G.R. No. 122039 May 31, 2000
It took cognizance
VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA
and FRANCISCO SALVA, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the
decision of the Court of Appeals, dated March 31,
1 
1991, reversing the contrary decision of the Regional
Trial Court, Branch 36, Dumaguete City, and
awarding damages instead to private respondent
Eliza Jujeurche Sunga as plaintiff in an action for
breach of contract of carriage.
The facts, as found by the Court of Appeals, are as
follows:
At 10 o'clock in the morning of August 23, 1989,
private respondent Eliza Jujeurche G. Sunga, then a
college freshman majoring in Physical Education at
the Siliman University, took a passenger jeepney
owned and operated by petitioner Vicente Calalas. As
the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an
"extension seat," a wooden stool at the back of the
door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental,
the jeepney stopped to let a passenger off. As she
was seated at the rear of the vehicle, Sunga gave
way to the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by Iglecerio Verena
and owned by Francisco Salva bumped the left rear
portion of the jeepney. As a result, Sunga was injured.
She sustained a fracture of the "distal third of the left
tibia-fibula with severe necrosis of the underlying
skin." Closed reduction of the fracture, long leg
circular casting, and case wedging were done under
sedation. Her confinement in the hospital lasted from
August 23 to September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an orthopedic
surgeon, certified she would remain on a cast for a
period of three months and would have to ambulate in
crutches during said period.
On October 9, 1989, Sunga filed a complaint for
damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise
the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the
Isuzu truck.
The lower court rendered judgment against Salva as
third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck who
was responsible for the accident.
of another case (Civil Case No. 3490), filed by
Calalas against Salva and Verena, for quasi-delict, in
which Branch 37 of the same court held Salva and his
driver Verena jointly liable to Calalas for the damage
to his jeepney.
On appeal to the Court of Appeals, the ruling of the
lower court was reversed on the ground that Sunga's
cause of action was based on a contract of carriage,
not quasi-delict, and that the common carrier failed to
exercise the diligence required under the Civil Code.
The appellate court dismissed the third-party
complaint against Salva and adjudged Calalas liable
for damages to Sunga. The dispositive portion of its
decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is
entered ordering defendant-appellee Vicente Calalas
to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory
damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the
ruling in Civil Case No. 3490 that the negligence of
Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would
be to make the common carrier an insurer of the
safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva
was a caso fortuito. Petitioner further assails the
award of moral damages to Sunga on the ground that
it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in
Civil Case No. 3490 finding the driver and the owner
of the truck liable for quasi-delict ignores the fact that
she was never a party to that case and, therefore, the
principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the
present case the same. The issue in Civil Case No.
3490 was whether Salva and his driver Verena were
liable for quasi-delict for the damage caused to
petitioner's jeepney. On the other hand, the issue in
this case is whether petitioner is liable on his contract
of carriage. The first, quasi-delict, also known
as culpa aquiliana or culpa extra contractual, has as
its source the negligence of the tortfeasor.
The second, breach of contract or culpa contractual,
is premised upon the negligence in the performance
of a contractual obligation.
Consequently, 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
2 
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.
There is, thus, no basis for the contention that the
ruling in Civil Case No. 3490, finding Salva and his
driver Verena liable for the damage to petitioner's
jeepney, should be binding on Sunga. It is immaterial
that the proximate cause of the collision between the
jeepney and the truck was the negligence of the truck
driver. The doctrine of proximate cause is applicable
only in actions for quasi-delict, not in actions involving
breach of contract. The doctrine is a device for
imputing liability to a person where there is no relation
between him and another party. In such a case, the
obligation is created by law itself. But, where there is
a pre-existing contractual relation between the
parties, it is the parties themselves who create the
obligation, and the function of the law is merely to
regulate the relation thus created. Insofar as
contracts of carriage are concerned, some aspects
regulated by the Civil Code are those respecting the
diligence required of common carriers with regard to
the safety of passengers as well as the presumption
of negligence in cases of death or injury to
passengers. It provides:
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.
Such extraordinary diligence in the vigilance over the
goods is further expressed in articles 1734, 1735, and
1746, Nos. 5, 6, and 7, while the extraordinary
diligence for the safety of the passengers is further
set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight
can provide, using the utmost diligence of very
cautious persons, with due regard for all the
circumstances.
Art. 1756. In case of death of or injuries to
passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as
prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the
accident, the presumption of negligence at once
arose, and it became the duty of petitioner to prove
that he had to observe extraordinary diligence in the
care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as
far as human care and foresight could provide, using
the utmost diligence of very cautious persons, with
due regard for all the circumstances" as required by
Art. 1755? We do not think so. Several factors militate
against petitioner's contention.
First, as found by the Court of Appeals, the jeepney
was not properly parked, its rear portion being
exposed about two meters from the broad shoulders
of the highway, and facing the middle of the highway
in a diagonal angle. This is a violation of the R.A. No.
4136, as amended, or the Land Transportation and
Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. — No person shall
drive his motor vehicle in such a manner as to
obstruct or impede the passage of any vehicle, nor,
while discharging or taking on passengers or loading
or unloading freight, obstruct the free passage of
other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in
more passengers than the allowed seating capacity of
the jeepney, a violation of §32(a) of the same law. It
provides:
Exceeding registered capacity. — No person
operating any motor vehicle shall allow more
passengers or more freight or cargo in his vehicle
than its registered capacity.
The fact that Sunga was seated in an "extension
seat" placed her in a peril greater than that to which
the other passengers were exposed. Therefore, not
only was petitioner unable to overcome the
presumption of negligence imposed on him for the
injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting
passengers.
We find it hard to give serious thought to petitioner's
contention that Sunga's taking an "extension seat"
amounted to an implied assumption of risk. It is akin
to arguing that the injuries to the many victims of the
tragedies in our seas should not be compensated
merely because those passengers assumed a greater
risk of drowning by boarding an overloaded ferry. This
is also true of petitioner's contention that the jeepney
being bumped while it was improperly parked
constitutes caso fortuito. A caso fortuito is an event
which could not be foreseen, or which, though
foreseen, was inevitable. This requires that the
3 
following requirements be present: (a) the cause of
the breach is independent of the debtor's will; (b) the
event is unforeseeable or unavoidable; (c) the event
is such as to render it impossible for the debtor to
fulfill his obligation in a normal manner, and (d) the
debtor did not take part in causing the injury to the
creditor. Petitioner should have foreseen the danger
4 
of parking his jeepney with its body protruding two
meters into the highway.
Finally, petitioner challenges the award of moral
damages alleging that it is excessive and without
basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals
stated:
Plaintiff-appellant at the time of the accident was a
first-year college student in that school year 1989-
1990 at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to
enroll in the second semester of that school year. She
testified that she had no more intention of continuing
with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical
Education "because of my leg which has a defect
already."
Plaintiff-appellant likewise testified that even while
she was under confinement, she cried in pain
because of her injured left foot. As a result of her
injury, the Orthopedic Surgeon also certified that she
has "residual bowing of the fracture side." She
likewise decided not to further pursue Physical
Education as her major subject, because "my left leg .
. . has a defect already."
Those are her physical pains and moral sufferings,
the inevitable bedfellows of the injuries that she
suffered. Under Article 2219 of the Civil Code, she is
entitled to recover moral damages in the sum of
P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not
recoverable in actions for damages predicated on a
breach of contract for it is not one of the items
enumerated under Art. 2219 of the Civil Code. As an
5 
exception, such damages are recoverable: (1) in
cases in which the mishap results in the death of a
passenger, as provided in Art. 1764, in relation to Art.
2206(3) of the Civil Code; and (2) in the cases in
which the carrier is guilty of fraud or bad faith, as
provided in Art. 2220.6
In this case, there is no legal basis for awarding moral
damages since there was no factual finding by the
appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sunga's
contention that petitioner's admission in open court
that the driver of the jeepney failed to assist her in
going to a nearby hospital cannot be construed as an
admission of bad faith. The fact that it was the driver
of the Isuzu truck who took her to the hospital does
not imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely
implied recognition by Verena that he was the one at
fault for the accident.
WHEREFORE, the decision of the Court of Appeals,
dated March 31, 1995, and its resolution, dated
September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is
DELETED.
SO ORDERED.
G.R. No. 164349 January 31, 2006
RADIO COMMUNICATIONS OF THE PHILIPPINES,
INC. (RCPI),Petitioner,
vs.
ALFONSO VERCHEZ, GRACE VERCHEZ-
INFANTE, MARDONIO INFANTE, ZENAIDA
VERCHEZ-CATIBOG, AND FORTUNATO
CATIBOG, Respondents.
DECISION
CARPIO MORALES, J.:
On January 21, 1991, Editha Hebron Verchez
(Editha) was confined at the Sorsogon Provincial
Hospital due to an ailment. On even date, her
daughter Grace Verchez-Infante (Grace) immediately
hied to the Sorsogon Branch of the Radio
Communications of the Philippines, Inc. (RCPI)
whose services she engaged to send a telegram to
her sister Zenaida Verchez-Catibog (Zenaida) who
was residing at 18 Legal St., GSIS Village, Quezon
City1 reading: "Send check money Mommy hospital."
For RCPI’s services, Grace paid P10.502 for which
she was issued a receipt.3
As three days after RCPI was engaged to send the
telegram to Zenaida no response was received from
her, Grace sent a letter to Zenaida, this time thru JRS
Delivery Service, reprimanding her for not sending
any financial aid.
Immediately after she received Grace’s letter,
Zenaida, along with her husband Fortunato Catibog,
left on January 26, 1991 for Sorsogon. On her arrival
at Sorsogon, she disclaimed having received any
telegram.
In the meantime, Zenaida and her husband, together
with her mother Editha left for Quezon City on
January 28, 1991 and brought Editha to the Veterans
Memorial Hospital in Quezon City where she was
confined from January 30, 1991 to March 21, 1991.
The telegram was finally delivered to Zenaida 25
days later or on February 15, 1991. 4 On inquiry from
RCPI why it took that long to deliver it, a messenger
of RCPI replied that he had nothing to do with the
delivery thereof as it was another messenger who
previously was assigned to deliver the same but the
address could not be located, hence, the telegram
was resent on February 2, 1991, and the second
messenger finally found the address on February 15,
1991.
Editha’s husband Alfonso Verchez (Verchez), by letter
of March 5, 1991,5 demanded an explanation from the
manager of the Service Quality Control Department of
the RCPI, Mrs. Lorna D. Fabian, who replied, by letter
of March 13, 1991,6 as follows:
Our investigation on this matter disclosed that subject
telegram was duly processed in accordance with our
standard operating procedure. However, delivery was
not immediately effected due to the occurrence of
circumstances which were beyond the control and
foresight of RCPI. Among others, during the
transmission process, the radio link connecting the
points of communication involved encountered radio
noise and interferences such that subject telegram
did not initially registered (sic) in the receiving
teleprinter machine.
Our internal message monitoring led to the discovery
of the above. Thus, a repeat transmission was made
and subsequent delivery was effected. (Underscoring
supplied)
Verchez’s lawyer thereupon wrote RCPI’s manager
Fabian, by letter of July 23, 1991, 7 requesting for a
conference on a specified date and time, but no
representative of RCPI showed up at said date and
time.
On April 17, 1992, Editha died.
On September 8, 1993, Verchez, along with his
daughters Grace and Zenaida and their respective
spouses, filed a complaint against RCPI before the
Regional Trial Court (RTC) of Sorsogon for damages.
In their complaint, the plaintiffs alleged that, inter alia,
the delay in delivering the telegram contributed to the
early demise of the late Editha to their damage and
prejudice,8 for which they prayed for the award of
moral and exemplary damages9 and attorney’s fees.10
After its motion to dismiss the complaint for improper
venue11 was denied12 by Branch 5 of the RTC of
Sorsogon, RCPI filed its answer, alleging that except
with respect to Grace,13 the other plaintiffs had no
privity of contract with it; any delay in the sending of
the telegram was due to force majeure, "specifically,
but not limited to, radio noise and interferences which
adversely affected the transmission and/or reception
of the telegraphic message"; 14 the clause in the
Telegram Transmission Form signed by Grace
absolved it from liability for any damage arising from
the transmission other than the refund of telegram
tolls;15 it observed due diligence in the selection and
supervision of its employees; and at all events, any
cause of action had been barred by laches.16
The trial court, observing that "although the delayed
delivery of the questioned telegram was not
apparently the proximate cause of the death of
Editha," ruled out the presence of force majeure.
Respecting the clause in the telegram relied upon by
RCPI, the trial court held that it partakes of the nature
of a contract of adhesion.
Finding that the nature of RCPI’s business obligated it
to dispatch the telegram to the addressee at the
earliest possible time but that it did not in view of the
negligence of its employees to repair its radio
transmitter and the concomitant delay in delivering
the telegram on time, the trial court, upon the
following provisions of the Civil Code, to wit:
Article 2176 – Whoever by act or omission causes
damage to another, there being at 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 quasi-delict and
is governed by the provisions of this Chapter.
Article 1173 defines the fault of (sic) negligence of the
obligor as the "omission of the diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the person, of
the time, or the place."
In the instant case, the obligation of the defendant to
deliver the telegram to the addressee is of an urgent
nature. Its essence is the early delivery of the
telegram to the concerned person. Yet, due to the
negligence of its employees, the defendant failed to
discharge of its obligation on time making it liable for
damages under Article 2176.
The negligence on the part of the employees gives
rise to the presumption of negligence on the part of
the employer.17 (Underscoring supplied),
rendered judgment against RCPI. Accordingly, it
disposed:
WHEREFORE, in the light of the foregoing premises,
judgment is hereby rendered in favor of the plaintiffs
and against the defendant, to wit:
Ordering the defendant to pay the plaintiffs the
following amount:
1. The amount of One Hundred Thousand
(P100,000.00) Pesos as moral damages;
2. The amount of Twenty Thousand (P20,000.00)
Pesos as attorney’s fees; and
3. To pay the costs.
SO ORDERED.18
On appeal, the Court of Appeals, by Decision of
February 27, 2004,19 affirmed the trial court’s decision.
Hence, RCPI’s present petition for review on
certiorari, it raising the following questions: (1) "Is the
award of moral damages proper even if the trial court
found that there was no direct connection between
the injury and the alleged negligent acts?" 20 and (2)
"Are the stipulations in the ‘Telegram Transmission
Form,’ in the nature "contracts of adhesion" (sic)?21
RCPI insists that respondents failed to prove any
causal connection between its delay in transmitting
the telegram and Editha’s death. 22
RCPI’s stand fails. It bears noting that its liability is
anchored on culpa contractual or breach of contract
with regard to Grace, and on tort with regard to her
co-plaintiffs-herein-co-respondents.
Article 1170 of the Civil Code provides:
Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in
any manner contravene the tenor thereof, are liable
for damages. (Underscoring supplied)
Passing on this codal provision, this Court explained:
In culpa contractual x x x the mere proof of the
existence of the contract and the failure of its
compliance justify, prima facie, a corresponding right
of relief. The law, recognizing the obligatory force of
contracts, will not permit a party to be set free from
liability for any kind of misperformance of the
contractual undertaking or a contravention of the
tenor thereof. A breach upon the contract confers
upon the injured party a valid cause for recovering
that which may have been lost or suffered. The
remedy serves to preserve the interests of the
promissee that may include his "expectation
interest," which is his interest in having the benefit of
his bargain by being put in as good a position as he
would have been in had the contract been
performed, or his "reliance interest," which is his
interest in being reimbursed for loss caused by
reliance on the contract by being put in as good a
position as he would have been in had the contract
not been made; or his "restitution interest," which is
his interest in having restored to him any benefit that
he has conferred on the other party. Indeed,
agreements can accomplish little, either for their
makers or for society, unless they are made the basis
for action. The effect of every infraction is to create a
new duty, that is, to make recompense to the one who
has been injured by the failure of another to observe
his contractual obligation unless he can show
extenuating circumstances, like proof of his
exercise of due diligence x x x or of the attendance
of fortuitous event, to excuse him from his ensuing
liability.23 (Emphasis and underscoring supplied)
In the case at bar, RCPI bound itself to deliver the
telegram within the shortest possible time. It took 25
days, however, for RCPI to deliver it.
RCPI invokes force majeure, specifically, the alleged
radio noise and interferences which adversely
affected the transmission and/or reception of the
telegraphic message. Additionally, its messenger
claimed he could not locate the address of Zenaida
and it was only on the third attempt that he was able
to deliver the telegram.
For the defense of force majeure to prosper,
x x x it is necessary that one has
committed no negligence or misconduct that may
have occasioned the loss. An act of God cannot be
invoked to protect a person who has failed to take
steps to forestall the possible adverse consequences
of such a loss. One’s negligence may have concurred
with an act of God in producing damage and injury to
another; nonetheless, showing that the immediate or
proximate cause of the damage or injury was a
fortuitous event would not exempt one from
liability. When the effect is found to be partly the
result of a person’s participation – whether by
active intervention, neglect or failure to act – the
whole occurrence is humanized and removed
from the rules applicable to acts of God.
xxxx
Article 1174 of the Civil Code states that no person
shall be responsible for a fortuitous event that could
not be foreseen or, though foreseen, was
inevitable. In other words, there must be an
exclusion of human intervention from the cause
of injury or loss.24 (Emphasis and underscoring
supplied)
Assuming arguendo that fortuitous circumstances
prevented RCPI from delivering the telegram at the
soonest possible time, it should have at least
informed Grace of the non-transmission and the non-
delivery so that she could have taken steps to remedy
the situation. But it did not. There lies the fault or
negligence.
In an earlier case also involving RCPI, this Court held:
Considering the public utility of RCPI’s business and
its contractual obligation to transmit messages, it
should exercise due diligence to ascertain that
messages are delivered to the persons at the given
address and should provide a system whereby in
cases of undelivered messages the sender is given
notice of non-delivery. Messages sent
by cable or wireless means are usually more
important and urgent than those which can wait for
the mail.25
xxxx
People depend on telecommunications companies
in times of deep emotional stress or pressing
financial needs. Knowing that messages about the
illnesses or deaths of loved ones, births or marriages
in a family, important business transactions, and
notices of conferences or meetings as in this case,
are coursed through the petitioner and similar
corporations, it is incumbent upon them to exercise a
greater amount of care and concern than that shown
in this case. Every reasonable effort to inform senders
of the non-delivery of messages should be
undertaken.26
(Emphasis and underscoring supplied)
RCPI argues, however, against the presence of
urgency in the delivery of the telegram, as well as the
basis for the award of moral damages, thus:27
The request to send check as written in the
telegraphic text negates the existence of urgency that
private respondents’ allegations that ‘time was of the
essence’ imports. A check drawn against a Manila
Bank and transmitted to Sorsogon, Sorsogon will
have to be deposited in a bank in Sorsogon and pass
thru a minimum clearing period of 5 days before it
may be encashed or withdrawn. If the transmittal of
the requested check to Sorsogon took 1 day – private
respondents could therefore still wait for 6 days
before the same may be withdrawn. Requesting a
check that would take 6 days before it could be
withdrawn therefore contradicts plaintiff’s claim of
urgency or need.28
At any rate, any sense of urgency of the situation was
met when Grace Verchez was able to communicate to
Manila via a letter that she sent to the same
addressee in Manila thru JRS.29
xxxx
As far as the respondent court’s award for moral
damages is concerned, the same has no
basis whatsoever since private respondent Alfonso
Verchez did not accompany his late wife when the
latter went to Manila by bus. He stayed behind in
Sorsogon for almost 1 week before he proceeded to
Manila. 30
When pressed on cross-examination, private
respondent Alfonso Verchez could not give any
plausible reason as to the reason why he did not
accompany his ailing wife to Manila. 31
xxxx
It is also important to consider in resolving private
respondents’ claim for moral damages that
private respondent Grace Verchez did not accompany
her ailing mother to Manila.32
xxxx
It is the common reaction of a husband to be at his
ailing wife’s side as much as possible. The fact that
private respondent Alfonso Verchez stayed behind in
Sorsogon for almost 1 week convincingly
demonstrates that he himself knew that his wife was
not in critical condition.33
(Emphasis and underscoring supplied)
RCPI’s arguments fail. For it is its breach of contract
upon which its liability is, it bears repeating,
anchored. Since RCPI breached its contract, the
presumption is that it was at fault or negligent. It,
however, failed to rebut this presumption.
For breach of contract then, RCPI is liable to Grace
for damages.
And for quasi-delict, RCPI is liable to Grace’s co-
respondents following Article 2176 of the Civil Code
which provides:
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. (Underscoring
supplied)
RCPI’s liability as an employer could of course be
avoided if it could prove that it observed the diligence
of a good father of a family to prevent damage. Article
2180 of the Civil Code so provides:
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.
xxxx
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.
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.
xxxx
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. (Underscoring supplied)
RCPI failed, however, to prove that it observed all the
diligence of a good father of a family to prevent
damage.
Respecting the assailed award of moral damages, a
determination of the presence of the following
requisites to justify the award is in order:
x x x firstly, evidence of besmirched reputation or
physical, mental or psychological suffering sustained
by the claimant; secondly, a culpable act or omission
factually established; thirdly, proof that the wrongful
act or omission of the defendant is the proximate
cause of damages sustained by the claimant;
and fourthly, that the case is predicated on any of the
instances expressed or envisioned by Article 2219
and Article 2220 of the Civil Code.34
Respecting the first requisite, evidence of suffering by
the plaintiffs-herein respondents was correctly
appreciated by the CA in this wise:
The failure of RCPI to deliver the telegram containing
the message of appellees on time, disturbed their filial
tranquillity. Family members blamed each other for
failing to respond swiftly to an emergency that
involved the life of the late Mrs. Verchez, who
suffered from diabetes.35
As reflected in the foregoing discussions, the second
and third requisites are present.
On the fourth requisite, Article 2220 of the Civil Code
provides:
Willful injury to property may be a legal ground for
awarding moral damages if the court should find that,
under the circumstances, such damages are justly
due. The same rule applies to breaches of
contract where the defendant acted fraudulently
or in bad faith. (Emphasis and underscoring
supplied)
After RCPI’s first attempt to deliver the telegram
failed, it did not inform Grace of the non-delivery
thereof and waited for 12 days before trying to deliver
it again, knowing – as it should know – that time is of
the essence in the delivery of telegrams. When its
second long-delayed attempt to deliver the telegram
again failed, it, again, waited for another 12 days
before making a third attempt. Such nonchalance in
performing its urgent obligation indicates gross
negligence amounting to bad faith. The fourth
requisite is thus also present.
In applying the above-quoted Article 2220, this Court
has awarded moral damages in cases of breach of
contract where the defendant was guilty of gross
negligence amounting to bad faith, or in wanton
disregard of his contractual obligation.36
As for RCPI’s tort-based liability, Article 2219 of the
Civil Code provides:
Moral damages may be recovered in the following
and analogous cases:
xxxx
(10) Acts and actions referred to in Articles 21, 26, 27,
28, 29, 30, 32, 34, and 35. (Emphasis supplied)
Article 26 of the Civil Code, in turn, provides:
Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and
other persons. The following and similar acts, though
they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention,
and other relief:
xxxx
(2) Meddling with or disturbing the private life
or family relations of another. (Emphasis supplied)
RCPI’s negligence in not promptly performing its
obligation undoubtedly disturbed the peace of mind
not only of Grace but also her co-respondents. As
observed by the appellate court, it disrupted the "filial
tranquillity" among them as they blamed each other
"for failing to respond swiftly to an emergency." The
tortious acts and/or omissions complained of in this
case are, therefore, analogous to acts mentioned
under Article 26 of the Civil Code, which are among
the instances of quasi-delict when courts may award
moral damages under Article 2219 of the Civil Code.
In fine, the award to the plaintiffs-herein respondents
of moral damages is in order, as is the award of
attorney’s fees, respondents having been compelled
to litigate to protect their rights.
Clutching at straws, RCPI insists that the limited
liability clause in the "Telegram Transmission Form" is
not a contract of adhesion. Thus it argues:
Neither can the Telegram Transmission Form be
considered a contract of adhesion as held by the
respondent court. The said stipulations were
all written in bold letters right in front of the Telegram
Transmission Form. As a matter of fact they were
beside the space where the telegram senders write
their telegraphic messages. It would have been
different if the stipulations were written at the back for
surely there is no way the sender will easily notice
them. The fact that the stipulations were located in a
particular space where they can easily be seen, is
sufficient notice to any sender (like Grace Verchez-
Infante) where she could manifest her disapproval,
leave the RCPI station and avail of the services of the
other telegram operators.37 (Underscoring supplied)
RCPI misunderstands the nature of a contract of
adhesion. Neither the readability of the stipulations
nor their physical location in the contract determines
whether it is one of adhesion.
A contract of adhesion is defined as one in which one
of the parties imposes a ready-made form of contract,
which the other party may accept or reject, but which
the latter cannot modify. One party prepares the
stipulation in the contract, while the other party
merely affixes his signature or his "adhesion"
thereto, giving no room for negotiation and
depriving the latter of the opportunity to bargain
on equal footing.38 (Emphasis and underscoring
supplied)
While a contract of adhesion is not necessarily void
and unenforceable, since it is construed strictly
against the party who drafted it or gave rise to any
ambiguity therein, it is stricken down as void and
unenforceable or subversive of public policy when the
weaker party is imposed upon in dealing with the
dominant bargaining party and is reduced to the
alternative of taking it or leaving it, completely
deprived of the opportunity to bargain on equal
footing.39
This Court holds that the Court of Appeals’ finding
that the parties’ contract is one of adhesion which is
void is, given the facts and circumstances of the case,
thus well-taken.
WHEREFORE, the petition is DENIED, and the
challenged decision of the Court of Appeals
is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 150157 January 25, 2007
MAURICIO MANLICLIC and PHILIPPINE RABBIT
BUS LINES, INC., Petitioners,
vs.
MODESTO CALAUNAN, Respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the decision 1 of the Court of
Appeals in CA-G.R. CV No. 55909 which affirmed in
toto the decision2 of the Regional Trial Court (RTC) of
Dagupan City, Branch 42, in Civil Case No. D-10086,
finding petitioners Mauricio Manliclic and Philippine
Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay
damages and attorney’s fees to respondent Modesto
Calaunan.
The factual antecedents are as follows:
The vehicles involved in this case are: (1) Philippine
Rabbit Bus No. 353 with plate number CVD-478,
owned by petitioner PRBLI and driven by petitioner
Mauricio Manliclic; and (2) owner-type jeep with plate
number PER-290, owned by respondent Modesto
Calaunan and driven by Marcelo Mendoza.
At around 6:00 to 7:00 o’clock in the morning of 12
July 1988, respondent Calaunan, together with
Marcelo Mendoza, was on his way to Manila from
Pangasinan on board his owner-type jeep. The
Philippine Rabbit Bus was likewise bound for Manila
from Concepcion, Tarlac. At approximately Kilometer
40 of the North Luzon Expressway in Barangay
Lalangan, Plaridel, Bulacan, the two vehicles collided.
The front right side of the Philippine Rabbit Bus hit
the rear left side of the jeep causing the latter to move
to the shoulder on the right and then fall on a ditch
with water resulting to further extensive damage. The
bus veered to the left and stopped 7 to 8 meters from
point of collision.
Respondent suffered minor injuries while his driver
was unhurt. He was first brought for treatment to the
Manila Central University Hospital in Kalookan City by
Oscar Buan, the conductor of the Philippine Rabbit
Bus, and was later transferred to the Veterans
Memorial Medical Center.
By reason of such collision, a criminal case was filed
before the RTC of Malolos, Bulacan, charging
petitioner Manliclic with Reckless Imprudence
Resulting in Damage to Property with Physical
Injuries, docketed as Crim. Case No. 684-M-89.
Subsequently on 2 December 1991, respondent filed
a complaint for damages against petitioners Manliclic
and PRBLI before the RTC of Dagupan City,
docketed as Civil Case No. D-10086. The criminal
case was tried ahead of the civil case. Among those
who testified in the criminal case were respondent
Calaunan, Marcelo Mendoza and Fernando Ramos.
In the civil case (now before this Court), the parties
admitted the following:
1. The parties agreed on the capacity of the parties to
sue and be sued as well as the venue and the
identities of the vehicles involved;
2. The identity of the drivers and the fact that they are
duly licensed;
3. The date and place of the vehicular collision;
4. The extent of the injuries suffered by plaintiff
Modesto Calaunan and the existence of the medical
certificate;
5. That both vehicles were going towards the south;
the private jeep being ahead of the bus;
6. That the weather was fair and the road was well
paved and straight, although there was a ditch on the
right side where the jeep fell into. 3
When the civil case was heard, counsel for
respondent prayed that the transcripts of
stenographic notes (TSNs)4 of the testimonies of
respondent Calaunan, Marcelo Mendoza and
Fernando Ramos in the criminal case be received in
evidence in the civil case in as much as these
witnesses are not available to testify in the civil case.
Francisco Tuliao testified that his brother-in-law,
respondent Calaunan, left for abroad sometime in
November, 1989 and has not returned since then.
Rogelio Ramos took the stand and said that his
brother, Fernando Ramos, left for Amman, Jordan, to
work. Rosalia Mendoza testified that her husband,
Marcelo Mendoza, left their residence to look for a
job. She narrated that she thought her husband went
to his hometown in Panique, Tarlac, when he did not
return after one month. She went to her husband’s
hometown to look for him but she was informed that
he did not go there.
1awphil.net
The trial court subpoenaed the Clerk of Court of
Branch 8, RTC, Malolos, Bulacan, the court where
Criminal Case No. 684-M-89 was tried, to bring the
TSNs of the testimonies of respondent
Calaunan,5 Marcelo Mendoza6 and Fernando
Ramos7 in said case, together with other documentary
evidence marked therein. Instead of the Branch Clerk
of Court, it was Enrique Santos Guevara, Court
Interpreter, who appeared before the court and
identified the TSNs of the three afore-named
witnesses and other pertinent documents he had
brought.8 Counsel for respondent wanted to mark
other TSNs and documents from the said criminal
case to be adopted in the instant case, but since the
same were not brought to the trial court, counsel for
petitioners compromised that said TSNs and
documents could be offered by counsel for
respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus
conductor Oscar Buan testified. The TSN9 of the
testimony of Donato Ganiban, investigator of the
PRBLI, in Criminal Case No. 684-M-89 was marked
and allowed to be adopted in the civil case on the
ground that he was already dead.
Respondent further marked, among other documents,
as rebuttal evidence, the TSNs10 of the testimonies of
Donato Ganiban, Oscar Buan and petitioner Manliclic
in Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to
be held liable for the collision?
Respondent insists it was petitioner Manliclic who
should be liable while the latter is resolute in saying it
was the former who caused the smash up.
The versions of the parties are summarized by the
trial court as follows:
The parties differed only on the manner the collision
between the two (2) vehicles took place. According to
the plaintiff and his driver, the jeep was cruising at the
speed of 60 to 70 kilometers per hour on the slow
lane of the expressway when the Philippine Rabbit
Bus overtook the jeep and in the process of
overtaking the jeep, the Philippine Rabbit Bus hit the
rear of the jeep on the left side. At the time the
Philippine Rabbit Bus hit the jeep, it was about to
overtake the jeep. In other words, the Philippine
Rabbit Bus was still at the back of the jeep when the
jeep was hit. Fernando Ramos corroborated the
testimony of the plaintiff and Marcelo Mendoza. He
said that he was on another jeep following the
Philippine Rabbit Bus and the jeep of plaintiff when
the incident took place. He said, the jeep of the
plaintiff overtook them and the said jeep of the plaintiff
was followed by the Philippine Rabbit Bus which was
running very fast. The bus also overtook the jeep in
which he was riding. After that, he heard a loud
sound. He saw the jeep of the plaintiff swerved to the
right on a grassy portion of the road. The Philippine
Rabbit Bus stopped and they overtook the Philippine
Rabbit Bus so that it could not moved (sic), meaning
they stopped in front of the Philippine Rabbit Bus. He
testified that the jeep of plaintiff swerved to the right
because it was bumped by the Philippine Rabbit bus
from behind.
Both Mauricio Manliclic and his driver, Oscar Buan
admitted that the Philippine Rabbit Bus bumped the
jeep in question. However, they explained that when
the Philippine Rabbit bus was about to go to the left
lane to overtake the jeep, the latter jeep swerved to
the left because it was to overtake another jeep in
front of it. Such was their testimony before the RTC in
Malolos in the criminal case and before this Court in
the instant case. [Thus, which of the two versions of
the manner how the collision took place was correct,
would be determinative of who between the two
drivers was negligent in the operation of their
respective vehicles.]11
Petitioner PRBLI maintained that it observed and
exercised the diligence of a good father of a family in
the selection and supervision of its employee,
specifically petitioner Manliclic.
On 22 July 1996, the trial court rendered its decision
in favor of respondent Calaunan and against
petitioners Manliclic and PRBLI. The dispositive
portion of its decision reads:
WHEREFORE, judgment is rendered in favor of the
plaintiff and against the defendants ordering the said
defendants to pay plaintiff jointly and solidarily the
amount of P40,838.00 as actual damages for the
towing as well as the repair and the materials used
for the repair of the jeep in question; P100,000.00 as
moral damages and another P100,000.00 as
exemplary damages and P15,000.00 as attorney’s
fees, including appearance fees of the lawyer. In
addition, the defendants are also to pay costs.12
Petitioners appealed the decision via Notice of Appeal
to the Court of Appeals.13
In a decision dated 28 September 2001, the Court of
Appeals, finding no reversible error in the decision of
the trial court, affirmed it in all respects.14
Petitioners are now before us by way of petition for
review assailing the decision of the Court of Appeals.
They assign as errors the following:
I
THE COURT OF APPEALS ERRED
ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURT’S
QUESTIONABLE ADMISSION IN
EVIDENCE OF THE TSN’s AND
OTHER DOCUMENTS PRESENTED
IN THE CRIMINAL CASE.
II
THE COURT OF APPEALS ERRED
ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURT’S
RELIANCE ON THE VERSION OF
THE RESPONDENT ON HOW THE
ACCIDENT SUPPOSEDLY
OCCURRED.
III
THE COURT OF APPEALS ERRED
ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURT’S
UNFAIR DISREGARD OF HEREIN
PETITIONER PRBL’s DEFENSE OF
EXERCISE OF DUE DILIGENCE IN
THE SELECTION AND
SUPERVISION OF ITS EMPLOYEES.
IV
THE COURT OF APPEALS ERRED
ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURT’S
QUESTIONABLE AWARD OF
DAMAGES AND ATTORNEY’S FEE.
With the passing away of respondent Calaunan
during the pendency of this appeal with this Court, we
granted the Motion for the Substitution of Respondent
filed by his wife, Mrs. Precila Zarate Vda. De
Calaunan, and children, Virgilio Calaunan, Carmelita
Honeycomb, Evelyn Calaunan, Marko Calaunan and
Liwayway Calaunan.15
In their Reply to respondent’s Comment, petitioners
informed this Court of a Decision 16 of the Court of
Appeals acquitting petitioner Manliclic of the
charge17 of Reckless Imprudence Resulting in
Damage to Property with Physical Injuries attaching
thereto a photocopy thereof.
On the first assigned error, petitioners argue that the
TSNs containing the testimonies of respondent
Calaunan,18Marcelo Mendoza19 and Fernando
Ramos should not be admitted in evidence for failure
20
of respondent to comply with the requisites of Section
47, Rule 130 of the Rules of Court.
For Section 47, Rule 13021 to apply, the following
requisites must be satisfied: (a) the witness is dead or
unable to testify; (b) his testimony or deposition was
given in a former case or proceeding, judicial or
administrative, between the same parties or those
representing the same interests; (c) the former case
involved the same subject as that in the present case,
although on different causes of action; (d) the issue
testified to by the witness in the former trial is the
same issue involved in the present case; and (e) the
adverse party had an opportunity to cross-examine
the witness in the former case.22
Admittedly, respondent failed to show the
concurrence of all the requisites set forth by the Rules
for a testimony given in a former case or proceeding
to be admissible as an exception to the hearsay rule.
Petitioner PRBLI, not being a party in Criminal Case
No. 684-M-89, had no opportunity to cross-examine
the three witnesses in said case. The criminal case
was filed exclusively against petitioner Manliclic,
petitioner PRBLI’s employee. The cases dealing with
the subsidiary liability of employers uniformly declare
that, strictly speaking, they are not parties to the
criminal cases instituted against their employees.23
Notwithstanding the fact that petitioner PRBLI was
not a party in said criminal case, the testimonies of
the three witnesses are still admissible on the ground
that petitioner PRBLI failed to object on their
admissibility.
It is elementary that an objection shall be made at the
time when an alleged inadmissible document is
offered in evidence; otherwise, the objection shall be
treated as waived, since the right to object is merely a
privilege which the party may waive. Thus, a failure to
except to the evidence because it does not conform
to the statute is a waiver of the provisions of the law.
Even assuming ex gratia argumenti that these
documents are inadmissible for being hearsay, but on
account of failure to object thereto, the same may be
admitted and considered as sufficient to prove the
facts therein asserted.24 Hearsay evidence alone may
be insufficient to establish a fact in a suit but, when no
objection is made thereto, it is, like any other
evidence, to be considered and given the importance
it deserves.25
In the case at bar, petitioner PRBLI did not object to
the TSNs containing the testimonies of respondent
Calaunan, Marcelo Mendoza and Fernando Ramos in
the criminal case when the same were offered in
evidence in the trial court. In fact, the TSNs of the
testimonies of Calaunan and Mendoza were admitted
by both petitioners.26 Moreover, petitioner PRBLI even
offered in evidence the TSN containing the testimony
of Donato Ganiban in the criminal case. If petitioner
PRBLI argues that the TSNs of the testimonies of
plaintiff’s witnesses in the criminal case should not be
admitted in the instant case, why then did it offer the
TSN of the testimony of Ganiban which was given in
the criminal case? It appears that petitioner PRBLI
wants to have its cake and eat it too. It cannot argue
that the TSNs of the testimonies of the witnesses of
the adverse party in the criminal case should not be
admitted and at the same time insist that the TSN of
the testimony of the witness for the accused be
admitted in its favor. To disallow admission in
evidence of the TSNs of the testimonies of Calaunan,
Marcelo Mendoza and Fernando Ramos in the
criminal case and to admit the TSN of the testimony
of Ganiban would be unfair.
We do not subscribe to petitioner PRBLI’s argument
that it will be denied due process when the TSNs of
the testimonies of Calaunan, Marcelo Mendoza and
Fernando Ramos in the criminal case are to be
admitted in the civil case. It is too late for petitioner
PRBLI to raise denial of due process in relation to
Section 47, Rule 130 of the Rules of Court, as a
ground for objecting to the admissibility of the TSNs.
For failure to object at the proper time, it waived its
right to object that the TSNs did not comply with
Section 47.
In Mangio v. Court of Appeals,27 this Court, through
Associate Justice Reynato S. Puno, 28 admitted in
evidence a TSN of the testimony of a witness in
another case despite therein petitioner’s assertion
that he would be denied due process. In admitting the
TSN, the Court ruled that the raising of denial of due
process in relation to Section 47, Rule 130 of the
Rules of Court, as a ground for objecting to the
admissibility of the TSN was belatedly done. In so
doing, therein petitioner waived his right to object
based on said ground.
Petitioners contend that the documents in the criminal
case should not have been admitted in the instant
civil case because Section 47 of Rule 130 refers only
to "testimony or deposition." We find such contention
to be untenable. Though said section speaks only of
testimony and deposition, it does not mean that
documents from a former case or proceeding cannot
be admitted. Said documents can be admitted they
being part of the testimonies of witnesses that have
been admitted. Accordingly, they shall be given the
same weight as that to which the testimony may be
entitled.29
On the second assigned error, petitioners contend
that the version of petitioner Manliclic as to how the
accident occurred is more credible than respondent’s
version. They anchor their contention on the fact that
petitioner Manliclic was acquitted by the Court of
Appeals of the charge of Reckless Imprudence
Resulting in Damage to Property with Physical
Injuries.
To be resolved by the Court is the effect of petitioner
Manliclic’s acquittal in the civil case.
From the complaint, it can be gathered that the civil
case for damages was one arising from, or based on,
quasi-delict.30 Petitioner Manliclic was sued for his
negligence or reckless imprudence in causing the
collision, while petitioner PRBLI was sued for its
failure to exercise the diligence of a good father in the
selection and supervision of its employees,
particularly petitioner Manliclic. The allegations read:
"4. That sometime on July 12, 1988 at around 6:20
A.M. plaintiff was on board the above-described
motor vehicle travelling at a moderate speed along
the North Luzon Expressway heading South towards
Manila together with MARCELO MENDOZA, who was
then driving the same;
"5. That approximately at kilometer 40 of the North
Luzon Express Way, the above-described motor
vehicle was suddenly bumped from behind by a
Philippine Rabbit Bus with Body No. 353 and with
plate No. CVD 478 then being driven by one Mauricio
Manliclic of San Jose, Concepcion, Tarlac, who was
then travelling recklessly at a very fast speed and had
apparently lost control of his vehicle;
"6. That as a result of the impact of the collision the
above-described motor vehicle was forced off the
North Luzon Express Way towards the rightside
where it fell on its driver’s side on a ditch, and that as
a consequence, the above-described motor vehicle
which maybe valued at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck as shown by
pictures to be presented during the pre-trial and trial
of this case;
"7. That also as a result of said incident, plaintiff
sustained bodily injuries which compounded plaintiff’s
frail physical condition and required his hospitalization
from July 12, 1988 up to and until July 22, 1988, copy
of the medical certificate is hereto attached as Annex
"A" and made an integral part hereof;
"8. That the vehicular collision resulting in the total
wreckage of the above-described motor vehicle as
well as bodily (sic) sustained by plaintiff, was solely
due to the reckless imprudence of the defendant
driver Mauricio Manliclic who drove his Philippine
Rabbit Bus No. 353 at a fast speed without due
regard or observance of existing traffic rules and
regulations;
"9. That defendant Philippine Rabbit Bus Line
Corporation failed to exercise the diligence of a good
father of (sic) family in the selection and supervision
of its drivers; x x x"31
Can Manliclic still be held liable for the collision and
be found negligent notwithstanding the declaration of
the Court of Appeals that there was an absence of
negligence on his part?
In exonerating petitioner Manliclic in the criminal
case, the Court of Appeals said:
To the following findings of the court a quo, to wit: that
accused-appellant was negligent "when the bus he
was driving bumped the jeep from behind"; that "the
proximate cause of the accident was his having
driven the bus at a great speed while closely following
the jeep"; x x x
We do not agree.
The swerving of Calaunan’s jeep when it tried to
overtake the vehicle in front of it was beyond the
control of accused-appellant.
xxxx
Absent evidence of negligence, therefore, accused-
appellant cannot be held liable for Reckless
Imprudence Resulting in Damage to Property with
Physical Injuries as defined in Article 365 of the
Revised Penal Code.32
From the foregoing declaration of the Court of
Appeals, it appears that petitioner Manliclic was
acquitted not on reasonable doubt, but on the ground
that he is not the author of the act complained of
which is based on Section 2(b) of Rule 111 of the
Rules of Criminal Procedure which reads:
(b) Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds
from a declaration in a final judgment that the fact
from which the civil might arise did not exist.
In spite of said ruling, petitioner Manliclic can still be
held liable for the mishap. The afore-quoted section
applies only to a civil action arising from crime or ex
delicto and not to a civil action arising from quasi-
delict or culpa aquiliana. The extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111 [now
Section 2 (b) of Rule 111], refers exclusively to civil
liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime
is not extinguished even by a declaration in the
criminal case that the criminal act charged has not
happened or has not been committed by the
accused.33
A quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and
independent from a delict or crime – a distinction
exists between the civil liability arising from a crime
and the responsibility for quasi-delicts or culpa extra-
contractual. The same negligence causing damages
may produce civil liability arising from a crime under
the Penal Code, or create an action for quasi-delicts
or culpa extra-contractual under the Civil Code. 34 It is
now settled that acquittal of the accused, even if
based on a finding that he is not guilty, does not carry
with it the extinction of the civil liability based on quasi
delict.35
In other words, if an accused is acquitted based on
reasonable doubt on his guilt, his civil liability arising
from the crime may be proved by preponderance of
evidence only. However, if an accused is acquitted on
the basis that he was not the author of the act or
omission complained of (or that there is declaration in
a final judgment that the fact from which the civil
might arise did not exist), said acquittal closes the
door to civil liability based on the crime or ex delicto.
In this second instance, there being no crime or delict
to speak of, civil liability based thereon or ex delicto is
not possible. In this case, a civil action, if any, may be
instituted on grounds other than the delict complained
of.
As regards civil liability arising from quasi-delict or
culpa aquiliana, same will not be extinguished by an
acquittal, whether it be on ground of reasonable
doubt or that accused was not the author of the act or
omission complained of (or that there is declaration in
a final judgment that the fact from which the civil
liability might arise did not exist). The responsibility
arising from fault or negligence in a quasi-delict is
entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. 36 An
acquittal or conviction in the criminal case is entirely
irrelevant in the civil case 37 based on quasi-delict or
culpa aquiliana.
Petitioners ask us to give credence to their version of
how the collision occurred and to disregard that of
respondent’s. Petitioners insist that while the PRBLI
bus was in the process of overtaking respondent’s
jeep, the latter, without warning, suddenly swerved to
the left (fast) lane in order to overtake another jeep
ahead of it, thus causing the collision.
As a general rule, questions of fact may not be raised
in a petition for review. The factual findings of the trial
court, especially when affirmed by the appellate court,
are binding and conclusive on the Supreme
Court.38 Not being a trier of facts, this Court will not
allow a review thereof unless:
(1) the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; (2) the inference
made is manifestly mistaken; (3) there is grave abuse
of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are
conflicting; (6) the Court of Appeals went beyond the
issues of the case and its findings are contrary to the
admissions of both appellant and appellees; (7) the
findings of fact of the Court of Appeals are contrary to
those of the trial court; (8) said findings of fact are
conclusions without citation of specific evidence on
which they are based; (9) the facts set forth in the
petition as well as in the petitioner's main and reply
briefs are not disputed by the respondents; and (10)
the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and
contradicted by the evidence on record.39
After going over the evidence on record, we do not
find any of the exceptions that would warrant our
departure from the general rule. We fully agree in the
finding of the trial court, as affirmed by the Court of
Appeals, that it was petitioner Manliclic who was
negligent in driving the PRBLI bus which was the
cause of the collision. In giving credence to the
version of the respondent, the trial court has this say:
x x x Thus, which of the two versions of the manner
how the collision took place was correct, would be
determinative of who between the two drivers was
negligent in the operation of their respective vehicle.
In this regard, it should be noted that in the statement
of Mauricio Manliclic (Exh. 15) given to the Philippine
Rabbit Investigator CV Cabading no mention was
made by him about the fact that the driver of the jeep
was overtaking another jeep when the collision took
place. The allegation that another jeep was being
overtaken by the jeep of Calaunan was testified to by
him only in Crim. Case No. 684-M-89 before the
Regional Trial Court in Malolos, Bulacan and before
this Court. Evidently, it was a product of an
afterthought on the part of Mauricio Manliclic so that
he could explain why he should not be held
responsible for the incident. His attempt to veer away
from the truth was also apparent when it would be
considered that in his statement given to the
Philippine Rabbit Investigator CV Cabading (Exh. 15),
he alleged that the Philippine Rabbit Bus bumped the
jeep of Calaunan while the Philippine Rabbit Bus was
behind the said jeep. In his testimony before the
Regional Trial Court in Malolos, Bulacan as well as in
this Court, he alleged that the Philippine Rabbit Bus
was already on the left side of the jeep when the
collision took place. For this inconsistency between
his statement and testimony, his explanation
regarding the manner of how the collision between
the jeep and the bus took place should be taken with
caution. It might be true that in the statement of Oscar
Buan given to the Philippine Rabbit Investigator CV
Cabading, it was mentioned by the former that the
jeep of plaintiff was in the act of overtaking another
jeep when the collision between the latter jeep and
the Philippine Rabbit Bus took place. But the fact,
however, that his statement was given on July 15,
1988, one day after Mauricio Manliclic gave his
statement should not escape attention. The one-day
difference between the giving of the two statements
would be significant enough to entertain the
possibility of Oscar Buan having received legal advise
before giving his statement. Apart from that, as
between his statement and the statement of Manliclic
himself, the statement of the latter should prevail.
Besides, in his Affidavit of March 10, 1989, (Exh. 14),
the unreliability of the statement of Oscar Buan (Exh.
13) given to CV Cabading rear its "ugly head" when
he did not mention in said affidavit that the jeep of
Calaunan was trying to overtake another jeep when
the collision between the jeep in question and the
Philippine Rabbit bus took place.
xxxx
If one would believe the testimony of the defendant,
Mauricio Manliclic, and his conductor, Oscar Buan,
that the Philippine Rabbit Bus was already somewhat
parallel to the jeep when the collision took place, the
point of collision on the jeep should have been
somewhat on the left side thereof rather than on its
rear. Furthermore, the jeep should have fallen on the
road itself rather than having been forced off the road.
Useless, likewise to emphasize that the Philippine
Rabbit was running very fast as testified to by Ramos
which was not controverted by the defendants.40
Having ruled that it was petitioner Manliclic’s
negligence that caused the smash up, there arises
the juris tantum presumption that the employer is
negligent, rebuttable only by proof of observance of
the diligence of a good father of a family. 41 Under
Article 218042 of the New Civil Code, when an injury is
caused by the negligence of the 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 selection or both. The
liability of the employer under Article 2180 is direct
and immediate; it is not conditioned upon prior
recourse against the negligent employee and a prior
showing of the insolvency of such employee.
Therefore, it is incumbent upon the private
respondents to prove that they exercised the
diligence of a good father of a family in the selection
and supervision of their employee. 43
In the case at bar, petitioner PRBLI maintains that it
had shown that it exercised the required diligence in
the selection and supervision of its employees,
particularly petitioner Manliclic. In the matter of
selection, it showed the screening process that
petitioner Manliclic underwent before he became a
regular driver. As to the exercise of due diligence in
the supervision of its employees, it argues that
presence of ready investigators (Ganiban and
Cabading) is sufficient proof that it exercised the
required due diligence in the supervision of its
employees.
In the selection of prospective employees, employers
are required to examine them as to their
qualifications, experience and service records. In the
supervision of employees, the employer must
formulate standard operating procedures, monitor
their implementation and impose disciplinary
measures for the breach thereof. To fend off vicarious
liability, employers must submit concrete proof,
including documentary evidence, that they complied
with everything that was incumbent on them. 44
In Metro Manila Transit Corporation v. Court of
Appeals,45 it was explained that:
Due diligence in the supervision of employees on the
other hand, includes the formulation of suitable rules
and regulations for the guidance of employees and
the issuance of proper instructions intended for the
protection of the public and persons with whom the
employer has relations through his or its employees
and the imposition of necessary disciplinary
measures upon employees in case of breach or as
may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to
their employer. To this, we add that actual
implementation and monitoring of consistent
compliance with said rules should be the constant
concern of the employer, acting through dependable
supervisors who should regularly report on their
supervisory functions.
In order that the defense of due diligence in the
selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to
emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As
the negligence of the employee gives rise to the
presumption of negligence on the part of the
employer, the latter has the burden of proving that it
has been diligent not only in the selection of
employees but also in the actual supervision of their
work. The mere allegation of the existence of hiring
procedures and supervisory policies, without anything
more, is decidedly not sufficient to overcome such
presumption.
We emphatically reiterate our holding, as a warning to
all employers, that "the formulation of various
company policies on safety without showing that they
were being complied with is not sufficient to exempt
petitioner from liability arising from negligence of its
employees. It is incumbent upon petitioner to show
that in recruiting and employing the erring driver the
recruitment procedures and company policies on
efficiency and safety were followed." x x x.
The trial court found that petitioner PRBLI exercised
the diligence of a good father of a family in the
selection but not in the supervision of its employees.
It expounded as follows:
From the evidence of the defendants, it seems that
the Philippine Rabbit Bus Lines has a very good
procedure of recruiting its driver as well as in the
maintenance of its vehicles. There is no evidence
though that it is as good in the supervision of its
personnel. There has been no iota of evidence
introduced by it that there are rules promulgated by
the bus company regarding the safe operation of its
vehicle and in the way its driver should manage and
operate the vehicles assigned to them. There is no
showing that somebody in the bus company has been
employed to oversee how its driver should behave
while operating their vehicles without courting
incidents similar to the herein case. In regard to
supervision, it is not difficult to observe that the
Philippine Rabbit Bus Lines, Inc. has been negligent
as an employer and it should be made responsible for
the acts of its employees, particularly the driver
involved in this case.
We agree. The presence of ready investigators after
the occurrence of the accident is not enough to
exempt petitioner PRBLI from liability arising from the
negligence of petitioner Manliclic. Same does not
comply with the guidelines set forth in the cases
above-mentioned. The presence of the investigators
after the accident is not enough supervision. Regular
supervision of employees, that is, prior to any
accident, should have been shown and established.
This, petitioner failed to do. The lack of supervision
can further be seen by the fact that there is only one
set of manual containing the rules and regulations for
all the drivers of PRBLI. 46 How then can all the
drivers of petitioner PRBLI know and be continually
informed of the rules and regulations when only one
manual is being lent to all the drivers?
For failure to adduce proof that it exercised the
diligence of a good father of a family in the selection
and supervision of its employees, petitioner PRBLI is
held solidarily responsible for the damages caused by
petitioner Manliclic’s negligence.
We now go to the award of damages. The trial court
correctly awarded the amount of P40,838.00 as
actual damages representing the amount paid by
respondent for the towing and repair of his jeep. 47 As
regards the awards for moral and exemplary
damages, same, under the circumstances, must be
modified. The P100,000.00 awarded by the trial court
as moral damages must be reduced
to P50,000.00.48 Exemplary damages are imposed by
way of example or correction for the public
good.49 The amount awarded by the trial court must, REYES, R.T., J.:
likewise, be lowered to P50,000.00.50 The award
of P15,000.00 for attorney’s fees and expenses of
litigation is in order and authorized by law.51
MAY a municipal mayor be held solidarily
WHEREFORE, premises considered, the instant liable for the negligent acts of the driver
petition for review is DENIED. The decision of the
Court of Appeals in CA-G.R. CV No. 55909 is assigned to him, which resulted in the death
AFFIRMED with the MODIFICATION that (1) the of a minor pedestrian?
award of moral damages shall be reduced
to P50,000.00; and (2) the award of exemplary
damages shall be lowered to P50,000.00. Costs
against petitioners.

SO ORDERED.
Challenged in this petition for review
SPS. BUENAVENTURA JAYME G.R.
on certiorari is the Decision[1] of the Court
No. 163609
AND ROSARIO JAYME, of Appeals (CA) which reversed and set
Petitioners, aside the decision of the Regional Trial
Present: Court (RTC), Polomolok, Cotabato City,
- versus - YNARES-SANTIAGO, J., Branch 39, insofar as defendant Mayor
Fernando Q. Miguel is concerned. The CA
hairpe
absolved Mayor Miguel from any liability
rson,since it was not he, but
AUSTRIA-MARTINEZ,
the Municipality of Koronadal, that was the
RODRIGO APOSTOL, FIDEL CHICO-
NAZARIO, employer of the negligent driver.
LOZANO, ERNESTO
SIMBULAN, NACHURA, and The Facts
MAYOR FERNANDO Q.
MIGUEL, REYES, JJ. On February 5, 1989, Mayor Miguel of
MUNICIPALITY OF KORONADAL Koronadal, South Cotabato was on board
(NOW CITY OF KORONADAL), the Isuzu pick-up truck driven by Fidel
PROVINCE OF SOUTH COTABATO, Lozano, an employee of
represented by the MUNICIPAL [2]
the Municipalityof Koronadal. The pick-
TREASURER and/or MUNICIPAL
MAYOR FERNANDO Q. MIGUEL, up truck was registered under the name of
and THE FIRST Rodrigo Apostol, but it was then in the
INTEGRATED Promulgated: possession of Ernesto Simbulan.[3] Lozano
BONDING AND INSURANCE borrowed the pick-up truck from Simbulan
COMPANY, INC. , to bring Miguel
Respondents. November to Buayan Airport at General Santos City to
27, 2008 catch his Manila flight.[4]
x-----------------------------
---------------------x The pick-up truck accidentally hit Marvin C.
Jayme, a minor, who was then crossing
DECISION the National Highway in Poblacion,
Polomolok, South Cotabato.[5] The intensity
of the collision sent Marvin some fifty (50)
meters away from the point of impact, a
clear indication that Lozano was driving at a
very high speed at the time of the accident.[6]
Marvin sustained severe head injuries
with subdural hematoma and diffused
cerebral contusion.[7] He was initially treated
at the Howard Hubbard MemorialHospital.
[8]
Due to the seriousness of his injuries, he
was airlifted to
the Ricardo Limso Medical Center in Davao
City for more intensive treatment.[9] Despite
medical attention, Marvin expired six (6)
days after the accident.[10]
Petitioners spouses Buenaventura and
Rosario Jayme, the parents of Marvin, filed
a complaint for damages with
[11]
the RTC against respondents. In their
complaint, they prayed that all
respondents be held solidarily liable for
their loss. They pointed out that that
proximate cause of Marvins death was
Lozanos negligent and reckless operation of
the vehicle. They prayed for actual, moral,
and exemplary damages, attorneys fees, and
litigation expenses.
In their respective Answers, all
respondents denied liability for Marvins
death. Apostol and Simbulan averred that
Lozano took the pick-up truck without their
consent. Likewise, Miguel and Lozano
pointed out that Marvins sudden sprint
across the highway made it impossible to
avoid the accident. Yet, Miguel denied being
on board the vehicle when it hit
Marvin. The Municipality of Koronadal ado
pted the answer of Lozano and Miguel. As
for First Integrated Bonding and Insurance
Company, Inc., the vehicle insurer, it
insisted that its liability is contributory and
is only conditioned on the right of the
insured. Since the insured did not file a
claim within the prescribed period, any
cause of action against it had prescribed.
RTC Disposition
On January 25, 1999,
the RTC rendered judgment in favor of
spouses Jayme, the dispositive portion of
which reads:
WHEREFORE, in view of the
foregoing,
the defendant Municipality of
Koronadal cannot be held liable
for the damages incurred by
other defendant (sic) being an
agency of the State performing a
(sic) governmental
functions. The same with
defendant Hermogenes
Simbulan, not being the owner
of the subject vehicle, he is
absolved of any liability.
The complaint against defendant
First Integrated Bonding
Insurance Company, Inc. is
hereby ordered dismissed there
being no cause of action against
said insurance company.
However, defendants
Fidel Lozano, Rodrigo Apostol,
and Mayor Fernando Miguel of
Koronadal, South Cotabato, are
hereby ordered jointly and
severally to pay the plaintiff
(sic) the following sums:
1. One
Hundred Seven
ty Three Thous
and One
 Hundred One In his appeal, Mayor Miguel
and Forty contended that the RTC erred in ruling that
Centavos
he was Lozanos employer and, hence,
(P173,101.40)
Pesos as actual solidarily liable for the latters negligent
damages with act.Records showed that
legal interest of the Municipality of Koronadal was the
12% per drivers true and lawful employer. Mayor
annum Miguel also denied that he did not exercise
computed due care and diligence in the supervision of
from February
11, 1989 until Lozano. The incident, although unfortunate,
fully paid; was unexpected and cannot be attributed to
2. Fifty Thousand him.
(P50,000.00)
Pesos as moral On October 22, 2003, the CA granted
damages; the appeal, disposing as follows:
3. Twenty
Thousand
(P20,000.00)
Pesos as
exemplary WHEREFORE, the
damages; Decision appealed from is
4. Twenty REVERSED and SET ASIDE,
Thousand insofar as defendant-appellant
(P20,000.00) Mayor Fernando Q. Miguel is
Pesos as concerned, and the complaint
Attorneys fees; against him is DISMISSED.
5. Fifty Thousand
(P50,000.00) IT IS SO ORDERED.[13]
Pesos for the
death of The CA held that Mayor Miguel
Marvin Jayme; should not be held liable for damages for the
6. Three Thousand
death of Marvin Jayme. Said the appellate
(P3,000.00) as
litigation court:
expenses; and
7. To pay the cost Moreover, plaintiffs-
of this suit. appellees admitted that Mayor
Miguel was not the employer of
SO ORDERED.[12] Lozano. Thus, paragraph 9 of
the complaint alleged that
the Municipality of Koronadal
Dissatisfied with the RTC ruling,
was the employer of both
Mayor Miguel interposed an appeal to the Mayor Miguel and
CA. Lozano. Not being the employer
of Lozano, Mayor Miguel could
CA Disposition not thus be held liable for the
damages caused by the
 former. Mayor Miguel was a APPEALS ARE ALL BASED
mere passenger in the Isuzu ON
pick-up at the time of the CONJECTURES AND SURMI
accident.[14] (Emphasis supplied) SES AND AGAINST
ACCEPTED COURSE OF
The CA also reiterated the settled rule that it JUDICIAL PROCEEDINGS
WHICH URGENTLY CALL
is the registered owner of a vehicle who is
FOR AN EXERCISE OF THIS
jointly and severally liable with the driver HONORABLE COURTS
for damages incurred by passengers or third SUPERVISION. [15]

persons as a consequence of injuries or

death sustained in the operation of the
vehicle. Our Ruling

Issues The doctrine of vicarious liability or

imputed liability finds no application in
The spouses Jayme have resorted to the present case.
the present recourse and assign to the CA
the following errors: Spouses Jayme contend, inter alia,
that vicarious liability attaches to Mayor
I. Miguel. He was not a mere passenger, but
THE HONORABLE instead one who had direct control and
COURT OF APPEALS ERRED supervision over Lozano during the time of
IN HOLDING THAT MAYOR the accident. According to petitioners, the
FERNANDO MIGUEL
CANNOT BE HELD LIABLE element of direct control is not negated by
FOR THE DEATH OF the fact that Lozanos employer was
MARVIN JAYME WHICH the Municipality of Koronadal. Mayor
CONCLUSION IS CONTRARY Miguel, being Lozanos superior, still had
TO LAW AND THE SETTLED control over the manner the vehicle was
PRONOUNCEMENTS OF operated.
THIS HONORABLE
TRIBUNAL;
Article 2180[16] of the Civil Code
provides that a person is not only liable for
II.
THE FINDINGS OF ones own quasi-delictual acts, but also for
FACTS OF THE HONORABLE those persons for whom one is responsible
COURT OF for. This liability is popularly known as
APPEALS ARE CONTRARY vicarious or imputed liability. To sustain
TO THE FINDINGS OF THE claims against employers for the acts of
TRIAL
their employees, the following requisites
COURT AND ARECONTRADI
CTED BY THE EVIDENCE must be established: (1) That the employee
ON RECORD; MOREOVER, was chosen by the employer personally or
THE CONCLUSIONS DRAWN through another; (2) That the service to be
BY THE HONORABLE rendered in accordance with orders which
COURT OF the employer has the authority to give at all
times; and (3) That the illicit act of the
employee was on the occasion or by reason
of the functions entrusted to him.[17]
Significantly, to make the employee
liable under paragraphs 5 and 6 of Article
2180, it must be established that the
injurious or tortuous act was committed at
the time the employee was performing his
functions.[18]
Furthermore, the employer-employee
relationship cannot be assumed. It is
incumbent upon the plaintiff to prove the
relationship by preponderant
[19]
evidence. In Belen v. Belen, this Court
ruled that it was enough for defendant to
deny an alleged employment
relationship. The defendant is under no
obligation to prove the negative
averment. This Court said:
It is an old and well-
settled rule of the courts that the
burden of proving the action is
upon the plaintiff, and that if he
fails satisfactorily to show the
facts upon which he bases his
claim, the defendant is under no
obligation to prove his
exceptions. This rue is in
harmony with the provisions of
Section 297 of the Code of Civil
Procedure holding that each
party must prove his own
affirmative allegations, etc.[20]
In resolving the present controversy,
it is imperative to find out if Mayor Miguel
is, indeed, the employer of Lozano and
therefore liable for the negligent acts of the
latter. To determine the existence of an
employment relationship, We rely on the
four-fold test. This involves: (1) the
employers power of selection; (2) payment
of wages or other remuneration; (3) the
employers right to control the method of
doing the work; and (4) the employers right
of suspension or dismissal.[21]
Applying the foregoing test, the CA
correctly held that it was
the Municipality of Koronadal which was
the lawful employer of Lozano at the time
of the accident. It is uncontested that
Lozano was employed as a driver by the
municipality. That he was subsequently
assigned to Mayor Miguel during the time
of the accident is of no moment. This Court
has, on several occasions, held that an
employer-employee relationship still exists
even if the employee was loaned by the
employer to another person or entity
because control over the employee subsists.
[22]
In the case under review,
the Municipality of Koronadal remains to be
Lozanos employer notwithstanding Lozanos
assignment to Mayor Miguel.
Spouses Jayme argued that Mayor
Miguel had at least supervision and control
over Lozano and how the latter operated or
drove the Isuzu pick-up during the time of
the accident. They, however, failed to
buttress this claim.
Even assuming arguendo that Mayor
Miguel had authority to give instructions or
directions to Lozano, he still can not be held
liable. In Benson v. Sorrell,[23]the New
England Supreme Court ruled that mere
giving of directions to the driver does not
establish that the passenger has control over
the vehicle. Neither does it render one the
employer of the driver. This Court,
in Soliman, Jr. v. Tuazon,[24] ruled in a
similar vein, to wit:
x x x The fact that a client
company may give instructions
or directions to the security
guards assigned to it, does not,
by itself, render the client
responsible as an employerof
the security guards concerned
and liable for their wrongful acts
and omissions. Those
instructions or directions are
ordinarily no more than requests
commonly envisaged in the
contract for services entered into
with the security agency. x x
x[25] (Emphasis supplied)
Significantly, no negligence may be
imputed against a fellow employee although
the person may have the right to control the
manner of the vehicles operation.[26] In the
absence of an employer-employee
relationship establishing vicarious liability,
the drivers negligence should not be
attributed to a fellow employee who only
happens to be an occupant of the vehicle.
[27]
Whatever right of control the occupant
may have over the driver is not sufficient by
itself to justify an application of the doctrine
of vicarious liability. Handley v.
[28]
Lombardi is instructive on this exception
to the rule on vicarious liability:
Plaintiff was not the
master or principal of the driver
of the truck, but only an
intermediate and superior
employee or agent. This being so,
the doctrine of respondeat
superior or qui facit per alium is
not properly applicable to
him. His power to direct and
control the driver was not as
master, but only by virtue of the
fact that they were both
employed by Kruse, and the
further fact that as Kruses agent
he was delegated Kruses
authority over the driver. x x x
In the case of actionable
negligence, the rule is well
settled both in this state and
elsewhere that the negligence of a
subordinate employee or
subagent is not to be imputed to a
superior employee or agent, but
only to the master or principal.
(Hilton v. Oliver, 204 Cal. 535
[61 A. L. R. 297, 269 Pac.
425]; Guild v. Brown, 115 Cal.
App. 374 [1 Pac. (2d) 528]; Ellis
v. Southern Ry. Co., 72 S. C. 464
[2 L. R. A. (N. S.) 378, 52 S. E.
228]; Thurman v. Pittsburg & M.
Copper Co., 41 Mont. 141 [108
Pac. 588]; 2 Cor. Jur., p. 829; and
see the elaborate note in 61 A. L.
R. 277, and particularly that part
commencing at p. 290.) We can
see no logical reason for drawing
any distinction in this regard
between actionable negligence
and contributory negligence. x x
x[29]
The rule was reiterated in Bryant v.
Pacific Elec. Ry. Co.[30] and again
in Sichterman v. Hollingshead Co.[31]
In Swanson v. McQuown,[32] a case
involving a military officer who happened to
be riding in a car driven by a subordinate
later involved in an accident, the Colorado
Supreme Court adhered to the general rule
that a public official is not liable for the
wrongful acts of his subordinates on a
vicarious basis since the relationship is not a
true master-servant situation.[33] The court
went on to rule that the only exception is
when they cooperate in the act complained
of, or direct or encourage it.[34]
In the case at bar, Mayor Miguel was
neither Lozanos employer nor the vehicles
registered owner. There existed no causal
relationship between him and Lozano or the
vehicle used that will make him accountable
for Marvins death. Mayor Miguel was a
mere passenger at the time of the accident.
Parenthetically, it has been held that
the failure of a passenger to assist the driver,
by providing him warnings or by serving as
lookout does not make the passenger liable
for the latters negligent acts.[35] The drivers
duty is not one that may be delegated to
others.[36]
As correctly held by the trial court, the true
and lawful employer of Lozano is
the Municipality of Koronadal. Unfortunatel
y for Spouses Jayme, the municipality may
not be sued because it is an agency of the
State engaged in governmental functions
and, hence, immune from suit. This
immunity is illustrated
in Municipalityof San Fernando,
[37]
La Union v. Firme, where this Court held:
It has already been remarked
that municipal corporations are
suable because their charters
grant them the competence to
sue and be sued. Nevertheless,
they are generally not liable for
torts committed by them in the
discharge of governmental
functions and can only be held
answerable only if it can be
shown that they were acting in
proprietary capacity. In
permitting such entities to be
sued, the State merely gives the
claimant the right to show that
the defendant was not acting in
governmental capacity when the
injury was committed or that the
case comes under the exceptions
recognized by law. Failing this,
the claimant cannot recover.[38]
Verily, liability attaches to the
registered owner, the negligent driver and
his direct employer. The CA observation
along this line are worth restating:
Settled is the rule that the
registered owner of a vehicle is
jointly and severally
liable with the driver for damage
s incurred by passengers and
third persons as a consequence
of injuries or death sustained in
the operation of said
vehicles. Regardless of who the
actual owner of the vehicle is,
the operator of record continues
to be the operator of the vehicle
as regards the public and third
persons, and as such is directly
and primarily responsible for the
consequences incident (sic) to its
operation x x x.[39]
The accidental death of Marvin Jayme
is a tragic loss for his parents. However,
justice demands that only those liable under
our laws be held accountable for Marvins
demise. Justice can not sway in favor of
petitioners simply to assuage their pain and
loss. The law on the matter is clear: only the
negligent driver, the drivers employer, and
the registered owner of the vehicle are liable
for the death of a third person resulting from
the negligent operation of the vehicle.
WHEREFORE, the petition
is DENIED and the appealed
Decision AFFIRMED.
 ordering the consignation of rentals. Being
SO ORDERED. pure questions of law, direct resort to this
THE INSULAR LIFE Court is proper under Section 2(c), Rule 41
ASSURANCE G.R. NO. 137884 of the Rules of Court.
COMPANY, LTD.,
Petitioner,
Present: The factual antecedents of the case are as
follows:
AUSTRIA-MARTINEZ, J.,
Acting Chairperson, Toyota Bel-Air, Inc. (Toyota) entered into a
- versus - TINGA,* Contract of Lease[3] over a 3,700-square
CHICO-NAZARIO, meter lot and building owned by Insular
NACHURA, and Life Assurance Company, Ltd. (Insular Life)
REYES, JJ. in Pasong Tamo Street, Makati City, for a
five-year period, from April 16,
TOYOTA BEL-AIR, INC., Promulgated: 1992 to April 15, 1997. Upon expiration of
Respondent. the lease, Toyota remained in possession of
March 28, 2008 the property. Despite repeated
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - demands, Toyota refused to vacate the
---------------------x property. Thus, on January 28, 1998, Insular
Life filed a Complaint[4] for
DECISION unlawful detainer against Toyota in
the MeTC.
AUSTRIA-MARTINEZ, J.:
On July 3, 1998, MeTC rendered a
Before the Court is a Petition for Review [5]
Decision, the dispositive portion of which
on Certiorari under Rule 45 of the Rules of reads:
Court, assailing the Decision[1] dated
September 30, 1998 of the RegionalTrial WHEREFORE, judgment is
Court (RTC), Branch 148, Makati City in hereby rendered in favor of
[Insular Life] and against
Civil Case No. 98-2075 which nullified the [Toyota]. The Court hereby
Writ of Execution dated August 12, 1998 orders [Toyota]:
issued
by the MetropolitanTrial Court (MeTC), 1. and all persons claiming
Branch 63, Makati City in Civil possession of the premises
Case No. 59089, and the RTC through [Toyota], to vacate the
[2] leased properties and return
Order dated March 5, 1999 denying the
possession thereof to [Insular
Motion for Reconsideration. Life];
2. to pay reasonable
The principal issue raised in the present compensation at the rate
petition pertains to the propriety of the of P585,640.00 a month until
decision of the RTC in declaring as void the possession of the subject
premises is surrendered to the
writ of execution issued by the MeTCand in
[Insular Life].
 3. to pay attorney's fees in the
sum of P50,000.00;
4. to pay expenses of litigation
in the amount of P20,000.00;
5. to pay the costs of the suit.
SO ORDERED.[6] (Emphasis
supplied).
On July 23, 1998, Insular Life filed a
Motion for Execution[7] of the
decision. Toyota, on the other hand, filed a
Notice of Appeal[8] of the decision.
Subsequently, Insular Life filed a Notice of
Partial Appeal[9] of the decision insofar as
the issue of monthly compensation was
concerned. Both parties, however, later filed
separate motions to withdraw their
respective appeals.[10]
On August 12, 1998, the MeTC issued an
Order approving the withdrawal of notice of
appeal of both parties. It also issued a Writ
of Execution,[11] on the following premise:
WHEREAS, in a certain action
for EJECTMENT of the
following described premises, to
wit: a parcel of Land and
Building located
at Pasong Tamo, Makati City
under TCT No. 64737 of the
Registry of Deeds of Rizal,
x x x judgment was rendered on
the 3rd day of July,1998 that
[Insular Life] and all persons
claiming under him/her/them
have restitution of the premises
and also that he/she/they recover
the sum of P585,640.00 a
month from April 15, 1997 until
possession of the subject
premises is surrendered to
plaintiff; to recover the sum
of P50,000.00 as and for
attorney's fees; P20,000.00 as
expenses of litigation and costs
of suit.[12] x x x (Emphasis
supplied)
Subsequently, the Deputy Sheriff of
the MeTC executed the writ by levying
on Toyota's personal and real properties, and
garnishing its bank accounts. He scheduled
the auction of the levied properties
on August 28, 1998.
On August 24, 1998, Toyota filed a
Petition for Certiorari[13] with prayer for
injunctive relief in the RTC. It charged
the MeTC with grave abuse of discretion in
issuing the Writ of Execution since the writ
amended the dispositive portion of the
decision it sought to execute by giving
retroactive effect to the payment of
reasonable compensation of P585,640.00 by
the inclusion of the phrase from April 15,
1997.
On August 27, 1998, the RTC issued a
temporary restraining order (TRO)
enjoining the auction sale of Toyota's levied
properties.[14]
On August 28, 1998, Insular Life filed with
the MeTC a Motion to Clarify Decision
Dated July 3, 1998[15] praying that the court
issue an order clarifying
the dispositive portion of the Decision
dated July 3, 1998.
On September 14, 1998, the MeTC issued
an Order,[16] clarifying paragraph 2 of
the dispositive portion of the Decision
dated July 3, 1998 to read as: 2. to pay
reasonable compensation in the amount
of P585,640.00 as of April 15, 1997 until
possession of the subject premises is Decision dated July 3, 1998 to read as:
surrendered to plaintiff.[17] 2. [t]o pay reasonable compensation at
the rate of P585,640.00 a month as
On September 25, 1998, Toyota filed with of April 15, 1997 until possession of the
the RTC a Motion subject premises is surrendered to the
to Consignate P1,171,280.00 in favor of plaintiff.[22]
Insular Life and to submit the case for
decision.[18] The amount On March 5, 1999, the RTC issued an
of P1,171,280.00 represented the reasonable Order[23] denying Insular Life's motion for
compensation for the months of July and reconsideration.
August 1998.
On April 19, 1999, Insular Life then filed
Five days later, or on September 30, 1998, herein Petition for Review
[24]
the RTC rendered the herein assailed on Certiorari with this Court anchored on
Decision,[19] holding that the MeTC acted the following grounds:
with grave abuse of
discretion in issuing the Writ of Execution
I
dated August 12, 1998 by giving retroactive
effect to the reasonable compensation THE RTC COMMITTED A
judgment of P585,640.00 by inserting the GRAVE ABUSE OF
date April 15, 1997 which was not provided DISCRETION TANTAMOUNT
for in the dispositive portion of TO LACK OR IN EXCESS OF
the MeTC Decision; that ITS JURISDICTION IN
the clarificatory order issued by VOIDING THE WRIT OF
EXECUTION ISSUED BY THE
the MeTC did not cure the ambiguity in the MTC.
decision since it omitted the phrase a month
as originally stated in the Decision; that
considering the Writ of Execution is void, i. THE WRIT
the levy effected by the Sheriff is also void; OF
and that consignation of rentals is proper EXECUTIO
N IS IN
since Toyota has been in possession of the
HARMONY
property since July 3, 1998. WITH THE
INTENT,
On October 13, 1998, Insular Life filed a SPIRIT
Motion for Reconsideration[20] of the RTC AND
Decision. On the same day, it filed with TERMS OF
THE
the MeTC a Second Motion to Clarify
MTC'S DEC
Decision Dated July 3, 1998.[21] ISION DAT
ED JULY 3,
On October 28, 1998, the MeTC issued its 1998.
second clarificatory order to correct ii. THE WRIT
paragraph 2 of the dispositive portion of the OF
EXECUTIO
 N IS VALID THE RTC COMMITTED A
AND GRAVE ABUSE OF
ENFORCE DISCRETION TANTAMOUNT
ABLE. TO LACK OR IN EXCESS OF
iii. THE RTC ITS JURISDICTION IN NOT
SANCTION DISMISSING THE
ED TBA'S CERTIORARI PETITION A
CRAFTY QUO FOR TBA (PETITIONER
CIRCUMV BELOW) HAD A PLAIN,
ENTION OF SPEEDY AND ADEQUATE
THE REMEDY IN THE COURSE
RULES. OF LAW AND DID NOT
AVAIL OF THE SAME.[25]
II

Insular Life contends that the case falls

ASSUMING ARGUENDO within the recognized exceptions to the rule
THAT THE MTC EXCEEDED
that only the dispositive portion of the
ITS JURISDICTION IN
ORDERING IN THE WRIT OF decision controls the execution of judgment;
EXECUTION THAT THE that the pleadings, findings of fact and
REASONABLE conclusion of law expressed in the text of
COMPENSATION BE the MeTC's Decision dated July 13, 1998
COMPUTED FROM APRIL 15, should be resorted to, to clarify the
1997, STILL, THE RTC
ambiguity in the dispositive portion of the
COMMITTED A GRAVE
ABUSE OF DISCRETION decision; that the intent to order payment of
TANTAMOUNT TO LACK OR rent as reasonable compensation from April
IN EXCESS OF ITS 15, 1997, when possession became
JURISDICTION IN VOIDING unlawful, can be inferred from the text of
THE ENTIRE WRIT OF the decision; that the RTC should not have
EXECUTION. nullified the entire Writ of Execution since
only the matter of reasonable compensation
III
from April 15, 1997 was at issue; that
THE RTC COMMITTED A consignation of rentals was improper since
GRAVE ABUSE OF the office of a writ of certiorari is to correct
DISCRETION TANTAMOUNT defects in jurisdiction solely and the legal
TO LACK OR IN EXCESS OF requisites for a valid consignation were not
ITS JURISDICTION IN
present; and that Toyota failed to resort to
ORDERING IN THE
CERTIORARI PROCEEDING available remedies before availing itself of
A QUO THE CONSIGNATION the extraordinary remedy of certiorari. On
OF RENTALS. the matter of the compromise agreement,
Insular Life reiterated that the agreement
was a conditional compromise agreement
IV
which was voided for Toyota's failure to
comply with the conditions.[26]

Toyota claims that the parties had entered
into a Compromise Agreement dated May 7,
1999 whereby Toyota was obligated to pay
Insular Life P8 million under the following
terms and conditions: (a) the delivery of 3
Toyota vehicles worth P1.5 million; (b) the
issuance of 12 postdated corporate checks to
answer for the balance of P6.5 million in 12
monthly installments; and (c) the posting of
a surety bond which shall guarantee
payment of installments.[27] Toyota insists
that the Compromise Agreement dated May
7, 1999 should be given effect considering
that the preconditions contained in the
Compromise Agreement were complied
with, or at the very least substantially
complied with;[28] and prayed that the case
should be remanded to the lower court for
the purpose of approving the Compromise
Agreement dated May 7, 1999.[29]
In a Resolution dated August 8, 2001, the
Court remanded the case to the RTC for
further proceedings to determine
whether Toyota had complied with the
conditions contained in the Compromise
Agreement dated May 7, 1999 and
thereafter elevate its findings and records
thereof to the Court.[30]
In its Compliance[31] dated March 24,
2003, the RTC found that Toyota failed to
comply with conditions in the Compromise
Agreement dated May 7, 1999 relating to
the issuance of the 12 postdated corporate
checks and the posting of a surety bond; that
the postdated checks were not accepted
since they were drawn from Toyota's
garnished Metrobank account; that the
checks could have been encashed had
Insular Life lifted the garnishment; that the
surety bond was rejected for not having
been issued by a surety company that is
among Insular Life's list of acceptable
surety companies; that as substitute
collateral, Toyota offered a Bukidnonreal
property but Insular Life turned it down
since the owner's duplicate of title could not
be found and the property was not owned by
Toyota but by three corporations; that a
subsequent reconstitution of the title and the
authorization by the three co-owner
corporations to mortgage the Bukidnon real
property and to use it to stand as security for
the postdated checks failed to entice Insular
Life to accept the proposal; and that Toyota
acted in good faith in dealing with Insular
Life when it tried to comply with the
conditions in the Compromise Agreement.
By Resolution[32] dated August 27,
2003, the Court required both parties to
submit supplemental memoranda, taking
into account the Compliance dated March
24, 2003 of the RTC.
In its Supplemental Memorandum,
[33]
Insular Life maintains that Toyota failed
to comply with the conditions relating to the
postdated checks and the surety bond; that
the garnishment of Toyota's bank accounts
was a known fact; that it would have been
absolutely foolhardy for Insular Life to
cause the immediate lifting of the
garnishment upon Toyota's mere delivery
to it of the postdated checks; that the lifting
of the garnishment is one of the
consequences once all the conditions of the
compromise are met; that Toyota admitted
in a Letter dated May 21, 1999 to Insular
Life its inability to comply with the surety
bond requirement; that Toyota's good faith is
immaterial; that Toyota cannot claim
substantial compliance since it failed to occurrence of all the conditions in the
comply with the conditions of the agreement, to wit:
Compromise Agreement.
2. This Agreement when signed
by the parties shall take effect
On the other hand, in its
and shall become valid and
Supplemental Memorandum,[34] Toyota binding only upon the
submits that it substantially complied with occurrence of all of the
the terms of the Compromise Agreement following based on a
since the compromised amount was reduced certification or
from P8 million to P6.5 million upon acknowledgment certified
delivery of the three Toyota vehicles and issued by INSULAR
LIFE:
worth P1.5 million; that it could have
complied with the requirement of the 2.1 transfer of ownership and
delivery of 12 postdated checks had Insular delivery of the
Life lifted the garnishment on Toyota's bank aforementioned three (3)
accounts effected by virtue of the Writ of motor vehicles in favor of
Execution dated August 12, 1998; that since INSULAR LIFE in
accordance with the
the Writ of Execution was voided by the
provisions of Section
RTC, the garnishment was also nullified; 1.1. hereof;
and that Insular Life's unjustified refusal to
give due course to the postdated checks, by 2.2. TBA's execution,
not lifting the garnishment, prevented said issuance and delivery of
checks from being encashed. twelve (12) post-dated
TBA corporate checks
signed by ROBERT L.
It is necessary to resolve the matter YUPANGCO in favor of
involving the efficacy of the Compromise INSULAR LIFE in
Agreement between the parties before the accordance with the
merits of the petition can be discussed. provisions of this
Agreement;
Jurisprudence teaches us that when a
2.3. the issuance of the Surety
contract is subject to a suspensive condition, Company and delivery of
its birth or effectivity can take place only if the Bond in the amount of
and when the event which constitutes the PESOS: SIX MILLION
condition happens or is fulfilled,[35] and if FIVE HUNDRED
the suspensive condition does not take THOUSAND
place, the parties would stand as if the (P6,5000,000.00) to and
in favor of INSULAR
conditional obligation has never existed.[36]
LIFE under this
[37]
Agreement. x x x (Emp
In this case, the Compromise hasis supplied)
Agreement clearly stipulates that it shall
become valid and binding only upon the Thus, the issuance of 12 postdated
checks and the posting of a surety bond are
positive suspensive conditions of the
Compromise Agreement, the non-
compliance with which was not a breach,
casual or serious, but a situation that
prevented the obligation under the
Compromise Agreement from acquiring
obligatory force. For its non-fulfillment,
there was no contract or agreement to speak
of, Toyota having failed to comply or
perform the suspensive conditions which
enforce a juridical relation.
[38]
Since Toyota was unable to comply with
the last two conditions of the agreement,
which were suspensive conditions, Insular
Life cannot be compelled to comply with its
obligation to end the present litigation. No
right in favor of Toyota arose and no
obligation on the part of Insular Life was
created.[39]
Toyota faults Insular Life for its
failure to comply with the requirements of
the Compromise Agreement because Insular
Life refused to accept checks from Toyota's
garnished account. However, Insular Life
should not be blamed for this. It would be
imprudent and foolhardy on Insular Life's
part to lift the garnishment on Toyota's bank
accounts. The garnishment was one of the
effects of the issuance of the Writ of
Execution, and while the RTC nullified the
Writ of Execution, its decision on the matter
is not yet final as it is, in fact, subject of the
present petition.
Besides, even if Insular Life accepted
the postdated checks, Toyota still failed to
comply with the requirement of posting of a
surety bond from Insular Life's list of
acceptable sureties which would guarantee
the payment of installments. Even the
substitute collateral proposed by Toyota was
not accepted by Insular Life.Since the
conditions of the Compromise Agreement
were not met or fulfilled by Toyota, the
parties stand as if no agreement to end the
litigation was reached.
And now on the merits of the petition.
The Court finds the petition
impressed with merit for the following
reasons:
First, the RTC erred in giving due
course to Toyota's petition
for certiorari. The filing of the petition
for certiorari was premature and
unwarranted. The cardinal rule is that before
a petition for certiorari can be brought
against an order of the lower court, all
remedies available in that court must first be
exhausted. Thus, for the special civil action
for certiorari to prosper, there must be no
appeal nor any plain, speedy and adequate
remedy in the ordinary course of law. [40] The
court must be given sufficient opportunity to
correct the error it may have committed. The
reason for this rule is that issues, which
courts of first instance are bound to decide,
should not be taken summarily from them
and submitted to an appellate court, without
first giving the lower courts an opportunity
to dispose of the same with due deliberation.
[41]
While there are exceptions to the rule,
such as where the order complained of is
void for being violative of due process; or
there are special circumstances which
warrant immediate and more direct action;
or the lower court has taken an unreasonably
long time to resolve the motions before it
and a further delay would prejudice the
party concerned; or the motion will raise the
same point which has already been squarely
stated before the court; or the proceeding in
which the order occurred is a patent nullity,
as the court acted without jurisdiction,
Toyota failed to show that any of the
exceptions apply. Toyota may not arrogate
to itself the determination of whether
recourse to an available remedy is necessary
or not.[42] In the instant case, it appears
that Toyota had adequate remedies under the
law. It could have filed with the MeTC a
motion to quash the writ of execution or a
motion to clarify the dispositive portion of
the decision. There is no showing that either
motion would not be a prompt and adequate
remedy, or that there was such urgent
necessity for relief that only recourse
to certiorari was proper.
judgment, because the dispositive part of a
decision must find support from the
decisions ratio decidendi. Findings of the
court are to be considered in the
interpretation of the dispositive portion of
the judgment.[45]
Indeed, to grasp and delve into the
true intent and meaning of a decision, no
specific portion thereof should be resorted
to - the decision must be considered in its
entirety.[46] The Court
may resort to the pleadings of the parties, its
findings of fact and conclusions of law as
expressed in the body of the decision to
clarify any ambiguities caused by any
inadvertent omission or mistake in
the dispositive portion thereof.[47]

Second, while the general rule is that In Reinsurance Company of the

the portion of a decision that becomes the Orient, Inc. v. Court of Appeals,[48] the Court
subject of execution is that ordained or held:
decreed in the dispositive part thereof, there
are recognized exceptions to this rule: In Republic Surety and
(a).where there is ambiguity or uncertainty, Insurance Company, Inc. v.
the body of the opinion may be referred to Intermediate Appellate Court,
for purposes of construing the judgment, the Court applying the above
because the dispositive part of a decision doctrine said:
must find support from the x x x We
[43]
decisions ratio decidendi; and (b).where clarify, in other
words, what we did
extensive and explicit discussion and
affirm. What is
settlement of the issue is found in the body involved here is not
of the decision.[44] what is ordinarily
regarded as a
clerical error in
Considering the circumstances of the the dispositive part
instant case, the Court finds that the of the decision of
exception to the general rule applies to the the Court of First
instant case. The RTC should have referred Instance, which
type of error is
to the body of the decision for purposes of
perhaps best
construing the reasonable compensation typified by an error
in arithmetical
computation. At the
same time, what is In the present case, the omission of the
involved here is not award of payment of rental from April 15,
a correction of an 1997 was obviously through mere
erroneous inadvertence. The pleadings, findings of fact
judgment and conclusions of law of the MeTC bear
or dispositive porti
out that upon the termination of the lease
on of a judgment.
What we believe is on April 15, 1997, Toyota's possession of
involved here is in the property became unlawful; thus, from
the nature of that date, payment of rents must be
an inadvertent reckoned. The importance of April 15,
omission on the 1997 as termination date of the lease was
part of the Court emphasized by the MeTC in the body of its
of First
Instance (which Decision, thus:
should have been
noticed by private The claim of [Toyota] that
respondents notice to vacate was made on
counsel who had them only on December 9, 1997
prepared the is belied by Exhibits C, D, E and
complaint), of F which are attached to the
what might be affidavit of Januario Flores, the
described as a Asst. Vice-President of [Insular
logical follow- Life]. These exhibits are letters
through of written by Asst. Vice-President
something set Flores to Mr.
forth both in the Isidro Laforteza Vice-President
body of the of [Toyota] dated March 1,
decision and in 1994, March 4, 1996, March 3,
the dispositive por 1997 and April 14, 1997,
tion thereof: the respectively. These letters show
inevitable follow- that as early as 1994, [Insular
through, or Life] had already informed
translation into, [Toyota] if its intention to take
operational or back possession of the leased
behavioral terms, premises by not renewing the
of the annulment of lease contract upon its
the Deed of Sale expiration on April 15,
with Assumption of 1997. Hence the continued
Mortgage, from possession of [Toyota] after the
which petitioners expiration of the lease contract
title or claim of did not bear the acquiescence
title embodied in of [Insular Life]. In fact,
TCT 133153 flow. [Toyota] was informed by
[49]
(Emphasis [Insular Life] to vacate the
supplied) leased premises on or
 before April 30, 1997 (Exh. F to
the affidavit of Mr. Flores).
The existence of Exh. F
negates that an implied lease
was established between [Insular
Life] and [Toyota]. It is now
apparent that [Toyota] is
unlawfully withholding
possession of the leased
premises.
xxxx
[Toyota], having enjoyed
the use and possession of the
leased property over the
objection of [Insular Life]
x x x [Insular Life] is entitled to
reasonable compensation of Five
Hundred Eighty Five Thousand
Six Hundred Forty Pesos
(P585,640.00) a month until
possession thereof is returned to
[Insular Life] which amount is
double the amount of the last
monthly rental paid by [Toyota]
to [Insular Life].
[50]
x x x (Emphasis supplied).
Third, the RTC erred in granting Toyota's
motion for consignation. It was precipitate
and unauthorized. It is basic
that certiorari under Rule 65 is a remedy
narrow in scope and inflexible in character.
It is not a general utility tool in the legal
workshop.[51] It offers only
a limited form of review. Its principal
function is to keep an inferior tribunal
within its jurisdiction.[52] It can be invoked
only for an error of jurisdiction, that is, one
in which the act complained of was issued
by the court, officer or a quasi-judicial body
without or in excess of jurisdiction, or with
grave abuse of discretion which was
tantamount to lack or excess of jurisdiction;
[53]
it is not to be used for any other purpose,
[54]
such as to cure errors in proceedings or to
correct erroneous conclusions of law or fact.
[55]
The only issue involved in the RTC
was whether the writ of execution issued by
the MeTC was issued in excess of
jurisdiction.
The determination of the propriety of
consignation as ordered by the RTC is a
factual matter which by the weight of
judicial precedents cannot be
inquired into by the RTC in a petition
for certiorari. The sole office of the writ
of certiorari is the correction of errors of
jurisdiction including the commission of
grave abuse of discretion amounting to lack
or excess of jurisdiction.
Nevertheless, in the interest of prompt
disposition of the present case, the Court
opts to resolve the question whether
consignation is proper under the undisputed
circumstances.
Consignation is the act of depositing
the thing due with the court or judicial
authorities whenever the creditor cannot
accept or refuses to accept payment and it
generally requires a prior tender of payment.
[56]
In order that consignation may be
effective, the debtor must show that: (1)
there was a debt due; (2) the consignation of
the obligation was made because the
creditor to whom tender of payment had
been made refused to accept it or was absent
or incapacitated, or because several persons
claimed to be entitled to receive the amount
due, or because the title to the obligation
was lost; (3) previous notice of the
consignation was given to the person
interested in the performance of the
obligation; (4) the amount due was placed at
the disposal of the court; and (5) after the
consignation had been made, the person
interested was notified thereof.[57] Failure in
any of these requirements is enough ground
to render a consignation ineffective.
In the present case, Toyota failed to
allege (2) and (3) above, much less prove
that any of the requirements was present.
The mere fact that Toyota had been in
possession of the property since July 3,
1998, when the MeTC Decision was
promulgated, is not a sufficient justification
to grant the motion to consign the rents due.
Finally, the Court cannot help but call
the RTCs attention to the prejudice it has
wittingly or unwittingly caused Insular Life
by voiding the entire writ of execution when
what was assailed was simply the inclusion
of the phrase from April 15, 1997 in the
reasonable compensation judgment of
the MeTC. The order for Toyota to vacate
the lease properties and return possession
thereof to Insular Life, and pay attorney's
fees and litigation expenses was not assailed
and should have been enforced.
The factual milieu of the present case
demonstrates eloquently
that Toyota misused all known technicalities
and remedies to prolong the proceedings in
a simple ejectment case. The equitable
remedy provided by the summary nature
of ejectment proceedings has been frustrated
by Toyota to the great prejudice of Insular
Life and the time of this Court.
Ironically, the precipitate action of the
RTC in giving due course to Toyota's
petition
for certiorari prolonged the litigation and
unnecessarily delayed the case, in the
process causing the very evil it apparently
sought to avoid. Instead of unclogging
dockets, it has actually increased the work
load of the justice system as a whole. Such
action does not inspire public confidence in
the administration of justice.
WHEREFORE, the petition is
hereby GRANTED. The Decision dated
September 30, 1998 and Order dated March
5, 1999 of the Regional Trial Court, Branch
148, Makati City are REVERSED and SET
ASIDE. The Writ of Execution
dated August 12, 1998 as clarified in the
Order dated October 28, 1998 of the
Metropolitan Trial Court, Branch
63, Makati, is declared VALID.
Double costs against petitioner.
SO ORDERED.
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J.
JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego,
a construction worker of D. M. Consunji, Inc., fell 14
floors from the Renaissance Tower, Pasig City to his
death.
PO3 Rogelio Villanueva of the Eastern Police District
investigated the tragedy and filed a report dated
November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical
Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending
physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of
the same date.
Investigation disclosed that at the given time, date
and place, while victim Jose A. Juego together with
Jessie Jaluag and Delso Destajo [were] performing
their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building
on board a [p]latform made of channel beam (steel)
measuring 4.8 meters by 2 meters wide with pinulid
plywood flooring and cable wires attached to its four
corners and hooked at the 5 ton chain block, when
suddenly, the bolt or pin which was merely inserted to
connect the chain block with the [p]latform, got loose
xxx causing the whole [p]latform assembly and the
victim to fall down to the basement of the elevator
core, Tower D of the building under construction
thereby crushing the victim of death, save his two (2)
companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to
death when the [p]latform he was then on board and
performing work, fell. And the falling of the [p]latform
was due to the removal or getting loose of the pin
which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety
lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in
the Regional Trial Court (RTC) of Pasig a complaint
for damages against the deceased’s employer, D.M.
Consunji, Inc. The employer raised, among other
defenses, the widow’s prior availment of the benefits
from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the
widow Maria Juego. The dispositive portion of the
RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering
defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s
earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of
suit.
SO ORDERED. 2
On appeal by D. M. Consunji, the Court of Appeals
(CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA
decision on the following grounds:
 THE APPELLATE COURT ERRED IN
HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED
NEGLIGENCE OF PETITIONER.
 THE APPELLATE COURT ERRED IN
HOLDING THAT THE DOCTRINE OF RES
IPSA LOQUITOR[sic] IS APPLICABLE TO
PROVE NEGLIGENCE ON THE PART OF
PETITIONER.
 THE APPELLATE COURT ERRED IN
HOLDING THAT PETITIONER IS
PRESUMED NEGLIGENT UNDER ARTICLE
2180 OF THE CIVIL CODE, AND
 THE APPELLATE COURT ERRED IN
HOLDING THAT RESPONDENT IS NOT
PRECLUDED FROM RECOVERING
DAMAGES UNDER THE CIVIL CODE. 3
Petitioner maintains that the police report reproduced
above is hearsay and, therefore, inadmissible. The
CA ruled otherwise. It held that said report, being an
entry in official records, is an exception to the hearsay
rule.
The Rules of Court provide that a witness can testify
only to those facts which he knows of his personal
knowledge, that is, which are derived from his
perception. A witness, therefore, may not testify as
4 
what he merely learned from others either because
he was told or read or heard the same. Such
testimony is considered hearsay and may not be
received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements;
the general rule that excludes hearsay as evidence
applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many
possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare
untested assertion of a witness, may be best brought
to light and exposed by the test of cross-
examiantion.7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination. 8
The Rules of Court allow several exceptions to the
rule,9 among which are entries in official records.
Section 44, Rule 130 provides:
Entries in official records made in the performance of
his duty made in the performance of his duty by a
public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law
are prima facieevidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al., this
10 
Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the
above rule:
(a) that the entry was made by a public officer or by
another person specially enjoined by law to do so;
(b) that it was made by the public officer in the
performance of his duties, or by such other person in
the performance of a duty specially enjoined by law;
and
(c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must
have been acquired by him personally or through
official information.
The CA held that the police report meets all these
requisites. Petitioner contends that the last requisite
is not present.
The Court notes that PO3 Villanueva, who signed the
report in question, also testified before the trial court.
In Rodriguez vs. Court of Appeals, which involved a
11 
Fire Investigation Report, the officer who signed the
fire report also testified before the trial court. This
Court held that the report was inadmissible for the
purpose of proving the truth of the statements
contained in the report but admissible insofar as it
constitutes part of the testimony of the officer who
executed the report.
x x x. Since Major Enriquez himself took the witness
stand and was available for cross-examination, the
portions of the report which were of his personal
knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report,
such as the summary of the statements of the parties
based on their sworn statements (which were
annexed to the Report) as well as the latter, having
been included in the first purpose of the offer [as part
of the testimony of Major Enriquez], may then be
considered as independently relevant
statements which were gathered in the course of the
investigation and may thus be admitted as such, but
not necessarily to prove the truth thereof. It has been
said that:
"Where regardless of the truth or falsity of a
statement, the fact that it has been made is relevant,
the hearsay rule does not apply, but the statement
may be shown. Evidence as to the making of such
statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a
fact."
When Major Enriquez took the witness stand, testified
for petitioners on his Report and made himself
available for cross-examination by the adverse party,
the Report, insofar as it proved that certain utterances
were made (but not their truth), was effectively
removed from the ambit of the aforementioned
Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of
the officer who made the official record, considers the
matter as an exception to the hearsay rule and makes
the entries in said official record admissible in
evidence as prima facie evidence of the facts therein
stated. The underlying reasons for this exceptionary
rule are necessity and trustworthiness, as explained
in Antillon v. Barcelon.
The litigation is unlimited in which testimony by
officials is daily needed; the occasions in which the
officials would be summoned from his ordinary duties
to declare as a witness are numberless. The public
officers are few in whose daily work something is not
done in which testimony is not needed from official
sources. Were there no exception for official
statements, hosts of officials would be found devoting
the greater part of their time to attending as witnesses
in court or delivering deposition before an officer. The
work of administration of government and the interest
of the public having business with officials would alike
suffer in consequence. For these reasons, and for
many others, a certain verity is accorded such
documents, which is not extended to private
documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public
officers that it presumes they will discharge their
several trusts with accuracy and fidelity; and,
therefore, whatever acts they do in discharge of their
duty may be given in evidence and shall be taken to
be true under such a degree of caution as to the
nature and circumstances of each case may appear
to require.
It would have been an entirely different matter if Major
Enriquez was not presented to testify on his report. In
that case the applicability of Section 44 of Rule 143
would have been ripe for determination, and this
Court would have agreed with the Court of Appeals
that said report was inadmissible since the
aforementioned third requisite was not satisfied. The
statements given by the sources of information of
Major Enriquez failed to qualify as "official
information," there being no showing that, at the very
least, they were under a duty to give the statements
for record.
Similarly, the police report in this case is inadmissible
for the purpose of proving the truth of the statements
contained therein but is admissible insofar as it
constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3
Villanueva’s testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed
died as a result of the elevator crash. PO3 Villanueva
had seen Juego’s remains at the morgue, making the
12 
latter’s death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the
building the day after the incident and saw the
13 
platform for himself. He observed that the platform
14 
was crushed and that it was totally damaged. PO3
15  16 
Villanueva also required Garcia and Fabro to bring
the chain block to the police headquarters. Upon
inspection, he noticed that the chain was detached
from the lifting machine, without any pin or bolt.17
What petitioner takes particular exception to is PO3
Villanueva’s testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony
is mere opinion. Subject to certain exceptions, the
opinion of a witness is generally not admissible. 19
Petitioner’s contention, however, loses relevance in
the face of the application of res ipsa loquitur by the
CA. The effect of the doctrine is to warrant a
presumption or inference that the mere fall of the
elevator was a result of the person having charge of
the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquitur is peculiar
to the law of negligence which recognizes that prima
facie negligence may be established without direct
proof and furnishes a substitute for specific proof of
negligence.20
The concept of res ipsa loquitur has been explained
in this wise:
While negligence is not ordinarily inferred or
presumed, and while the mere happening of an
accident or injury will not generally give rise to an
inference or presumption that it was due to
negligence on defendant’s part, under the doctrine of
res ipsa loquitur, which means, literally, the thing or
transaction speaks for itself, or in one jurisdiction, that
the thing or instrumentality speaks for itself, the facts
or circumstances accompanying an injury may be
such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant,
or some other person who is charged with
negligence.
x x x where it is shown that the thing or
instrumentality which caused the injury complained of
was under the control or management of the
defendant, and that the occurrence resulting in the
injury was such as in the ordinary course of things
would not happen if those who had its control or
management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the
defendant, that the injury arose from or was caused
by the defendant’s want of care.21
One of the theoretical based for the doctrine is its
necessity, i.e., that necessary evidence is absent or
not available.22
The res ipsa loquitur doctrine is based in part upon
the theory that the defendant in charge of the
instrumentality which causes the injury either knows
the cause of the accident or has the best opportunity
of ascertaining it and that the plaintiff has no such
knowledge, and therefore is compelled to allege
negligence in general terms and to rely upon the
proof of the happening of the accident in order to
establish negligence. The inference which the
doctrine permits is grounded upon the fact that the
chief evidence of the true cause, whether culpable or
innocent, is practically accessible to the defendant
but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur
18 
furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant
who knows or should know the cause, for any
explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said,
is a rule of necessity, in that it proceeds on the theory
that under the peculiar circumstances in which the
doctrine is applicable, it is within the power of the
defendant to show that there was no negligence on
his part, and direct proof of defendant’s negligence is
beyond plaintiff’s power. Accordingly, some court add
to the three prerequisites for the application of the res
ipsa loquitur doctrine the further requirement that for
the res ipsa loquitur doctrine to apply, it must appear
that the injured party had no knowledge or means of
knowledge as to the cause of the accident, or that the
party to be charged with negligence has superior
knowledge or opportunity for explanation of the
accident.23
The CA held that all the requisites of res ipsa
loquitur are present in the case at bar:
There is no dispute that appellee’s husband fell down
from the 14th floor of a building to the basement while
he was working with appellant’s construction project,
resulting to his death. The construction site is within
the exclusive control and management of appellant. It
has a safety engineer, a project superintendent, a
carpenter leadman and others who are in complete
control of the situation therein. The circumstances of
any accident that would occur therein are peculiarly
within the knowledge of the appellant or its
employees. On the other hand, the appellee is not in
a position to know what caused the accident. Res
ipsa loquitur is a rule of necessity and it applies
where evidence is absent or not readily available,
provided the following requisites are present: (1) the
accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality
or agency which caused the injury was under the
exclusive control of the person charged with
negligence; and (3) the injury suffered must not have
been due to any voluntary action or contribution on
the part of the person injured. x x x.
No worker is going to fall from the 14 th floor of a
building to the basement while performing work in a
construction site unless someone is negligent[;] thus,
the first requisite for the application of the rule of res
ipsa loquitur is present. As explained earlier, the
construction site with all its paraphernalia and human
resources that likely caused the injury is under the
exclusive control and management of appellant[;]
thus[,] the second requisite is also present. No
contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last
requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present,
thus a reasonable presumption or inference of
appellant’s negligence arises. x x x.24
Petitioner does not dispute the existence of the
requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was
negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell
respondent’s husband."
Petitioner apparently misapprehends the procedural
effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred when
25 
the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff
makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain. The 26 
presumption or inference may be rebutted or
overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that
of due care or innocence, may outweigh the
inference. It is not for the defendant to explain or
27 
prove its defense to prevent the presumption or
inference from arising. Evidence by the defendant of
say, due care, comes into play only after the
circumstances for the application of the doctrine has
been established. 1âwphi1.nêt
In any case, petitioner cites the sworn statement of its
leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to
Fabro’s sworn statement, the company enacted rules
and regulations for the safety and security of its
workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing
its use.
It is ironic that petitioner relies on Fabro’s sworn
statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the
part of petitioner’s employees, also assails the same
statement for being hearsay.
Petitioner is correct. Fabro’s sworn statement is
hearsay and inadmissible. Affidavits are inadmissible
as evidence under the hearsay rule, unless the affiant
is placed on the witness stand to testify thereon. The 28 
inadmissibility of this sort of evidence is based not
only on the lack of opportunity on the part of the
adverse party to cross-examine the affiant, but also
on the commonly known fact that, generally, an
affidavit is not prepared by the affiant himself but by
another who uses his own language in writing the
affiant’s statements which may either be omitted or
misunderstood by the one writing them. Petitioner,
29 
therefore, cannot use said statement as proof of its
due care any more than private respondent can use it
to prove the cause of her husband’s death.
Regrettably, petitioner does not cite any other
evidence to rebut the inference or presumption of
negligence arising from the application of res ipsa
loquitur, or to establish any defense relating to the
incident.
Next, petitioner argues that private respondent had
previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded
from claiming from the deceased’s employer
damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise
provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all
other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his
dependents. The payment of compensation under this
Title shall not bar the recovery of benefits as provided
for in Section 699 of the Revised Administrative
Code, Republic Act Numbered Eleven hundred sixty-
one, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered
Forty-eight hundred sixty-four as amended, and other
laws whose benefits are administered by the System
or by other agencies of the government.
The precursor of Article 173 of the Labor Code,
Section 5 of the Workmen’s Compensation Act,
provided that:
Section 5. Exclusive right to compensation. – The
rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him
to compensation shall exclude all other rights and
remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against
the employer under the Civil Code and other laws
because of said injury x x x.
Whether Section 5 of the Workmen’s Compensation
Act allowed recovery under said Act as well as under
the Civil Code used to be the subject of conflicting
decisions. The Court finally settled the matter
in Floresca vs.Philex Mining Corporation, which 30 
involved a cave-in resulting in the death of the
employees of the Philex Mining Corporation. Alleging
that the mining corporation, in violation of government
rules and regulations, failed to take the required
precautions for the protection of the employees, the
heirs of the deceased employees filed a complaint
against Philex Mining in the Court of First Instance
(CFI). Upon motion of Philex Mining, the CFI
dismissed the complaint for lack of jurisdiction. The
heirs sought relief from this Court.
Addressing the issue of whether the heirs had a
choice of remedies, majority of the Court En Banc, 31  sought redress under the Workmen’s Compensation
following the rule in Pacaña vs. Cebu Autobus
Company, held in the affirmative.
WE now come to the query as to whether or not the
injured employee or his heirs in case of death have a
right of selection or choice of action between availing
themselves of the worker’s right under the Workmen’s
Compensation Act and suing in the regular courts
under the Civil Code for higher damages (actual,
moral and exemplary) from the employers by virtue of
the negligence or fault of the employers or whether
they may avail themselves cumulatively of both
actions, i.e., collect the limited compensation under
the Workmen’s Compensation Act and sue in addition
for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña
vs. Cebu Autobus Company, 32 SCRA 442, ruled
that an injured worker has a choice of either to
recover from the employer the fixed amounts set by
the Workmen’s Compensation Act or to prosecute an
ordinary civil action against the tortfeasor for higher
damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the
petitioners in said case to proceed with their suit
under the Civil Code despite having availed of the
benefits provided under the Workmen’s
Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by
Philex in its motion to dismiss dated May 14, 1968
before the court a quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted
notices and claims for compensation to the Regional
Office No. 1 of the then Department of Labor and all
of them have been paid in full as of August 25, 1967,
except Saturnino Martinez whose heirs decided that
they be paid in installments x x x. Such allegation was
admitted by herein petitioners in their opposition to
the motion to dismiss dated may 27, 1968 x x x in the
lower court, but they set up the defense that the
claims were filed under the Workmen’s Compensation
Act before they learned of the official report of the
committee created to investigate the accident which
established the criminal negligence and violation of
law by Philex, and which report was forwarded by the
Director of Mines to then Executive Secretary Rafael
Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had
received the benefits under the Workmen’s
Compensation Act, such my not preclude them from
bringing an action before the regular court because
they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the
deceased miners only after receiving compensation
under the Act. Had petitioners been aware of said
violation of government rules and regulations by
Philex, and of its negligence, they would not have
Commission which awarded a lesser amount for
compensation. The choice of the first remedy was
based on ignorance or a mistake of fact, which
nullifies the choice as it was not an intelligent choice.
The case should therefore be remanded to the lower
court for further proceedings. However, should the
petitioners be successful in their bid before the lower
court, the payments made under the Workmen’s
Compensation Act should be deducted from the
damages that may be decreed in their favor.
[Underscoring supplied.]
The ruling in Floresca providing the claimant a choice
of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino, Vda. De Severo vs.
32 
Feliciano-Go, and Marcopper Mining Corp. vs.
33 
Abeleda. In the last case, the Court again recognized
34 
that a claimant who had been paid under the Act
could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for
damages sustained by workers in the course of their
employment could be filed only under the Workmen’s
Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine
was abrogated in favor of the new rule that the
claimants may invoke either the Workmen’s
Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one
remedy will exclude the other and that the
acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a
claimant who has already been paid under the
Workmen’s Compensation Act may still sue for
damages under the Civil Code on the basis of
supervening facts or developments occurring after he
opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case
came under the exception because private
respondent was unaware of petitioner’s negligence
when she filed her claim for death benefits from the
State Insurance Fund. Private respondent filed the
civil complaint for damages after she received a copy
of the police investigation report and the Prosecutor’s
Memorandum dismissing the criminal complaint
against petitioner’s personnel. While stating that there
was no negligence attributable to the respondents in
the complaint, the prosecutor nevertheless noted in
the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception
in Floresca:
x x x We do not agree that appellee has knowledge of
the alleged negligence of appellant as early as
November 25, 1990, the date of the police
investigator’s report. The appellee merely executed
her sworn statement before the police investigator
concerning her personal circumstances, her relation
to the victim, and her knowledge of the accident. She
did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellant’s
employees. It was the investigator who recommended
the filing of said case and his supervisor referred the
same to the prosecutor’s office. This is a standard
operating procedure for police investigators which
appellee may not have even known. This may explain
why no complainant is mentioned in the preliminary
statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit:
"Respondent Ferdinand Fabro x x x are being
charged by complainant of "Simple Negligence
Resulting to Homicide." It is also possible that the
appellee did not have a chance to appear before the
public prosecutor as can be inferred from the
following statement in said memorandum:
"Respondents who were notified pursuant to Law
waived their rights to present controverting evidence,"
thus there was no reason for the public prosecutor to
summon the appellee. Hence, notice of appellant’s
negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she
received the first payment therefrom. Her using the
police investigation report to support her complaint
filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991
Memorandum of the Prosecutor’s Office dismissing
the criminal complaint for insufficiency of evidence,
stating therein that: "The death of the victim is not
attributable to any negligence on the part of the
respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.)
Considering the foregoing, We are more inclined to
believe appellee’s allegation that she learned about
appellant’s negligence only after she applied for and
received the benefits under ECC. This is a mistake of
fact that will make this case fall under the exception
held in the Floresca ruling. 35
The CA further held that not only was private
respondent ignorant of the facts, but of her rights as
well:
x x x. Appellee [Maria Juego] testified that she has
reached only elementary school for her educational
attainment; that she did not know what damages
could be recovered from the death of her husband;
and that she did not know that she may also recover
more from the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends
that private respondent "failed to allege in her
complaint that her application and receipt of benefits
from the ECC were attended by ignorance or mistake
of fact. Not being an issue submitted during the trial,
the trial court had no authority to hear or adjudicate
that issue."
Petitioner also claims that private respondent could
not have been ignorant of the facts because as early
as November 28, 1990, private respondent was the
complainant in a criminal complaint for "Simple
Negligence Resulting to Homicide" against
petitioner’s employees. On February 6, 1991, two
months before the filing of the action in the lower
court, Prosecutor Lorna Lee issued a resolution
finding that, although there was insufficient evidence
against petitioner’s employees, the case was "civil in
nature." These purportedly show that prior to her
receipt of death benefits from the ECC on January 2,
1991 and every month thereafter, private respondent
also knew of the two choices of remedies available to
her and yet she chose to claim and receive the
benefits from the ECC.
When a party having knowledge of the facts makes
an election between inconsistent remedies, the
election is final and bars any action, suit, or
proceeding inconsistent with the elected remedy, in
the absence of fraud by the other party. The first act
of election acts as a bar. Equitable in nature, the
37 
doctrine of election of remedies is designed to
mitigate possible unfairness to both parties. It rests
on the moral premise that it is fair to hold people
responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy,
but to prevent a double redress for a single wrong. 38
The choice of a party between inconsistent remedies
results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously
pursue recovery under the Labor Code and prosecute
an ordinary course of action under the Civil Code.
The claimant, by his choice of one remedy, is deemed
to have waived the other.
Waiver is the intentional relinquishment of
a known right.39
[It] is an act of understanding that presupposes that a
party has knowledge of its rights, but chooses not to
assert them. It must be generally shown by the party
claiming a waiver that the person against whom the
waiver is asserted had at the time knowledge, actual
or constructive, of the existence of the party’s rights
or of all material facts upon which they depended.
Where one lacks knowledge of a right, there is no
basis upon which waiver of it can rest. Ignorance of a
material fact negates waiver, and waiver cannot be
established by a consent given under a mistake or
misapprehension of fact.
A person makes a knowing and intelligent waiver
when that person knows that a right exists and has
adequate knowledge upon which to make an
intelligent decision.
Waiver requires a knowledge of the facts basic to the
exercise of the right waived, with an awareness of its
consequences. That a waiver is made knowingly and
intelligently must be illustrated on the record or by the
evidence.40
That lack of knowledge of a fact that nullifies the
election of a remedy is the basis for the exception
in Floresca.
It is in light of the foregoing principles that we address
petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon
private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the
ECC. It is, thus, erroneous for petitioner to burden
private respondent with raising waiver as an issue.
On the contrary, it is the defendant who ought to
plead waiver, as petitioner did in pages 2-3 of its
Answer; otherwise, the defense is waived. It is,
41  of damages. The records do not indicate the total
therefore, perplexing for petitioner to now contend
that the trial court had no jurisdiction over the issue
when petitioner itself pleaded waiver in the
proceedings before the trial court.
Does the evidence show that private respondent
knew of the facts that led to her husband’s death and
the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of
knowledge or a mistake of fact. In this case, the "fact"
that served as a basis for nullifying the waiver is
the negligence of petitioner’s employees, of which
private respondent purportedly learned only after the
prosecutor issued a resolution stating that there may
be civil liability. In Floresca, it was the negligence of
the mining corporation and its violation of government
rules and regulations. Negligence, or violation of
government rules and regulations, for that matter,
however, is not a fact, but a conclusion of law, over
which only the courts have the final say. Such a
conclusion binds no one until the courts have decreed
so. It appears, therefore, that the principle that
ignorance or mistake of fact nullifies a waiver has
been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent
knew that her husband died in the elevator crash
when on November 15, 1990 she accomplished her
application for benefits from the ECC. The police
investigation report is dated November 25, 1990, 10
days after the accomplishment of the form. Petitioner
filed the application in her behalf on November 27,
1990.
There is also no showing that private respondent
knew of the remedies available to her when the claim
before the ECC was filed. On the contrary, private
respondent testified that she was not aware of her
rights.
Petitioner, though, argues that under Article 3 of the
Civil Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying
or interpreting the laws or the Constitution form part
of the Philippine legal system (Article 8, Civil Code),
private respondent cannot claim ignorance of this
Court’s ruling in Floresca allowing a choice of
remedies.
The argument has no merit. The application of Article
3 is limited to mandatory and prohibitory laws. This
42 
may be deduced from the language of the provision,
which, notwithstanding a person’s ignorance, does
not excuse his or her compliance with the laws. The
rule in Floresca allowing private respondent a choice
of remedies is neither mandatory nor prohibitory.
Accordingly, her ignorance thereof cannot be held
against her.
Finally, the Court modifies the affirmance of the award
amount private respondent ought to receive from the
ECC, although it appears from Exhibit "K" that she
43 
received P3,581.85 as initial payment representing
the accrued pension from November 1990 to March
1991. Her initial monthly pension, according to the
same Exhibit "K," was P596.97 and present total
monthly pension was P716.40. Whether the total
amount she will eventually receive from the ECC is
less than the sum of P644,000.00 in total damages
awarded by the trial court is subject to speculation,
and the case is remanded to the trial court for such
determination. Should the trial court find that its
award is greater than that of the ECC, payments
already received by private respondent under the
Labor Code shall be deducted from the trial court'’
award of damages. Consistent with our ruling
in Floresca, this adjudication aims to prevent double
compensation.
WHEREFORE, the case is REMANDED to the
Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more
than that of the ECC. Should the award decreed by
the trial court be greater than that awarded by the
ECC, payments already made to private respondent
pursuant to the Labor Code shall be deducted
therefrom. In all other respects, the Decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 113003 October 17, 1997
ALBERTA YOBIDO and CRESENCIO
YOBIDO, petitioners,
vs.
COURT OF APPEALS, LENY TUMBOY, ARDEE
TUMBOY and JASMIN TUMBOY, respondents.

ROMERO, J.:
In this petition for review on certiorari of the decision
of the Court of Appeals, the issue is whether or not
the explosion of a newly installed tire of a passenger
vehicle is a fortuitous event that exempts the carrier
from liability for the death of a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy
and their minor children named Ardee and Jasmin,
bearded at Mangagoy, Surigao del Sur, a Yobido
Liner bus bound for Davao City. Along Picop Road in
Km. 17, Sta. Maria, Agusan del Sur, the left front tire
of the bus exploded. The bus fell into a ravine around
three (3) feet from the road and struck a tree. The
incident resulted in the death of 28-year-old Tito
Tumboy and physical injuries to other passengers.
On November 21, 1988, a complaint for breach of
contract of carriage, damages and attorney's fees
was filed by Leny and her children against Alberta
Yobido, the owner of the bus, and Cresencio Yobido,
its driver, before the Regional Trial Court of Davao
City. When the defendants therein filed their answer
to the complaint, they raised the affirmative defense
of caso fortuito. They also filed a third-party complaint
against Philippine Phoenix Surety and Insurance, Inc.
This third-party defendant filed an answer with
compulsory counterclaim. At the pre-trial conference,
the parties agreed to a stipulation of facts.
1
Upon a finding that the third party defendant was not
liable under the insurance contract, the lower court
dismissed the third party complaint. No amicable
settlement having been arrived at by the parties, trial
on the merits ensued.
The plaintiffs asserted that violation of the contract of
carriage between them and the defendants was
brought about by the driver's failure to exercise the
diligence required of the carrier in transporting
passengers safely to their place of destination.
According to Leny Tumboy, the bus left Mangagoy at
3:00 o'clock in the afternoon. The winding road it
traversed was not cemented and was wet due to the
rain; it was rough with crushed rocks. The bus which
was full of passengers had cargoes on top. Since it
was "running fast," she cautioned the driver to slow
down but he merely stared at her through the mirror.
At around 3:30 p.m., in Trento, she heard something
explode and immediately, the bus fell into a ravine.
For their part, the defendants tried to establish that
the accident was due to a fortuitous event. Abundio
Salce, who was the bus conductor when the incident
happened, testified that the 42-seater bus was not full
as there were only 32 passengers, such that he
himself managed to get a seat. He added that the bus
was running at a speed of "60 to 50" and that it was
going slow because of the zigzag road. He affirmed
that the left front tire that exploded was a "brand new
tire" that he mounted on the bus on April 21, 1988 or
only five (5) days before the incident. The Yobido
Liner secretary, Minerva Fernando, bought the new
Goodyear tire from Davao Toyo Parts on April 20,
1988 and she was present when it was mounted on
the bus by Salce. She stated that all driver applicants
in Yobido Liner underwent actual driving tests before
they were employed. Defendant Cresencio Yobido
underwent such test and submitted his professional
driver's license and clearances from the barangay,
the fiscal and the police.
On August 29, 1991, the lower court rendered a
decision dismissing the action for lack of merit. On
2
the issue of whether or not the tire blowout was
a caso fortuito, it found that "the falling of the bus to
the cliff was a result of no other outside factor than
the tire blow-out." It held that the ruling in the La
Mallorca and Pampanga Bus Co. v. De Jesus that a 3
tire blowout is "a mechanical defect of the
conveyance or a fault in its equipment which was
easily discoverable if the bus had been subjected to a
more thorough or rigid check-up before it took to the
road that morning" is inapplicable to this case. It
reasoned out that in said case, it was found that the
blowout was caused by the established fact that the
inner tube of the left front tire "was pressed between
the inner circle of the left wheel and the rim which had
slipped out of the wheel." In this case, however, "the
cause of the explosion remains a mystery until at
present." As such, the court added, the tire blowout
was "a caso fortuito which is completely an
extraordinary circumstance independent of the will" of
the defendants who should be relieved of "whatever
liability the plaintiffs may have suffered by reason of
the explosion pursuant to Article 1174 of the Civil
4
Code."
Dissatisfied, the plaintiffs appealed to the Court of
Appeals. They ascribed to the lower court the
following errors: (a) finding that the tire blowout was
a caso fortuito; (b) failing to hold that the defendants
did not exercise utmost and/or extraordinary diligence
required of carriers under Article 1755 of the Civil
Code, and (c) deciding the case contrary to the ruling
in Juntilla v. Fontanar, and Necesito v. Paras.
5 6
On August 23, 1993, the Court of Appeals rendered
the Decision reversing that of the lower court. It held
7
that:
To Our mind, the explosion of the tire is not in itself a
fortuitous event. The cause of the blow-out, if due to a
factory defect, improper mounting, excessive tire
pressure, is not an unavoidable event. On the other
hand, there may have been adverse conditions on the
road that were unforeseeable and/or inevitable, which
could make the blow-out a caso fortuito. The fact that
the cause of the blow-out was not known does not
relieve the carrier of liability. Owing to the statutory
presumption of negligence against the carrier and its
obligation to exercise the utmost diligence of very
cautious persons to carry the passenger safely as far
as human care and foresight can provide, it is the
burden of the defendants to prove that the cause of
the blow-out was a fortuitous event. It is not
incumbent upon the plaintiff to prove that the cause of
the blow-out is not caso-fortuito.
Proving that the tire that exploded is a new Goodyear
tire is not sufficient to discharge defendants' burden.
As enunciated in Necesito vs. Paras, the passenger
has neither choice nor control over the carrier in the
selection and use of its equipment, and the good
repute of the manufacturer will not necessarily relieve
the carrier from liability.
Moreover, there is evidence that the bus was moving
fast, and the road was wet and rough. The driver
could have explained that the blow-out that
precipitated the accident that caused the death of
Toto Tumboy could not have been prevented even if
he had exercised due care to avoid the same, but he
was not presented as witness.
The Court of Appeals thus disposed of the appeal as
follows:
WHEREFORE, the judgment of the court a quo is set
aside and another one entered ordering defendants
to pay plaintiffs the sum of P50,000.00 for the death
of Tito Tumboy, P30,000.00 in moral damages, and
P7,000.00 for funeral and burial expenses.
SO ORDERED.
The defendants filed a motion for reconsideration of
said decision which was denied on November 4, 1993
by the Court of Appeals. Hence, the instant petition
asserting the position that the tire blowout that
caused the death of Tito Tumboy was a caso fortuito.
Petitioners claim further that the Court of Appeals, in
ruling contrary to that of the lower court,
misapprehended facts and, therefore, its findings of
fact cannot be considered final which shall bind this
Court. Hence, they pray that this Court review the
facts of the case.
The Court did re-examine the facts and evidence in
this case because of the inapplicability of the
established principle that the factual findings of the
Court of Appeals are final and may not be reviewed
on appeal by this Court. This general principle is
subject to exceptions such as the one present in this
case, namely, that the lower court and the Court of
Appeals arrived at diverse factual findings. However,
8
upon such re-examination, we found no reason to
overturn the findings and conclusions of the Court of
Appeals.
As a rule, when a passenger boards a common
carrier, he takes the risks incidental to the mode of
travel he has taken. After all, a carrier is not an
insurer of the safety of its passengers and is not
bound absolutely and at all events to carry them
safely and without injury. However, when a
9
passenger is injured or dies while travelling, the law
presumes that the common carrier is negligent. Thus,
the Civil Code provides:
Art. 1756. In case of death or injuries to passengers,
common carriers are presumed to have been at fault
or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed
in articles 1733 and 1755.
Article 1755 provides that "(a) common carrier is
bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard
for all the circumstances." Accordingly, in culpa
contractual, once a passenger dies or is injured, the
carrier is presumed to have been at fault or to have
acted negligently. This disputable presumption may
only be overcome by evidence that the carrier had
observed extraordinary diligence as prescribed by
Articles 1733, 1755 and 1756 of the Civil Code or
10
that the death or injury of the passenger was due to a
fortuitous event. Consequently, the court need not
11
make an express finding of fault or negligence on the
part of the carrier to hold it responsible for damages
sought by the passenger. 12
In view of the foregoing, petitioners' contention that
they should be exempt from liability because the tire
blowout was no more than a fortuitous event that
could not have been foreseen, must fail. A fortuitous
event is possessed of the following characteristics: (a)
the cause of the unforeseen and unexpected
occurrence, or the failure of the debtor to comply with
his obligations, must be independent of human will;
(b) it must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be foreseen, it
must be impossible to avoid; (c) the occurrence must
be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and (d) the
obliger must be free from any participation in the
aggravation of the injury resulting to the creditor. As
13
Article 1174 provides, no person shall be responsible
for a fortuitous event which could not be foreseen, or
which, though foreseen, was inevitable. In other
words, there must be an entire exclusion of human
agency from the cause of injury or loss. 14
Under the circumstances of this case, the explosion
of the new tire may not be considered a fortuitous
event. There are human factors involved in the
situation. The fact that the tire was new did not imply
that it was entirely free from manufacturing defects or
that it was properly mounted on the vehicle. Neither
may the fact that the tire bought and used in the
vehicle is of a brand name noted for quality, resulting
in the conclusion that it could not explode within five
days' use. Be that as it may, it is settled that an
accident caused either by defects in the automobile
or through the negligence of its driver is not a caso
fortuito that would exempt the carrier from liability for
damages. 15
Moreover, a common carrier may not be absolved
from liability in case of force majeure or fortuitous
Moral damages are generally not recoverable
in culpa contractual except when bad faith had been
proven. However, the same damages may be
recovered when breach of contract of carriage results
in the death of a passenger, as in this case.
22

event alone. The common carrier must still prove that
it was not negligent in causing the death or injury
resulting from an accident. This Court has had
16
Exemplary damages, awarded by way of example or
correction for the public good when moral damages
are awarded, may likewise be recovered in
23

occasion to state: contractual obligations if the defendant acted in

wanton, fraudulent, reckless, oppressive, or
While it may be true that the tire that blew-up was still malevolent manner. Because petitioners failed to
24

good because the grooves of the tire were still visible, exercise the extraordinary diligence required of a
this fact alone does not make the explosion of the tire common carrier, which resulted in the death of Tito
a fortuitous event. No evidence was presented to Tumboy, it is deemed to have acted recklessly. As25

show that the accident was due to adverse road such, private respondents shall be entitled to
conditions or that precautions were taken by the exemplary damages.
jeepney driver to compensate for any conditions liable
to cause accidents. The sudden blowing-up, WHEREFORE, the Decision of the Court of Appeals
therefore, could have been caused by too much air is hereby AFFIRMED subject to the modification that
pressure injected into the tire coupled by the fact that petitioners shall, in addition to the monetary awards
the jeepney was overloaded and speeding at the time therein, be liable for the award of exemplary damages
of the accident.17 in the amount of P20,000.00. Costs against
petitioners.
It is interesting to note that petitioners proved through
the bus conductor, Salce, that the bus was running at SO ORDERED.
"60-50" kilometers per hour only or within the
prescribed lawful speed limit. However, they failed to
rebut the testimony of Leny Tumboy that the bus was
running so fast that she cautioned the driver to slow
down. These contradictory facts must, therefore, be
resolved in favor of liability in view of the presumption
of negligence of the carrier in the law. Coupled with
this is the established condition of the road — rough,
winding and wet due to the rain. It was incumbent
upon the defense to establish that it took
precautionary measures considering partially
dangerous condition of the road. As stated above,
proof that the tire was new and of good quality is not
sufficient proof that it was not negligent. Petitioners
should have shown that it undertook extraordinary
diligence in the care of its carrier, such as conducting
daily routinary check-ups of the vehicle's parts. As the
late Justice J.B.L. Reyes said:

It may be impracticable, as appellee argues, to

require of carriers to test the strength of each and
every part of its vehicles before each trip; but we are
of the opinion that a due regard for the carrier's
obligations toward the traveling public demands
adequate periodical tests to determine the condition
and strength of those vehicle portions the failure of
which may endanger the safety of the passengers. 18

Having failed to discharge its duty to overthrow the

presumption of negligence with clear and convincing
evidence, petitioners are hereby held liable for
damages. Article 1764 in relation to Article 2206 of
19 20

the Civil Code prescribes the amount of at least three

thousand pesos as damages for the death of a
passenger. Under prevailing jurisprudence, the award
of damages under Article 2206 has been increased to
fifty thousand pesos (P50,000.00). 21