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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 95469 July 25, 1991

AGAPITO MANUEL, petitioner,vs.HON. COURT OF APPEALS, HON. RAMONMAKASIAR and SPOUSES JESUS DE JESUSand CARMEN DE JESUS, respondents.

Miguel Y. Badando for petitioner.

R.C. Lizardo Law Office for private respondents.

REGALADO, J.:p

This case had its inception in a complaint forejectment filed by herein private respondentsagainst herein petitioner before the MetropolitanTrial Court of Manila, docketed as Civil Case No.122136-CV, for non-payment of rentals on anapartment unit owned by private respondents andrented by petitioner.

The antecedent facts which led to the filing of saidcase are best quoted from the succinct presentation

thereof in the challenged decision of respondentcourt:

It appears that the privaterespondents are the owners of anapartment unit which was rented bythe petitioner on a month to month

basis for a monthly rental ofP466.00 payable in advance; thatthe petitioner failed to pay thecorresponding rentals for the monthof May 1987 up to the filing of the

complaint on August 31, 1987; thaton July 9, 1987, private respondents,through their counsel, sent ademand letter to the petitioner(Exhibit "R") requiring him to payhis rentals in arrears and to vacatethe leased premises within five (5)days from receipt thereof, otherwiseprivate respondents will beconstrained to file the appropriate

legal action against him; that thedemand letter of privaterespondents' counsel was received

by the petitioner on July 14, 1987;that in response thereto, thepetitioner addressed a letter datedJuly 15, 1987 to private respondentCarmen de Jesus, furnishing a copythereof to her counsel, stating that

the amount of rentals, which theprivate respondents allegedlyrefused to receive, had beendeposited at United CoconutPlanters Bank, Taft Avenue Branch,

with Account No. 8893 in the nameof the petitioner's son, MarioManuel, and could be withdrawnupon notice of payment; that inorder to collect the said rentalsallegedly deposited with the bank,the private respondents' counsel sent

a letter dated August 14, 1987 to thepetitioner, requesting the paymentof the unpaid rentals to his (privaterespondents' counsel) office; that thesaid letter was received by thepetitioner on August 18, 1987, and,instead of complying with privaterespondents' counsel's request, thepetitioner addressed a letter dated

August 24, 1987 to the privaterespondents' counsel requesting thatthe rentals in arrears be paid to the

private respondents at petitioner'shouse. The private respondents didnot heed the petitioner's request. 1

On April 6, 1989, after the parties had submittedtheir respective affidavits and position papers, thesaid metropolitan trial court rendered judgment infavor of private respondents, as plaintiffs therein,the dispositive part whereof declares:

WHEREFORE, judgment is herebyrendered in favor of the plaintiffs,

ordering defendant and/or any otherperson claiming rights under him tovacate and surrender possession ofthe premises described as door No.2444; defendant Agapito Manuel topay the plaintiffs the amount ofP466.00 a month from May 1987and up to the date defendant and/orany other person claiming rightsunder him actually vacates the


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premises, to pay the plaintiffs theamount of P500.00 as attorney'sfees, plus cost of the Suit. 2

On appeal in Civil Case No. 89-48914, the RegionalTrial Court of Manila, Branch 35, affirmed theaforesaid judgment in toto in its decision datedSeptember 20, 1989. 3

Not satisfied therewith, petitioner appealed torespondent Court of Appeals which, in itsdecision 4 dated January 29, 1990 in CA-G.R. SPNo. 18961, denied due course to the petition forreview and dismissed the same for lack ofmerit. 5 Petitioner's motion for motion forreconsideration was likewise denied by saidrespondent court in its resolution of March 5,1990. 6

Before us, petitioner raises two grounds, the firstsupposedly in the nature of a supervenience, for theallowance of his petition, viz.:

1. A new situation developed and/orcame about which makes ejectmentunjust and impossible, that is, theNHA finally awarded the lot over

which the subject structure stands tothe petitioner and other tenants anddisqualified the private respondent.It said ruling or awards, the privaterespondent are only given the optionto either sell the structure to the

petitioner and the other awardees orto dismantle the same.

2. Moreover, under thecircumstances prevailing in thisinstant case, the private respondent

were really in mora accipiendithateven if no deposit or consignationhad been made, said mora cannot becured. Petitioner had in factcontinuously made available anddeposited his rentals had been made

moot and academic by virtue of theNHA award in favor of the petitionerand the governmental expression ofpublic policy to protect the actualoccupants, specifically thepetitioner. 7

We find the petition bereft of merit.

The putative award on April 6, 1990 by the NationalHousing Authority (NHA) to the petitioner of thelot where the rented apartment stands, 8 while thisejectment case was pending in the Court of Appeals,is of no moment. The juridical relation betweenpetitioner and private respondent as lessee andlessors is well established and the non-payment ofrentals by petitioner for at least three (3) months issubstantial by the evidence on record.

The award of the lot to petitioner by NHA does notautomatically vest in him ownership over the leasedstructure thereon. Petitioner cannot invoke theprovisions of the Civil Code on accession there

being an existing lessor and lessee relation betweenhim and private respondents. 9 A tenant cannot, inan action involving the possession of the leasedpremises, controvert the title of his landlord orassert any rights adverse to that title or set up anyinconsistent right to change the relation existing

between himself and his landlord, without first

delivering up to the landlord the premises acquiredby virtue of the agreement between themselves. Therule estopping a tenant while he retains possessionapplies whether the tenant is defendant or plaintiffand applies even though the landlord had no title atthe time the relationship was created. 10

Proceedings in forcible entry and detainer arewholly summary in nature. The fact of lease and theexpiration of its terms are the only elements of thiskind of action. 11 The question of ownership isunessential and should be raised by the defendant

in an appropriate action. 12Any controversy overownership right could and should be settled afterthe party who had the prior, peaceful and actualpossession is returned to the property. 13

In the present case and assuming the new factualmilieu posited by petitioner, he should file aseparate action wherein his alleged rights as ownerof the land vis-a-vis the rights of privaterespondents as builders or owners of the structurestanding thereon can be properly ventilated. Therecan be no such adjudication here for when the

relationship of lessor and lessee is established in anunlawful detainer case, any attempt of thedefendant to inject the question of ownership intothe case is inutile except in so far as it might throwlight on the right of possession.14

In an appeal from an inferior court in an ejectmentcase the issue of ownership should not be delvedinto, for an ejectment action lies even against the


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owner of the property. 15The fact of possession initself has a positive value and is endowed with adistinct standing of its own in the law of property.True, by this principle of respect for the possessorystatus, a wrongful possessor may at times be upheld

by the courts, but this is only temporary and for onesole and special purpose, namely, the maintenanceof public order. The protection is only temporary

because it is intended that as soon as the lawless act

of dispossession has been suppressed, the questionof ownership or of possession de jure is to besettled in the proper court and in a proper action.The larger and permanent interests of propertyrequire that such rare and exceptional instance ofpreference in the courts of the actual but wrongfulpossessor be permitted. 16

The contention of petitioner that privaterespondents are in mora accipiendicannot beupheld either. The failure of the owners to collect ortheir refusal to accept the rentals are not valid

defenses. Consignation, under such circumstances,is necessary, 17 and by this we mean one that iseffected in full compliance with the specificrequirements of the law therefor.

Section 5(b) of Batas Pambansa Blg. 25, asamended, provides that in case of refusal by thelessor to accept payment of the rental agreed upon,the lessee shall either deposit, by way ofconsignation, the amount in court or in a bank inthe name of and with notice to the lessor. Thefailure of herein petitioner to comply with said

requirement makes the consignation defective andgives rise to a cause of action forejectment. 18 Compliance with the requisites of a

valid consignation is mandatory. It must becomplied with frilly and strictly in accordance withthe law. Substantial compliance is not enough. 19

From the earlier discussion, petitioner evidently didnot comply with the requirements for consignationprescribed by the governing law. Consequently, asexpounded by the Court of Appeals

The failure of the petitioner to fullyand strictly comply with therequirements of consignation asaforementioned, renders nil hiscontention that the privaterespondents have no cause of actionagainst him, As there was no validconsignation, payment of the morethan three months rental arrearages

was not effected. Under Section 5(b)of B.P. Blg. 25, as amended, arrearsin payment of rent for three (3)months at any one time, is a groundfor judicial ejectment. For such non-payment of the petitioner to theprivate respondents of the monthlyrentals from May, 1987 until the case

was filed on August 31, 1987, or for

more than three (3) months, theretherefore existed a cause of action infavor of the private respondentlessors against the petitionerlessee.20

ACCORDINGLY, the petition is DENIED and theassailed judgment of respondent Court of Appealsis AFFIRMED.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ.,concur.

Paras, J., took no part.

Footnotes

1Ibid., 19.

2 Original Record, 22-24.

3Ibid., 18-21; per Judge Ramon P.Makasiar.

4 By Justice Gloria C.Paras,ponente, with the concurrenceof Justices Bonifacio A. Cacdac, Jr.and Socorro Tirona-Liwag.

5Rollo, 18-23.

6Ibid., 25.

7Ibid., 9.

8Ibid., 26-27.

9 The rules on accession industrialare inapplicable to cases where thereis a juridical relation existing

between the owner of the land andthe builder, planter or sower


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covering the property in question;instead, their agreement, primarily,and the provisions of the Civil Codeon obligations and contracts,including those on special contractsthat could be pertinent, suppletorily,

would govern (Vitug, Compendiumof Civil Law and Jurisprudence, FirstEdition, 111).

10 49 Am. Jur. 2d 158.

11 Tiu vs. Court of Appeals, et al., 37SCRA 99 (1971).

12 Bautista, et al. vs. Gonzales, 78Phil. 390 (1947).

13 Mediran vs. Villanueva, 37 Phil.752 (1918); De la Cruz, et al. vs.Burgos, 28 SCRA 977 (1969); Dizon

vs. Concina, et al., 30 SCRA 897(1969).

14See De Vasquez vs. Diva, 83 Phil.410 (1949).

15 Prado vs. Calpo, 10 SCRA 801(1964).

16 Lizo vs. Carandang, et al., 73 Phil.649 (1942).

17 Velez vs. Avelino, et al., 127 SCRA602 (1984).

18 Alfonso vs. Court of Appeals, etal., 168 SCRA 545 (1988).

19 Soco vs. Militante, et al., 123SCRA 160 (1983).

20Rollo, 20-21


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Manila

FIRST DIVISION

G.R. No. 129792 December 21, 1999

JARCO MARKETING CORPORATION,LEONARDO KONG, JOSE TIOPE and ELISAPANELO, petitioners,

vs.HONORABLE COURT OF APPEALS,CONRADO C. AGUILAR and CRISELDA R.

AGUILAR, respondents.

DAVIDE, JR.,J.:

In this petition for review on certiorariunder Rule45 of the Rules of Court, petitioners seek thereversal of the 17 June 1996 decision 1 of the Courtof Appeals in C.A. G.R. No. CV 37937 and theresolution 2 denying their motion forreconsideration. The assailed decision set aside the15 January 1992 judgment of the Regional TrialCourt (RTC), Makati City, Branch 60 in Civil CaseNo. 7119 and ordered petitioners to pay damagesand attorney's fees to private respondents Conrado

and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is theowner of Syvel's Department Store, Makati City.Petitioners Leonardo Kong, Jose Tiope and ElisaPanelo are the store's branch manager, operationsmanager, and supervisor, respectively. Privaterespondents are spouses and the parents ofZhieneth Aguilar (ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA andZHIENETH were at the 2nd floor of Syvel's

Department Store, Makati City. CRISELDA wassigning her credit card slip at the payment andverification counter when she felt a sudden gust ofwind and heard a loud thud. She looked behind her.She then beheld her daughter ZHIENETH on thefloor, her young body pinned by the bulk of thestore's gift-wrapping counter/structure.ZHIENETH was crying and screaming for help.

Although shocked, CRISELDA was quick to ask the

assistance of the people around in lifting thecounter and retrieving ZHIENETH from the floor. 3

ZHIENETH was quickly rushed to the MakatiMedical Center where she was operated on. Thenext day ZHIENETH lost her speech and thereaftercommunicated with CRISELDA by writing on amagic slate. The injuries she sustained took theirtoil on her young body. She died fourteen (14) days

after the accident or on 22 May 1983, on thehospital bed. She was six years old. 4

The cause of her death was attributed to the injuriesshe sustained. The provisional medicalcertificate 5 issued by ZHIENETH's attendingdoctor described the extent of her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuriesdue to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. tolaceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, privaterespondents demanded upon petitioners thereimbursement of the hospitalization, medical billsand wake and funeral expenses 6 which they hadincurred. Petitioners refused to pay. Consequently,private respondents filed a complaint for damages,docketed as Civil Case No. 7119 wherein they soughtthe payment of P157,522.86 for actual damages,P300,000 for moral damages, P20,000 for

attorney's fees and an unspecified amount for lossof income and exemplary damages.

In their answer with counterclaim, petitionersdenied any liability for the injuries and consequentdeath of ZHIENETH. They claimed that CRISELDA

was negligent in exercising care and diligence overher daughter by allowing her to freely roam aroundin a store filled with glassware and appliances.ZHIENETH too, was guilty of contributory


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negligence since she climbed the counter, triggeringits eventual collapse on her. Petitioners alsoemphasized that the counter was made of sturdy

wood with a strong support; it never fell norcollapsed for the past fifteen years since itsconstruction.

Additionally, petitioner Jarco MarketingCorporation maintained that it observed the

diligence of a good father of a family in theselection, supervision and control of its employees.The other petitioners likewise raised due care anddiligence in the performance of their duties andcountered that the complaint was malicious for

which they suffered besmirched reputation andmental anguish. They sought the dismissal of thecomplaint and an award of moral and exemplarydamages and attorney's fees in their favor.

In its decision 7 the trial court dismissed thecomplaint and counterclaim after finding that the

preponderance of the evidence favored petitioners.It ruled that the proximate cause of the fall of thecounter on ZHIENETH was her act of clinging to it.It believed petitioners' witnesses who testified thatZHIENETH clung to the counter, afterwhich thestructure and the girl fell with the structure fallingon top of her, pinning her stomach. In contrast,none of private respondents' witnesses testified onhow the counter fell. The trial court also held thatCRISELDA's negligence contributed toZHIENETH's accident.

In absolving petitioners from any liability, the trialcourt reasoned that the counter was situated at theend or corner of the 2nd floor as a precautionarymeasure hence, it could not be considered as anattractive nuisance. 8The counter was higher thanZHIENETH. It has been in existence for fifteen

years. Its structure was safe and well-balanced.ZHIENETH, therefore, had no business climbingon and clinging to it.

Private respondents appealed the decision,attributing as errors of the trial court its findings

that: (1) the proximate cause of the fall of thecounter was ZHIENETH's misbehavior; (2)CRISELDA was negligent in her care ofZHIENETH; (3) petitioners were not negligent inthe maintenance of the counter; and (4) petitioners

were not liable for the death of ZHIENETH.

Further, private respondents asserted thatZHIENETH should be entitled to the conclusive

presumption that a child below nine (9) years isincapable of contributory negligence. And even ifZHIENETH, at six (6) years old, was alreadycapable of contributory negligence, still it wasphysically impossible for her to have proppedherself on the counter. She had a small frame (fourfeet high and seventy pounds) and the counter wasmuch higher and heavier than she was. Also, thetestimony of one of the store's former employees,

Gerardo Gonzales, who accompanied ZHIENETHwhen she was brought to the emergency room ofthe Makati Medical Center belied petitioners'theory that ZHIENETH climbed the counter.Gonzales claimed that when ZHIENETH was asked

by the doctor what she did, ZHIENETH replied,"[N]othing, I did not come near the counter and thecounter just fell on me." 9 Accordingly, Gonzales'testimony on ZHIENETH's spontaneousdeclaration should not only be considered as partofres gestaebut also accorded credit.

Moreover, negligence could not be imputed toCRISELDA for it was reasonable for her to have letgo of ZHIENETH at the precise moment that she

was signing the credit card slip.

Finally, private respondents vigorously maintainedthat the proximate cause of ZHIENETH's death,

was petitioners' negligence in failing to institutemeasures to have the counter permanently nailed.

On the other hand, petitioners argued that privaterespondents raised purely factual issues which

could no longer be disturbed. They explained thatZHIENETH's death while unfortunate and tragic,

was an accident for which neither CRISELDA noreven ZHIENETH could entirely be held faultlessand blameless. Further, petitioners adverted to thetrial court's rejection of Gonzales' testimony asunworthy of credence.

As to private respondent's claim that the countershould have been nailed to the ground, petitioners

justified that it was not necessary. The counter hadbeen in existence for several years without any

prior accident and was deliberately placed at acorner to avoid such accidents. Truth to tell, theyacted without fault or negligence for they hadexercised due diligence on the matter. In fact, thecriminal case 10 for homicide through simplenegligence filed by private respondents against theindividual petitioners was dismissed; a verdict ofacquittal was rendered in their favor.


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The Court of Appeals, however, decided in favor ofprivate respondents and reversed the appealed

judgment. It found that petitioners were negligentin maintaining a structurally dangerous counter.The counter was shaped like an inverted "L" 11 witha top wider than the base. It was top heavy and the

weight of the upper portion was neither evenlydistributed nor supported by its narrow base. Thus,the counter was defective, unstable and dangerous;

a downward pressure on the overhanging portionor a push from the front could cause the counter tofall. Two former employees of petitioners hadalready previously brought to the attention of themanagement the danger the counter could cause.But the latter ignored their concern. The Court of

Appeals faulted the petitioners for this omission,and concluded that the incident that befellZHIENETH could have been avoided hadpetitioners repaired the defective counter. It wasinconsequential that the counter had been in usefor some time without a prior incident.

The Court of Appeals declared that ZHIENETH,who was below seven (7) years old at the time of theincident, was absolutely incapable of negligence orother tort. It reasoned that since a child under nine(9) years could not be held liable even for anintentional wrong, then the six-year oldZHIENETH could not be made to account for amere mischief or reckless act. It also absolvedCRISELDA of any negligence, finding nothing

wrong or out of the ordinary in momentarilyallowing ZHIENETH to walk while she signed the

document at the nearby counter.

The Court of Appeals also rejected the testimoniesof the witnesses of petitioners. It found them biasedand prejudiced. It instead gave credit to thetestimony of disinterested witness Gonzales. TheCourt of Appeals then awarded P99,420.86 asactual damages, the amount representing thehospitalization expenses incurred by privaterespondents as evidenced by the hospital'sstatement of account. 12 It denied an award forfuneral expenses for lack of proof to substantiate

the same. Instead, a compensatory damage ofP50,000 was awarded for the death of ZHIENETH.

We quote the dispositive portion of the assaileddecision, 13 thus:

WHEREFORE, premises considered,the judgment of the lower court isSET ASIDE and another one is

entered against [petitioners],ordering them to pay jointly andseverally unto [private respondents]the following:

1. P50,000.00 by way of compensatory damages forthe death of Zhieneth Aguilar, with legal interest(6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalizationexpenses incurred; with legal interest (6% p.a.)from 27 April 1984;

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorney's fees; and

5. Costs.

Private respondents sought a reconsideration of the

decision but the same was denied in the Court ofAppeals' resolution 14 of 16 July 1997.

Petitioners now seek the reversal of the Court ofAppeals' decision and the reinstatement of thejudgment of the trial court. Petitioners primarilyargue that the Court of Appeals erred indisregarding the factual findings and conclusions ofthe trial court. They stress that since the action was

based on tort, any finding of negligence on the partof the private respondents would necessarily negatetheir claim for damages, where said negligence was

the proximate cause of the injury sustained. Theinjury in the instant case was the death ofZHIENETH. The proximate cause wasZHIENETH's act of clinging to the counter. This actin turn caused the counter to fall on her. This andCRISELDA's contributory negligence, through herfailure to provide the proper care and attention toher child while inside the store, nullified privaterespondents' claim for damages. It is also for thesereasons that parents are made accountable for thedamage or injury inflicted on others by their minorchildren. Under these circumstances, petitionerscould not be held responsible for the accident that

befell ZHIENETH.

Petitioners also assail the credibility of Gonzaleswho was already separated from Syvel's at the timehe testified; hence, his testimony might have beentarnished by ill-feelings against them.

For their part, private respondents principallyreiterated their arguments that neither ZHIENETH


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nor CRISELDA was negligent at any time whileinside the store; the findings and conclusions of theCourt of Appeals are substantiated by the evidenceon record; the testimony of Gonzales, who heardZHIENETH comment on the incident while she wasin the hospital's emergency room should receivecredence; and finally, ZHIENETH's part of the resgestae declaration "that she did nothing to causethe heavy structure to fall on her" should be

considered as the correct version of the gruesomeevents.

We deny the petition.

The two issues to be resolved are: (1) whether thedeath of ZHIENETH was accidental or attributableto negligence; and (2) in case of a finding ofnegligence, whether the same was attributable toprivate respondents for maintaining a defectivecounter or to CRISELDA and ZHIENETH forfailing to exercise due and reasonable care while

inside the store premises.

An accident pertains to an unforeseen event inwhich no fault or negligence attaches to thedefendant. 15 It is "a fortuitous circumstance, eventor happening; an event happening without anyhuman agency, or if happening wholly or partlythrough human agency, an event which under thecircumstances is unusual or unexpected by theperson to whom it happens." 16

On the other hand, negligence is the omission to do

something which a reasonable man, guided bythose considerations which ordinarily regulate theconduct of human affairs, would do, or the doing ofsomething which a prudent and reasonable man

would not do. 17 Negligence is "the failure toobserve, for the protection of the interest of anotherperson, that degree of care, precaution and

vigilance which the circumstances justly demand,whereby such other person suffers injury." 18

Accident and negligence are intrinsicallycontradictory; one cannot exist with the other.

Accident occurs when the person concerned isexercising ordinary care, which is not caused byfault of any person and which could not have beenprevented by any means suggested by commonprudence. 19

The test in determining the existence of negligenceis enunciated in the landmark case ofPlicart v.

Smith, 20 thus: Did the defendant in doing the

alleged negligent act use that reasonable care andcaution which an ordinarily prudent person wouldhave used in the same situation? If not, then he isguilty of negligence. 21

We rule that the tragedy which befell ZHIENETHwas no accident and that ZHIENETH's death couldonly be attributed to negligence.

We quote the testimony of Gerardo Gonzales whowas at the scene of the incident and accompaniedCRISELDA and ZHIENETH to the hospital:

Q While at the Makati Medical Center, did youhear or notice anything while the child was beingtreated?

A At the emergency room we were all surroundingthe child. And when the doctor asked the child"what did you do," the child said "nothing, I didnot come near the counter and the counter just fellon me."

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate "wala po, hindi po akolumapit doon. Basta bumagsak." 22

This testimony of Gonzales pertaining toZHIENETH's statement formed (and should beadmitted as) part of the res gestae under Section42, Rule 130 of the Rules of Court, thus:

Part ofres gestae. Statements madeby a person while a startlingoccurrence is taking place or

immediately prior or subsequentthereto with respect to thecircumstances thereof, may be givenin evidence as part of the res gestae.So, also, statements accompanyingan equivocal act material to theissue, and giving it a legalsignificance, may be received as partof the res gestae.


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It is axiomatic that matters relating to declarationsof pain or suffering and statements made to aphysician are generally considered declarations andadmissions. 23 All that is required for theiradmissibility as part of the res gestae is that they bemade or uttered under the influence of a startlingevent before the declarant had the time to think andconcoct a falsehood as witnessed by the person whotestified in court. Under the circumstances thus

described, it is unthinkable for ZHIENETH, a childof such tender age and in extreme pain, to have liedto a doctor whom she trusted with her life. Wetherefore accord credence to Gonzales' testimonyon the matter, i.e., ZHIENETH performed no actthat facilitated her tragic death. Sadly, petitionersdid, through their negligence or omission to secureor make stable the counter's base.

Gonzales' earlier testimony on petitioners'insistence to keep and maintain the structurallyunstable gift-wrapping counter proved their

negligence, thus:

Q When you assumed the position as gift wrapperat the second floor, will you please describe the gift

wrapping counter, were you able to examine?

A Because every morning before I start working Iused to clean that counter and since not nailed andit was only standing on the floor, it was shaky.

xxx xxx xxx

Q Will you please describe the counter at 5:00o'clock [sic] in the afternoon on [sic] May 9 1983?

A At that hour on May 9, 1983, that counter wasstanding beside the verification counter. And sincethe top of it was heavy and considering that it wasnot nailed, it can collapse at anytime, since the topis heavy.

xxx xxx xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is[sic] shaky and since Mr. Maat is fond of puttingdisplay decorations on tables, he even told me thatI would put some decorations. But since I told himthat it not [sic] nailed and it is shaky he told me"better inform also the company about it." Andsince the company did not do anything about the

counter, so I also did not do anything about thecounter. 24 [Emphasis supplied]

Ramon Guevarra, another former employee,corroborated the testimony of Gonzales, thus:

Q Will you please described [sic] to the honorableCourt the counter where you were assigned inJanuary 1983?

xxx xxx xxx

A That counter assigned to me was when mysupervisor ordered me to carry that counter toanother place. I told him that the counter needsnailing and it has to be nailed because it mightcause injury or accident to another since it wasshaky.

Q When that gift wrapping counter was transferred

at the second floor on February 12, 1983, will youplease describe that to the honorable Court?

A I told her that the counter wrapper [sic] is reallyin good [sic] condition; it was shaky. I told her that

we had to nail it.

Q When you said she, to whom are you referring to[sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when youtold her that the counter was shaky?

A She told me "Why do you have to teach me. Youare only my subordinate and you are to teach me?"

And she even got angry at me when I told her that.

xxx xxx xxx

Q From February 12, 1983 up to May 9, 1983, whatif any, did Ms. Panelo or any employee of themanagement do to that (sic)

xxx xxx xxx

Witness:

None, sir. They never nailed the counter. They onlynailed the counter after the accidenthappened. 25 [Emphasis supplied]


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Without doubt, petitioner Panelo and another storesupervisor were personally informed of the dangerposed by the unstable counter. Yet, neither initiatedany concrete action to remedy the situation norensure the safety of the store's employees andpatrons as a reasonable and ordinary prudent man

would have done. Thus, as confronted by thesituation petitioners miserably failed to dischargethe due diligence required of a good father of a

family.

On the issue of the credibility of Gonzales andGuevarra, petitioners failed to establish that theformer's testimonies were biased and tainted withpartiality. Therefore, the allegation that Gonzalesand Guevarra's testimonies were blemished by "illfeelings" against petitioners since they (Gonzalesand Guevarra) were already separated from thecompany at the time their testimonies were offeredin courtwas but mere speculation and deservedscant consideration.

It is settled that when the issue concerns thecredibility of witnesses, the appellate courts will notas a general rule disturb the findings of the trialcourt, which is in a better position to determine thesame. The trial court has the distinct advantage ofactually hearing the testimony of and observing thedeportment of the witnesses. 26However, the ruleadmits of exceptions such as when its evaluation

was reached arbitrarily or it overlooked or failed toappreciate some facts or circumstances of weightand substance which could affect the result of the

case.27 In the instant case, petitioners failed tobring their claim within the exception.

Anent the negligence imputed to ZHIENETH, weapply the conclusive presumption that favorschildren below nine (9) years old in that they areincapable of contributory negligence. In his

book, 28 former Judge Cezar S. Sangco stated:

In our jurisdiction, a person undernine years of age is conclusivelypresumed to have acted without

discernment, and is, on that account,exempt from criminal liability. Thesame presumption and a likeexemption from criminal liabilityobtains in a case of a person overnine and under fifteen years of age,unless it is shown that he has acted

with discernment. Since negligencemay be a felony and aquasi-

delictand required discernment as acondition of liability, either criminalor civil, a child under nine years ofage is, by analogy, conclusivelypresumed to be incapable ofnegligence; and that thepresumption of lack of discernmentor incapacity for negligence in thecase of a child over nine but under

fifteen years of age is a rebuttableone, under our law. The rule,therefore, is that a child under nine

years of age must be conclusivelypresumed incapable of contributorynegligence as a matter of law.[Emphasis supplied]

Even if we attribute contributory negligence toZHIENETH and assume that she climbed over thecounter, no injury should have occurred if weaccept petitioners' theory that the counter was

stable and sturdy. For if that was the truth, a frailsix-year old could not have caused the counter tocollapse. The physical analysis of the counter by

both the trial court and Court of Appeals and ascrutiny of the evidence 29 on record revealotherwise, i.e., it was not durable after all. Shapedlike an inverted "L," the counter was heavy, huge,and its top laden with formica. It protrudedtowards the customer waiting area and its base wasnot secured. 30

CRISELDA too, should be absolved from any

contributory negligence. Initially, ZHIENETH heldon to CRISELDA's waist, later to the latter'shand. 31 CRISELDA momentarily released thechild's hand from her clutch when she signed hercredit card slip. At this precise moment, it wasreasonable and usual for CRISELDA to let go of herchild. Further, at the time ZHIENETH was pinneddown by the counter, she was just a foot away fromher mother; and the gift-wrapping counter was justfour meters away from CRISELDA. 32 The time anddistance were both significant. ZHIENETH wasnear her mother and did not loiter as petitioners

would want to impress upon us. She even admittedto the doctor who treated her at the hospital thatshe did not do anything; the counter just fell on her.

WHEREFORE, in view of all the foregoing, theinstant petition is DENIED and the challengeddecision of the Court of Appeals of 17 June 1996 inC.A. G.R. No. CV 37937 is hereby AFFIRMED.


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Costs against petitioners.

SO ORDERED.

Puno, Kapunan, Pardo and Ynares-Santiago, JJ.,concur.

Footnotes

1 Annex "A" of Petition;Rollo, 36-47. PerJustice Godardo A. Jacinto, with JusticesSalome A. Montoya and Maximiano C.

Asuncion, concurring.

2 Annex "B" of Petition;Rollo, 49.

3 TSN, 13 February 1985, 5, 6, 7-8, 21-22,31.

4Id., 32, 36, 42, 52.

5 Original Record (OR), 8.

6 Exhibit "H."

7 OR, 603-612. Per Judge Pedro N. Lagui.

8 One who maintains on his premisesdangerous instrumentalities or appliancesof a character likely to attract children inplay, and who fails to exercise ordinary careto prevent children from playing therewith

or resorting thereto, is liable to a child oftender years who is injured thereby, even ifthe child is technically a tresspasser in thepremises.

The principal reason for the doctrineis that the condition or appliance inquestion although its danger isapparent to those of age, is soenticing or alluring to children oftender years as to induce them toapproach, get on or use it, and this

attractiveness is an impliedinvitation to such children. (HidalgoEnterprises, Inc. v. Balandan, et al.,488, 490 [1952].

9 TSN, 10 September 1987, 12.

10 Criminal Case No. 118986 filed with theMakati Metropolitan Trial Court, Branch 61.

11 Exhibit "D."

12 Exhibit "F."

13Supra note 1.

14Supra note 2.

15See Novo & Co. v. Ainsworth, 26 Phil.380, 387 [1913].

16 BLACK'S LAW DICTIONARY, 5th ed.1979, 14.

17 Mckee v. Intermediate Appellate Court,211 SCRA 517, 539 [1992] citing Black's LawDictionary, 5th ed., 1979, 930.

18 U.S. v. Barias, 23 Phil. 434, 437[1912] citing Judge Cooley's work on Torts,

3rd ed., 1324.

19See Cavanaugh v. Jepson Iowa, 167 N.W.2d 616, 623 [1969].See also Restatement,Second, Torts 8.

20 37 Phil. 809 [1918].

21Ibid, 813.

22 TSN, 10 September 1987, 12, 13.

23 RICARDO J. FRANCISCO, IIIEVIDENCE, 1997, 591 citing Keefe v. Stateof Arizona, 60 Ariz. 293; Stukas v. Warfield,Pratt, Howell Co., 175 N.W. 81, 85. [1919].

24 TSN, 10 September 1987, 8, 9, 11.

25 TSN, 2 October 1987, 9, 11.

26See BPI Credit Corporation v. Court ofAppeals, 204 SCRA 601, 608 [1991];Geronimo v. Court of Appeals, 224 SCRA

494, 498 [1993].

27 Borillo v. Court of Appeals, 209 SCRA130, 140-141 [1992]; McKee v. Intermediate

Appellate Court,supra note 16, 537;Salvador v. Court of Appeals, 243 SCRA239, 253 [1995].


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28 I PHILIPPINE LAW ON TORTS ANDDAMAGES, 70-71 (1993).

29 Exhibit "D."

30 Exhibits "K," "M," and "N." The counterwas made of heavy wood measuring about 4to 5 meters in height; 1 meter in length; and2 1/2 to 3 meters in width; with four (4)square legs. Its top was made of 5 1/2 inchthick wood covered by formica about 3/4inch thick.

31 TSN, 13 February 15, 20.

32Ibid., 11, 22.


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Manila

FIRST DIVISION

G.R. No. 89880 February 6, 1991

EMMA ADRIANO BUSTAMANTE, in herown behalf as Guardian-Ad-Litem ofminors: ROSSEL, GLORIA, YOLANDA, ERICSON and EDERIC, all surnamedBUSTAMANTE, Spouses SALVADORJOCSON and PATRIA BONE-JOCSON,Spouses JOSE RAMOS and ENRIQUETACEBU-RAMOS, Spouses NARCISO-HIMAYA

and ADORACION MARQUEZ-HIMAYA, andSpouses JOSE BERSAMINA and MA.COMMEMORACION PEREA-BUSTAMANTE, petitioners,

vs.THE HONORABLE COURT OF APPEALS,FEDERICO DEL PILAR AND EDILBERTOMONTESIANO,respondents.

Dolorfino and Dominguez Law Offices forpetitioners.

J.C. Baldoz & Associates for private respondents.

MEDIALDEA,J.:p

This is a petition for review on certiorariseekingthe reversal of the decision of the respondent Courtof Appeals dated February 15, 1989 which reversedand set aside the decision of the Regional TrialCourt of Cavite, Branch XV ordering the defendantsto pay jointly and severally the plaintiffs indemnity

for death and damages; and in further dismissingthe complaint insofar as defendants-appellantsFederico del Pilar and Edilberto Montesiano areconcerned; and its resolution dated August 17, 1989denying the motion for reconsideration for lack ofmerit.

The facts giving rise to the controversy at bar arerecounted by the trial court as follows:

At about 6:30 in the morning ofApril 20, 1983, a collision occurredbetween a gravel and sand truck,with Plate No. DAP 717, and a Mazdapassenger bus with Motor No. Y2231and Plate No. DVT 259 along thenational road at Calibuyo, Tanza,Cavite. The front left side portion(barandilla) of the body of the truck

sideswiped the left side wall of thepassenger bus, ripping off the said

wall from the driver's seat to the lastrear seat.

Due to the impact, severalpassengers of the bus were thrownout and died as a result of theinjuries they sustained, Among thosekilled were the following:

1. Rogelio Bustamante, 40, husband

of plaintiff Emma AdrianoBustamante and father of plaintiffsRossel, Gloria, Yolanda, Ericson, andEderic, all surnamed Bustamante;

2. Maria Corazon Jocson, 16,daughter of plaintiffs spousesSalvador and Patria Jocson;

3. Jolet C. Ramos, 16, daughter ofplaintiffs spouses Jose andEnriqueta Ramos;

4. Enrico Himaya, 18, son ofplaintiffs spouses Narciso and

Adoracion Himaya; and

5. Noel Bersamina, 17, son ofplaintiffs spouses Jose and Ma.Commemoracion Bersamina. (Rollo,p. 48)

During the incident, the cargo truck was driven bydefendant Montesiano and owned by defendant DelPilar; while the passenger bus was driven bydefendant Susulin. The vehicle was registered in thename of defendant Novelo but was owned and/oroperated as a passenger bus jointly by defendantsMagtibay and Serrado, under a franchise, with aline from Naic, Cavite, to Baclaran, Paranaque,Metro Manila, and vice versa, which Novelo sold toMagtibay on November 8, 1981, and which the


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latter transferred to Serrado (Cerrado) on January18, 1983.

Immediately before the collision, the cargo truckand the passenger bus were approaching eachother, coming from the opposite directions of thehighway. While the truck was still about 30 metersaway, Susulin, the bus driver, saw the front wheelsof the vehicle wiggling. He also observed that the

truck was heading towards his lane. Not mindingthis circumstance due to his belief that the driver ofthe truck was merely joking, Susulin shifted fromfourth to third gear in order to give more power andspeed to the bus, which was ascending the inclinedpart of the road, in order to overtake or pass aKubota hand tractor being pushed by a personalong the shoulder of the highway. While the bus

was in the process of overtaking or passing thehand tractor and the truck was approaching the

bus, the two vehicles sideswiped each other at eachother's left side. After the impact, the truck skidded

towards the other side of the road and landed on anearby residential lot, hitting a coconut tree andfelling it." (Rollo, pp. 48-50)

After a careful perusal of the circumstances of thecase, the trial court reached the conclusion "that thenegligent acts of both drivers contributed to orcombined with each other in directly causing theaccident which led to the death of theaforementioned persons. It could not bedetermined from the evidence that it was only thenegligent act of one of them which was the

proximate cause of the collision. In view of this, theliability of the two drivers for their negligence must

be solidary. (Rollo, pp. 50-51) Accordingly, the trialcourt rendered a decision on March 7, 1986, thedispositive portion is hereunder quoted as follows:

WHEREFORE, defendantsValeriano Magtibay, SimplicioSerrado, Ricardo Susulin, EfrenNovelo, Federico del Pilar andEdilberto Montesiano are herebyordered to pay jointly and severally

to the plaintiffs, as follows:

1. To plaintiffs Emma AdrianoBustamante and her minor children,the sum of P30,000.00 as indemnityfor the death of Rogelio Bustamante;U.S. $127,680.00 as indemnity forthe loss of the earning capacity of thesaid deceased, at its prevailing rate

in pesos at the time this decisionshall have become final andexecutory; P10,000.00 as moraldamages; and P5,000.00 asexemplary damages;

2. To plaintiffs Salvador and PatriaJocson, the sum of P30,000.00 asindemnity for the death of their

daughter, Maria Corazon Jocson;P10,000.00 as moral damages; andP5,000.00 as exemplary damages;

3. To plaintiffs Jose and EnriquetaRamos, the sum of P30,000.00 asindemnity for the death of theirdaughter, Jolet Ramos; P10,000.00as moral damages; and P5,000.00 asexemplary damages; and

4. To plaintiffs Narciso andAdoracion Himaya, the amount ofP30,000.00 as indemnity for thedeath of their son, Enrico Himaya,P10,000.00 as moral damages; andP5,000.00 as exemplary damages;and

5. To plaintiffs Jose and Ma.Commemoracion Bersamina, thesum of P30,000.00 as indemnity forthe death of their son, NoelBersamina, P10,000.00 as moral

damages and P5,000.00 asexemplary damages.

The defendants are also required topay the plaintiffs the sum ofP10,000.00 as attorney's fees and topay the costs of the suit.

The cross-claim of defendant Novelois hereby allowed, and defendantsMagtibay and Serrado, the actualowners and/or operators of the

passenger bus concerned, are herebyordered to indemnify Novelo in suchamount as he may be required to payas damages to the plaintiffs.

The cross-claims and counter-claimsof the other defendants are herebydismissed for lack of merit.


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SO ORDERED. (pp. 55-57,Rollo)

From said decision, only defendants Federico delPilar and Edilberto Montesiano, owner and driver,respectively, of the sand and gravel truck haveinterposed an appeal before the respondent Courtof Appeals. The Court of Appeals decided theappeal on a different light. It rendered judgment onFebruary 15, 1989, to wit:

WHEREFORE, the appealedjudgment is hereby REVERSED andSET ASIDE and the complaintdismissed insofar as defendants-appellants Federico del Pilar andEdilberto Montesiano are concerned.No costs in this instance.

SO ORDERED. (p. 96,Rollo)

On March 9, 1989, the plaintiffs-appellees filed amotion for reconsideration of the aforementionedCourt of Appeals' decision. However, respondentCourt of Appeals in a resolution dated August 17,1989 denied the motion for lack of merit. Hence,this petition.

Petitioners raised the following questions of law,namely:

First. Whether the respondent Courtcan legally and validly absolvedefendants-appellants from liabilitydespite its own finding, as well asthat of the trial court that defendant-appellant Edilberto Montesiano, thecargo truck driver, was driving anold vehicle very fast, with its wheelsalready wiggling, such that he hadno more control of his truck.

Second. Whether the respondentcourt can validly and legallydisregard the findings of fact made

by the trial court which was in abetter position to observe theconduct and demeanor of the

witnesses, particularly appellantEdilberto Montesiano, cargo truckdriver, and which conclusively foundappellant Montesiano as jointly andseverally negligent in driving histruck very fast and had lost controlof his truck.

Third. Whether the respondent courthas properly and legally applied thedoctrine of "last clear chance" in thepresent case despite its own findingthat appellant cargo truck driverEdilberto Montesiano wasadmittedly negligent in driving hiscargo truck very fast on a descendingroad and in the presence of the bus

driver coming from the oppositedirection.

Fourth. Whether the respondentcourt has applied the correct law andthe correct doctrine so as to reverseand set aside the judgment withrespect to defendants-appellants.(Rollo, pp. 133-134)

As a rule, findings of fact of the Court of Appealsare final and conclusive and cannot be reviewed on

appeal, provided, they are borne out by the recordor are based on substantial evidence However, thisrule admits of certain exceptions, as when thefindings of facts are conclusions without citation ofspecific evidence on which they are based; or theappellate court's findings are contrary to those ofthe trial court. (Sese v. Intermediate AppellateCourt, G.R. 66168, 31 July 1987, 152 SCRA 585).

Furthermore, only questions of law may be raisedin a petition for review on certiorariunder Rule 45of the Revised Rules of Court. The jurisdiction of

the Supreme Court in cases brought to it from theCourt of Appeals is limited to reviewing andrevising the errors of law imputed to it, its findingsof fact being conclusive. It is not the function of theSupreme Court to analyze or weigh such evidenceall over again, its jurisdiction being limited toreviewing errors of law that might have beencommitted. Barring, therefore, a showing that thefindings complained of are totally devoid of supportin the records, or that they are so glaringlyerroneous as to constitute serious abuse ofdiscretion, such findings must stand for the

Supreme Court is not expected or required toexamine or contrast the oral and documentaryevidence submitted by the parties. (Andres v.Manufacturers Hanover and Trust Corp., G.R.82670, 15 September 1989, 177 SCRA 618).

Bearing in mind these basic principles, We haveopted to re-examine the findings of fact mainly


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because the appellate court's findings are contraryto those of the trial court.

The trial court, in declaring that the negligent actsof both drivers directly caused the accident whichled to the death of the aforementioned persons,considered the following:

It was negligent on the part of driverMontesiano to have driven his truckfast, considering that it was an old

vehicle, being a 1947 model asadmitted by its owner, defendant DelPilar; that its front wheels were

wiggling; that the road wasdescending; and that there was apassenger bus approaching it.Likewise, driver Susulin was alsoguilty of negligence in not taking thenecessary precaution to avoid thecollision, in the light of his

admission that, at a distance of 30meters, he already saw the front

wheels of the truck wiggling and thatthe vehicle was usurping his lanecoming towards his direction. Hadhe exercised ordinary prudence, hecould have stopped his bus orswerved it to the side of the roadeven down to its shoulder. And yet,Susulin shifted to third gear so as to,as claimed by him, give more powerand speed to his bus in overtaking or

passing a hand tractor which wasbeing pushed along the shoulder ofthe road. (Rollo, p. 50)

The respondent Court of Appeals. ruling on thecontrary, opined that "the bus driver had the lastclear chance to avoid the collision and his recklessnegligence in proceeding to overtake the handtractor was the proximate cause of the collision."(Rollo, p. 95). Said court also noted that "the recordalso discloses that the bus driver was not acompetent and responsible driver. His driver's

license was confiscated for a traffic violation onApril 17, 1983 and he was using a ticket for saidtraffic violation on the day of the accident inquestion (pp. 16-18, TSN, July 23, 1984). He alsoadmitted that he was not a regular driver of the busthat figured in the mishap and was not given anypractical examination. (pp. 11, 96, TSN, supra)."(Rollo, p96)

The respondent Court quoting People v. Vender,CA-G.R. 11114-41-CR, August 28, 1975 held that"We are not prepared to uphold the trial court'sfinding that the truck was running fast before theimpact. The national road, from its direction, wasdescending. Courts can take judicial notice of thefact that a motor vehicle going down or descendingis more liable to get out of control than one that isgoing up or ascending for the simple reason that

the one which is going down gains addedmomentum while that which is going up loses itsinitial speeding in so doing."

On the other hand, the trial court found and We areconvinced that the cargo truck was running fast. Itdid not overlook the fact that the road wasdescending as in fact it mentioned thiscircumstance as one of the factors disregarded bythe cargo truck driver along with the fact that he

was driving an old 1947 cargo truck whose frontwheels are already wiggling and the fact that there

is a passenger bus approaching it. In holding thatthe driver of the cargo truck was negligent, the trialcourt certainly took into account all these factors soit was incorrect for the respondent court to disturbthe factual findings of the trial court, which is in a

better position to decide the question, having heardthe witness themselves and observed theirdeportment.

The respondent court adopted the doctrine of "lastclear chance." The doctrine, stated broadly, is thatthe negligence of the plaintiff does not preclude a

recovery for the negligence of the defendant whereit appears that the defendant, by exercisingreasonable care and prudence, might have avoidedinjurious consequences to the plaintiffnotwithstanding the plaintiff's negligence. In other

words, the doctrine of last clear chance means thateven though a person's own acts may have placedhim in a position of peril, and an injury results, theinjured person is entitled to recovery. As thedoctrine is usually stated, a person who has the lastclear chance or opportunity of avoiding an accident,notwithstanding the negligent acts of his opponent

or that of a third person imputed to the opponent isconsidered in law solely responsible for theconsequences of the accident. (Sangco, Torts and

Damages, 4th Ed., 1986, p. 165).

The practical import of the doctrine is that anegligent defendant is held liable to a negligentplaintiff, or even to a plaintiff who has been grosslynegligent in placing himself in peril, if he, aware ofthe plaintiffs peril, or according to some


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authorities, should have been aware of it in thereasonable exercise of due case, had in fact anopportunity later than that of the plaintiff to avoidan accident (57 Am. Jur., 2d, pp. 798-799).

In the recent case of Philippine Rabbit Bus Lines,Inc. v. Intermediate Appellate Court, et al. (G.R.Nos. 66102-04, August 30, 1990), theCourt citing the landmark decision held in the case

of Anuran, et al. v. Buno, et al. (123 Phil. 1073)ruled that the principle of "last clear chance"applies "in a suit between the owners and drivers ofcolliding vehicles. It does not arise where apassenger demands responsibility from the carrierto enforce its contractual obligations. For it would

be inequitable to exempt the negligent driver of thejeepney and its owners on the ground that the otherdriver was likewise guilty of negligence."

Furthermore, "as between defendants: The doctrinecannot be extended into the field of joint tortfeasors

as a test of whether only one of them should be heldliable to the injured person by reason of hisdiscovery of the latter's peril, and it cannot beinvoked as between defendants concurrentlynegligent. As against third persons, a negligentactor cannot defend by pleading that another hadnegligently failed to take action which could haveavoided the injury." (57 Am. Jur. 2d, pp. 806-807).

All premises considered, the Court is convincedthat the respondent Court committed an error oflaw in applying the doctrine of last clear chance as

between the defendants, since the case at bar is nota suit between the owners and drivers of thecolliding vehicles but a suit brought by the heirs ofthe deceased passengers against both owners anddrivers of the colliding vehicles. Therefore, therespondent court erred in absolving the owner anddriver of the cargo truck from liability.

Pursuant to the new policy of this Court to grant anincreased death indemnity to the heirs of thedeceased, their respective awards of P30,000.00are hereby increased to P50,000.00.

ACCORDINGLY, the petition is GRANTED; theappealed judgment and resolution of the Court of

Appeals are hereby REVERSED and SET ASIDEand the judgment of the lower court isREINSTATED with the modification on theindemnity for death of each of the victims which ishereby increased to P50,000.00 each. Nopronouncement as to costs.

SO ORDERED.

Narvasa, Cruz, Gancayco and Grio-Aquino, JJ.,concur.


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Manila

THIRD DIVISION

G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOHMCKEE, petitioners,

vs.INTERMEDIATE APPELLATE COURT,JAIME TAYAG and ROSALINDAMANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH,

JULIETA KOH TUQUERO, ARACELI KOHMCKEE, ANTONIO KOH and ELIZABETHKOH TURLA, petitioners,

vs.INTERMEDIATE APPELLATE COURT,JAIME TAYAG and ROSALINDAMANALO, respondents.

DAVIDE,JR., J.:

Petitioners urge this Court to review and reversethe Resolution of the Court of Appeals in C.A.-G.R.CV Nos. 69040-41, promulgated on 3 April 1984,

which set aside its previous Decision dated 29November 1983 reversing the Decision of the trialcourt which dismissed petitioners' complaints inCivil Case No. 4477 and Civil Case No. 4478 of thethen Court of First Instance (now Regional TrialCourt) of Pampanga entitled "Carmen Dayrit Koh,Leticia Koh, Julieta Koh Tuquero, Araceli KohMcKee and Elizabeth Koh Turla vs. Jaime Tayagand Rosalinda Manalo," and "George McKee and

Araceli Koh McKee vs. Jaime Tayag and RosalindaManalo," respectively, and granted the privaterespondents' counterclaim for moral damages,attorney's fees and litigation expenses.

The said civil cases for damages based on quasi-delictwere filed as a result of a vehicular accident

which led to the deaths of Jose Koh, Kim KohMcKee and Loida Bondoc and caused physical

injuries to George Koh McKee, Christopher KohMcKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of theminors George Koh McKee, Christopher KohMcKee and the deceased Kim Koh McKee, were theplaintiffs in Civil Case No. 4478, while petitionerCarmen Dayrit Koh and her co-petitioners in G.R.No. 68103, who are the wife and children,

respectively, of the late Jose Koh, were the plaintiffsin Civil Case No. 4477. Upon the other hand,private respondents are the owners of the cargotruck which figured in the mishap; a certain RubenGalang was the driver of the truck at the time of theaccident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8January 1977, in Pulong Pulo Bridge alongMacArthur Highway, between Angeles City and SanFernando, Pampanga, a head-on-collision tookplace between an International cargo truck,Loadstar, with Plate No. RF912-T Philippines '76owned by private respondents, and driven byRuben Galang, and a Ford Escort car bearing PlateNo. S2-850 Pampanga '76 driven by Jose Koh. Thecollision resulted in the deaths of Jose Koh, KimKoh McKee and Loida Bondoc, and physicalinjuries to George Koh McKee, Christopher KohMcKee and Araceli Koh McKee, all passengers ofthe Ford Escort.

Jose Koh was the father of petitioner Araceli KohMcKee, the mother of minors George, Christopherand Kim Koh McKee. Loida Bondoc, on the otherhand, was the baby sitter of one and a half year oldKim. At the time of the collision, Kim was seated onthe lap of Loida Bondoc who was at the frontpassenger's seat of the car while Araceli and her two(2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck,which was loaded with two hundred (200) cavansof rice weighing about 10,000 kilos, was traveling

southward from Angeles City to San FernandoPampanga, and was bound for Manila. The FordEscort, on the other hand, was on its way to AngelesCity from San Fernando. When the northbound car

was about (10) meters away from the southernapproach of the bridge, two (2) boys suddenlydarted from the right side of the road and into thelane of the car. The boys were moving back andforth, unsure of whether to cross all the way to the


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other side or turn back. Jose Koh blew the horn ofthe car, swerved to the left and entered the lane ofthe truck; he then switched on the headlights of thecar, applied the brakes and thereafter attempted toreturn to his lane. Before he could do so, his carcollided with the truck. The collision occurred inthe lane of the truck, which was the opposite lane,on the said bridge.

The incident was immediately reported to thepolice station in Angeles City; consequently, a teamof police officers was forthwith dispatched toconduct an on the spot investigation. In thesketch 1 prepared by the investigating officers, the

bridge is described to be sixty (60) "footsteps" longand fourteen (14) "footsteps" wide seven (7)"footsteps" from the center line to the inner edge ofthe side walk on both sides. 2 Pulong Pulo Bridge,

which spans a dry brook, is made of concrete withsoft shoulders and concrete railings on both sidesabout three (3) feet high.

The sketch of the investigating officer discloses thatthe right rear portion of the cargo truck was two (2)"footsteps" from the edge of the right sidewalk,

while its left front portion was touching the centerline of the bridge, with the smashed front side ofthe car resting on its front bumper. The truck wasabout sixteen (16) "footsteps" away from thenorthern end of the bridge while the car was aboutthirty-six (36) "footsteps" from the opposite end.Skid marks produced by the right front tire of thetruck measured nine (9) "footsteps", while skid

marks produced by the left front tire measured five(5) "footsteps." The two (2) rear tires of the truck,however, produced no skid marks.

In his statement to the investigating police officersimmediately after the accident, Galang admittedthat he was traveling at thirty (30) miles (48kilometers) per hour.

As a consequence of the collision, two (2) cases,Civil Case No. 4477 and No. 4478, were filed on 31January 1977 before the then Court of First

Instance of Pampanga and were raffled to BranchIII and Branch V of the said court, respectively. Inthe first, herein petitioners in G.R. No. 68103prayed for the award of P12,000.00 as indemnityfor the death of Jose Koh, P150,000.00 as moraldamages, P60,000.00 as exemplary damages,P10,000.00 for litigation expenses, P6,000.00 for

burial expenses, P3,650.00 for the burial lot andP9,500.00 for the tomb, plus attorney's fees. 3 In

the second case, petitioners in G.R. No. 68102prayed for the following: (a) in connection with thedeath of Kim McKee, the sum of P12,000.00 asdeath benefit, P3,150.00 for funeral services,P3,650.00 for the cemetery lot, P3,000.00 for thetomb, P50,000.00 as moral damages, P10,000.00as exemplary damages and P2,000.00 asmiscellaneous damages; (b) in the case of AraceliKoh McKee, in connection with the serious physical

injuries suffered, the sum of P100,000.00 as moraldamages, P20,000.00 as exemplary damages,P12,000.00 for loss of earnings, P5,000.00 for thehospitalization expenses up to the date of the filingof the complaint; and (c) with respect to GeorgeMcKee, Jr., in connection with the serious physicalinjuries suffered, the sum of P50,000.00 as moraldamages, P20,000.00 as exemplary damages andthe following medical expenses: P3,400 payable tothe Medical Center, P3,500.00 payable to the St.Francis Medical Center, P5,175.00 payable to theClark Air Base Hospital, and miscellaneous

expenses amounting to P5,000.00. They alsosought an award of attorney's fees amounting to25% of the total award plus traveling and hotelexpenses, with costs. 4

On 1 March 1977, an Information charging RubenGalang with the crime of "Reckless ImprudenceResulting to (sic) Multiple Homicide and PhysicalInjuries and Damage to Property" was filed with thetrial court. It was docketed as Criminal Case No.3751 and was raffled to Branch V of the court, thesame Branch where Civil Case No. 4478 was

assigned. 5

In their Answer with Counterclaim in Civil Case No.4477, private respondents asserted that it was theFord Escort car which "invaded and bumped (sic)the lane of the truck driven by Ruben Galang and,as counterclaim, prayed for the award ofP15,000.00 as attorney's fees, P20,000.00 as actualand liquidated damages, P100,000.00 as moraldamages and P30,000.00 as business losses. 6 InCivil Case No. 4478, private respondents first filed amotion to dismiss on grounds of pendency of

another action (Civil Case No. 4477) and failure toimplead an indispensable party, Ruben Galang, thetruck driver; they also filed a motion to consolidatethe case with Civil Case No. 4477 pending beforeBranch III of the same court, which was opposed bythe plaintiffs. 7 Both motions were denied byBranch V, then presided over by Judge IgnacioCapulong. Thereupon, private respondents filedtheir Answer with Counter-claim 8 wherein theyalleged that Jose Koh was the person "at fault


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having approached the lane of the truck driven byRuben Galang, . . . which was on the right lanegoing towards Manila and at a moderate speedobserving all traffic rules and regulations applicableunder the circumstances then prevailing;" in theircounterclaim, they prayed for an award of damagesas may be determined by the court after duehearing, and the sums of P10,000.00 as attorney'sfees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaimsin both cases.

To expedite the proceedings, the plaintiffs in CivilCase No. 4478 filed on 27 March 1978 a motion toadopt the testimonies of witnesses taken during thehearing of Criminal Case No. 3751, which privaterespondents opposed and which the courtdenied. 9 Petitioners subsequently moved toreconsider the order denying the motion forconsolidation, 10 which Judge Capulong granted in

the Order of 5 September 1978; he then directedthat Civil Case No. 4478 be consolidated with CivilCase No. 4477 in Branch III of the court thenpresided over by Judge Mario Castaeda, Jr.

Left then with Branch V of the trial court wasCriminal Case No. 3751.

In the civil cases, the plaintiffs presented aswitnesses Araceli Koh McKee, Fernando Nuag,Col. Robert Fitzgerald, Primitivo Parel, EugenioTanhueco, Carmen Koh and Antonio Koh, 11 and

offered several documentary exhibits. Upon theother hand, private respondents presented as

witnesses Ruben Galang, Zenaida Soliman, JaimeTayag and Roman Dayrit. 12

In the criminal case, the prosecution presented aswitnesses Mrs. Araceli McKee, Salud Samia, Pfc.Fernando Nuag, Dr. Ramon Panlilio, Dr. RobertFitzgerald, Dr. Roberto Yuson, Dr. Hector,Ulanday, Pfc. Benigno de Leon, Marina Bolos,Primitivo Parel, Rogelio Pineda, Benito Caraan andEugenio Tanhueco, and offered several

documentary exhibits. 13 Upon the other hand, thedefense presented the accused Ruben Galang,Luciano Punzalan, Zenaida Soliman and RomanDayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered adecision against the accused Ruben Galang in theaforesaid criminal case. The dispositive portion ofthe decision reads as follows:

WHEREFORE, in view of the foregoing, judgmentis hereby rendered finding the accused RubenGalang guilty beyond reasonable doubt of the crimecharged in the information and after applying theprovisions of Article 365 of the Revised Penal Codeand indeterminate sentence law, this Court,imposes upon said accused Ruben Galang thepenalty of six (6) months ofarresto mayor asminimum to two (2) years, four (4) months and one

(1) day ofprision correccionalas maximum; theaccused is further sentenced to pay and indemnifythe heirs of Loida Bondoc the amount ofP12,000.00 as indemnity for her death; toreimburse the heirs of Loida Bondoc the amount ofP2,000.00 representing the funeral expenses; topay the heirs of Loida Bondoc the amount ofP20,000.00 representing her loss of income; toindemnify and pay the heirs of the deceased JoseKoh the value of the car in the amount ofP53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17November 1980; on the same day, counsel forpetitioners filed with Branch III of the court

where the two (2) civil cases were pending amanifestation to that effect and attached thereto acopy of the decision. 16

Upon the other hand, Judge Mario Castaeda, Jr.dismissed the two (2) civil cases on 12 November1980 and awarded the private respondents moraldamages, exemplary damages and attorney'sfees. 17 The dispositive portion of the said decision

reads as follows:

WHEREFORE, finding the preponderance ofevidence to be in favor of the defendants andagainst the plaintiffs, these cases are herebyordered DISMISSED with costs against theplaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented andunrebutted. Hence, they are hereby awarded moraland exemplary damages in the amount ofP100,000.00 plus attorney's fee of P15,000.00 andlitigation expenses for (sic) P2,000.00. The actual

damages claimed for (sic) by the defendants is (sic)hereby dismissing for lack of proof to that effect(sic). 18

A copy of the decision was sent by registered mailto the petitioners on 28 November 1980 and wasreceived on 2 December 1980. 19


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Accused Ruben Galang appealed the judgment ofconviction to the Court of Appeals. The appeal wasdocketed as C.A.-G.R. Blg. 24764-CR and wasassigned to the court's Third Division. Plaintiffs inCivil Cases Nos. 4477 and 4478 likewise separatelyappealed the 12 November 1980 decision to theappellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R,respectively, and were assigned to the Fourth Civil

Cases Division.

On 4 October 1982, the respondent Courtpromulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang. 21 Thedispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksang naritong paghahabol ay Aming

pinagtitibay sa kanyang kabuuan.Ang naghahabol pa rin angpinagbabayad ng gugol ng

paghahabol.

A motion for reconsideration of the decision wasdenied by the respondent Court initsKapasiyahan promulgated on 25 November1982. 22 A petition for its review23was filed withthis Court; said petition was subsequently denied. Amotion for its reconsideration was denied withfinality in the Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by thenknown as the Intermediate Appellate Court,

promulgated its consolidated decision in A.C.-G.R.CV Nos. 69040 and 69041, 25 the dispositiveportion of which reads:

WHEREFORE, the decision appealed from ithereby reversed and set aside and another one isrendered, ordering defendants-appellees to payplaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damagesP 12,000.00 as death indemnityP 16,000.00 for the lot and tomb (Exhs. U and U-1)P 4,000.00 expenses for holding a wake (p. 9, tsn

April 19, 1979)P 950.00 for the casket (Exh. M)P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damagesP 12,000.00 as death indemnityP 1,000.00 for the purchase of the burial lot (Exh.M)P 950.00 for funeral services (Exh. M-1)P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George KohMcKee:

P 25,000.00 as moral damagesP 672.00 for Clark Field Hospital (Exh. E)P 4,384.00 paid to Angeles Medical Clinic (Exhs. D,D-1 andD-2)P 1,555.00 paid to St. Francis Medical Center (ExhsB and B-1)

For the physical injuries suffered by Araceli KohMcKee:

P 25,000.00 as moral damagesP 1,055.00 paid to St. Francis Medical Center(Exhs. G andG-1)P 75.00 paid to St. Francis Medical Center (Exhs.G-2 and G-3)P 428.00 to Carmelite General Hospital (Exh. F)P 114.20 to Muoz Clinic (Exh. MM)

For the physical injuries suffered by ChristopherKoh McKee:

P 10,000.00 as moral damagesP 1,231.10 to St. Francis Medical Center (Exhs. Land L-1)P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic)fees in Civil Case No. 4477 and anotherP10,000.00; as counsel (sic) fees in Civil Case No.4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on therespondent Court's findings that it was RubenGalang's inattentiveness or reckless imprudence

which caused the accident. The appellate courtfurther said that the law presumes negligence onthe part of the defendants (private respondents), asemployers of Galang, in the selection and


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supervision of the latter; it was further asserted thatthese defendants did not allege in their Answers thedefense of having exercised the diligence of a goodfather of a family in selecting and supervising thesaid employee. 27This conclusion of recklessimprudence is based on the followingfindings offact:

In the face of these diametrically

opposed judicial positions, thedeterminative issue in this appeal isposited in the fourth assigned erroras follows:

IV

THE TRIAL COURT ERRED WHENIT HELD THE (sic) DRIVER OFTHE TRUCK STOPPED HIS TRUCKBLEW HIS HORN SWITCHED ONHIS HEADLIGHTS AND COULDNOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witnessAraceli Koh McKee testified thus:

Q What happened after that, as you approached thebridge?

A When we were approaching the bridge, two (2)boys tried to cross the right lane on the right side ofthe highway going to San Fernando. My father, whois (sic) the driver of the car tried to avoid the two(2) boys who were crossing, he blew his horn andswerved to the left to avoid hitting the two (2) boys.

We noticed the truck, he switched on the headlightsto warn the truck driver, to slow down to give us theright of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to goback to the right lane since the truck is (sic)coming, my father stepped on the brakes and all

what (sic) I heard is the sound of impact (sic), sir.(tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in theseCivil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven bythe herein accused, Ruben Galang did not reduceits speed before the actual impact of collision (sic)as you narrated in this Exhibit "1," how did youknow (sic)?

A It just kept on coming, sir. If only he reduced hisspeed, we could have got (sic) back to our right laneon side (sic) of the highway, sir. (tsn. pp. 33-34 July

22, 1977) or (Exhibit "O" in these Civil Cases) (pp.30-31, Appellants' Brief).

Plaintiffs' version was successfully corroborated toOur satisfaction by the following facts andcircumstances:

1. An impartial eye-witness to the mishap, EugenioTanhueco, declared that the truck stopped only

when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during thehearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as anaccommodation witness because he was one of thefirst to arrive at the scene of the accident. As amatter of fact, he brought one of the injuredpassengers to the hospital.

We are not prepared to accord faith and credit todefendants' witnesses, Zenaida Soliman, apassenger of the truck, and Roman Dayrit, whosupposedly lived across the street.

Regarding Soliman, experience has shown that inthe ordinary course of events people usually takethe side of the person with whom they areassociated at the time of the accident, because, as ageneral rule, they do not wish to be identified withthe person who was at fault. Thus an imaginary

bond is unconsciously created among the severalpersons within the same group (People vs.Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting(sic) that he is an accommodation witness. He didnot go to the succor of the injured persons. He saidhe wanted to call the police authorities about themishap, but his phone had no dial tone. Be this


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(sic) as it may, the trial court in the criminal caseacted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does notinclude the claim that Galang stopped his truck at asafe distance from the car, according to plaintiffs(p. 25, Appellants' Brief). This contention ofappellants was completely passed sub-silencio or

was not refuted by appellees in their brief. Exhibit 2

is one of the exhibits not included in the record.According to the Table of Contents submitted bythe court below, said Exhibit 2 was not submitted

by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim that hestopped was an eleventh-hour desperate attempt toexculpate himself from imprisonment anddamages.

3. Galang divulged that he stopped after seeing thecar about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspiteof the fact that you admitted that the road isstraight and you may be able to (sic) see 500-1000meters away from you any vehicle, you first sawthat car only about ten (10) meters away from youfor the first time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) metersaway.

ATTY. SOTTO:

Q So, for clarification, you clarify and state underyour oath that you have (sic) not noticed it beforethat ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979).(p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco'sstatement that Galang stopped only because of the

impact. At ten (10) meters away, with the truckrunning at 30 miles per hour, as revealed inGalang's affidavit (Exh. 2; p. 25, Appellants' brief),it is well-nigh impossible to avoid a collision on a

bridge.

5. Galang's truck stopped because of the collision,and not because he waited for Jose Koh to return tohis proper lane. The police investigator, Pfc.Fernando L. Nuag, stated that he found skid

marks under the truck but there were not (sic) skidmarks behind the truck (pp. 19-20, t.s.n., Nov. 3,1978). The presence of skid marks show (sic) thatthe truck was speeding. Since the skid marks werefound under the truck and none were found at therear of the truck, the reasonable conclusion is thatthe skid marks under the truck were caused by thetruck's front wheels when the trucks (sic) suddenlystopped seconds before the mishap in an endeavor

to avoid the same. But, as aforesaid, Galang saw thecar at barely 10 meters away, a very short distanceto avoid a collision, and in his futile endeavor toavoid the collision he abruptly stepped on his

brakes but the smashup happened just the same.

For the inattentiveness or recklessimprudence of Galang, the lawpresumes negligence on the part ofthe defendants in the selection oftheir driver or in the supervisionover him. Appellees did not allege

such defense of having exercised theduties of a good father of a family inthe selection and supervision of theiremployees in their answers. They didnot even adduce evidence that theydid in fact have methods of selectionand programs of supervision. Theinattentiveness or negligence ofGalang was the proximate cause ofthe mishap. If Galang's attention wason the highway, he would havesighted the car earlier or at a very

safe distance than (sic) 10 meters.He proceeded to cross the bridge,and tried to stop when a collision

was already inevitable, because atthe time that he entered the bridgehis attention was not riveted to theroad in front of him.

On the question of damages, theclaims of appellants were amplyproven, but the items must bereduced. 28

A motion for reconsideration alleging improperappreciation of the facts was subsequently filed byprivate respondents on the basis of which therespondent Court, in its Resolution of 3 April1984, 29reconsidered and set aside its 29November 1983 decision and affirmed in toto thetrial court's judgment of 12 November 1980. Amotion to reconsider this Resolution was denied bythe respondent Court on 4 July 1984. 30


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Hence, this petition.

Petitioners allege that respondent Court:

I

. . . COMMITTED A VERY SERIOUSAND GRAVE ERROR WHEN IT

TOTALLY REVERSED ITSDECISION BY MERELY BASING ITFROM (sic) A MERE"PRESUMPTION," TOTALLYDISREGARDING THE PRIVATERESPONDENTS' DRIVER'S

ADMISSIONS AND CONFESSIONS,WHO EXCLUSIVELY COMMITTEDTHE PROXIMATE CAUSE OF THE

ACCIDENT (sic), FURTHER, ITALSO DISREGARDED THEEVIDENCE ADDUCED ANDFOUND IN THE RECORDS;THEREFORE, RESPONDENTCOURT'S RESOLUTIONS(ANNEXES A and B, PETITION)

ARE CLEARLY ERRONEOUS,PURELY BASED ONSPECULATIONS, CONJECTURES

AND WITHOUT SUREFOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITSDISCRETION AND ERRED WHENIN EFFECT IT DISREGARDED ADOCTRINE LAID DOWN BY THISHONORABLE COURT BY STATING

AMONG OTHERS, "IT CANNOTCATEGORICALLY ADOPT THEFINDINGS OF GUILT IN THECRIMINAL CASE WHERE THEDRIVER OF THE TRUCKINVOLVED IN THE ACCIDENT

WAS INDICTED.

III

. . . PATENTLY COMMITTEDGRAVE ABUSE OF DISCRETION

AND MADE A MISLEADINGPRONOUNCEMENT, WHEN ITHELD: "IT IS THUS INCUMBENTUPON THE PLAINTIFFS-

APPELLANTS (APPELLEES

WRONGLY MENTIONED IN THERESOLUTION) TO PROVE THEIR

ALLEGATIONS THAT THEPROXIMATE CAUSE OF THE

ACCIDENT WAS THENEGLIGENCE OF PRIVATERESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHERGRIEVIOUS (sic) ERROR;COMMITTED GRAVE ABUSE OFDISCRETION AND CITED

ANOTHER CASE WHICH ISCLEARLY INAPPLICABLE TOTHESE CASES.

V

. . . COMMITTED A PATENTERROR AND GRAVELY ABUSEDITS DISCRETION IN ADOPTINGTHE FINDINGS OF THE TRIALCOURT WHICH ARE CLEARLYERRONEOUS AND CONTRARY TOTHE EVIDENCE FOUND IN THERECORDS, SPECIALLY THEY (sic)

ARE CONTRARY TO THEADMITTED FACTS AND JUDICIALADMISSIONS MADE BY THEPRIVATE RESPONDENTS'DRIVER.

VI

. . . EXCEEDED ITSJURISDICTION, COMMITTEDGRAVE ABUSE OF DISCRETION

AND GRAVELY ERRED WHEN ITAWARDED DAMAGES TO THEPRIVATE RESPONDENTS WHENSAID AWARD IS NOT SUPPORTEDBY EVIDENCE, IN THE RECORDS,

AND SAID AWARD IS NOT

ALLOWED BY LAW AND THECONSISTENT DECISIONS OF THISHONORABLE COURT.

VII

. . . EXCEEDED ITSJURISDICTION, COMMITTEDGRAVE ABUSE OF DISCRETION


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AND GRAVELY ERRED WHEN ITERRONEOUSLY SET ASIDE ITSDECISION AWARDING DAMAGESTO PETITIONERS WHICH ISCLEARLY IN ACCORDANCE WITHTHE EVIDENCE, THE LAW ANDJURISPRUDENCE RELATIVE TOTHE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, Werequired private respondents to Comment on thepetition. 32 After the said Comment 33 was filed,petitioners submitted a Reply34 thereto; this Courtthen gave due course to the instant petitions andrequired petitioners to file their Brief, 35which theyaccordingly complied with.

There is merit in the petition. Before We take onthe main task of dissecting the arguments andcounter-arguments, some observations on theprocedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for therecovery of civil liability arising from a quasi-delictunder Article 2176 in relation to Article 2180of the Civil Code, were filed ahead of Criminal CaseNo. 3751. Civil Case No. 4478 was eventuallyconsolidated with Civil Case No. 4477 for joint trialin Branch III of the trial court. The records do notindicate any attempt on the part of the parties, andit may therefore be reasonably concluded that none

was made, to consolidate Criminal Case No. 3751with the civil cases, or vice-versa. The parties may

have then believed, and understandably so, since bythen no specific provision of law or ruling of thisCourt expressly allowed such a consolidation, thatan independent civil action, authorized under

Article 33 in relation to Article 2177 of the CivilCode, such as the civil cases in this case, cannot beconsolidated with the criminal case. Indeed, suchconsolidation could have been farthest from theirminds as Article 33 itself expressly provides thatthe "civil action shall proceed independently of thecriminal prosecution, and shall require only apreponderance of evidence." Be that as it may,

there was then no legal impediment against suchconsolidation. Section 1, Rule 31 of the Rules ofCourt, which seeks to avoid a multiplicity of suits,guard against oppression and abuse, preventdelays, clear congested dockets to simplify the workof the trial court, or in short, attain justice with theleast expense to the parties litigants, 36 would haveeasily sustained a consolidation, thereby preventingthe unseeming, if no ludicrous, spectacle of two (2)

judges appreciating, according to their respective

orientation, perception and perhaps even prejudice,the same facts differently, and thereafterrendering conflicting decisions. Such was whathappened in this case. It should not, hopefully,happen anymore. In the recent case ofCojuangcovs. Court or Appeals,37 this Court held that thepresent provisions of Rule 111 of the Revised Rulesof Court allow a consolidation of an independentcivil action for the recovery of civil liability

authorized under Articles 32, 33, 34 or 2176 of theCivil Code with the criminal action subject,however, to the condition that no final judgmenthas been rendered in that criminal case.

Let it be stressed, however, that the judgment inCriminal Case No. 3751 finding Galang guilty ofreckless imprudence, although already final by

virtue of the denial by no less than this Court of hislast attempt to set aside the respondent Court'saffirmance of the verdict of conviction, has norelevance or importance to this case.

As We held inDionisio vs. Alvendia, 38 theresponsibility arising from fault or negligence ina quasi-delictis entirely separate and distinct fromthe civil liability arising from negligence under thePenal Code. And, as more concretely stated in theconcurring opinion of Justice J.B.L. Reyes, "in thecase of independent civil actions under the newCivil Code, the result of the criminal case, whetheracquittal or conviction, would be entirely irrelevantto the civil action." 39 InSalta vs. De Veyra and

PNB vs. Purisima,40this Court stated:

. . . It seems perfectly reasonable toconclude that the civil actionsmentioned in Article 33, permittedin the same manner to be filedseparately from the criminal case,may proceed similarlyregardless ofthe result of the criminal case.

Indeed, when the law has allowed acivil case related to a criminal case,to be filed separately and to proceed

independently even during thependency of the latter case, theintention is patent to make thecourt's disposition of the criminalcase of no effect whatsoever on theseparate civil case. This must be so

because the offenses specified inArticle 33 are of such a nature,unlike other offenses not mentioned,


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that they may be made the subject ofa separate civil action because of thedistinct separability of theirrespective juridical cause or basis ofaction . . . .

What remains to be the most importantconsideration as to why the decision in the criminalcase should not be considered in this appeal is the

fact that private respondents were not partiestherein. It would have been entirely different if thepetitioners' cause of action was for damages arisingfrom a delict, in which case p

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