NOTE: this is a memorandum submitted as a requirement during our

revalida in Evidence under Atty. Rodolfo Salalima.

REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICAL REGION
Makati City, Branch 08
TOM CRUZ,
Plaintiff,

Civil Case No. 1234

For: Claim for
Damages

-versusBRAD FEET, RYAN GOSLEE,

CHRISTIAN VEIL, and HENRY
KABIL
Defendants.
x---------------------------------------x
MEMORANDUM
COMES NOW PLAINTIFF, through the undersigned counsel.
Unto this Honorable Supreme Court most respectfully submit and
present this Memorandum in the above-title case and aver that:
I.

THE PARTIES

1. That Plaintiff Tom Cruz is of legal age, widower, and a resident of

Unit 008, 8/F Cityland Pasong Tamo Towers, 2210 Don Chino Roces
Avenue, Makati City, where she may served with legal processes and
notices issued by this Honorable Court;
2. That defendant Brad Feet is of legal age, married, owner and operator
of Truckformers Hauling Services and residing on Lot 2 Block 6
Phase 2, Palmera homes, Muntinlupa City, and may be served with
legal processes and other judicial notices thereto.
3. That Defendant Ryan Goslee is of legal age, married, employee of
Brad Feet and residing on #45 Pusong-Bato street, Makabagong
Anghit Village, Makati City, and may be served with legal processes
and other judicial notices thereto.

4. That Defendant Henry Kabil is of legal age, married, owner of Mazda

Taxi and residing on Lot 44 Blk 11 Whisper Wings Street, Brgy. Jabar,
Quezon City, and may be served with legal processes and other
judicial notices thereto.
5. That Defendant Christian Veil is of legal age, married, employee of
Henry Kabil and residing on Lot 67 Blk 88 PH Care street Brgy
Putok, Quezon City, and may be served with legal processes and other
judicial notices thereto.
II.

PROCEDURAL BACKGROUND

1. On November 25, 2013, plaintiff filed a Complaint for Claim for

Damages against herein defendant.
2. On November 27, 2013, defendant received summons issued by
the Honorable Court to file an answer.
3. On December 03, 2013, defendant filed his answer dated
December 01, 2013 against the plaintiff.
4. Accordingly, the Honorable Court ordered the parties to file their
pre-trial briefs 15 days from receipt of notice of pre-trial.
5. On December 15, 2013, both plaintiff and defendants filed their
respective pre-trial briefs as ordered by the Honorable Court.
6. On December 27, 2013, as per verification by the Honorable Court
of the pre-trial briefs, preliminary conference was set.
7. On January 10, 2014, preliminary conference was held in the
presence of the plaintiff, defendant, and their respective counsels.
8. On February 10, 2014, after presentation of evidences on the said
trial date, the Honorable Court ordered the parties to submit their
respective Memoranda fifteen days (15) days from notice,
otherwise, the case is deemed submitted for decision.
Hence, the filing of the instant Memorandum
III.

FACTUAL BACKGROUND

1. Plaintiff is Tom Cruz, 53 years old, a widow, and husband of

the victim Maria Cruz, 45, now deceased, and father of two
boys, Logan Cruz, 18, and Bruce Cruz, 15, both deceased.
2. That at about 5:00 in the morning of April 20, 2013, a collision
occurred between a gravel and sand truck, with Plate No. ABC

123, and a Mazda passenger taxi with Motor No. A1234 and
Plate No. DEF 456 along the Senator Gil J. Puyat Avenue,
Makati, Metro Manila, Philippines.
3. That during the incident, the cargo truck was driven by
defendant Brad Feet and owned by defendant Ryan Goslee;
while the passenger taxi was driven by defendant Christian Veil
and owned by defendant Henry Kabil.
4. That immediately before the collision, the cargo truck and the
passenger taxi was approaching each other, coming from the
opposite directions of Senator Gil J. Puyat Avenue, Makati City.
That while the taxi was in the process of overtaking a hand
truck, the two vehicles sideswiped each other at each others
left side and after which, the truck skidded towards the other
side of the road and hitting a post. That the front left side
portion of the body of the truck sideswiped the left side wall of
the passenger taxi, ripping off the said wall from the drivers
seat to the rear seat.
5. That due to the impact, passengers of the taxi were thrown out
and died as a result of the injuries they sustained.
6. That the plaintiff demanded from the defendants
indemnification for all the losses and damages sustained by
reason of the death of his wife and 2 sons.
7. The defendants set a meeting with the plaintiff at Burgeran
Makinarya along Kropek Highway, Quezon City and held on
July 25, 2013. That the meeting was held for the purpose of
amicably settling the claims between the parties, but the
plaintiff did not agree with the amount of settlement offered by
the defendants. The amount offered by the defendants embodied
in the agreement was only 800,000 php where in fact the loss of
the plaintiff was more than the amount offered.
8. That despite unrelenting refusal of the plaintiff to the offer, the
defendants frequently visited the house of the plaintiff to
convince him to accept the offer.
9. That the plaintiff never agreed to the offer of the defendants.
Conversely, plaintiff was forced to take it due to his sorrow and
lack of choice. After such receipt, an affidavit of quitclaim was
presented to him and by means of intimidation and undue
influence, he was forced to sign the same.
IV.

ISSUES

1. Whether or not the liability of the defendants are joint and

severally.
2. Whether or not the averred compromise agreement and affidavit

of quitclaim by the defendants is valid

3. Whether or not the plaintiff has a claim against defendants
despite receipt of indemnification amounting to 800,000php
V.

ARGUMENTS

1. The defendants are jointly and severally liable to the plaintiffs

for the loss suffered by him from the death of his wife and two
sons.
2. The compromise agreement and affidavit of quitclaim are void.
3. The plaintiff has a valid and existing cause of action for claim
of damages against the plaintiff.
VI.

DISCUSSION

A. Liability of Defendants
A.1 Nature and Definition
The primary legal basis for private respondent's cause
of action is Article 2176 of the Civil Code on quasi-delict
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. (1902a)
Negligence is defined in the case of Jarco Marketing
Corporation vs CA. negligence is the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a
prudent and reasonable man would not do. Negligence is
"the failure to observe, for the protection of the interest of
another person, that degree of care, precaution and vigilance
which the circumstances justly demand, whereby such other
person suffers injury. The case further compared negligence
from an accident. An accident pertains to an unforeseen
event in which no fault or negligence attaches to the
defendant. It is "a fortuitous circumstance, event or

happening; an event happening without any human agency,

or if happening wholly or partly through human agency, an
event which under the circumstances is unusual or
unexpected by the person to whom it happens."
The facts of this case, pursuant to the position of the
plaintiff, evidentlly show gross negligence of both
defendants. The facts provide that a collision occurred
between a gravel and sand truck and a Mazda passenger taxi,
while both vehicles were driven by Brad Feet and Christian
Veil.
As to the case of Mazda passenger taxi, Brad Feet as its
driver is negligent to the extent of failure to observe that
extraordinary diligence required of a public vehicle and a
common carrier. Article 1732 and 1733 of the Civil Code
provides:
Art. 1732. Common carriers are persons, corporations, firms
or associations engaged in the business of carrying or
transporting passengers or goods or both, by land, water, or
air, for compensation, offering their services to the public.
Art. 1733. Common carriers, from the nature of their business
and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to
all the circumstances of each case.
In transportation, there is an implied contract of carriage
once a person is regarded as passenger of a common carrier. In
the case of Calalas vs Court of Appeals (332 SCRA 356, 2000),
discussed that, in quasi-delict, the negligence or fault should be
clearly established because it is the basis of the action, whereas
in breach of contract, the action can be prosecuted merely by
proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his
passenger safely to his destination. In case of death or injuries
to passengers, Art. 1756 of the Civil Code provides that
common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed
extraordinary diligence as defined in Arts. 1733 and 1755 of
the Code. This provision necessarily shifts to the common
carrier the burden of proof. As continuously contemplated by
the plaintiff and in the complaint, driver Brad Feet attempted to
overtake the sand and gravel truck despite knowledge that they
were reaching a sharp curve along Gil Puyat Avenue. In fact,
the point where the incident occurred was shown through the

presentation of picture during the trial. It shows that the

occurrence causing the death of victims happened only 15
meters away from a sharp curve. And relying on the scratches
on the road, it implies that the passenger taxi was running in
speed while traversing such sharp curve. Besides, it is basic that
an ordinary driver should know that overtaking on a sharp
curve is strictly prohibited. Driver Brad Feet, theretofore, failed
to exercise that diligence required of a common carrier.
As to the case of Christian Veil as driver of the sand and
gravel truck, he is also negligent for his failure to signal the
passenger taxi behind him that he is also about to overtake the
motor vehicle in front of him, he did not do so.
The employer-owners of said driver and vehicles are
likewise liable. 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 responsible.
Employers shall be liable for the damages caused by
their employees and household helpers acting within the scope
of their assigned tasks, even though the former are not engaged
in any business or industry.
The responsibility treated in this article shall cease when
the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
It is not disputed that all defendants admitted their
negligence. The question lies now on the liability of the
defendants.
A.2 Liability
As to what extent is their liabilites are, we adhere with the
ruling in the case of Sabido vs Custudio (G.R. No. L-21512,
1966)
In the case, the court said, although the negligence of
the carrier and its driver is independent, to its execution, of the
negligence of the truck driver and its owner, both acts of
negligence are the proximate cause of the death of Agripino
Custodio. In fact, the negligence of the first two (2) would not
have produced this result without the negligence of petitioners'
herein. What is more, petitioners' negligence was the last, in
point of time, for Custodio was on the running board of the
carrier's bus sometime before petitioners' truck came from the

opposite direction, so that, in this sense, petitioners' truck had

the last clear chance.
Petitioners contend that they should not be held solidarily liable with
the carrier and its driver, because the latter's liability arises from a
breach of contract, whereas that of the former springs from a quasidelict. The rule is, however, that.
"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 each contributed 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. . . ."
(38 Am. Jur. 946, 947.)
The plaintiff and counsel find similarity of the case Sabido vs
Custudion with the present case. There was concurrent or successive
negligent acts or omission of two or more persons, although the
defendants Feet, and Veil, were acting independently of each other,
are, in combination, the direct and proximate cause of the death of the
wife of plaintiff and his two sons. Further, it is impossible to
determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not
have caused the entire injury, hence the liability of the defendants is
joint and severally, or solidary.
Plaintiff now maintain: (1) that the death of was due exclusively
to the negligence of the carriers owner and its driver; (2) that
defendants were guilty of negligence in connection with the matter
under consideration; (3) that defendants are solidarily liable
B. Validity of Compromise Settlement and Affidavit of
Quitclaim
B.1 Nature and Definition
Under Article 2028 of the Civil Code, a compromise is a
contract whereby the parties, by making reciprocal concessions,
avoid a litigation or put an end to one already commenced.
Accordingly, a compromise is either judicial, if the objective is
to put an end to a pending litigation, or extrajudicial, if the
objective is to avoid a litigation. As a contract, a compromise is
perfected by mutual consent. However, a judicial compromise,
while immediately binding between the parties upon its
execution, is not executory until it is approved by the court and

reduced to a judgment. The validity of a compromise is

dependent upon its compliance with the requisites and
principles of contracts dictated by law. Also, the terms and
conditions of a compromise must not be contrary to law,
morals, good customs, public policy and public order.
(Landbank of the Philippines vs. Heirs of Spouses Jorja Rigor
Soriano and Magin Soriano; G.R. No. 178312. January 30,
2013)
Article 1306 of the Civil Code of the Philippines provides that
contracting parties may establish such stipulations, clauses,
terms, and conditions, as they may deem convenient, provided
that they are not contrary to law, morals, good customs, public
order, or public policy. A compromise agreement is a contract
whereby the parties make reciprocal concessions, avoid
litigation, or put an end to one already commenced. (Article
2028 of the Civil Code, DMG Industries, Inc. v. Philippine
American Investments Corporations, G.R. No. 174114, July 6,
2007, 526 SCRA 682, 68)
It is an accepted, even desirable and encouraged, practice in
courts of law and administrative tribunals. (DMG Industries,
Inc. v. Philippine American Investments Corporations, G.R.
No. 174114, July 6, 2007, 526 SCRA 682, 68)
The attempt to amicably settle between the parties in this case is
an extrajudicial compromise. Prior to the filing of the present
case, the plaintiff admits that there was an offer from
defendants to amicably settle among themselves to prevent
litigation. However, the plaintiff never accepted the offer due to
insufficiency. It was even severed by the exertion of force by
the defendants to compel plaintiff accept said offer.
Further, the plaintiff stands that the compromise agreement
presented by the defendants is nothing but a mere scrap of
paper hence void. The law provides that a valid extrajudicial
compromise agreement, first, the agreement must be entered
into by the parties VOLUNTARILY. Secondly, the terms of the
agreement must be REASONABLE, and contrary to law,
morals, good customs, public order, or public policy.
In the present case, it is obvious that it was not voluntarily
entered into because such agreement was prepared by the
defendants without asking the plaintiff of his desired terms.
Though plaintiff was very much willing to enter into settlement,
the defendants assumed that the offer of 800,000php is
suffidient to indemnify the losses suffered by plaintiff.
Moreover, even if the said defendants did not asked plaintiff of
his desired amount for settlement, the plaintiff opened it up

during the December 23, 2013 meeting. Plaintiff was willing to

receive a claim of 3 million even the total amount of the
damages and his loss was way above 5 million pesos. In fact,
such amount will never replace the loss of the lives of his
family. The life of the most important person in which he can
never claim from the defendants. However, the defendants
refused to accede to his claim, rather they insisted on the
800,000 php. Plaintiff is very much decided not to accept the
claim because of sorrow and grief, but defendants were
persistent. In the end, the plaintiff was forced to take it due lack
of choice. Thereafter the agreement and an affidavit of
quitclaim was presented before him and despite reluctance, he
signed the same due to the exertion of force, intimidation, and
undue influence of the defendants.
A compromise in which there is mistake, farud, violence,
intimidation, undue influence, or falsity of documents, is
subject to the provisions of Article 1330 of the Civil Code.
(Article 2038 of the Civil Code)
Article 1330 of the code under obligation and contracts
provides that a contract where consent is given through
mistake, violence, intimidation, undue influence or fraud is
voidable. Assuming said agreement be decided to be valid since
not yet annulled, Article 2041 of the same code states that if one
of the parties fail or refuses to abide by the compromise, the
other party may enforce the compromise or regard it as
rescinded and insist upon his original demand.
Squarely on this point in the case of Martin v. Martin, et
al. (105 Phil. 753-754 [1979]), this Court ruled that parties to
the compromise agreement who signed and executed the same
willingly and voluntarily should be bound by its terms. Thus, a
person cannot repudiate the effects of his voluntary acts simply
because it does not fit him, or simply because the judge before
whom he executed the act, did not have jurisdiction of the case.
In a regime of law and order, repudiation of an agreement
validly entered into cannot be made without any ground or
reason in law or in fact for such repudiation. In the present case,
there was no voluntary agreement. The desire of plaintiff to
repudiate said agreement has a valid ground and reason in law.
As to the validity of affidavit of quitclaim, the same is
not valid because the requisite of a valid quitclaim is that it
must be WRITTEN, entered into VOLUNTARILY, and with
REASONABLE terms and conditions.
Plaintiff now maintain: (1)The compromise agreement
and affidavit of quitclaim was entered into involuntarily hence

not executed in accordance with the requirements of law. (2)

The amount offered in the compromise agreement is
unreasonable. (3.) The compromise agreement is not valid
between the plaintiff and defendants. (4.) The affidavit of
quitclaim is not valid. (5) Assuming agreement is voidable, that
the compromise agreement be voided pursuant to the
discussions above-mentioned.
C. Existence of Cause of Action for damages other than actual
damages.
Actual or Compensatory damages
Under both the Spanich Civil Code and American of damages,
actual damages for a negligent act or omission are confined to those
which "were foreseen or might have been foreseen," or those which
were "the natural and probable consequences" or "the direct and
immediate consequences" of the act or omission. Further, in the
landmark case of Algarra vs Sandejas (G.R No. L-8385, 1914),
Actual damages, under the American system, include pecuniary
recompense for pain and suffering, injured feelings, and the like.
Article 1902, as interpreted by this court in Meralco vs. Velasco (11
Phil. Rep., 287), does not extend to such incidents. Aside from this
exception, actual damages, in this jurisdiction, in the sense that
they mean just compensation for the loss suffered, are
practically synonymous with actual damages under the
American system. This court has already gone some distance in
incorporating into our jurisprudence those principles of the
American law of actual damages which are of a general and abstract
nature.
Hence it is but a matter or right of herein plaintiff to recover
not only the actual expenses for the death of the wife and two sons
but also the loss of income by her wife.
To justify the plaintiffs claim for loss of income amounting to
5,000,000, this party shall use as its basis the formula used in the
landmark case Rodiguez-Luna vs IAC (G.R No. 62988, 1985). In
such case, the award of P1,650,000.00 was based on two factors,
namely: (a) that the deceased Roberto R. Luna could have lived for
30 more years; and (b) that his annual net income was P55,000.00,
computed at P75,000.00 annual gross income less P20,000.00
annual personal expenses.
This is what the trial court said on Luna's life expectancy:
"According to the American Experience Table of
Mortality, at age 33 the life expectancy of Roberto Luna

was 33.4 years, and under the Commissioner Standard

Ordinary, used by our domestic insurance companies
since 1968 for policies above P5,000.00 his life
expectancy was 38.51 years. Dr. Vicente Campa, medical
director of San Miguel Corporation, testified that he was
the regular physician of Roberto Luna since his marriage
to Felina Rodriguez in 1957. He said that except for a
slight anemia which he had ten years earlier, Roberto
Luna was of good health. Allowing for this condition, he
could reasonably expect to have a life expectancy of 30
years." (Record on Appeal, p. 33.)
The Court of Appeals in sustaining the trial court's conclusion said:
"We have not been persuaded to disturb the conclusion
that the deceased had a life expectancy of thirty years. At the
time of Luna's death, he was only thirty-three years old and in
the best of health. With his almost perfect physical condition
and his sound and, the expectation that he could have lived
for another thirty years is reasonable, considering that with
his educational attainment, his social and financial, he had
the means of staying fit and preserving his health and wellbeing. That he could have lived at least until the age of sixtythree years is an assessment which is more on the
conservative side in view of the testimony of Dr. Vicente
Campa that the general life expectancy nowadays had gone
up to seventy years." (Rollo, p. 45.)
In the present case, the plaintiff submit that her wife
Maria, is a head chief accounting officer of Philippines
Economic Zone Authority Head Branch. She also maintains a
mini-dress shop in Baguio City. She is earning 70,000php
monthly with an annual net income of 520,000php (already
deducted are the expenses incurred for the family and
personal needs.) In addition, Maria has a perfect physical
condition with a projected life expectancy of perhaps 30
years. Such period of time is reasonable. Taking those in
consideration, the loss of income should have been more than
5,000,000php. But the plaintiff is only asking to be
compensated in the amount of 5,000,000php.
Plaintiff now maintain: that he be entitled to the claim To
pay jointly and severally the sum of P500,000 as indemnity
for the death of Maria Cruz, Logan Cruz, and Bruce Cruz;
P5,000,000 as indemnity for the loss of the earning capacity
of the deceased Maria Cruz.
Moral Damages
The plaintiff seeks to be compensated for the physical
suffering, mental anguish, fright, serious anxiety, wounded
feelings, moral shock, social humiliation suffered.

The plaintiff during the trial have already convinced the

court that the mere loss of the lives of his family and leaving
him alone and no one beside him anymore is already a
satisfactory proof that he has suffered damages and injury
pursuant to Article 2219 and 2220 of the Civil Code.
Moreover, the damages were shown to be the proximate
result of a wrongful act or omission. The claimant has clearly
established the factual basis of the damages and its causal tie
with the acts of the defendant.
The plaintiff now maintain that he be compensated P100,000
as moral damages.
VII. CONCLUSION
With the laws and jurisprudence presented, the plaintiff, through their
counsel believes that the defendants are liable for damages claimed by the
plaintiff; that assuming arguendo the payment of 800,000php, to the plaintiff
by defendant is a valid indemnification, the plaintiff requests that such be
offset form the total claims for loss and damages.
VIII. PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Court that judgment be rendered in favor of the Plaintiff and
against Defendants ordering the latter:
a. To pay jointly and severally the sum of P500,000 as indemnity for the
death of Maria Cruz, Logan Cruz, and Bruce Cruz; P5,000,000 as
indemnity for the loss of the earning capacity of the deceased Maria
Cruz; and P100,000 as moral damages;
b. To pay jointly and severally the sum of P30,000 as attorneys fees and
the costs of the suit
Other equitable reliefs are likewise prayed for.
Respectfully submitted.
City of Makati, Philippines, February 23, 2014.
BAYLON, CRUZ, & YANGCO Law Firm
SAN BEDA COLLEGE ALABANG
School of Law
63E, 3/F St. Maurs Bldg.
Don Manolo Blvd., Alabang Hills Village,
Muntinlupa City
Tel # 854-3098; Fax # 867-9122

By:
CHRISTINE BERNADETTE CRUZ
Counsel for the Plaintiff
IBP No. 654321; 01/10/13 Muntinlupa
PTR. No. 7654321; 01/10/13 - Muntinlupa
Roll No. 54321; 08/08/08
MCLE No. I 432100; 12/12/12
MCLE No. II 876500; 12/12/12

COPY FURNISHED BY PERSONAL SERVICE:

DUMALANTA & FLORES Law Firm
Counsel for Defendants Brad Feet and Ryan Goslee
San Beda College Alabang
School of Law
63A, 3/F St. Maurs Bldg.
Don Manolo Blvd., Alabang Hills Village, Muntinlupa City
Tel. #: 842-2222

GAMMAD & BAUTISTA Law Firm

Counsel for Defendants Christian Veil and Henry Kabil
San Beda College Alabang
School of Law
63A, 3/F St. Maurs Bldg.
Don Manolo Blvd., Alabang Hills Village, Muntinlupa City
Tel. #: 345-6666
Received by: _____________________

Date: ______________