G.R. No.
L-22533 February 9, 1967 Plaintiffs thereupon appealed to Us through this petition for review
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners, v.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES
BONIFACIO, respondents.
FACTS: On June 30, 1958 Placido and Augusto Ramos sued
Pepsi-Cola Bottling Co. of the P.I.1 and Andres Bonifacio in the CFI
of Manila as a consequence of a collision,
on May 10, 1958, involving the car of Placido Ramos and a tractor-
truck and trailer of PEPESI-COLA.
Said car was at the time of the collision driven 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.
CFI: rendered judgment on April 15, 1961, finding Bonifacio
negligent and declaring that PEPSI-COLA had not sufficiently
proved its having exercised the due diligence of a good father of a
family to prevent the damage.
PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the
plaintiffs 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 the CA.
CA: On Jan 15, 1964, it affirmed the trial court's judgment insofar
as it found defendant Bonifacio negligent, but modified 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 driver Bonifacio.
of the Court of Appeals' decision.
ISSUE:
Whether PEPSI-COLA exercised due diligence in the selection of
its employee
RULING: YES.
Said point, as stated, was resolved by the Court of Appeals in
PEPSI-COLA's favor, thus:
The uncontradicted testimony of Juan T. Anasco, personnel
manager of defendant company, was to the effect that defendant
driver was first hired as a member of the bottle crop in the
production department;
that when he was hired as a driver, 'we had size [sic] him by looking
into his background, asking him to submit clearances, previous
experience, physical examination and later on, he was sent to the
pool house to take the usual driver's examination, consisting of:
First, theoretical examination and second, the practical driving
examination, all of which he had undergone, and that the
defendant company was a member of the Safety Council.
In view hereof, we are of the sense that defendant company
had exercised the diligence of a good father of a family in the
choice or selection of defendant driver'.
In the case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794,
cited in appellee's brief, our SC had occasion to put it down as a rule that
"In order that the defendant may be considered as having exercised all
the diligence of a good father of a family, he should not have been
satisfied with the mere possession of a professional driver's license; he
should have carefully examined the applicant for employment as to his
qualifications, his experiences and record of service." Defendant
Company has taken all these steps.2
Appellants herein seek to assail the foregoing portion of the
decision under review by taking issue with the testimony of Anasco
upon which the findings of due diligence aforestated are rested.
Thus, it is now contended that Aasco being PEPSI-COLA's
employee, is a biased and interested witness; and that his
testimony is not believable.
It is rather clear, therefore, that appellants would raise herein an
issue of fact and credibility, something as to which this Court has
consistently respected the findings of the CA, with some few
exceptions, which do not obtain herein.3
Stated differently, Aascos credibility is not for this Court now to
re-examine.
And said witness having been found credible by the CA, his
testimony, as accepted by said Court, cannot at this stage be
assailed.
As We said in Co Tao vs. CA, L-9194, April 25, 1957, assignments of error
involving the credibility of witnesses and which in effect dispute the
findings of fact of the CA, cannot be reviewed in these proceedings. For
a question to be one of law it must involve no examination of the probative
value of the evidence presented by the litigants or any of them.
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 to the truth or the falsehood of alleged
facts.
From all this it follows that for the purposes of this appeal, it must
be taken as established that, as testified to by Aasco, PEPSI-
COLA did in fact carefully examine the driver-applicant Bonifacio
as to his qualifications, experiences and record of service, taking
all steps mentioned by the CA in its decision already
quoted.1wph1.t
Such being the case, there can be no doubt that PEPSI-COLA
exercised 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 having exercised all
diligence of a good father of a family, he should not be satisfied with the
mere possession of a professional driver's license; he should have
carefully examined the applicant for employment as to his qualifications,
his experience and record of service."
It should perhaps be stated that in the instant case no question
is raised as to due diligence in the supervision by PEPSI-COLA
of its driver. Article 2180 of the Civil Code provides inter alia:
... The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
xxx xxx xxx
The responsibility treated of 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.
And construing a similar provision of the old Civil Code, this Court
said in Bahia vs. Litonjua, 30 Phil. 624, 627:
From this article 2 things are apparent:
(1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption
of law that there was negligence on the part of the master
or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or
both; and
(2) that the presumption is juris tantum and not juris et de jure,
and consequently may be rebutted.

It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he
has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved
from liability.
As pointed out, what appellants here contend as not duly proved
by 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 the
testimony of PEPSI-COLA's witness would show sufficient
evidence to establish due diligence in the supervision by PEPSI-
COLA of its drivers, including Bonifacio.
Appellants' other assignment of errors are likewise outside the
purview of this Court's reviewing power.
Thus, the question of whether PEPSI- COLA violated the Revised
Motor Vehicle Law and rules and regulations related thereto, not
having been raised and argued in the CA, cannot be ventilated
herein for the first time.
And the matter of whether or not PEPSI-COLA did acts to ratify the
negligent act of its driver is a factual issue not proper herein.
Wherefore, the decision of the Court of Appeals is hereby affirmed,
with costs against appellants. So ordered.
RESOLUTION ON MR
May 16, 1967
Petitioners seek a reconsideration of Our decision in the instant
case affirming in toto the challenged decision of the Court of
Appeals absolving respondent PEPSI-COLA from liability.
In Our decision, We refrained from passing on the merits of the
question whether PEPSI-COLA, in operating the tractor-truck and
trailer, violated the Rev. Motor Vehicle Law and the rules and
regulations related thereto, for the procedural reason that it did not
appear to have been raised before the CA.
It now appears, however, that said question was raised in a motion
to reconsider filed with the CA which resolved the same against
petitioners.
Due consideration of the matter on its merits, convinces Us that
the decision of the Court of Appeals should still be affirmed in
toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1 and
4(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
a speed 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 a
helper 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 than 2,000
kilograms and is not equipped with effective brakes on at least two
opposite wheels of the rear axle and are so controlled that the brakes will
act in unison with or preceding the effective action of the brakes of the
tractor-truck shall be registered for operation on public highways of the
Philippines;
provided, that the trialers without brakes may be registered from year to
year for operation 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 the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision mirror to
enable the driver to see vehicles approaching mirror the rear or shall carry
a helper who shall be so stationed on the truck or trailer that he will
constantly have a view of the rear. He shall be provided with means of
effectively signalling to the driver to give way to overtaking vehicles.
4(e) No truck and trailer combination shall be operated at a speed greater
than 30 kilometers per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to
trailers or semi-trailers having a gross weight of more than 2,000 kgms.,
AND which are "not equipped with effective brakes on at least two
opposite wheels, of the rear axle and are so controlled that the brakes will
act in unison with or preceding the effective action of the brakes of the
tractor-truck..." This is the condition set in the proviso in par. (a), supra,
wherein "trailers without [such] brakes may be registered from year to year
for operation ..." i.e., they should not "be operated at any time at a speed
in excess of 15 kilometers per hour in conjunction with a tractor-truck ...".
But there was no finding by the Court of Appeals that the truck-trailer here
did not have such brakes. In the absence of such fact, it is subpar. 4(e),
supra, that will apply. And petitioners admit that the truck-trailer was being
driven at about 30 k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper on 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 a rear-vision mirror.
To be sure, the records disclose that Pat. Rodolfo Pahate, the traffic
policeman who went to the collision scene, testified that he saw the
tractor-truck there but he does not remember if it had any rear vision
mirror.4
This cannot prove lack of rear-vision mirror. And the cited provision
subpar. 4(d) is complied if either of the two alternatives, i.e., having a
rear-vision mirror or a helper, is present. Stated otherwise, said provision
is violated only where there is a positive finding that the tractor-truck did
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 the following
dimensions:
Overall width ................ 2.5 meters.
xxx xxx xxx
since there was an express finding that the truck-trailer was 3 meters
wide. However, Sec. 9 (d) of the same law, as amended, providing that
SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office
with the approval of the Secretary of Public Works and Communications
shall establish regulations and a tariff of additional fees under which
special permits may be issued in the discretion of the Chief of the Motor
Vehicles Office or his deputies, for each of the following special cases,
and without such special permit, no such motor vehicles shall be operated
on the public highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit of
permissible dimensions specified in subsections (b) and (c) of section
eight-A hereof.
xxx xxx xxx
expressly allows the registration, or use of motor vehicles exceeding 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 is not enough that the width
of the tractor-truck exceed the limit in Sec. 8-A; in addition, it must also
appear that there was no special permit granted under Sec. 9.
Unfortunately for petitioners, that vital factual link is missing.
There was no proof much less any finding to that effect. And it was
incumbent upon petitioners-appellants to have proved lack of such permit
since the tractor-truck and the trailer were registered.5
Compliance with law and regularity in the performance of official duty
in this case, the issuance of proper registration papers are presumed6
and prevail over mere surmises.
Having charged a violation of law, the onus of substantiating the same fell
upon petitioners-appellants. Hence, the conclusion that there was a
violation of the law lacks factual basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its stead,
We are urged to apply the Anglo-American doctrine of respondent
superior. We cannot however, abandon the Bahia ruling without going
against the explicit mandate of the law. A motor vehicle owner is not an
absolute insurer against all damages caused by its driver.
Article 2180 of our Civil Code is very explicit that the owner's responsibility
shall cease once it proves that it has observed the diligence of a good
father of a family to prevent damage. The Bahia case merely clarified what
that diligence consists of, namely, diligence in the selection and
supervision of the driver-employee.
Neither could We apply the respondent superior principle. Under Article
2180 of the Civil Code, the basis of an employer's liability is his own
negligence, not that of his employees. The former is made responsible for
failing to properly and diligently select and supervise 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 not authoritative here.
In view of the foregoing, the motion for reconsideration is hereby denied.
SPOUSES TEODORO and NANETTE PERENA, Petitioners, v.
SPOUSES NICOLAS and TERESITA L. ZARATE, PHILIPPINE
NATIONAL RAILWAYS, and the COURT OF APPEALS,
Respondents.
BERSAMIN, J.:
FACTS:
Spouses Teodoro and Nanette Peres (Peres) were engaged in the
business of transporting students from their respective residences
in Paraque City to Don Bosco in Pasong Tamo, Makati City, and
back. They employed Clemente Alfaro (Alfaro) as driver of the van.
Spouses Nicolas and Teresita Zarate (Zarates) contracted the
Peres to transport their son Aaron to and from Don Bosco.
Considering that the students were due at Don Bosco by 7:15 a.m.,
and that they were already running late because of the heavy
vehicular traffic on the South Superhighway, Alfaro took the van to
an alternate route at about 6:45 a.m. by traversing the narrow path
underneath the Magallanes Interchange. The railroad crossing in
the narrow path had no railroad warning signs, or watchmen, or
other responsible persons manning the crossing. In fact, the
bamboo barandilla was up, leaving the railroad crossing open to
traversing motorists.
At about the time the van was to traverse the railroad crossing,
PNR Commuter No. 302 (train), was in the vicinity of the
Magallanes Interchange travelling northbound. As the train neared
the railroad crossing, Alfaro drove the van eastward across the
railroad tracks, closely tailing a large passenger bus. His view of
the oncoming train was blocked because he overtook the
passenger bus on its left side. The train blew its horn to warn
motorists of its approach. The passenger bus successfully crossed
the railroad tracks, but the van driven by Alfaro did not. The impact
threw nine of the 12 students in the rear, including Aaron, out of
the van. Aaron landed in the path of the train, which dragged his
body and severed his head, instantaneously killing him.
Thus, the Zarates sued the Peres for breach of contract of carriage
and the PNR for quasi-delict. The RTC ruled in favor of the Zarates.
On appeal, the CA affirmed the findings of the RTC.
ISSUE: Whether or not the Peres are liable for breach of contract
of carriage? YES.
 observance of that extraordinary diligence; otherwise, the legal
HELD: The petition has no merit. presumption that he or it was at fault or acted negligently would
stand.
CIVIL LAW: common carrier; extraordinary diligence
According to Article 1759 of the Civil Code, their liability as a
A common carrier is a person, corporation, firm or association common carrier did not cease upon proof that they exercised all
engaged in the business of carrying or transporting passengers or the diligence of a good father of a family in the selection and
goods or both, by land, water, or air, for compensation, offering supervision of their employee. The Peres were liable for the death
such services to the public. Contracts of common carriage are of Aaron despite the fact that their driver might have acted beyond
governed by the provisions on common carriers of the Civil Code, the scope of his authority or even in violation of the orders of the
the Public Service Act, and other special laws relating to common carrier.
transportation. A common carrier is required to observe
extraordinary diligence, and is presumed to be at fault or to have DENIED.
acted negligently in case of the loss of the effects of passengers,
or the death or injuries to passengers. The true test for a common
carrier is not the quantity or extent of the business actually
transacted, or the number and character of the conveyances used
in the activity, but whether the undertaking is a part of the activity
engaged in by the carrier that he has held out to the general public
as his business or occupation.

Applying these considerations to the case before us, there is no

question that the Peres as the operators of a school bus service
were: (a) engaged in transporting passengers generally as a
business, not just as a casual occupation; (b) undertaking to carry
passengers over established roads by the method by which the
business was conducted; and (c) transporting students for a fee.
Despite catering to a limited clientele, the Peres operated as a
common carrier because they held themselves out as a ready
transportation indiscriminately to the students of a particular school
living within or near where they operated the service and for a fee.

Article 1755 of the Civil Code specifies that the common carrier
should "carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances." To
successfully fend off liability in an action upon the death or injury
to a passenger, the common carrier must prove his or its