PRESUMPTION OF NEGLIGENCE

PESTANO vs. SUMAYANG

Facts: Sumayang, accompanied by another person, was riding a motor vehicle on a highway in Cebu.
While turning left at a junction, Sumayang was violently hit by a speeding bus driven by Pestano.
Sumayang and his companion died due to the accident. The heirs of Sumayang filed a civil action
against Pestano and etro Cebu !us Company, the owner of the !us driven by Pestano. " witness
named #eis accounts that before Sumayang turned left, the former had raised his left arm as a signal but
was run over by the bus and was thrown $% meters away. Pestano alleges the victims were negligent
because $&'() meters away, he had already blown the bus*
horn and even blew it a second time when he got near but could only step on the bra+e after the bus had
hid the motor vehicle. ,TC and C" held Pestano liable and also held etro Cebu !us liable for
negligence.
ISSUE:
Whether the C" erred in applying Section %& of ," %$-. when it ruled that negligence in driving was
the pro/imate cause of the accident0
HELD:
Petitioners contend that Pesta1o was not under any obligation to slow down when he overtoo+ the
motorcycle, because the deceased had given way to him upon hearing the bus horn. Seeing that the left
side of the road was clearly visible and free of oncoming traffic, Pesta1o accelerated his speed to pass
the motorcycle. 2aving given way to the bus, the motorcycle driver should have slowed down until he
had been overta+en.
They further contend that the motorcycle was not in the middle of the road nearest to the junction as
found by the trial and the appellate courts, but was on the inner lane. This e/plains why the damage on
the bus were all on the right side 3 the right end of the bumper and the right portion of the radiator grill
were bent and dented. 2ence, they insist that it was the victim who was negligent.
We disagree. Petitioners are raising a 4uestion of fact based on Pesta1o*s testimony contradicting that of
5yewitness 6gnacio #eis and on the location of the dents on the bumper and the grill.#eis testified that
as the two vehicles approached the junction, the victim raised his left arm to signal that he was turning
left to Tabagon, but that the latter and his companion were thrown off the motorcycle after it was
bumped by the overspeeding bus.
These contentions have already been passed upon by the trial and the appellate courts. We find no
cogent reason to reverse or modify their factual findings. The C" agreed with the trial court that the
vehicular collision was caused by Pesta1o*s negligence when he attempted to overta+e the motorcycle.
"s a professional driver operating a public transport bus, he should have anticipated that overta+ing at a
junction was a perilous maneuver and should thus have e/ercised e/treme caution.
7actual findings of the C" affirming those of the trial court are conclusive and binding on this Court.
Petitioners failed to demonstrate that this case falls under any of the recogni8ed e/ceptions to this rule.
6ndeed, the issue of negligence is basically factual and, in 4uasi'delicts, crucial in the award of damages.
Petitioners aver that the C" was wrong in attributing the accident to a faulty speedometer and in
implying that the accident could have been avoided had this instrument been properly functioning.
This contention has no factual basis. 9nder "rticles ($:) and ($;. of the Civil Code, owners and
managers are responsible for damages caused by their employees. When an injury is caused by the
negligence of a servant or an employee, the master or employer is presumed to be negligent either in the
selection or in the supervision of that employee. This presumption may be overcome only by
satisfactorily showing that the employer e/ercised the care and the diligence of a good father of a family
in the selection and the supervision of its employee.<:=
The C" said that allowing Pesta1o to ply his route with a defective speedometer showed la/ity on the
part of etro Cebu in the operation of its business and in the supervision of its employees. The
negligence alluded to here is in its supervision over its driver, not in that which directly caused the
accident. The fact that Pesta1o was able to use a bus with a faulty speedometer shows that etro Cebu
was remiss in the supervision of its employees and in the proper care of its vehicles. 6t had thus failed to
conduct its business with the diligence re4uired by law.
LUDO vs. CA
FACTS:
Petitioner >udo ? >uym Corporation is a domestic corporation engaged in copra processing. Private
,espondent @abisan Shipping >ines was the registered owner and operator of the motor vessel MV
Miguela, while the other private respondent, "nselmo Alasiman, was its captain. Petitioner owns and
operates a private wharf used by vessels for loading and unloading of copra and other processed
products. "mong its wharf*s facilities are fender pile clusters for doc+ing and mooring.
While MV Miguela was doc+ing at petitioner*s wharf, it rammed and destroyed a fender pile cluster.
Petitioner demanded damages from private respondents. The latter refused. 2ence, petitioner filed a
complaint for damages.
Petitioner*s evidence during trial showed that on ay ($, $BB), at $:-) P.., MV Miguela came to doc+
at petitioner*s wharf. 6reneo #aval, petitioner*s employee, guided the vessel to its doc+ing place. "fter
the guide Csmall ropeD was thrown from the vessel and while the petitioner*s security guard was pulling
the big rope to be tied to the bolar, MV Miguela did not slow down. The crew did not release the vessel*s
anchor. #aval shouted E,everseF to the vessel*s crew, but it was too late when the latter responded, for
the vessel already rammed the pile cluster. The impact disinclined the pile cluster and deformed the
cable wires wound around it. #aval immediately informed the vessel*s captain and its chiefmate of the
incident, and instructed the guard'on'duty, "lfredo 5spina, to ma+e a spot report. The incident was
reported to "tty. Gu, petitioner*s vice'president for legal and corporate affairs. "tty. Gu in turn sent
formal demand letters to private respondents. arine surveyor Carlos Gegamo inspected the damage on
the pile cluster and found that one post was uprooted while two others were loosened and that the pile
cluster was leaning shoreward. Gegamo hired s+in diver arvin "lfere8, who found that one post was
bro+en at about ; inches from the seabed and two other posts rose and crac+ed at the bottom. !ased on
these findings, Gegamo concluded that the two raised posts were also bro+en under the seabed and
estimated the cost of repair and replacement at PB&,))).)).
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 started to slow down at $)) meters and the crew stopped the engine at &)
meters from the pier0 that Capt. "nselmo Alasiman did not order the anchor*s release and chief mate
anuel @abisan did not hear #aval shout E,everseF. ,espondents claimed that #aval had no business
in the vessels* maneuvering. When #aval informed the vessel*s officers of the incident, Alasiman sent
their bodega man, ,onilo >a8ara, to dive on the same afternoon to chec+ on the alleged damage. >a8ara
told Alasiman that there was no damage. 2owever, during direct e/amination, >a8ara testified that he
found a crac+ on the side of the pile cluster, one post detached from the seabed at a distance of about ;
inches, and seashells and seaweeds directly underneath the uprooted post. There were scattered pieces of
copra at the place where MV Miguela doc+ed, which indicated the prior doc+ing by other vessels. "fter
MV Miguela left, another vessel doc+ed in the same area. Petitioner did not prevent MV Miguela from
departing. When chiefmate @abisan went to "tty. Gu, the latter told him not to mind the incident.
An rebuttal, petitioner presented "tty. Gu who testified that @abisan never went to his office after
receiving the letter'complaint0 that petitioner never received any reply to its demand letters0 and that the
first time "tty. Gu saw @abisan was during the pre'trial.
ISSUE:
Whether or not we can review 4uestions 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 rammed the pile cluster because of the presence of other vessels0 that petitioner*s
evidence, corroborated by those of private respondents, is positive and sufficient to prove respondentsH
liability0 that evidence on record showed the negligence and rec+lessness of MV Miguelas officers and
crew0 and that the crew were grossly incompetent and incapable to man the vessel.
HELD:
Private respondents claim that the above are conclusions of fact which this Court may not review.
While the rule is that this Court is limited only to 4uestions of law in a petition for review, there are
e/ceptions, among which are when the factual findings of the Court of "ppeals and the trial court
conflict, and when the appellate court based its conclusion entirely on speculations, surmises, or
conjectures.
<$)=
Aur review of the records constrains us to conclude that indeed MV Miguela rammed and damaged
petitioner*s fender pile cluster. #aval and 5spina witnessed the incident, saw the impact and heard
crac+ing sounds thereafter. The trial court found them credible. We respect this observation of the trial
court, for in the appreciation of testimonial evidence and attribution of values to the declaration of
witnesses, it is the trial judge who had the chance to observe the witnesses and was in a position to
determine if the witnesses are telling the truth or not.
<$$=
7urther, private respondents* witnesses,
Alasiman and @abisan, ac+nowledged that #aval was at the pier waving a hand+erchief to direct them to
their berthing place.
<$(=
Private respondents* claim that they could not have rammed and damaged the pile cluster because other
vessels used the same area for berthing is a mere speculation unworthy of credence.
Petitioner*s witnesses, marine surveyor Gegamo and diver "lfere8, confirmed the damage. Gegamo had
eighteen years of e/perience as marine surveyor and belonged to an independent survey company.
"lfere8 was hired and directly supervised by Gegamo for the tas+.
<$-=
The latter testified during trial that
he e/amined the pile cluster at the portion above the water line by going near it and found that one
cluster pile was moving, two were loose, and the whole pile cluster was leaning shoreward and
misalligned.
<$%=
"lfere8, under oath, testified that he dived two or three times and saw one bro+en post
and two slightly uprooted ones with a crac+ on each.
<$&=
An the other hand, private respondents* evidence on this matter was contradictory. "s testified by
Alasiman, when he as+ed >a8ara on the result of his diving, the latter said that there was no damage.
<$.=
2owever, when >a8ara testified in court, he said he found a crac+ on the side of the pile cluster, with
one pile no longer touching the seabed and directly underneath it were seashells and seaweeds. 7urther,
he said that he informed the captain about this.
<$;=
We find >a8ara*s testimony as an afterthought, lac+ing
credibility. 6n addition, >eonilo >a8ara, was a mere bodegero of MV Miguela. 2e could not possibly be
a competent witness on marine surveys
PHILIPPINE RABBIT vs. IAC
FACTS:
"t $$am on Gecember (%, $B.., Catalina Pascua, Caridad Pascua, "delaida 5stomo, 5rlindaeriales,
ercedes >oren8o, "lejandro orales and Ienaida Parejas boarded the jeepney owned byspouses 6sidro
angune and @uillerma Carreon and driven by Tran4uilino analo at Gau, abalacat,Pampanga bound
for Carmen, ,osales, Pangasinan to spend Christmas with their families for P (%.)).9pon reaching
barrio Sinayoan, San anuel, Tarlac, the right rear wheel of the jeepney detachedcausing it to run in an
unbalanced position. Griver analo stepped on the bra+e, causing the jeepneyto ma+e a 9'turn,
invading and eventually stopping on the opposite lane of the road Cthe jeepneyHs front faced the south
Cfrom where it cameD and its rear faced the north Ctowards where it was goingDD.The jeepney occupied
and bloc+ed the greater portion of the western lane, which is the right of way of vehicles coming from
the north.Petitioner Phil. ,abbit !us >ines claims that almost immediately after the sudden 9'turn the
bus bumped the right rear portion of the jeep. Gefendants, on the other hand, claim that the bus stopped
a few minutes before hitting the jeepney. 5ither way, as a result of the collision, three passengers of the
jeepney CCatalina Pascua, 5rlinda eriales and "delaida 5stomoD died while the other jeepney
passengers sustained physical injuries." criminal complaint was filed against the two drivers for
ultiple 2omicide. The case against delos,eyes Cdriver of Phil. ,abbitD was dismissed for inefficiency
of evidence. analo Cjeepney driverD,however, was convicted and sentenced to suffer imprisonment.-
complaints for recovery of damages were then filed before the C76 of Pangasinan. C$D Spouses Casiano
Pascua and Juana Kalde8 sued as heirs of Catalina Pascua while Caridad Pascua sued in herbehalf Court
of 7irst 6nstance of Pangasinan. C(D Spouses anuel illares and 7idencia "rcica sued as heirs of
5rlinda eriales. "nd C-D spouses ariano 5stomo and Gionisia Sarmiento sued as heirs of "delaida
5stomo. "ll three cases impleaded spouses angune and Carreon, analo Cjeepney ownersD,,abbit and
delos ,eyes as defendants. Plaintiffs anchored their suits against spouses angune andCarreon and
analo on their contractual liability. "s against ,abbit and delos ,eyes, plaintiffs basedtheir suits on
their culpability for a 4uasi'delict. 7ilriters @uaranty "ssurance Corporation, 6nc. Was also impleaded as
additional defendant in the first case only.
The trial court ruled in favour of then plaintiffs, finding defendants negligent and having breached the
contract of carriage with their passengers and ordering them, jointly and severally, to pay the plaintiffs
damages.The 6"C reversed the ruling of the trial court, applying primarily C$D the doctrine of last clear
chance,C(D the presumption that drivers who bump the rear of another vehicle guilty and the cause of the
accident unless contradicted by other evidence, and C-D the substantial factor test Cwhich concluded that
bus driver delos ,eyes, #AT jeepney driver analo, was negligentD.
ISSUE: Who are liable for the death and injuries of the passengerL ' Trial court decision reinstated with
modification. Anly 6sidro angune, @uillerma Carreon and 7ilriters @uaranty"ssurance Corporation,
6nc. are liable to the victims or their heirs.
HELD:
C$D The principle of Mthe last clearM chance is applicable in a suit between the owners and driversof the
two
Colliding vehicles. 6t does not arise where a passenger demands responsibility from the carrier to
enforce its contractual obligations. 7or it would be ine4uitable to e/empt the negligent driver of the
jeepney and its owners on the ground that the other driver was li+ewise guilty of negligence.
C(D The 6"C erred in applying the presumption that the driver who bumps the rear of another vehicle is
guilty and the cause of the accident, unless contradicted by other evidence. This presumption is based on
the responsibility given to a rear vehicle of avoiding a collision with the front vehicle for it is the rear
vehicle who has full control of the situation as it is in a position to observe the vehicle in front of it.
Such presumption is rebutted by the evidence that shows that the jeepney, which was then traveling on
the eastern shoulder, ma+ing a straight, s+id mar+ of appro/imately -& meters, crossed the eastern lane
at a sharp angle,ma+ing a s+id mar+ of appro/imately $& meters from the eastern shoulder to the point
of impact. C!asically, the 9'turn was sudden and delos ,eyes could not have reasonably anticipated it
even though he was the rear vehicleDC-D
>i+ewise, the bus cannot be made liable under the substantial factor test Cthat if the actorHs conduct is a
substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should
have foreseen the e/tent of the harm or the manner in which it occurred does not prevent him from being
liableD. Contrary to the findings of the appellate court, the bus was travelling within the speed limit
allowed in highways. 2e also had only afew seconds to react to the situation. To re4uire delos ,eyes to
avoid the collision is to as+ too much from him. "side from the time element involved, there were no
options available to him to have avoided the collision.The pro/imate cause of the accident was the
negligence of jeepney driver analo and spouses angune and Carreon. They all failed to e/ercise the
precautions that are needed precisely pro hac vice. 6n culpa contractual, the moment a passenger dies or
is injured, the carrier is presumed to have beenat fault or to have acted negligently, and this disputable
presumption may only be overcome by evidence that he had observed e/tra'ordinary diligence as
prescribed in "rticles $;--, $;&& and $;&.of the #ew Civil Code or that the death or injury of the
passenger was due to a fortuitous event.The negligence of analo was proven during the trial by the un
rebutted testimonies of Caridad Pascua, the police who arrived on the scene, his CanaloHsD conviction
and the application of the doctrine of res ipsa lo4uitur supra. Spouses angune and Carreon alleged that
their mechanicregularly maintains the jeepney and on the day before the collision, the mechanic actually
chec+ed thevehicle and even tightened the bolts, thus the incident was caused by a caso fortuito.
The SC upheld the trial court*s findings that Min an action for damages against the carrier for his failure
to safely carry his passenger to his destination, an accident caused either by defects in the automobile or
through the negligence of its driver, is not a caso fortuito which would avoid the carriers* liability.
The SC modified the decision holding spouses angune and Carreon jointly and severally liable with
analo. The driver cannot be held jointly and severally liable with the carrier in case of breach of the
contract of carriage. 7irstly, the contract of carriage is between the carrier and the passenger, and in the
event of contractual liability, the carrier is e/clusively responsible to the passenger, even if such breach
be due to the negligence of his driver. 6n other words, the carrier can neither shift his liability on the
contract to his driver nor share it with him, for his driverHs negligence is his. Secondly, that would ma+e
the carrierHs liability personal instead of merely vicarious and conse4uently, entitled to recover only the
share which corresponds to the driver contradictory to the e/plicit provision of "rticle($:$ of the #ew
Civil Code.
JUNTILLA vs. FONTANAR
FACTS:
Plaintiff was a passenger of the public utility jeepney. The jeepney was driven by defendant !erfol
Camoro. 6t was registered under the franchise of defendant Clemente 7ontanar but was actually owned
by defendant 7ernando !an8on. When the jeepney reached andaue City, the right rear tire e/ploded
causing the vehicle to turn turtle. 6n the process, the plaintiff who was sitting at the front seat was
thrown out of the vehicle. 9pon landing on the ground, the plaintiff momentarily lost consciousness.
When he came to his senses, he found that he had a lacerated wound on his right palm. "side from this,
he suffered injuries on his left arm, right thigh and on his bac+. !ecause of his shoc+ and injuries, he
went bac+ to Ganao City but on the way, he discovered that his MAmegaM wrist watch was lost. 9pon his
arrival in Ganao City, he immediately entered the Ganao City 2ospital to attend to his injuries, and also
re4uested his father'in'law to proceed immediately to the place of the accident and loo+ for the watch. 6n
spite of the efforts of his father'in'law, the wrist watch, which he bought for P :&(.;) it could no longer
be found.
Plaintiff filed Civil Case for breach of contract with damages. The respondents filed their answer,
alleging inter alia that the accident that caused losses to the petitioner was beyond the control of the
respondents ta+ing into account that the tire that e/ploded was newly bought and was only slightly used
at the time it blew up.
Judgement was rendered in favor of plaintiff. The respondents filed an appeal and was e/onerated from
liability.
ISSUE0
Whether or not the tire blow out could be regarded as fortuitous eventL
HELD:
6n the case at bar, there are specific acts of negligence on the part of the respondents. The records show
that the passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire
e/ploded. The evidence shows that the passenger jeepney was running at a very fast speed before the
accident. We agree with the observation of the petitioner that a public utility jeep running at a regular
and safe speed will not jump into a ditch when its right rear tire blows up. There is also evidence to
show that the passenger jeepney was overloaded at the time of the accident. The petitioner stated that
there were three C-D passengers in the front seat and fourteen C$%D passengers in the rear.
While it may be true that the tire that blew'up was still good because the grooves of the tire were still
visible, this fact alone does not ma+e the e/plosion of the tire a fortuitous event. #o evidence was
presented to show that the accident was due to adverse road conditions or that precautions were ta+en by
the jeepney driver to compensate for any conditions liable to cause accidents. The sudden blowing'up,
therefore, could have been caused by too much air pressure injected into the tire coupled by the fact that
the jeepney was overloaded and speeding at the time of the accident.
6n the case at bar, the cause of the unforeseen and une/pected occurrence was not independent of the
human will. The accident was caused either through the negligence of the driver or because of
mechanical defects in the tire. Common carriers should teach their drivers not to overload their vehicles,
not to e/ceed safe and legal speed limits, and to +now the correct measures to ta+e when a tire blows up
thus insuring the safety of passengers at all times.
6t is sufficient to reiterate that the source of a common carrierHs legal liability is the contract of carriage,
and by entering into the said contract, it binds itself to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of a very cautious person, with a due regard for all
the circumstances. The records show that this obligation was not met by the respondents.
BAYASEN vs. CA
FACTS:
Saturnino !ayasen, the ,ural 2ealth Physician in Sagada, ountain Province, went to barrio
"mbasing to visit a patient. Two nurses from the Saint TheodoreHs 2ospital in Sagada, vi8., 5lena
"wichen and Golores !alcita, rode with him in the jeep assigned for the use of the ,ural 2ealth 9nit as
they had re4uested for a ride to "mbasing. >ater, at "mbasing, the girls, who wanted to gather flowers,
again as+ed if they could ride with him up to a certain place on the way to barrio Suyo which he
intended to visit anyway. Gr. !ayasen again allowed them to ride, 5lena sitting herself between him and
Golores. An the way, at barrio >angtiw, the jeep went over a precipice "bout : feet below the road, it
was bloc+ed by a pine tree. The three were thrown out of the jeep. 5lena was found lying in a cree+
further below. "mong other injuries, she suffered a s+ull fracture which caused her death. Gue to that, he
was charged and found guilty of 2omicide thru rec+less imprudence.
ISSUE: Whether or not the rec+less driving of accused'petitioner was the pro/imate cause of the death
of the victim.
HELD: The pro/imate cause of the tragedy was the s+idding of the rear wheels of the jeep and not the
unreasonable speed of the petitioner because there was no evidence on record to prove or support the
finding that the petitioner was driving at Ean unreasonable speedF. The star witness of the prosecution,
Golores !alcita who was one of the passengers in the jeep, testified that Saturnino !ayasen was driving his
jeep moderately just before the accident and categorically stated that she did not +now what caused the
jeep to fall into the precipice. 6t is a well'+nown physical fact that cars may s+id on greasy or slippery
roads, as in the instant case, without fault on account of the manner of handling the car. S+idding means
partial or complete loss of control of the car under circumstances not necessarily implying negligence. 6t
may occur without fault. 2erein, under the particular circumstances, !ayasen who s+idded could not be
regarded as negligent, the s+idding being an unforeseen event, so that !ayasen had a valid e/cuse for his
departure from his regular course.
The negligence of !ayasen has not having been sufficiently established, his guilt of the crime charged has
not been proven beyond reasonable doubt. 2e is, therefore, entitled to ac4uittal. The Supreme Court set
aside the decision of the Court of "ppeals sought to be reviewed, and ac4uitted !ayasen of the crime
charged in the information in Criminal Case $)&. of the C76 of ountain Province, with costs de oficio.
Cervantes vs. C" C@, $(&$-:, ( arch $BBBD
CERVANTES vs. CA
Facts:
An arch (;, $B:B, private respondent P"> issued to herein petitioner #icholas Cervantes a round trip
tic+et for anila'2onolulu'>os "ngeles'2onolulu'anila, which is valid until arch (;, $BB). An arch
(-, $BB), petitioner used it. 9pon his arrival in >os "ngeles, he immediately boo+ed a flight to anila,
which was confirmed on "pril (. 9pon learning that the plane would ma+e a stop'over in San 7rancisco,
and because he would be there on "pril (, petitioner made arrangements to board in San 7rancisco. An
"pril (, he was not allowed to board due to the e/piration of his tic+et. 2e filed a complaint for damages.
6t was not given due course by both the trial court and the Court of "ppeals.
Issues:
C$D Whether or not the act of the P"> agents in confirming subject tic+et e/tended the period of validity of
petitionerHs tic+et
C(D Whether or not the denial of the award for damages was proper
He!:
C$D 7rom the facts, it can be gleaned that the petitioner was fully aware that there was a need to send a
letter to the legal counsel of P"> for the e/tension of the period of validity of his tic+et. 9nder "rticle
$:B: $$ of the #ew Civil Code, the acts of an agent beyond the scope of his authority do not bind the
principal, unless the latter ratifies the same e/pressly or impliedly. 7urthermore, when the third person
Cherein petitionerD +nows that the agent was acting beyond his power or authority, the principal cannot be
held liable for the acts of the agent. 6f the said third person is aware of such limits of authority, he is to
blame, and is not entitled to recover damages from the agent, unless the latter undertoo+ to secure the
principalHs ratification.
C(D "n award of damages is improper because petitioner failed to show that P"> acted in bad faith in
refusing to allow him to board its plane in San 7rancisco. 6n awarding moral damages for breach of
contract of carriage, the breach must be wanton and deliberately injurious or the one responsible acted
fraudulently or with malice or bad faith. Petitioner +new there was a strong possibility that he could not
use the subject tic+et, so much so that he bought a bac+'up tic+et to ensure his departure. Should there be a
finding of bad faith, we are of the opinion that it should be on the petitioner. What the employees of P">
did was one of simple negligence. #o injury resulted on the part of petitioner because he had a bac+'up
tic+et should P"> refuse to accommodate him with the use of subject tic+et.
#either can the claim for e/emplary damages be upheld. Such +ind of damages is imposed by way of
e/ample or correction for the public good, and the e/istence of bad faith is established. The wrongful act
must be accompanied by bad faith, and an award of damages would be allowed only if the guilty party
acted in a wanton, fraudulent, rec+less or malevolent manner. 2ere, there is no showing that P"> acted in
such a manner. "n award for attorneyHs fees is also improper.