x x x x x x x

expressly allows the registration, or use of motor vehiclesexceeding the limits of permissible dimensions specified in subsec.(b) of Sec. 8-A. So, to conclude that there was a violation of law

which undisputably constitutes negligence, at the very least it isnot enough that the width of the tractor-truck exceed the limit inSec. 8-A; in addition, it must also appear that there was no specialpermit granted under Sec. 9. Unfortunately for petitioners, that vitalfactual link is missing. There was no proof much less any finding tothat effect. And it was incumbent upon petitioners-appellants tohave proved lack of such permit since the tractor-truck and thetrailer were registered.5 Compliance with law and regularity in theperformance of official duty in this case, the issuance of properregistration papers are presumed6 and prevail over mere

surmises. Having charged a violation of law, the onus ofsubstantiating the same fell upon petitioners-appellants. Hence,the conclusion that there was a violation of the law lacks factualbasis.

Petitioners would also have Us abandon the Bahia ruling.7 In itsstead, We are urged to apply the Anglo-American doctrine ofrespondent superior. We cannot however, abandon the Bahia


17/29

ruling without going against the explicit mandate of the law. Amotor vehicle owner is not an absolute insurer against all damagescaused by its driver. Article 2180 of our Civil Code is very explicitthat the owner's responsibility shall cease once it proves that it hasobserved the diligence of a good father of a family to prevent

damage. The Bahia case merely clarified what that diligenceconsists of, namely, diligence in the selection and supervision ofthe driver-employee.

Neither could We apply the respondent superior principle. UnderArticle 2180 of the Civil Code, the basis of an employer's liability ishis own negligence, not that of his employees. The former is maderesponsible for failing to properly and diligently select andsupervise his erring employees. We do not and have never followed the respondent superior rule.8 So, the American rulings

cited by petitioners, based as they are on said doctrine, are notauthoritative here.

In view of the foregoing, the motion for reconsideration is herebydenied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,Zaldivar, Sanchez and Castro, JJ., concur.


18/29

[G.R. No. 159270. August 22, 2005]

PHILIPPINE NATIONAL CONSTRUCTIONCORPORATION, Petitioner, vs. HON. COURT

OF APPEALS, RODRIGO ARNAIZ, REGINALATAGAN, RICARDO GENERALAO andPAMPANGA SUGAR DEVELOPMENT

COMPANY, INC., CORPORATION,

Respondents.

D E C I S I O N

CALLEJO, SR., J.:

This is a petition for review on certiorari of theDecision[1] of the Court of Appeals (CA) in CA-G.R. CVNo. 47699 affirming, with modification, the decision ofthe Regional Trial Court (RTC) of in Civil Case No. 93-

64803.

The Antecedents

Pampanga Sugar Development Company, Inc.

(PASUDECO) transports sugarcane from Mabalacatand Magalang, Pampanga. When the Mount Pinatubo

eruption of 1991 heavily damaged the nationalbridges along Abacan-Angeles and Sapang Maragul via

Magalang, Pampanga, it requested permission fromthe Toll Regulatory Board (TRB) for its trucks to enter

and pass through the North Luzon Expressway (NLEX)via Dau-Sta. Ines from Mabalacat, and via Angelesfrom Magalang, and exit at San Fernando going to itsmilling factory.[2] The TRB furnished the PhilippineNational Construction Corporation (PNCC) (the


19/29

franchisee that operates and maintains the tollfacilities in the North and South Luzon Toll

Expressways) with a copy of the said request for it tocomment thereon.[3] chanrobles virtuallawlibrary

On November 5, 1991, TRB and PASUDECO enteredinto a Memorandum of Agreement[4] (MOA), wherethe latter was allowed to enter and pass through theNLEX on the following terms and conditions:

1. PASUDECO trucks should move in convoy;2. Said trucks will stay on the right lane;

3. A vehicle with blinking lights should be assigned at the

rear end of the convoy with a sign which should read

as follows: Caution: CONVOY AHEAD!!!;4. Tollway safety measures should be properly observed;

5. Accidents or damages to the toll facilities arising out of

any activity related to this approval shall be the

responsibility of PASUDECO;

6. PASUDECO shall be responsible in towing their stalledtrucks immediately to avoid any inconvenience to the

other motorists;

7. This request will be in force only while the national

bridges along Abacan-Angeles and Sapang Maragul

via Magalang remain impassable.

PASUDECO furnished the PNCC with a copy of the

MOA.[5] In a Letter[6] dated October 22, 1992, thePNCC informed PASUDECO that it interposed noobjection to the MOA.

At around 2:30 a.m. on January 23, 1993, AlexSendin, the PNCC security supervisor, and his co-

employees Eduardo Ducusin and Vicente Pascual werepatrolling Km. 72 going north of the NLEX. They saw apile of sugarcane in the middle portion of the north

and southbound lanes of the road.[7] They placed litcans with diesel oil in the north and southbound lanes,including lane dividers with reflectorized markings, towarn motorists of the obstruction. Sendin, Ducusinand Pascual proceeded to the PASUDECO office,believing that the pile of sugarcane belonged to itsince it was the only milling company in the area.


20/29

They requested for a payloader or grader to clear thearea. However, Engineer Oscar Mallari, PASUDECO's

equipment supervisor and transportationsuperintendent, told them that no equipment operator

was available as it was still very early.[8] Nonetheless,Mallari told them that he would send someone to clearthe affected area. Thereafter, Sendin and companywent back to Km. 72 and manned the traffic. Ataround 4:00 a.m., five (5) PASUDECO men arrived,and started clearing the highway of the sugarcane.They stacked the sugarcane at the side of the road.The men left the area at around 5:40 a.m., leaving afew flattened sugarcanes scattered on the road. As

the bulk of the sugarcanes had been piled andtransferred along the roadside, Sendin thought therewas no longer a need to man the traffic. As dawn was

already approaching, Sendin and company removedthe lighted cans and lane dividers.[9] Sendin went to

his office in Sta. Rita, Guiguinto, Bulacan, and madethe necessary report.[10]chanroblesvi rtuallawlibrary

At about 6:30 a.m., Rodrigo S. Arnaiz, a certified

mechanic and marketing manager of JETTY Marketing,

Inc.,[11] was driving his two-door Toyota Corolla withplate number FAG 961 along the NLEX at about 65kilometers per hour.[12] He was with his sister Regina

Latagan, and his friend Ricardo Generalao; they wereon their way to Baguio to attend their grandmother'sfirst death anniversary.[13] As the vehicle ran over thescattered sugarcane, it flew out of control and turnedturtle several times. The accident threw the car aboutfifteen paces away from the scattered sugarcane.

Police Investigator Demetrio Arcilla investigated thematter and saw black and white sugarcanes on theroad, on both lanes, which appeared to beflattened.[14] chanroblesvi rtuallawlibrary

On March 4, 1993, Arnaiz, Latagan and Generalao


21/29

filed a complaint[15] for damages against PASUDECOand PNCC in the RTC of , Branch 16. The case was

docketed as Civil Case No. 93-64803. They alleged,inter alia, that through its negligence, PNCC failed to

keep and maintain the NLEX safe for motorists when itallowed PASUDECO trucks with uncovered andunsecured sugarcane to pass through it; thatPASUDECO negligently spilled sugarcanes on theNLEX, and PNCC failed to put up emergency devices tosufficiently warn approaching motorists of theexistence of such spillage; and that the combinedgross negligence of PASUDECO and PNCC was thedirect and proximate cause of the injuries sustained

by Latagan and the damage to Arnaiz's car. Theyprayed, thus:

WHEREFORE, it is respectfully prayed that, after due hearing,

judgment be rendered for the plaintiffs, ordering the defendants

jointly and severally:

(a) To pay unto plaintiff Rodrigo Arnaiz the sum of

P100,000.00 representing the value of his car

which was totally wrecked;

(b) to pay unto plaintiff Regina Latagan the sum of

P100,000.00 by way of reimbursement formedical expenses, the sum of P50,000.00 by way

of moral damages, and the sum of P30,000.00 by

way of exemplary damages;

(c) To pay unto plaintiffs Rodrigo Arnaiz and Ricardo

Generalao the sum of P5,000.00 by way of

reimbursement for medical expenses; and

(d) To pay unto the plaintiffs the sum of P30,000.00

by way of attorney's fees; plus the costs of suit.

Plaintiffs pray for other reliefs which the Honorable Court may find

due them in the premises.[16]chanrobles virtuallawlibra ry

In its Answer,[17] PNCC admitted that it was undercontract to manage the North Luzon Expressway, tokeep it safe for motorists. It averred that the mishapwas due to the 'unreasonable speed at which Arnaiz's


22/29

car was running, causing it to turn turtle when itpassed over some pieces of flattened sugarcane. It

claimed that the proximate cause of the mishap wasPASUDECO's gross negligence in spilling the

sugarcane, and its failure to clear and mop up thearea completely. It also alleged that Arnaiz was guiltyof contributory negligence in driving his car at suchspeed.

The PNCC interposed a compulsory counterclaim[18]against the plaintiffs and cross-claim[19] against itsco-defendant PASUDECO.

PASUDECO adduced evidence that aside from it, there

were other sugarcane mills in the area, like theARCAM Sugar Central (formerly known as PampangaSugar Mills) and the Central Azucarrera de Tarlac;[20]it was only through the expressway that a vehiclecould access these three (3) sugar centrals;[21] and

PASUDECO was obligated to clear spillages whetherthe planters' truck which caused the spillage was

bound for PASUDECO, ARCAM or CentralAzucarera.[22]chanrobl esvirtuallawlib rary

On rebuttal, PNCC adduced evidence that onlyplanters' trucks with 'PSD markings were allowed touse the tollway;[23] that all such trucks would surelyenter the PASUDECO compound. Thus, the truckwhich spilled sugarcane in January 1993 in Km. 72was on its way to the PASUDECO compound.[24]chanroblesvi rtuallawlibrary

On November 11, 1994, the RTC rendered itsdecision[25] in favor of Latagan, dismissing that of

Arnaiz and Generalao for insufficiency of evidence.The case as against the PNCC was, likewise,dismissed. The decretal portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby

rendered:

I. ORDERING defendant PASUDECO:


23/29

1. To pay plaintiff Regina Latagan:

a. P25,000 = for actual damages

b. P15,000 = for moral damages

c. P10,000 = for attorney's fees

P50,000

2. To pay costs of suit.

II. The case is DISMISSED as to defendant PNCC. Nopronouncement as to costs. Its counterclaim is,

likewise, DISMISSED.

III. The claims for damages of plaintiffs Rodrigo Arnaiz

and Ricardo Generalao are hereby DISMISSED forinsufficiency of evidence.

SO ORDERED.[26]chanrobles virtuallawlibrary

Both the plaintiffs Arnaiz, Latagan and Generalao anddefendant PASUDECO appealed the decision to theCA. Since the plaintiffs failed to file their brief, the CAdismissed their appeal.[27]chanrobl esvirtuallawlib rary

Resolving PASUDECO's appeal, the CA rendered judgment on April 29, 2003, affirming the RTCdecision with modification. The appellate court ruledthat Arnaiz was negligent in driving his car, but that

such negligence was merely contributory to the causeof the mishap, i.e., PASUDECO's failure to properlysupervise its men in clearing the affected area. Its

supervisor, Mallari, admitted that he was at his housewhile their men were clearing Km. 72. Thus, the

appellate court held both PASUDECO and PNCC, jointly and severally, liable to Latagan. The decretalportion of the decision reads:

WHEREFORE, premises considered, the assailed DECISION is

hereby MODIFIED and judgment is hereby rendered declaring

PASUDECO and PNCC, jointly and solidarily, liable:

1. To pay plaintiff Regina Latagan:

a. P25,000 = for actual damagesb. P15,000 = for moral damages


24/29

c. P10,000 = for attorney's fees2. To pay costs of suit.

SO ORDERED. [28]chanroblesvi rtuallawlibrary

The PNCC, now the petitioner, filed a petition forreview on certiorari under Rule 45 of the RevisedRules of Court, alleging that:

THE HONORABLE COURT OF APPEALS ERRED IN MODIFYING THE

DECISION OF THE TRIAL COURT AND MAKING PETITIONER PNCC,

JOINTLY AND [SOLIDARILY], LIABLE WITH PRIVATE RESPONDENT

PASUDECO.[29]chanrobles virtuallawlibra ry

The petitioner asserts that the trial court was correctwhen it held that PASUDECO should be held liable for

the mishap, since it had assumed such responsibilitybased on the MOA between it and the TRB. Thepetitioner relies on the trial court's finding that onlyPASUDECO was given a permit to pass through theroute.

The petitioner insists that the respondents failed to

prove that it was negligent in the operation andmaintenance of the NLEX. It maintains that it had

done its part in clearing the expressway of sugarcanepiles, and that there were no more piles of sugarcanealong the road when its men left Km. 72; only a fewscattered sugarcanes flattened by the passingmotorists were left. Any liability arising from anymishap related to the spilled sugarcanes should beborne by PASUDECO, in accordance with the MOAwhich provides that 'accidents or damages to the tollfacilities arising out of any activity related to this

approval shall be the responsibility of PASUDECO.The petitioner also argues that the respondents shouldbear the consequences of their own fault ornegligence, and that the proximate and immediatecause of the mishap in question was respondentArnaiz's reckless imprudence or gross negligence.


25/29

The Court notes that the issues raised in the petitionare factual in nature. Under Rule 45 of the Rules of

Court, only questions of law may be raised in thisCourt, and while there are exceptions to the rule, no

such exception is present in this case. On this groundalone, the petition is destined to fail. The Court,however, has reviewed the records of the case, andfinds that the petition is bereft of merit.

The petitioner is the grantee of a franchise, giving itthe right, privilege and authority to construct, operateand maintain toll facilities covering the expressways,collectively known as the NLEX.[30] Concomitantthereto is its right to collect toll fees for the use of the

said expressways and its obligation to keep it safe formotorists.

There are three elements of a quasi-delict: (a)damages suffered by the plaintiff; (b) fault or

negligence of the defendant, or some other person forwhose acts he must respond; and (c) the connection

of cause and effect between the fault or negligence ofthe defendant and the damages incurred by the

plaintiff.[31] Article 2176 of the New Civil Codeprovides:

Art. 2176. Whoever by act or omission causes damage to another,there being fault or negligence, is obliged to pay for the damage

done. Such fault or negligence, if there is no pre-existing

contractual relation between the parties, is called a quasi-delict and

is governed by the provisions of this Chapter.

Negligence is the omission to do something which areasonable man, guided by those considerations which

ordinarily regulate the conduct of human affairs,would do, or the doing of something which a prudentand reasonable man would do.[32] It also refers to theconduct which creates undue risk of harm to another,the failure to observe that degree of care, precautionand vigilance that the circumstance justly demand,whereby that other person suffers injury.[33] The


26/29

Court declared the test by which to determine theexistence of negligence in Picart v. Smith,[34]viz:

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 use that reasonable care and caution

which an ordinarily prudent 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 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 situationbefore him. The law considers what would be reckless,

blameworthy, or negligent in the man of ordina ry intelligence and

prudence and determines liability by that.

The test for determining whether a person is negligentin doing an act whereby injury or damage results tothe person or property of another is this: could aprudent man, in the position of the person to whomnegligence is attributed, foresee harm to the person

injured as a reasonable consequence of the courseactually pursued? If so, the law imposes a duty on the

actor to refrain from that course or to takeprecautions to guard against its mischievous results,

and the failure to do so constitutes negligence.Reasonable foresight of harm, followed by theignoring of the admonition born of this provision, isalways necessary before negligence can be held toexist.[35]chanrobl esvirtuallawlib rary

In the case at bar, it is clear that the petitioner failedto exercise the requisite diligence in maintaining the

NLEX safe for motorists. The lighted cans and lanedividers on the highway were removed even as

flattened sugarcanes lay scattered on the ground.[36]The highway was still wet from the juice and sap ofthe flattened sugarcanes.[37] The petitioner shouldhave foreseen that the wet condition of the highwaywould endanger motorists passing by at night or inthe wee hours of the morning.


27/29

The petitioner cannot escape liability under the MOAbetween PASUDECO and TRB, since respondent

Latagan was not a party thereto. We agree with thefollowing ruling of the CA:

Both defendants, appellant PASUDECO and appellee PNCC, shouldbe held liable. PNCC, in charge of the maintenance of the

expressway, has been negligent in the performance of its duties.

The obligation of PNCC should not be relegated to, by virtue of aprivate agreement, to other parties.

PNCC declared the area free from obstruction since there were no

piles of sugarcane, but evidence shows there were still pieces of

sugarcane stalks left flattened by motorists. There must be an

observance of that degree of care, precaution, and vigilance which

the situation demands. There should have been sufficient warning

devices considering that there were scattered sugarcane stalks stillleft along the tollway.

The records show, and as admitted by the parties, that Arnaiz's car

ran over scattered sugarcanes spilled from a hauler truck.[38]chanroblesvirt uallawlibrary

Moreover, the MOA refers to accidents or damages tothe toll facilities. It does not cover damages to

property or injuries caused to motorists on the NLEXwho are not privies to the MOA.

PASUDECO's negligence in transporting sugarcaneswithout proper harness/straps, and that of PNCC inremoving the emergency warning devices, were twosuccessive negligent acts which were the direct andproximate cause of Latagan's injuries. As such,PASUDECO and PNCC are jointly and severally liable.As the Court held in the vintage case of Sabido v.Custodio:[39]

According to the great weight of authority, where the concurrent or

successive negligent 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 injury to a third person

and it is impossible to determine in what proportion eachcontributed to the injury, either is responsible for the whole injury,

even though his act alone might not have caused the entire injury,

or the same damage might have resulted from the acts of the other

tort-feasor. ...


28/29

In Far Eastern Shipping Company v. Court ofAppeals,[40] 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 liable need not be the sole cause of an injury. It issufficient that his negligence, concurring with one or more efficient

causes other than plaintiff's, is the proximate 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 resulted 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

wrongful acts of the other concurrent tortfeasors. Where severalcauses producing an 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 causes 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 culpable, and that the duty owed by them to the injured

person was not the same. No actor's negligence ceases to be a

proximate cause merely because it does not exceed the negligenceof other actors. Each wrongdoer is responsible for the entire result

and is liable as though his acts were the sole cause of the injury.

There is no contribution between joint tortfeasors whose liability issolidary since both of them are liable for the total damage. Where

the concurrent or successive negligent acts or omissions of two or

more persons, although acting independently, are in combination

with the direct and proximate cause of a single injury to a third

person, it is impossible to determine in what proportion each

contributed to the injury and either of them is responsible for thewhole injury. Where their concurring negligence resulted in injury or

damage to a third party, they become joint tortfeasors and are

solidarily liable for the resulting damage under Article 2194 of the

Civil Code.

Thus, with PASUDECO's and the petitioner'ssuccessive negligent acts, they are joint tortfeasorswho are solidarily liable for the resulting damageunder Article 2194 of the New Civil Code.[41]chanrobles virtuallawlib rary

Anent respondent Arnaiz's negligence in driving his


29/29

car, both the trial court and the CA agreed that it wasonly contributory, and considered the same in

mitigating the award of damages in his favor asprovided under Article 2179[42] of the New Civil Code.

Contributory negligence is conduct on the part of theinjured party, contributing as a legal cause to theharm he has suffered, which falls below the standardto which he is required to conform for his ownprotection.[43] Even the petitioner itself describedArnaiz's negligence as contributory. In its Answer tothe complaint filed with the trial court, the petitionerasserted that 'the direct and proximate cause of theaccident was the gross negligence of PASUDECO

personnel which resulted in the spillage of sugarcaneand the apparent failure of the PASUDECO workers toclear and mop up the area completely, coupled with

the contributory negligence of Arnaiz in driving his carat an unreasonable speed.[44] However, the petitioner

changed its theory in the present recourse, and nowclaims that the proximate and immediate cause of themishap in question was the reckless imprudence orgross negligence of respondent Arnaiz.[45] Such a

change of theory cannot be allowed. When a partyadopts a certain theory in the trial court, he will notbe permitted to change his theory on appeal, for topermit him to do so would not only be unfair to theother party but it would also be offensive to the basic

rules of fair play, justice and due process.[46]chanroblesvirt uallawlibrary

IN LIGHT OF ALL THE FOREGOING, the presentpetition is hereby DENIED for lack of merit. TheDecision of the Court of Appeals in CA-G.R. CV No.47699, dated April 29, 2003, is AFFIRMED. Costsagainst the petitioner.

SO ORDERED.

cases to be digested for oblicon

Documents