G.R. No.

156034 October 1, 2003

DELSAN TRANSPORT LINES, INC., petitioner,

vs.
C & A construction, inc., respondent.

DECISION

YNARES-SANTIAGO, J.:

Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002 decision1 of
the Court of Appeals in CA-G.R. CV No. 59034, which reversed the decision 2 of the Regional Trial Court of Manila,
Branch 46, in Civil Case No. 95-75565, and its November 7, 2002 resolution 3 denying petitioner’s motion for
reconsideration.

The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National Housing
Authority (NHA) to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila. 4 The project
was completed in 1994 but it was not formally turned over to NHA.

On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines, Inc.,
anchored at the Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil tank. At
around 12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express received a report
from his radio head operator in Japan5 that a typhoon was going to hit Manila 6 in about eight (8) hours.7 At
approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried to seek shelter at the North Harbor but
could not enter the area because it was already congested.8 At 10:00 a.m., Capt. Jusep decided to drop anchor at
the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At that time, the waves were already
reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the wind which was dragging
the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the vessel. 9 He
succeeded in avoiding the power barge, but when the engine was re-started and the ship was maneuvered full
astern, it hit the deflector wall constructed by respondent. 10 The damage caused by the incident amounted to
P456,198.24.11

Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently,
respondent filed a complaint for damages with the Regional Trial Court of Manila, Branch 46, which was docketed
as Civil Case No. 95-75565. In its answer, petitioner claimed that the damage was caused by a fortuitous event.12

On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner was
not guilty of negligence because it had taken all the necessary precautions to avoid the accident. Applying the
"emergency rule", it absolved petitioner of liability because the latter had no opportunity to adequately weigh the
best solution to a threatening situation. It further held that even if the maneuver chosen by petitioner was a wrong
move, it cannot be held liable as the cause of the damage sustained by respondent was typhoon "Katring", which
is an act of God.13

On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside. 14 It found Capt. Jusep
guilty of negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of October 21, 1994
and thus held petitioner liable for damages.

Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting until 8:35 in
the morning of October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it was not shown
that had the transfer been made earlier, the vessel could have sought shelter. 15 It further claimed that it cannot be
held vicariously liable under Article 2180 of the Civil Code because respondent failed to allege in the complaint that
petitioner was negligent in the selection and supervision of its employees.16 Granting that Capt. Jusep was indeed
guilty of negligence, petitioner is not liable because it exercised due diligence in the selection of Capt. Jusep who
is a duly licensed and competent Master Mariner.17

The issues to be resolved in this petition are as follows – (1) Whether or not Capt. Jusep was negligent; (2) If yes,
whether or not petitioner is solidarily liable under Article 2180 of the Civil Code for the quasi-delict committed by
Capt. Jusep?
Article 2176 of the Civil Code provides that 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. The test for determining the existence of negligence
in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use the reasonable
care and caution which an ordinary prudent person would have used in the same situation? If not, then he is guilty
of negligence.18

In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in deciding to transfer
the vessel only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of October 20, 1994, he
received a report from his radio head operator in Japan19 that a typhoon was going to hit Manila20 after 8
hours.21 This, notwithstanding, he did nothing, until 8:35 in the morning of October 21, 1994, when he decided to
seek shelter at the North Harbor, which unfortunately was already congested. The finding of negligence cannot be
rebutted upon proof that the ship could not have sought refuge at the North Harbor even if the transfer was done
earlier. It is not the speculative success or failure of a decision that determines the existence of negligence in the
present case, but the failure to take immediate and appropriate action under the circumstances. Capt. Jusep,
despite knowledge that the typhoon was to hit Manila in 8 hours, complacently waited for the lapse of more than
8 hours thinking that the typhoon might change direction. 22 He cannot claim that he waited for the sun to rise
instead of moving the vessel at midnight immediately after receiving the report because of the difficulty of traveling
at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not transfer as soon as the sun rose
because, according to him, it was not very cloudy 23 and there was no weather disturbance yet.24

When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an
inexcusable lack of care and caution which an ordinary prudent person would have observed in the same
situation.25 Had he moved the vessel earlier, he could have had greater chances of finding a space at the North
Harbor considering that the Navotas Port where they docked was very near North Harbor.26 Even if the latter was
already congested, he would still have time to seek refuge in other ports.

The trial court erred in applying the emergency rule. Under this rule, one who suddenly finds himself in a place of
danger, and is required to act without time to consider the best means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have
been a better method, unless the danger in which he finds himself is brought about by his own negligence. 27 Clearly,
the emergency rule is not applicable to the instant case because the danger where Capt. Jusep found himself was
caused by his own negligence.

Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt. Jusep.1awphi1.nét Under
Article 2180 of the Civil Code an employer may be held solidarily liable for the negligent act of his employee. Thus
–

Art. 2180. The obligation imposed in Article 2176 is demandable not only for one’s own acts or omissions, but also
for those of persons for whom one is responsible.

xxxxxxxxx

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.

xxxxxxxxx

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.

Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris
tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or
supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict committed by his employee, an
employer must overcome the presumption by presenting convincing proof that he exercised the care and diligence
of a good father of a family in the selection and supervision of his employee. 28

There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer of
Capt. Jusep who at the time of the incident acted within the scope of his duty. The defense raised by petitioner
was that it exercised due diligence in the selection of Capt. Jusep because the latter is a licensed and competent
Master Mariner. It should be stressed, however, that the required diligence of a good father of a family pertains
not only to the selection, but also to the supervision of employees. It is not enough that the employees chosen be
competent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its
employees.

In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in supervision requires the formulation of rules
and regulations for the guidance of employees and the issuance of proper instructions as well as actual
implementation and monitoring of consistent compliance with the rules. Corollarily, in Ramos v. Court of
Appeals,30 the Court stressed that once negligence on the part of the employees is shown, the burden of proving
that he observed the diligence in the selection and supervision of its employees shifts to the employer.

In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for the proper
performance of functions of its employees and that it strictly implemented and monitored compliance therewith.
Failing to discharge the burden, petitioner should therefore be held liable for the negligent act of Capt. Jusep.

So also, petitioner cannot disclaim liability on the basis of respondent’s failure to allege in its complaint that the
former did not exercise due diligence in the selection and supervision of its employees. In Viron Transportation Co.,
Inc. v. Delos Santos,31 it was held that it is not necessary to state that petitioner was negligent in the supervision
or selection of its employees, inasmuch as its negligence is presumed by operation of law. Allegations of negligence
against the employee and that of an employer-employee relation in the complaint are enough to make out a case
of quasi-delict under Article 2180 of the Civil Code.32

Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter the
same. The interest imposed should, however, be modified. In Eastern Shipping Lines, Inc. v. Court of Appeals,33 it
was held that the rate of interest on obligations not constituting a loan or forbearance of money is six percent (6%)
per annum. If the purchase price can be established with certainty at the time of the filing of the complaint, the six
percent (6%) interest should be computed from the date the complaint was filed until finality of the decision. After
the judgment becomes final and executory until the obligation is satisfied, the amount due shall earn interest at
12% per year, the interim period being deemed equivalent to a forbearance of credit. 34

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October 3,
1995 until the finality of this decision. If the adjudged principal and the interest (or any part thereof) remain unpaid
thereafter, the interest rate shall be twelve percent (12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED.1awphi1.nét The June 14, 2002 decision
of the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to pay respondent
C & A Construction, Inc., damages in the amount of P456,198.27, plus P30,000.00 as attorney’s fees, is AFFIRMED
with the MODIFICATION that the award of P456,198.27 shall earn interest at the rate of 6% per annum from
October 3, 1995, until finality of this decision, and 12% per annum thereafter on the principal and interest (or any
part thereof) until full payment.

SO ORDERED.
 G.R. No. L-44264 September 19, 1988

HEDY GAN y YU, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

Pacis, Baluyot, Reyes & De Leon for petitioner.

The Solicitor General for respondents.

FERNAN, C.J.:

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case No. 10201
of the then Court of First Instance of Manila, Branch XXII presided by Judge Federico C. Alikpala. She was
sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor as minimum and two (2)
years, four (4) months and one (1) day of prision correccional as maximum and was made to indemnify the heirs of
the victim the sum of P12,000.00 without any subsidiary imprisonment in case of insolvency and to pay the costs.
On appeal, the trial court's decision was modified and petitioner was convicted only of Homicide thru Simple
Imprudence. Still unsatisfied with the decision of the Court of Appeals, 1 petitioner has come to this Court for a
complete reversal of the judgment below.

The facts of the case as found by the appellate court are as follows:

In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota
car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay
Boulevard, there were two vehicles, a truck and a jeepney parked on one side of the road, one
following the other about two to three meters from each other. As the car driven by the accused
approached the place where the two vehicles were parked, there was a vehicle coming from the
opposite direction, followed by another which tried to overtake and bypass the one in front of it and
thereby encroached the lane of the car driven by the accused. To avoid a head-on collision with
the oncoming vehicle, the defendant swerved to the right and as a consequence, the front bumper
of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to
north, pinning him against the rear of the parked jeepney. The force of the impact caused the parked
jeepney to move forward hitting the rear of the parts truck ahead of it. The pedestrian was injured,
the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear and front paints,
and the truck sustained scratches at the wooden portion of its rear. The body of the old man who
was later Identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial
Hospital but was (pronounced) dead on arrival.2

An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above incident.
She entered a plea of not guilty upon arraignment and the case was set for trial.

Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which the trial
fiscal moved for the dismissal of the case against petitioner during the resumption of hearing on September 7, 1972.
The grounds cited therefor were lack of interest on the part of the complaining witness to prosecute the case as
evidenced by an affidavit of desistance submitted to the trial court and lack of eyewitness to sustain the charge.

The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the prosecution to present
its evidence. After the prosecution rested its case, the petitioner filed a motion to dismiss the case on the ground of
insufficiency of evidence.

On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable doubt of the
of- offense charged.

Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of Appeals
rendered a decision, the dispositive portion of which reads as follows:
 Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the crime of
homicide thru simple imprudence and, pursuant to paragraph 2, Article 365 of the Revised Penal
Code, she is hereby sentenced to the indeterminate penalty of three (3) months and eleven (11)
days of arresto mayor and to indemnify the heirs of Isidoro Casino in the sum of Twelve Thousand
Pesos (Pl2,000.00) without, however, any subsidiary imprisonment in case of insolvency, and to
pay the costs. 3

Petitioner now appeals to this Court on the following assignments of errors:

The Court of Appeals erred in holding that when the petitioner saw a car travelling directly towards
her, she should have stepped on the brakes immediately or in swerving her vehicle to the right
should have also stepped on the brakes or lessened her speed, to avoid the death of a pedestrian.

II

The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple
Imprudence.

III

The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the sum
of P12,000.00.4

We reverse.

The test for determining whether or not a person is negligent in doing an act whereby injury or damage results to
the person or property of another is this: Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If
so, the law imposes the duty oil the doer to take precaution against its mischievous results and the failure to do so
constitutes negligence. 5

A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who suddenly finds himself
in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the emergency in which he finds himself is brought about by his own
negligence." 6

Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple Imprudence
resulting in Homicide.

The appellate court in finding the petitioner guilty said:

The accused should have stepped on the brakes when she saw the car going in the opposite
direction followed by another which overtook the first by passing towards its left. She should not
only have swerved the car she was driving to the right but should have also tried to stop or lessen
her speed so that she would not bump into the pedestrian who was crossing at the time but also
the jeepney which was then parked along the street. 7

The course of action suggested by the appellate court would seem reasonable were it not for the fact that such
suggestion did not take into account the amount of time afforded petitioner to react to the situation she was in. For
it is undeniable that the suggested course of action presupposes sufficient time for appellant to analyze the situation
confronting her and to ponder on which of the different courses of action would result in the least possible harm to
herself and to others.

Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative distances
of petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend to prove that petitioner did
have sufficient time to reflect on the consequences of her instant decision to swerve her car to the light without
stepping on her brakes. In fact, the evidence presented by the prosecution on this point is the petitioner's statement
to the police 8 stating::

And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan
na aking kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit siya
naman biglang pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa .
Iyan ho ang buong pangyayari nang nasabing aksidente.9 (Emphasis supplied)

The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity to have been
admitted by it. Thus, under the circumstances narrated by petitioner, we find that the appellate court is asking too
much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best judgment to extricate
herself from a difficult and dangerous situation caused by the driver of the overtaking vehicle. Petitioner certainly
could not be expected to act with all the coolness of a person under normal conditions. 10 The danger confronting
petitioner was real and imminent, threatening her very existence. She had no opportunity for rational thinking but
only enough time to heed the very powerfull instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits. We
therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and consequently
absolve petitioner from any criminal negligence in connection with the incident under consideration.

We further set aside the award of damages to the heirs of the victim, who by executing a release of the claim due
them, had effectively and clearly waived their right thereto.

WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime of Homicide thru
Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded by the appellate court to the
heirs of the victim.

SO ORDERED.