CHAPTER 2

FIRST DIVISION

G.R. No. 133978. November 12, 2002

JOSE S. CANCIO, JR., represented by ROBERTO L.

CANCIO, petitioner, vs.  EMERENCIANA ISIP, Respondent.

DECISION

YNARES-SANTIAGO, J.:

The instant petition for review under Rule 45 of the Rules of Court
raises pure questions of law involving the March 20, 19981 and
June 1, 19982 Orders3 rendered by the Regional Trial Court of
Pampanga, Branch 49, in Civil Case No. G-3272.

The undisputed facts are as follows:

Petitioner, assisted by a private prosecutor, filed three cases

of Violation of B.P. No. 22 and three cases of Estafa, against
respondent for allegedly issuing the following checks without
sufficient funds, to wit: 1) Interbank Check No. 25001151 in the
amount of P80,000.00; 2) Interbank Check No. 25001152 in the
amount of P 80,000.00; and 3) Interbank Check No. 25001157 in
the amount of P30,000.00.4cräläwvirtualibräry

The Office of the Provincial Prosecutor dismissed Criminal Case

No. 13356, for Violation of B.P. No. 22 covering check no.
25001151 on the ground that the check was deposited with
the drawee bank after 90 days from the date of the check.
The two other cases for Violation of B.P. No. 22 (Criminal Case
No. 13359 and 13360) were filed with and subsequently
dismissed by the Municipal Trial Court of Guagua, Pampanga,
Branch 1, on the ground of failure to
5
prosecute. cräläwvirtualibräry
Meanwhile, the three cases for Estafa were filed with the Regional
Trial Court of Pampanga, Branch 49, and docketed as Criminal
Case Nos. G-3611 to G-3613. On October 21, 1997, after failing
to present its second witness, the prosecution moved to
dismiss the estafa cases against respondent. The
prosecution likewise reserved its right to file a separate civil
action arising from the said criminal cases. On the same date,

RTC

the trial court granted the motions of the prosecution. Thus-

Upon motion of the prosecution for the dismissal of these cases

without prejudice to the refiling of the civil aspect thereof and
there being no comment from the defense, let these cases be
dismissed without prejudice to the refiling of the civil aspect of
the cases.

SO ORDER[ED].6cräläwvirtualibräry

On December 15, 1997, petitioner filed the instant case for

collection of sum of money, seeking to recover the amount of
the checks subject of the estafa cases. On February 18,
1998, respondent filed a motion to dismiss the complaint
contending that petitioners action is barred by the doctrine of res
judicata. Respondent further prayed that petitioner should be
held in contempt of court for forum-shopping.7

RTC DISMISSED THE CIVIL CASE

On March 20, 1998, the trial court found in favor of respondent

and dismissed the complaint. The court held that the dismissal
of the criminal cases against respondent on the ground of
lack of interest or failure to prosecute is an adjudication on
the merits which amounted to res judicata on the civil case for
collection. It further held that the filing of said civil case
amounted to forum-shopping.
On June 1, 1998, the trial court denied petitioners motion for
reconsideration.8 Hence, the instant petition.

ISSUE:

The legal issues for resolution in the case at bar are: 1) whether
the dismissal of the estafa cases against respondent bars
the institution of a civil action for collection of the value of
the checks subject of the estafa cases; and 2) whether the
filing of said civil action violated the anti-forum-shopping rule.

An act or omission causing damage to another may give

rise to two separate civil liabilities on the part of the
offender, i.e., (1) civil liability ex delicto, under Article 100 of the
Revised Penal Code;9 and (2) independent civil liabilities, such as
those (a) not arising from an act or omission complained of as
felony [e.g. culpa contractual or obligations arising from law
under Article 3110 of the Civil Code,11 intentional torts under
Articles 3212 and 34,13 and culpa aquiliana under Article
217614 of the Civil Code]; or (b) where the injured party is
granted a right to file an action independent and distinct from the
criminal action [Article 33,15 Civil Code].16 Either of these two
possible liabilities may be enforced against the offender subject,
however, to the caveat under Article 2177 of the Civil Code that
the offended party cannot recover damages twice for the
same act or omission or under both
17
causes. cräläwvirtualibräry

The modes of enforcement of the foregoing civil liabilities are

provided for in the Revised Rules of Criminal Procedure. Though
the assailed order of the trial court was issued on March 20,
1998, the said Rules, which took effect on December 1, 2000,
must be given retroactive effect in the instant case considering
that statutes regulating the procedure of the court are construed
as applicable to actions pending and undetermined at the time of
their passage.18cräläwvirtualibräry
Section 1, Rule 111, of the Revised Rules of Criminal Procedure
provides:

SECTION 1. Institution of criminal and civil actions.  (a)

When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be
deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute
it separately or institutes the civil action prior to the
criminal action.

The reservation of the right to institute separately the civil action

shall be made before the prosecution starts presenting its
evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.

xxx

Where the civil action has been filed separately and trial thereof
has not yet commenced, it may be consolidated with the criminal
action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation of
the civil and criminal actions.

Under the 1985 Rules on Criminal Procedure, as amended in 1988

and under the present Rules, the civil liability ex-delicto is
deemed instituted with the criminal action, but the offended party
is given the option to file a separate civil action before the
prosecution starts to present evidence.19cräläwvirtualibräry

Anent the independent civil actions under Articles 31, 32, 33, 34
and 2176 of the Civil Code, the old rules considered them
impliedly instituted with the civil liability  ex-delicto  in the criminal
action, unless the offended party waives the civil action, reserves
his right to institute it separately, or institutes the civil action
prior to the criminal action. Under the present Rules, however,
the independent civil actions may be filed separately and
prosecuted independently even without any reservation in
the criminal action. The failure to make a reservation in the
criminal action is not a waiver of the right to file a separate and
independent civil action based on these articles of the Civil
Code.20cräläwvirtualibräry

In the case at bar, a reading of the complaint filed by petitioner

show that his cause of action is based on culpa contractual, an
independent civil action. Pertinent portion of the complaint
reads:

xxx

2. That plaintiff is the owner/proprietor to CANCIOS MONEY

EXCHANGE with office address at Guagua, Pampanga;

3. That on several occasions, particularly on February 27,

1993 to April 17 1993, inclusive, defendant drew, issued and
made in favor of the plaintiff the following checks:

CHECK NO. DATE AMOUNT

1. Interbank Check No. 25001151 March 10, 1993 P80,000.00

2. Interbank Check No. 25001152 March 27, 1993 P80,000.00

3. Interbank Check No. 25001157 May 17, 1993 P30,000.00

in exchange of cash with the assurance that the said checks

will be honored for payment on their maturity dates, copy of
the aforementioned checks are hereto attached and marked.

4. That when the said checks were presented to the drawee

bank for encashment, the same were all dishonored for
reason of DRAWN AGAINST INSUFFICIENT FUNDS (DAIF);

5. That several demands were made upon the defendant to

make good the checks but she failed and refused and still fails
and refuses without justifiable reason to pay plaintiff;
 6. That for failure of the defendant without any justifiable
reason to pay plaintiff the value of the checks, the latter was
forced to hire the services of undersigned counsel and agreed
to pay the amount of P30,000.00 as attorneys fees and
P1,000.00 per appearance in court;

7. That for failure of the defendant without any justifiable

reason to pay plaintiff and forcing the plaintiff to litigate, the
latter will incur litigation expenses in the amount of
P20,000.00.

IN VIEW OF THE FOREGOING, it is prayed of this Court that

after due notice and hearing a judgment be rendered ordering
defendant to pay plaintiff as follows:

a. the principal sum of P190,000.00 plus the legal interest;

b. attorneys fees of P30,000.00 plus P1,000.00 per court

appearance;

c. litigation expenses in the amount of P20,000.00

PLAINTIFF prays for other reliefs just and equitable under

the premises.

x x x .21cräläwvirtualibräry

Evidently, petitioner sought to enforce respondents obligation to

make good the value of the checks in exchange for the cash he
delivered to respondent. In other words, petitioners cause of
action is the respondents breach of the contractual
obligation. It matters not that petitioner claims his cause of
action to be one based on delict.22 The nature of a cause of action
is determined by the facts alleged in the complaint as constituting
the cause of action. The purpose of an action or suit and the law
to govern it is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the
complaint itself, its allegations and prayer for
23
relief. cräläwvirtualibräry
Neither does it matter that the civil action reserved in the
October 21, 1997 order of the trial court was the civil action ex
delicto. To reiterate, an independent civil action arising
from contracts, as in the instant case, may be filed
separately and prosecuted independently even without any
reservation in the criminal action. Under Article 31 of the Civil
Code [w]hen the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
[e.g. culpa contractual] such civil action may proceed
independently of the criminal proceedings and regardless
of the result of the latter. Thus, in Vitola, et al. v. Insular Bank
of Asia and America,24 the Court, applying Article 31 of the Civil
Code, held that a civil case seeking to recover the value of the
goods subject of a Letter of Credit-Trust Receipt is a civil
action ex contractu and not ex delicto. As such, it is distinct and
independent from the estafa case filed against the offender and
may proceed regardless of the result of the criminal proceedings.

One of the elements of res judicata is identity of causes of

action.25 In the instant case, it must be stressed that the
action filed by petitioner is an independent civil action,
which remains separate and distinct from any criminal
prosecution based on the same act.26 Not being deemed
instituted in the criminal action based on culpa criminal, a ruling
on the culpability of the offender will have no bearing on said
independent civil action based on an entirely different cause of
action, i.e., culpa contractual.

In the same vein, the filing of the collection case after the
dismissal of the estafa cases against respondent did not
amount to forum-shopping. The essence of forum-shopping is
the filing of multiple suits involving the same parties for the same
cause of action, either simultaneously or successively, to secure a
favorable judgment. Although the cases filed by petitioner arose
from the same act or omission of respondent, they are, however,
based on different causes of action. The criminal cases for estafa
are based on culpa criminal  while the civil action for collection is
anchored on culpa contractual. 
Moreover, there can be no forum-shopping in the instant
case because the law expressly allows the filing of a
separate civil action which can proceed independently of
the criminal action.27cräläwvirtualibräry

Clearly, therefore, the trial court erred in dismissing petitioners

complaint for collection of the value of the checks issued by
respondent. Being an independent civil action which is separate
and distinct from any criminal prosecution and which require no
prior reservation for its institution, the doctrine of res
judicata and forum-shopping will not operate to bar the same.

WHEREFORE, in view of all the foregoing, the instant petition is

GRANTED. The March 20, 1998 and June 1, 1998 Orders of the
Regional Trial Court of Pampanga, Branch 49, in Civil Case No. G-
3272 are REVERSED and SET ASIDE. The instant case is
REMANDED to the trial court for further proceedings.

SO ORDERED.

Davide, Jr., C.J.,  (Chairman), Vitug, Carpio, and Azcuna,

JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 106436 December 3, 1994

VIRGILIO D. IMSON, petitioner,
vs.
HON. COURT OF APPEALS, HOLIDAY HILLS STOCK AND
BREEDING FARM CORPORATION, FNCB FINANCE
CORPORATION, respondents.

Polotan Law Office for petitioner.

Felix R. Solomon for private respondents.

PUNO, J.:

The case at bench arose from a vehicular collision on December

11, 1983, involving petitioner's Toyota Corolla and a Hino
diesel truck registered under the names of private
respondents FNCB Finance Corporation and Holiday Hills
Stock and Breeding Farm Corporation. The collision seriously
injured petitioner and totally wrecked his car.

On January 6, 1984, petitioner filed with the RTC Baguio City1 a

Complaint for Damages2 Sued were private respondents as
registered owners of the truck; truck driver Felix B. Calip, Jr.; the
beneficial owners of the truck, Gorgonio Co Adarme, Felisa T. Co
(also known as Felisa Tan), and Cirilia Chua Siok Bieng, and the
truck insurer, Western Guaranty Corporation.

The Complaint prayed that defendants be ordered to pay, jointly

and severally, two hundred seventy thousand pesos
(P270,000.00) as compensatory damages, fifty thousand pesos
(P50,000.00) each as moral and exemplary damages, and
attorney's fees, litigation expenses, and cost of suit.8

Defendants driver and beneficial owners failed to answer

and were declared in default.4 On May 29, 1987, however,
petitioner and defendant insurer, entered into a compromise
agreement which provided, inter alia:
 1. Defendant Western Guaranty Corporation (Western
Guaranty for short) admits that its total liability under
the laws and the insurance contract sued upon is
P70,000.00;

2. In full settlement of its liability under the laws and

the said insurance contract, defendant Western
Guaranty shall pay plaintiff (herein petitioner) the
amount of P70,000.00 upon the signing of this
compromise agreement;

3. This compromise agreement shall in no way waive

nor prejudice plaintiffs (herein petitioner's) rights to
proceed against the other defendants with respect the
remainder of his claims;

4. This compromise agreement shall be a full and final

settlement of the issues between plaintiff (herein
petitioner) and defendant Western Guaranty in their
complaint and answer and, from now on, they shall
have no more right against one another except the
enforcement of this compromise agreement.

RTC:

In consequence of the compromise agreement, the trial court

dismissed the Complaint for Damages against Western Guaranty
Corporation on June 16, 1987.8 A copy of the Order of dismissal
was received by private respondent Holiday Hills Stock and
Breeding Farm Corporation on July 13, 1987. Nearly eighteen
(18) months later, said private respondent moved to dismiss
the case against all the other defendants. It argued that
since they are all indispensable parties under a common cause of
action, the dismissal of the case against defendant insurer must
result in the dismissal of the suit against all of them.

RTC:

The trial court denied the motion.

Private respondent Holiday Hills Stock and Breeding Farm
Corporation assailed the denial order through a Petition
for Certiorari, Prohibition and Mandamus  With Restraining Order
filed with respondent Court of Appeals. The Petition was docketed
as CA-G.R. SP No. 17651. On July 10, 1992, the Court of
Appeals,7 through its Special Sixth Division,8 reversed the trial
court, as it ruled:

CA REVERSED RTC

The petitioner (herein private respondent Holiday Hills Stock and

Breeding Farm Corporation) cites the doctrine laid down in Lim
Tanhu v. Hon. Ramolete, 66 SCRA 425, as applied later in Co v.
Acosta, 134 SCRA 185, to support its averment that the court  a
quo  gravely abused its discretion in refusing to dismiss the case.

Essentially, the doctrine adverted to essays that in a common

cause of action where all the defendants are indispensable
parties, the court's power to act is integral and cannot be split,
such that it cannot relieve any of them and at the same time
render judgment against the rest.

We find applicability of the doctrine to the case at bar.

A cursory reading of the complaint . . . reveals that the cause of

action was the alleged bad faith and gross negligence of the
defendants resulting in the injuries complained of and for which
the action for damages was filed. The inclusion of Western
Guaranty Corporation was vital to the claim, it being the insurer
of the diesel truck without which, the claim could be set for
naught. Stated otherwise, it is an indispensable party as the
petitioner (herein private respondent stock and breeding farm
corporation) . . . . Private respondent's (herein petitioner's
argument that the said insurance company was sued on a
different cause of action, i.e., its bounden duty under the
insurance law to pay or settle claims arising under its policy
coverage, is untenable, for the cited law perceives the existence
of a just cause, and according to the answer filed by the Western
Guaranty Corporation . . . the proximate cause of the accident
was the fault of the plaintiff (herein petitioner), hence it was not
liable for damages. There is in fact a congruence of affirmative
defense among the answering defendants.

Moreover, it is undisputed that the injury caused is covered by

the insurance company concerned. Thus, when the said insurer
settled its liability with the private respondent (petitioner
herein) . . . , the other defendants, as the insured and
indispensable parties to a common cause of action, necessarily
benefited from such settlement including the defaulted
defendants, for as stated in the aforecited cases, it is deemed
that anything done by or for the answering defendant is done by
or for the ones in default since it is implicit in the rule that default
is in essence a mere formality that deprives them of no more
than to take part in the trial, but if the complaint is dismissed as
to the answering defendant, it should also be dismissed as to
them.9 (Citations omitted.)

Petitioner now comes to this Court with the following assignments

of error:

A.

RESPONDENT COURT OF APPEALS COMMITTED A

REVERSIBLE ERROR IN RULING THAT THE
DEFENDANTS IN CIVIL CASE NO. 248-R ARE
INDISPENSABLE PARTIES;

B.

RESPONDENT COURT OF APPEALS COMMITTED A

REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE
NO. 248-R THERE IS A COMMON CAUSE OF ACTION
AGAINST THE DEFENDANTS THEREIN;

C.

RESPONDENT COURT OF APPEALS COMMITTED A

REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE
 NO. 248-R THE RULING OF THIS HONORABLE COURT
IN LIM TAN HU VS. RAMOLETE IS APPLICABLE;

D.

RESPONDENT COURT OF APPEALS COMMITTED A

REVERSIBLE ERROR IN RULING THAT THE DOCTRINE
OF ESTOPPEL AND LACHES ON MATTERS OF
JURISDICTION IS NOT APPLICABLE IN CIVIL CASE NO.
248-R.

There is merit to the petition,.

In the case of Lim Tanhu v. Ramolete, 66 SCRA 425, 458-459

(1975) this court held that:

. . . (I)n all instances where a common cause of action

is alleged against several defendants, some of whom
answer and the others do not, the latter or those in
default acquire a vested right not only to own the
defense interposed in the answer of their co-defendant
or co-defendants not in default but also to expect a
result of the litigation totally common with them in kind
and in amount whether favorable or unfavorable. The
substantive unity of the plaintiffs cause against all the
defendants is carried through to its adjective phase as
ineluctably demanded by the homogeneity and
indivisibility of justice itself. . . . The integrity of the
common cause of action against all the defendants and
the indispensability of all of them in the proceedings do
not permit any possibility of waiver of the plaintiffs
right only as to one or some of them, without including
all of them, and so, as a rule, withdrawal must be
deemed to be a confession of weakness as to all. . . . .
Where all the defendants are indispensable parties, for
which reason the absence of any of them in the case
would result in the court losing its competency to act
validly, any compromise that the plaintiff might wish to
make with any of them must, as a matter of correct
 procedure, have to await until after the rendition of the
judgment, at which stage the plaintiff may then treat
the matter of its execution and the satisfaction of his
claim as variably as he might please. Accordingly, in
the case now before Us together with the dismissal of
the complaint against the non-defaulted defendants,
the court should have ordered also the dismissal
thereof as to petitioner (referring to the defaulting
defendants in the case).

In sum,  Lim Tanhu states that where a complaint alleges a

common cause of action against defendants who are all
indispensable parties to the case, its dismissal against any of
them by virtue of a compromise agreement with the plaintiff
necessarily results in the dismissal of the case against the other
defendants, including those in default. The ruling is rooted on the
rationale that the court's power to act in a case involving a
common cause of action against indispensable parties "is integral
and cannot be split such that it cannot relieve any of them and at
the same time render judgment against the rest. 10

For Lim Tanhu  to apply to the case at bench, it must be

established that:

(1) petitioner has common cause of action against private

respondents and the other defendants in Civil Case No. 248-R;
and

(2) all the defendants are indispensable parties to the case.

Cause of action has a fixed meaning in this jurisdiction. It is the

delict or wrong by which the right of the plaintiff is
violated by the defendant. 11 The question as to whether a
plaintiff has a cause of action is determined by the averments in
the pleadings pertaining to the acts of the defendant. Whether
such acts give him a right of action is determined by substantive
law. 12
In the case at bench, it is clear that petitioner has different
and separate causes of action against the defendants in
the case. The allegations in the Complaint show that petitioner
seeks to recover from the truck driver for his wrong which caused
injury to petitioner and his car. The cause of action against
him is based on quasi-delict under Article 2176 of the New
Civil Code. Quasi-delict, too, is the basis of the cause of action
against defendants beneficial and registered owners. But in their
case, it is Article 2180 of the same Code which governs the
rights of the parties.

However, with respect to defendant Western Guaranty

Corporation, petitioner's cause of action is based on contract.
He seeks to recover from the insurer on the basis of the third
party liability clause of its insurance contract with the owners of
the truck. This is acknowledged by the second paragraph of the
compromise agreement between petitioner and defendant
insurer, thus:

2. In full settlement of its liability under the laws and

the said insurance contract, defendant Western
Guaranty shall pay plaintiff (herein petitioner) the
amount of P70,000.00 upon the signing of this
compromise agreement.

Quite clearly then, Lim Tanhu will not apply to the

case at bench for there is no showing that petitioner
has a common cause of action against the defendants
in Civil Case No. 248-R.

But this is not all. Defendants in Civil Case No. 248-R are not
all indispensable parties. An indispensable party is one whose
interest will be affected by the court's action in the litigation, and
without whom no final determination of the case can be had. The
party's interest in the subject matter of the suit and in the relief
sought are so inextricably intertwined with the other parties' that
his legal presence as a party to the proceeding is an absolute
necessity. 13 In his absence there cannot be a resolution of the
dispute of the parties before the court which is effective,
complete, or equitable.14

Conversely, a party is not indispensable to the suit if his interest

in the controversy or subject matter is distinct and divisible from
the interest of the other parties and will not necessarily be
prejudiced by a judgment which does complete justice to the
parties in court.15 He is not indispensable if his presence would
merely permit complete relief between him and those already
parties to the action, or will simply avoid multiple litigation.16

It is true that all of petitioner's claims in Civil Case No. 248-

R is premised on the wrong committed by defendant truck
driver. Concededly, the truck driver is an indispensable
party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely proper
parties to the case. Proper parties have been described as parties
whose presence is necessary in order to adjudicate the whole
controversy, but whose interests are so far separable that a final
decree can be made in their absence without affecting them.17 It
is easy to see that if any of them had not been impleaded as
defendant, the case would still proceed without prejudicing the
party not impleaded.

Thus, if petitioner did not sue Western Guaranty

Corporation, the omission would not cause the dismissal of
the suit against the other defendants. Even without the
insurer, the trial court would not lose its competency to act
completely and validly on the damage suit. The insurer, clearly,
is not an indispensable party in Civil Case No. 248-R.

IN VIEW WHEREOF, the instant petition is GRANTED. The

Decision, dated July 10, 1992, of the Court of Appeals in CA-G.R.
SP No. 17651 is REVERSED AND SET ASIDE. The Complaint in
Civil Case No. 248-R is REINSTATED and REMANDED to the trial
court for further proceedings. No costs.

SO ORDERED.
Narvasa C.J., Regalado and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. L-33138-39 June 27, 1975

BATANGAS LAGUNA TAYABAS BUS COMPANY, INC. and

ANDRES I. ILAGAN, petitioners,
vs.
COURT OF APPEALS, SOTERO CARDEMA, EUFROCINA
ALCALDE CARDEMA, MELQUISEDEC P. ELIZONDO and
MAXIMA T. ALCALDE, respondents.

Domingo E. de Lara and Associates for petitioners.

Manuel S. Gerong for private respondents.

FERNANDO, J.:

For a collision caused by the negligence of now petitioner Andres

I. Ilagan, a driver of petitioner Batangas Laguna Tayabas
Bus Company, Inc., a suit was brought and damages awarded
to private respondents,1 both by the lower court and thereafter
respondent Court of Appeals. Hence this appeal by certiorari. The
facts as set forth in a well-written decision by Justice Jose N.
Leuterio of respondent Court would leave no doubt as to the
reckless manner in which the bus was driven. The law as is but
proper and just exacts responsibility for the injury inflicted. There
is, however, an effort to avoid the consequences of such culpable
conduct by the invocation of Corpus v. Paje.2 It does not suffice.
It has the appearance of a mere afterthought, a last-ditch
attempt to escape liability. Moreover, it is not applicable, even on
the assumption that it is doctrinal, which is not the case. No
persuasiveness attaches to such a plea, when it is considered
further that the opinion of Justice Capistrano is misread. There is
another objection based on the amount of damages awarded. It
is equally unavailing. The appealed decision is in conformity with
law. There is no choice but to affirm.

The appealed decision starts with this statement of the case:

"Civil Cases Nos. B-390 and B-391 of the Court of First Instance
of Laguna are for the recovery of actual, compensatory, and
moral damages, with attorney's fees, arising from a vehicular
accident. It is alleged in both complaints that the accident was
due to the notorious negligence of the defendant driver, Andres I.
Ilagan, who drove the bus of his co-defendant, Batangas
Transportation Company, now BLTBCo, without regard to
existing traffic rules and regulations, and without due
attention to the welfare and safety of his passengers and
those of oncoming vehicles, resulting in the death of the
owner — driver of the Chevrolet car, Ricardo de los Reyes,
and his companion, Jean Elizondo, and causing serious physical
injuries to Eufrocina Alcalde Cardema. The serious physical
injuries suffered by Eufrocina Alcalde Cardema is the subject of
the complaint in Civil Case No. B-390, and the death of Jean
Elizondo in Civil Case No. B-391. The defenses in both cases are
that there was no negligence on the part of the driver defendant,
Andres I. Ilagan, in driving and operating the Batangas
Transportation Co. bus bearing plate No. 5716; that Ilagan had
driven the bus in a careful and prudent manner, and the accident
was beyond his control and was unforeseen despite the
observation of extraordinary diligence; that the accident was due
to the negligence of Ricardo de los Reyes, or was fortuitous in
character; and that defendant company had exercised and
continues to exercise extraordinary diligence in the management,
supervision and operation of its vehicles and personnel, including
its drivers, in order to avoid injury to persons and to prevent
accidents, as far as human care and foresight can provide, using
the utmost diligence of a very cautious person, with due regard
for all the circumstances. The two cases, having arisen from the
same incident, were tried jointly by agreement of the
parties."3 Then comes that portion dealing with the facts: "On
February 18, 1963, Ricardo de los Reyes left Calamba, Laguna, at
about 5 o'clock in the-morning, driving his Chevrolet car bearing
Plate No. 7188 bound for Manila. Seated on the front seat
beside him was his son, Eduardo de los Reyes, and directly
behind Ricardo was Eufrocina Alcalde Cardema, a cousin of
Ricardo's wife. On the right of Eufrocina was her niece, Jean
Elizondo, and on the latter's right was Ursula Bayan. When he
reached the Manila South Super Highway, about 500 meters from
the Air Force Station, in a straight and level road, BTCO bus No.
316, bearing Plate No. 5716, driven by the defendant, Andres I.
Ilagan and coming from the opposite direction on its way to
Lemery, suddenly overtook a big cargo truck. In so doing, the
bus took the left or the lane on which De los Reyes was travelling.
Ricardo de los Reyes swerved to the right to avoid the bus
but it was too late. The bus was running so fast that
notwithstanding that the Chevrolet car was almost touching the
shoulder of the road, the bus hit the car on the left front side up
to the driver's door. The bus continued travelling to the left and
landed in an oblique but upright position on a canal about 30 feet
from the point of impact after narrowly missing an electric post.
The car landed on the shoulder of the road about 15 feet from the
point of impact. The point of impact was fixed by Policeman
Guadarama at about the middle of the left lane, where he found
earth and broken glasses. Ricardo de los Reyes, Eufrocina Alcalde
Cardema, and Jean Elizondo were brought to the Philippine
General Hospital. Ricardo de los Reyes died before he could be
brought to the operating room. Jean Elizondo was dead upon
arrival to the PGH."4 The reckless manner in which petitioner
Ilagan was driving was clearly set forth by Justice Leuterio in his
opinion thus: "By the appellants own admission, he was travelling
on the inner lane of the highway going south. It does not appear
that there were vehicles towards his right. Under the
circumstances, he would ordinarily be travelling on the middle of
the right lane and not close to the center line. That he was
travelling close to the center line corroborates the evidence for
the plaintiffs that he overtook a big cargo truck, and consequently
took the left lane going south or the right lane going north, or the
lane of De los Reyes, who was travelling north. To overtake the
cargo truck, Ilagan had to run faster than the cargo truck, so that
Ilagan's testimony that he was running only at about 40 kms. per
hour at the time of the accident obviously cannot be true. At that
hour in the morning at about 6.00 o'clock, and this is supported
by the evidence, there were very few vehicles travelling on the
Super Highway. The cargo truck certainly must be travelling at
least 40 kms. if not more than 40 kms. per hour. To overtake the
cargo truck, the appellant must have to run not less than 60 kms.
per hour. Hence, the testimonies of Cardema and Villas that the
bus was running fast. The testimonies of Viñas and Cardema that
the bus suddenly swerved to the left is further corroborated by
Ilagan's testimony that he did not see the rut. He did not see the
rut because he was following the cargo truck and was running
fast. His attention at that time was focused on the cargo truck
and the left lane. And further proving that the appellant was
running at a high speed was the fact that after the impact, his
bus ran for another 30 feet and would have ran farther had it not
fallen into the canal. In suddenly overtaking the big cargo truck,
Ilagan had acted with reckless imprudence, for he should have
seen, and must have seen the Chevrolet car coming from the
opposite direction. It is reckless imprudence to overtake a
vehicle and take the left lane when another vehicle is
coming from the opposite direction. Due regard for the safety
of his passengers and other vehicles demand that a driver should
not overtake another vehicle and take the left lane unless the
road is clear and overtaking can be done safely. This precaution
Ilagan had failed to take. Instead, he recklessly and
imprudently took the left lane without regard to oncoming
vehicles. This imprudence resulted in death to two persons and
serious physical injuries to Eufrocina. To say that the accident
was due to the negligence of Ricardo de los Reyes, who under the
doctrine of the last clear chance, should have avoided the
accident, or, that at least De los Reyes was guilty of contributory
negligence, is to add insult to injury, and to desecrate the
memory of one who can no longer defend himself. De los
Reyes was in his proper lane and where he had a right to be.
Nevertheless, he did what he could do under the circumstances to
avoid the accident. He swerved to the right to avoid the
onrushing bus, but the appellant was running so fast and his act
was so sudden that all his efforts to avoid the bus were rendered
futile. We cannot understand how de los Reyes could be charged
with negligence, or even contributory negligence, when there is
absolutely no evidence that de los Reyes, who was where he had
a right to be, had seen the bus in time to avoid the accident.
Contributory negligence cannot be presumed, and the appellants
are as much duty-bound to prove this defense as it was the duty
of the plaintiffs to prove defendant's negligence. By the way,
there is absolutely no evidence in the record that de los Reyes
was trying to overtake another vehicle before the accident."5

With such undisputable facts, it is difficult to imagine an instance

of a clearer case of liability rightfully imposed by law on the
parties responsible for the injury afflicted. Even petitioners could
not possibly be unaware till such indeed should be the case. That
may explain why stress is laid in their brief on a procedural
objection invoking Corpus v. Paje.6 To repeat, it is impressed with
futility. Nor is there any validity to the contention finding fault
with the award of damages.

1. The principal reliance of petitioners is on that portion of the

opinion of Justice Capistrano in Corpus v. Paje which reads thus:
"As reckless imprudence or criminal negligence is not one to the
three crimes mentioned in Article 33 of the Civil Code, there is no
independent civil action for damages that may be instituted in
connection with said offense. Hence, homicide through reckless
imprudence or criminal negligence comes under the general rule
that the acquittal of the defendant in the criminal action is a bar
to his civil liability based upon the same criminal act
notwithstanding that the injured party reserved his right to
institute a separate civil action (Chantangeo vs. Abarao, supra).
In the language of the Rules of Court (Rule 111 Sec. 3) the
extinction of the criminal action by acquittal of the defendant on
the ground that the criminal act charged against him did not
exist, necessarily extinguished also the civil action for damages
based upon the same
7
act,"  From which, they would infer that "the criminal action
against petitioner Ilagan must first be resolved by respondent
Court of Appeals and, until final resolution thereon, it is
premature to proceed in the two civil cases."8

Petitioners would make much of the above-cited portion of the

opinion of Justice Capistrano. That is to rely on a frail reed, to
clutch at straws. As pointed out in the brief for private
respondents, such an objection was never raised in the lower
court as well as in the Court of Appeals and therefore came too
late. Moreover, the facts are dissimilar, and therefore its ruling
cannot control. It cannot escape attention likewise that less than
a majority of the Court gave their approval to the opinion penned
by Justice Capistrano. The most serious objection though is that
the interpretation sought to be fastened by petitioners,
considering that as pointed out in the appealed decision this is an
action based on culpa aquiliana, is its disregard of codal
provisions as well as of an impressive number of pronouncements
of this Tribunal.

It is undoubted that it is only when this case was elevated to this

Court in this appeal by certiorari that the opinion of Justice
Capistrano in Corpus v. Pale  was invoked. It is well-settled that
for an error to be imputed to a lower court or to the Court of
Appeals, there must be a showing that there was a disregard by it
of a rule or principle of law seasonably raised. In an attempt to
evade the applicability of this norm, petitioners, in their reply
brief, could only allege that such decision "did not come to the
attention of many legal practitioners until the full text thereof was
reproduced in the Supreme Courts Reports, Annotated." 9 If that
were so, such negligence should not prejudice private
respondents. Corpus v. Paje  was decided on July 31, 1969. The
decision of the Court of Appeals was promulgated on November
19, 1970. There was thus a period of one year and four months
within which such a point could be pressed. What is more, there
was likewise the additional time for filing a motion for
reconsideration where this issue could be submitted for
resolution. Petitioners did neither; they only have themselves
then to blame. There is no reason why this Court should depart
from its constant holding that a question of law save in very
exceptional circumstances cannot be raised for the first time on
appeal. 10

Petitioners, moreover, ignored the crucial distinction that is

readily discernible between the facts in  Corpus v. Paje and the
facts in the present case. As was pointed out in the opinion of
Justice Capistrano, the civil action for damages was made to rest
"upon the same criminal negligence" of which the defendant
Felardo Paje was acquitted in the criminal action. From the
opening paragraph of the opinion of the Court of Appeals, now
sought to be reviewed, it is quite apparent that the liability of
petitioners was not predicated on criminal negligence but
rather on a quasi-delict which, as is clearly pointed out by
the Civil Code, is an independent source of
11
obligation.   The accident in Corpus occurred on December 23,
1956 and the civil action was not instituted until November 21,
1961 during the pendency of the appeal in a criminal case in the
Court of Appeals. On the other hand, in this case, it was only a
matter of months, the mishap having taken place on February 18,
1963 and the case being filed in July of the same year, when the
civil action precisely to hold petitioners liable for the quasi-delict
was filed by private respondent. As a matter of fact, in Corpus,
the civil complaint was dismissed by the lower court precisely on
the ground that the action based upon the quasi-delict had
prescribed. 12 That certainly cannot be said of the present
litigation. From the beginning both parties were fully aware that it
was the negligence of petitioner Ilagan as driver of petitioner
Batangas Laguna Tayabas Bus Company, Inc. that gave rise to
the civil suit. It does not admit of doubt therefore that the
invocation of Corpus v. Paje  is misplaced considering the
dissimilarity in the facts of the case and the equally relevant
consideration that the portion of the ponencia of Justice
Capistrano, insofar as it could be made to lend support to
petitioner's plea, is not doctrinal in character lacking one vote for
it to be the expression of the opinion of this Court. 13

Nor is this all. It is to misread the opinion of Justice Capistrano in

Paje if it is made to yield a significance that would under the
circumstances of this case reduce to a barren form of words the
jural concept of a quasi-delict as an independent source of
obligation. The law is anything but that. The Civil Code speaks
unequivocally to the contrary. Article 2176 provides: "Whoever by
act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no existing contractual relations between
the parties, is called a quasi-delict and is governed by the
provisions of this Chapter." 14 The liability of an employer is
made clear, under Article 2180 in this wise: "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." 15 So it was under the former
Civil Code, although there is a slight difference in
phraseology. 16 What is more, there is this new provision in Article
2177: "Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the
defendant." 17 This Court in appropriate cases has given force and
effectivity to the mandates thus so clearly expressed. That was
the tenor of decisions when the former Civil Code was still
operative, starting from Donaldson, Sim and Co. v, Smith, Bell
and Co.  18 promulgated in 1902. Then, in 1907 in the leading
case of Rakes v. Atlantic, Gulf and Pacific Co.,  19 Manresa was
quoted to the effect that culpa  or negligence or culpa aquiliana is
an independent source of obligation between two persons not so
formerly bound by any juridical tie. The civil liability that may
arise according to Justice Tracey in his opinion "was not intended
to be merged in the criminal ... . Where an individual is civilly
liable for a negligent act or omission, it is not required that the
injured party should seek out a third person criminally liable
whose prosecution must be a condition precedent to the
enforcement of the civil right." 20 As was well put by Justice
Torres in Novo v. Ainsworth, 21 decided in 1913: "This liability is
contracted without agreement or consent of the person found
liable, on the principle that in all cases where harm, loss, or
damage has been caused to a person or to his rights by an act or
omission, the aggrieved party is entitled to be
22
indemnified ... ."   Justice Fisher in another leading case, Cangco
v. Manila Railroad Co. 23 turned once more to Manresa's
formulation of the basic doctrine that "liability arising from
extracontractual culpa  is always based upon a voluntary  act or
omission which, without willful intent, but by mere negligence or
inattention, has caused damage to another." 24 As correctly
stressed by Justice Street, what was set forth in Article 1902 of
the former Civil Code is a "general doctrine of jurisprudence." 25

The first assigned error relying on the rather forced interpretation

accorded certain passages in Corpus v. Paje  is thus clearly bereft
of any persuasive force.

2. It is not too far-fetched to impute to petitioners an awareness

that to deny liability under the circumstances would be an
indefensible posture, devoid of support in law no less than in
morals. That may explain why in the next two errors assigned,
what is sought is merely to minimize the amount of the damages
for which they were held liable by the Court of Appeals. In their
second and third assignment of errors, they would seek a
reduction of P4,988.84 found by both the lower court and the
Court of Appeals as actual hospital expenses incurred by private
respondent Eufrocina Alcalde Cardema and of P8,000.00 for the
loss of earnings of the deceased daughter, Jean Elizondo, of
private respondents Melquisedec P. Elizondo and Maxima T.
Alcalde. Reference to the appealed decision should readily make
obvious that no such errors were committed. Thus: "We have
examined the damages awarded by the Court a quo  and we find
them to be moderate and reasonable. The award of P4,988.84 for
the hospitalization of Eutrocina Alcalde Cardema is supported by
the statement of account of the Manila Railroad Hospital. It was
certified to by Eufrocina Cardema and by the supervising auditor
of the MRR Hospital. The fees of Dr. Alcantara of P3,000.00 is
reasonable and moderate considering that he had performed two
operations, and Eufrocina was under the care of Dr. Alcantara for
72 days in the hospital and even after her discharge from the
hospital, she had to report for follow-up examination. There is
even the probability of another operation should there be a tissue
reaction. The award of P3,000.00 for reduction of income of
Eufrocina Cardema is also reasonable because as a result of the
injuries which she had suffered and because of the operations,
Eufrocina Cardema can no longer engage in her former
occupation of maintaining a boarding house. The award of
P4,000.00 moral damages is reasonable considering the serious
injuries that she had suffered consisting of broken bones, the
operations that she underwent, and her physical pain and
suffering. The award of the attorney's fees of P1,000.00 is
likewise moderate because she was forced to litigate to enforce
her claim. The award of P8,000.00 for the death of Jean Elizondo
is even below the amount now allowed for death due to the act of
the defendant. At the time of her death, Jean Elizondo was 18
years old, a bright student, and was in the second year college
taking up chemical engineering. Obviously, if she had lived, she
would have finished her course and would have earned much
more than P8,000.00. Moral damages awarded at P6,000.00 is
likewise reasonable. One would never know the pain, the
sleepless nights, the torment that one suffers for the loss of a
child in the prime of life. Certainly, the amount of P6,000.00
cannot assuage the loss of a daughter. Attorney's fees in the
amount of P2,000.00 likewise is reasonable, defendant company
having forced plaintiff to litigate. We also take into consideration
that the defendant is a big corporation operating hundreds of
vehicles. Certainly the amount awarded is not incompatible with
the resources of the appellant company. It is after all a part of
the overhead expenses of the defendant." 26 It may be added that
the finding as to the amount of P4,988.84 for the hospitalization
expenses is essentially one of fact and is not to be disturbed on
appeal. It ill behooves petitioners to complain about the
"speculative" character of the amount of P8,000.00 for the death
of Jean Elizondo. The victim of their misdeed was at the threshold
of youth, a lass of eighteen, then in the second year of a chemical
engineering course, and in the language of the decision, "a bright
student." 1äwphï1.ñët  27 If any body could complain then, it is
her parents. What was awarded, as noted by Justice Leuterio,
was admittedly less than that allowed by law. There ought to be a
realization even on the part of petitioners that what was said by
Justice Malcolm in Bernal v. House  28 is more than just mere
rhetoric. As was so vividly put by him, "there is not enough
money in the entire world to compensate a mother for the death
of her child." 29 In the traditional legal parlance, to quote Chief
Justice Concepcion, "life expectancy is not only relevant, but,
also, an important  element in fixing the amount
30
recoverable ... .   It would be then to disregard what has been so
constantly and uninterruptedly adhered to if petitioners would
have their way. To allow such a thing to happen would be a grave
disservice to the law. 31

WHEREFORE, the appealed decision of November 19, 1970 is

affirmed. Costs against petitioners.

Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 84458 November 6, 1989

ABOITIZ SHIPPING CORPORATION, petitioner,

vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C.
VIANA, SPS. ANTONIO VIANA and GORGONIA VIANA, and
PIONEER STEVEDORING CORPORATION, respondents.
Herenio E. Martinez for petitioner.

M.R. Villaluz Law Office for private respondent.

REGALADO, J.:

In this appeal by certiorari, petitioner Aboitiz Shipping

Corporation seeks a review of the decision 1 of respondent Court
of Appeals, dated July 29, 1988, the decretal portion of which
reads:

WHEREFORE, the judgment appealed from as modified

by the order of October 27, 1982, is hereby affirmed
with the modification that appellant Aboitiz Shipping is
hereby ordered to pay plaintiff-appellees the amount of
P30,000.00 for the death of Anacleto Viana; actual
damages of P9,800.00; P150,000.00 for unearned
income; P7,200.00 as support for deceased's parents;
P20,000.00 as moral damages; P10,000.00 as
attorney's fees; and to pay the costs.

The undisputed facts of the case, as found by the court a quo and

adopted by respondent court, are as follows: .

The evidence disclosed that on May 11, 1975, Anacleto

Viana boarded the vessel M/V Antonia, owned by
defendant, at the port at San Jose, Occidental
Mindoro, bound for Manila, having purchased a ticket
(No. 117392) in the sum of P23.10 (Exh. 'B'). On May
12, 1975, said vessel arrived at Pier 4, North Harbor,
Manila, and the passengers therein disembarked, a
gangplank having been provided connecting the
side of the vessel to the pier. Instead of using said
gangplank Anacleto Viana disembarked on the third
deck which was on the level with the pier. After said
vessel had landed, the Pioneer Stevedoring
Corporation took over the exclusive control of the
cargoes loaded on said vessel pursuant to the
Memorandum of Agreement dated July 26, 1975 (Exh.
'2') between the third party defendant Pioneer
Stevedoring Corporation and defendant Aboitiz
Shipping Corporation.

The crane owned by the third party defendant and

operated by its crane operator Alejo Figueroa was
placed alongside the vessel and one (1) hour after the
passengers of said vessel had disembarked, it started
operation by unloading the cargoes from said vessel.
While the crane was being operated, Anacleto Viana
who had already disembarked from said vessel
obviously remembering that some of his cargoes
were still loaded in the vessel, went back to the
vessel, and it was while he was pointing to the crew of
the said vessel to the place where his cargoes were
loaded that the crane hit him, pinning him between
the side of the vessel and the crane. He was
thereafter brought to the hospital where he later
expired three (3) days thereafter, on May 15, 1975, the
cause of his death according to the Death Certificate
(Exh. "C") being "hypostatic pneumonia secondary
to traumatic fracture of the pubic bone lacerating
the urinary bladder" (See also Exh. "B"). For his
hospitalization, medical, burial and other miscellaneous
expenses, Anacleto's wife, herein plaintiff, spent a total
of P9,800.00 (Exhibits "E", "E-1", to "E-5"). Anacleto
Viana who was only forty (40) years old when he met
said fateful accident (Exh. 'E') was in good health. His
average annual income as a farmer or a farm
supervisor was 400 cavans of palay annually. His
parents, herein plaintiffs Antonio and Gorgonia Viana,
prior to his death had been recipient of twenty (20)
cavans of palay as support or P120.00 monthly.
Because of Anacleto's death, plaintiffs suffered mental
anguish and extreme worry or moral damages. For the
 filing of the instant case, they had to hire a lawyer for
an agreed fee of ten thousand (P10,000.00) pesos. 2

Private respondents Vianas filed a complaint  3 for damages

against petitioner corporation (Aboitiz, for brevity) for
breach of contract of carriage.

In its answer. 4 Aboitiz denied responsibility contending that at

the time of the accident, the vessel was completely under the
control of respondent Pioneer Stevedoring Corporation (Pioneer,
for short) as the exclusive stevedoring contractor of Aboitiz,
which handled the unloading of cargoes from the vessel of
Aboitiz. It is also averred that since the crane operator was not
an employee of Aboitiz, the latter cannot be held liable under the
fellow-servant rule.

Thereafter, Aboitiz, as third-party plaintiff, filed a third-

party complaint 5 against Pioneer imputing liability thereto
for Anacleto Viana's death as having been allegedly caused by the
negligence of the crane operator who was an employee of Pioneer
under its exclusive control and supervision.

Pioneer, in its answer to the third-party complaint, 6 raised the

defenses that Aboitiz had no cause of action against Pioneer
considering that Aboitiz is being sued by the Vianas for breach of
contract of carriage to which Pioneer is not a party; that Pioneer
had observed the diligence of a good father of a family both in
the selection and supervision of its employees as well as in the
prevention of damage or injury to anyone including the victim
Anacleto Viana; that Anacleto Viana's gross negligence was the
direct and proximate cause of his death; and that the filing of the
third-party complaint was premature by reason of the pendency
of the criminal case for homicide through reckless imprudence
filed against the crane operator, Alejo Figueroa.

RTC:

In a decision rendered on April 17, 1980 by the trial

court, 7 Aboitiz was ordered to pay the Vianas for damages
incurred, and Pioneer was ordered to reimburse Aboitiz for
whatever amount the latter paid the Vianas. The dispositive
portion of said decision provides:

WHEREFORE, judgment is hereby rendered in favor of

the plantiffs:

(1) ordering defendant Aboitiz Shipping Corporation to

pay to plaintiffs the sum of P12,000.00 for the death of
Anacleto Viana P9,800.00 as actual damages;
P533,200.00 value of the 10,664 cavans of palay
computed at P50.00 per cavan; P10,000.00 as
attorney's fees; F 5,000.00, value of the 100 cavans of
palay as support for five (5) years for deceased (sic)
parents, herein plaintiffs Antonio and Gorgonia Viana
computed at P50.00 per cavan; P7,200.00 as support
for deceased's parents computed at P120.00 a month
for five years pursuant to Art. 2206, Par. 2, of the Civil
Code; P20,000.00 as moral damages, and costs; and

(2) ordering the third party defendant Pioneer

Stevedoring Corporation to reimburse defendant and
third party plaintiff Aboitiz Shipping Corporation the
said amounts that it is ordered to pay to herein
plaintiffs.

Both Aboitiz and Pioneer filed separate motions for

reconsideration wherein they similarly raised the trial court's
failure to declare that Anacleto Viana acted with gross negligence
despite the overwhelming evidence presented in support thereof.
In addition, Aboitiz alleged, in opposition to Pioneer's
motion, that under the memorandum of agreement the
liability of Pioneer as contractor is automatic for any
damages or losses whatsoever occasioned by and arising
from the operation of its arrastre and stevedoring service.

In an order dated October 27, 1982, 8 the trial court absolved

Pioneer from liability for failure of the Vianas and Aboitiz
to preponderantly establish a case of negligence against the
crane operator which the court a quo ruled is never presumed,
aside from the fact that the memorandum of agreement
supposedly refers only to Pioneer's liability in case of loss or
damage to goods handled by it but not in the case of personal
injuries, and, finally that Aboitiz cannot properly invoke the
fellow-servant rule simply because its liability stems from a
breach of contract of carriage. The dispositive portion of said
order reads:

WHEREFORE, judgment is hereby modified insofar as

third party defendant Pioneer Stevedoring Corporation
is concerned rendered in favor of the plaintiffs-,:

(1) Ordering defendant Aboitiz Shipping Corporation to

pay the plaintiffs the sum of P12,000.00 for the death
of Anacleto Viana; P9,000.00 (sic) as actual damages;
P533,200.00 value of the 10,664 cavans of palay
computed at P50.00 per cavan; P10,000.00 as
attorney's fees; P5,000.00 value of the 100 cavans of
palay as support for five (5) years for deceased's
parents, herein plaintiffs Antonio and Gorgonia
Viana,computed at P50.00 per cavan; P7,200.00 as
support for deceased's parents computed at P120.00 a
month for five years pursuant to Art. 2206, Par. 2, of
the Civil Code; P20,000.00 as moral damages, and
costs; and

(2) Absolving third-party defendant Pioneer

Stevedoring Corporation for (sic) any liability for the
death of Anacleto Viana the passenger of M/V Antonia
owned by defendant third party plaintiff Aboitiz
Shipping Corporation it appearing that the negligence
of its crane operator has not been established therein.

CA AFFIRMED RTC

Not satisfied with the modified judgment of the trial court, Aboitiz
appealed the same to respondent Court of Appeals which affirmed
the findings of of the trial court except as to the amount of
damages awarded to the Vianas.

Hence, this petition wherein petitioner Aboitiz postulates that

respondent court erred:

(A) In holding that the doctrine laid down by this

honorable Court in La Mallorca vs. Court of Appeals, et
al. (17 SCRA 739, July 27, 1966) is applicable to the
case in the face of the undisputable fact that the factual
situation under the La Mallorca case is radically
different from the facts obtaining in this case;

(B) In holding petitioner liable for damages in the face

of the finding of the court a quo and confirmed by the
Honorable respondent court of Appeals that the
deceased, Anacleto Viana was guilty of contributory
negligence, which, We respectfully submit contributory
negligence was the proximate cause of his death;
specifically the honorable respondent Court of Appeals
failed to apply Art. 1762 of the New Civil Code;

(C) In the alternative assuming the holding of the

Honorable respondent Court of Appears that petitioner
may be legally condemned to pay damages to the
private respondents we respectfully submit that it
committed a reversible error when it dismissed
petitioner's third party complaint against private
respondent Pioneer Stevedoring Corporation instead of
compelling the latter to reimburse the petitioner for
whatever damages it may be compelled to pay to the
private respondents Vianas. 9

At threshold, it is to be observed that both the trial court

and respondent Court of Appeals found the victim Anacleto
Viana guilty of contributory negligence, but holding that it
was the negligence of Aboitiz in prematurely turning over the
vessel to the arrastre operator for the unloading of cargoes which
was the direct, immediate and proximate cause of the victim's
death.

I. Petitioner contends that since one (1) hour had already elapsed
from the time Anacleto Viana disembarked from the vessel and
that he was given more than ample opportunity to unload his
cargoes prior to the operation of the crane, his presence on the
vessel was no longer reasonable e and he consequently ceased to
be a passenger. Corollarily, it insists that the doctrine in La
Mallorca vs. Court of Appeals, et al. 10 is not applicable to the
case at bar.

The rule is that the relation of carrier and passenger continues

until the passenger has been landed at the port of destination and
has left the vessel owner's dock or premises. 11 Once created, the
relationship will not ordinarily terminate until the passenger has,
after reaching his destination, safely alighted from the carrier's
conveyance or had a reasonable opportunity to leave the carrier's
premises. All persons who remain on the premises a reasonable
time after leaving the conveyance are to be deemed passengers,
and what is a reasonable time or a reasonable delay within this
rule is to be determined from all the circumstances, and includes
a reasonable time to see after his baggage and prepare for his
departure.12 The carrier-passenger relationship is not terminated
merely by the fact that the person transported has been carried
to his destination if, for example, such person remains in the
carrier's premises to claim his baggage.13

It was in accordance with this rationale that the doctrine in the

aforesaid case of La Mallorca was enunciated, to wit:

It has been recognized as a rule that the relation

of carrier and passenger does not cease at the
moment the passenger alights from the carrier's
vehicle at a place selected by the carrier at the
point of destination, but continues until the
passenger has had a reasonable time or a
reasonable opportunity to leave the carrier's
 premises. And, what is a reasonable time or a
reasonable delay within this rule is to be determined
from all the circumstances. Thus, a person who, after
alighting from a train, walks along the station platform
is considered still a passenger. So also, where a
passenger has alighted at his destination and is
proceeding by the usual way to leave the company's
premises, but before actually doing so is halted by the
report that his brother, a fellow passenger, has been
shot, and he in good faith and without intent of
engaging in the difficulty, returns to relieve his brother,
he is deemed reasonably and necessarily delayed and
thus continues to be a passenger entitled as such to
the protection of the railroad company and its agents.

In the present case, the father returned to the

bus to get one of his baggages which was not
unloaded when they alighted from the bus.
Racquel, the child that she was, must have followed the
father. However, although the father was still on the
running board of the bus waiting for the conductor to
hand him the bag or bayong, the bus started to run, so
that even he (the father) had to jump down from the
moving vehicle. It was at this instance that the child,
who must be near the bus, was run over and killed. In
the circumstances, it cannot be claimed that the
carrier's agent had exercised the 'utmost diligence' of a
'very cautious person' required by Article 1755 of the
Civil Code to be observed by a common carrier in the
discharge of its obligation to transport safely its
passengers. ... The presence of said passengers near
the bus was not unreasonable and they are, therefore,
to be considered still as passengers of the carrier,
entitled to the protection under their contract of
carriage. 14

It is apparent from the foregoing that what prompted the Court to

rule as it did in said case is the fact of the passenger's reasonable
presence within the carrier's premises. That reasonableness of
time should be made to depend on the attending
circumstances of the case, such as the kind of common
carrier, the nature of its business, the customs of the
place, and so forth, and therefore precludes a
consideration of the time element per se without taking
into account such other factors. It is thus of no moment
whether in the cited case of La Mallorca  there was no appreciable
interregnum for the passenger therein to leave the carrier's
premises whereas in the case at bar, an interval of one (1) hour
had elapsed before the victim met the accident. The primary
factor to be considered is the existence of a reasonable
cause as will justify the presence of the victim on or near
the petitioner's vessel. We believe there exists such a
justifiable cause.

It is of common knowledge that, by the very nature of petitioner's

business as a shipper, the passengers of vessels are
allotted a longer period of time to disembark from the ship
than other common carriers such as a passenger bus. With
respect to the bulk of cargoes and the number of
passengers it can load, such vessels are capable of
accommodating a bigger volume of both as compared to
the capacity of a regular commuter bus. Consequently, a
ship passenger will need at least an hour as is the usual
practice, to disembark from the vessel and claim his
baggage whereas a bus passenger can easily get off the
bus and retrieve his luggage in a very short period of time.
Verily, petitioner cannot categorically claim, through the bare
expedient of comparing the period of time entailed in getting the
passenger's cargoes, that the ruling in La Mallorca is
inapplicable to the case at bar. On the contrary, if we are to
apply the doctrine enunciated therein to the instant petition, we
cannot in reason doubt that the victim Anacleto Viana was still a
passenger at the time of the incident. When the accident
occurred, the victim was in the act of unloading his cargoes,
which he had every right to do, from petitioner's vessel. As earlier
stated, a carrier is duty bound not only to bring its
passengers safely to their destination but also to afford
them a reasonable time to claim their baggage.

It is not definitely shown that one (1) hour prior to the incident,
the victim had already disembarked from the vessel. Petitioner
failed to prove this. What is clear to us is that at the time the
victim was taking his cargoes, the vessel had already docked an
hour earlier. In consonance with common shipping procedure as
to the minimum time of one (1) hour allowed for the passengers
to disembark, it may be presumed that the victim had just gotten
off the vessel when he went to retrieve his baggage. Yet, even if
he had already disembarked an hour earlier, his presence
in petitioner's premises was not without cause. The victim
had to claim his baggage which was possible only one (1)
hour after the vessel arrived since it was admittedly
standard procedure in the case of petitioner's vessels that
the unloading operations shall start only after that time.
Consequently, under the foregoing circumstances, the victim
Anacleto Viana is still deemed a passenger of said carrier at the
time of his tragic death.

II. Under the law, common carriers are, from the nature of their
business and for reasons of public policy, bound to observe
extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all
the circumstances of each case. 15 More particularly, a common
carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the
16
circumstances.   Thus, where a passenger dies or is injured,
the common carrier is presumed to have been at fault or to
have acted negligently. 17 This gives rise to an action for
breach of contract of carriage where all that is required of plaintiff
is to prove the existence of the contract of carriage and its non-
performance by the carrier, that is, the failure of the carrier to
carry the passenger safely to his destination, 18 which, in the
instant case, necessarily includes its failure to safeguard
its passenger with extraordinary diligence while such
relation subsists.

The presumption is, therefore, established by law that in case of

a passenger's death or injury the operator of the vessel was at
fault or negligent, having failed to exercise extraordinary
diligence, and it is incumbent upon it to rebut the same. This is in
consonance with the avowed policy of the State to afford full
protection to the passengers of common carriers which can be
carried out only by imposing a stringent statutory obligation upon
the latter. Concomitantly, this Court has likewise adopted a rigid
posture in the application of the law by exacting the highest
degree of care and diligence from common carriers, bearing
utmost in mind the welfare of the passengers who often become
hapless victims of indifferent and profit-oriented carriers. We
cannot in reason deny that petitioner failed to rebut the
presumption against it. Under the facts obtaining in the present
case, it cannot be gainsaid that petitioner had inadequately
complied with the required degree of diligence to prevent the
accident from happening.

As found by the Court of Appeals, the evidence does not show

that there was a cordon of drums around the perimeter of the
crane, as claimed by petitioner. It also adverted to the fact that
the alleged presence of visible warning signs in the vicinity was
disputable and not indubitably established. Thus, we are not
inclined to accept petitioner's explanation that the victim and
other passengers were sufficiently warned that merely venturing
into the area in question was fraught with serious peril.
Definitely, even assuming the existence of the supposed cordon
of drums loosely placed around the unloading area and the
guard's admonitions against entry therein, these were at most
insufficient precautions which pale into insignificance if considered
vis-a-vis the gravity of the danger to which the deceased was
exposed. There is no showing that petitioner was extraordinarily
diligent in requiring or seeing to it that said precautionary
measures were strictly and actually enforced to subserve their
purpose of preventing entry into the forbidden area. By no stretch
of liberal evaluation can such perfunctory acts approximate the
"utmost diligence of very cautious persons" to be exercised "as
far as human care and foresight can provide" which is required by
law of common carriers with respect to their passengers.

While the victim was admittedly contributorily negligent, still

petitioner's aforesaid failure to exercise extraordinary
diligence was the proximate and direct cause of, because it
could definitely have prevented, the former's death.
Moreover, in paragraph 5.6 of its petition, at bar, 19 petitioner has
expressly conceded the factual finding of respondent Court of
Appeals that petitioner did not present sufficient evidence in
support of its submission that the deceased Anacleto Viana was
guilty of gross negligence. Petitioner cannot now be heard to
claim otherwise.

No excepting circumstance being present, we are likewise

bound by respondent court's declaration that there was no
negligence on the part of Pioneer Stevedoring Corporation,
a confirmation of the trial court's finding to that effect, hence
our conformity to Pioneer's being absolved of any liability.

As correctly observed by both courts, Aboitiz joined Pioneer in

proving the alleged gross negligence of the victim, hence its
present contention that the death of the passenger was due to
the negligence of the crane operator cannot be sustained both on
grounds, of estoppel and for lack of evidence on its present
theory. Even in its answer filed in the court below it readily
alleged that Pioneer had taken the necessary safeguards
insofar as its unloading operations were concerned, a fact
which appears to have been accepted by the plaintiff
therein by not impleading Pioneer as a defendant, and
likewise inceptively by Aboitiz by filing its third-party
complaint only after ten (10) months from the institution
of the suit against it. Parenthetically, Pioneer is not within the
ambit of the rule on extraordinary diligence required of, and the
corresponding presumption of negligence foisted on, common
carriers like Aboitiz. This, of course, does not detract from what
we have said that no negligence can be imputed to Pioneer but,
that on the contrary, the failure of Aboitiz to exercise
extraordinary diligence for the safety of its passenger is the
rationale for our finding on its liability.

WHEREFORE, the petition is DENIED and the judgment appealed

from is hereby AFFIRMED  in toto.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento,

JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 95582 October 7, 1991

DANGWA TRANSPORTATION CO., INC. and THEODORE

LARDIZABAL y MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA
CUDIAMAT BANDOY, FERNANDO CUDLAMAT, MARRIETA
CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT,
SAMUEL CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of
the late Pedrito Cudiamat represented by Inocencia
Cudiamat, respondents.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:
On May 13, 1985, private respondents filed a complaint 1 for
damages against petitioners for the death of Pedrito Cudiamat
as a result of a vehicular accident which occurred on March 25,
1985 at Marivic, Sapid, Mankayan, Benguet. Among others, it was
alleged that on said date, while petitioner Theodore M. Lardizabal
was driving a passenger bus belonging to petitioner corporation
in a reckless and imprudent manner and without due
regard to traffic rules and regulations and safety to
persons and property, it ran over its passenger, Pedrito
Cudiamat. However, instead of bringing Pedrito immediately to
the nearest hospital, the said driver, in utter bad faith and
without regard to the welfare of the victim, first brought his other
passengers and cargo to their respective destinations before
banging said victim to the Lepanto Hospital where he expired.

On the other hand, petitioners alleged that they had observed

and continued to observe the extraordinary diligence required in
the operation of the transportation company and the supervision
of the employees, even as they add that they are not absolute
insurers of the safety of the public at large. Further, it was
alleged that it was the victim's own carelessness and negligence
which gave rise to the subject incident, hence they prayed for
the dismissal of the complaint plus an award of damages in
their favor by way of a counterclaim.

RTC DECLARED CUDIAMAT NEGLIGENT

On July 29, 1988, the trial court rendered a decision, effectively

in favor of petitioners, with this decretal portion:

IN VIEW OF ALL THE FOREGOING, judgment is hereby

pronounced that Pedrito Cudiamat was negligent, which
negligence was the proximate cause of his death.
Nonetheless, defendants in equity, are hereby ordered to
pay the heirs of Pedrito Cudiamat the sum of P10,000.00
 which approximates the amount defendants initially offered
said heirs for the amicable settlement of the case. No costs.

SO ORDERED. 2

THE CA SET ASIDE THE ORDER OF THE RTC

Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision 3
 in CA-
G.R. CV No. 19504 promulgated on August 14, 1990, set aside
the decision of the lower court, and ordered petitioners to pay
private respondents:

1. The sum of Thirty Thousand (P30,000.00) Pesos by way

of indemnity for death of the victim Pedrito Cudiamat;

2. The sum of Twenty Thousand (P20,000.00) by way of

moral damages;

3. The sum of Two Hundred Eighty Eight Thousand

(P288,000.00) Pesos as actual and compensatory damages;

4. The costs of this suit. 4

Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated October 4,

1990, 5
 

ISSUE:

hence this petition with the central issue herein being whether
respondent court erred in reversing the decision of the trial court
and in finding petitioners negligent and liable for the damages
claimed.

It is an established principle that the factual findings of the Court

of Appeals as a rule are final and may not be reviewed by this
Court on appeal. However, this is subject to settled exceptions,
one of which is when the findings of the appellate court are
contrary to those of the trial court, in which case a reexamination
of the facts and evidence may be undertaken. 6
In the case at bar, the trial court and the Court of Appeal have discordant positions as to who between the

petitioners an the victim is guilty of negligence. Perforce, we have had to conduct an evaluation of the evidence in

this case for the prope calibration of their conflicting factual findings and legal conclusions.

The lower court, in declaring that the victim was negligent, made the following findings:

This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a moving vehicle, especially

with one of his hands holding an umbrella. And, without having given the driver or the conductor any

indication that he wishes to board the bus. But defendants can also be found wanting of the necessary

diligence. In this connection, it is safe to assume that when the deceased Cudiamat attempted to board

defendants' bus, the vehicle's door was open instead of being closed. This should be so, for it is hard to

believe that one would even attempt to board a vehicle (i)n motion if the door of said vehicle is closed.

Here lies the defendant's lack of diligence. Under such circumstances, equity demands that there must

be something given to the heirs of the victim to assuage their feelings. This, also considering that

initially, defendant common carrier had made overtures to amicably settle the case. It did offer a certain

monetary consideration to the victim's heirs. 7

However, respondent court, in arriving at a different opinion, declares that:

From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is evident that the

subject bus was at full stop when the victim Pedrito Cudiamat boarded the same as it was precisely on

this instance where a certain Miss Abenoja alighted from the bus. Moreover, contrary to the assertion of

the appellees, the victim did indicate his intention to board the bus as can be seen from the testimony of

the said witness when he declared that Pedrito Cudiamat was no longer walking and made a sign to

board the bus when the latter was still at a distance from him. It was at the instance when Pedrito

Cudiamat was closing his umbrella at the platform of the bus when the latter made a sudden jerk

movement (as) the driver commenced to accelerate the bus.

Evidently, the incident took place due to the gross negligence of the
appellee-driver in prematurely stepping on the accelerator and in not
 waiting for the passenger to first secure his seat especially so when we take
into account that the platform of the bus was at the time slippery and wet
because of a drizzle. The defendants-appellees utterly failed to observe
their duty and obligation as common carrier to the end that they should
observe extra-ordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them according to the
circumstances of each case (Article 1733, New Civil Code). 8

After a careful review of the evidence on record, we find no reason to disturb the above holding of the Court of

Appeals. Its aforesaid findings are supported by the testimony of petitioners' own witnesses. One of them,

Virginia Abalos, testified on cross-examination as follows:

Q It is not a fact Madam witness, that at bunkhouse 54, that is before the place of the incident, there is a

crossing?

A The way going to the mines but it is not being pass(ed) by the bus.

Q And the incident happened before bunkhouse 56, is that not correct?

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please inform this Honorable Court if there

was anv unusual incident that occurred?

A When we delivered a baggage at Marivic because  a person alighted there between Bunkhouse 53 and

54.
 Q What happened when you delivered this passenger at this particular place in Lepanto?

A  When we reached the place, a passenger alighted and I signalled my driver. When we stopped we

went out because I saw an umbrella about a split second and I signalled again the driver, so the driver

stopped and we went down and we saw Pedrito Cudiamat asking for help because he was lying down.

Q How far away was this certain person, Pedrito Cudiamat, when you saw him lying down — from the

bus how far was he?

A It is about two to three meters.

Q  On what direction of the bus was he found about three meters from the bus, was it at the front or at

the back?

A At the back, sir. 10 (Emphasis supplied.)

The foregoing testimonies show that the place of the accident and the place where one of the passengers alighted

were both between Bunkhouses 53 and 54, hence the finding of the Court of Appeals that the bus was at full stop

when the victim boarded the same is correct. They further confirm the conclusion that the victim fell from the

platform of the bus when it suddenly accelerated forward and was run over by the rear right tires of the vehicle,

as shown by the physical evidence on where he was thereafter found in relation to the bus when it stopped.

Under such circumstances, it cannot be said that the deceased was guilty of negligence.

The contention of petitioners that the driver and the conductor had no knowledge that the victim would ride on

the bus, since the latter had supposedly not manifested his intention to board the same, does not merit

consideration. When the bus is not in motion there is no necessity for a person who wants to ride the

same to signal his intention to board. A public utility bus, once it stops, is in effect making a

continuous offer to bus riders. Hence, it becomes the duty of the driver and the conductor, every time

the bus stops, to do no act that would have the effect of increasing the peril to a passenger while he

was attempting to board the same. The premature acceleration of the bus in this case was a breach of

such duty. 11

It is the duty of common carriers of passengers, including common carriers by railroad train, streetcar, or

motorbus, to stop their conveyances a reasonable length of time in order to afford passengers an
opportunity to board and enter, and they are liable for injuries suffered by boarding passengers resulting from

the sudden starting up or jerking of their conveyances while they are doing so. 12

Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot be

considered negligent under the circumstances. As clearly explained in the testimony of the aforestated

witness for petitioners, Virginia Abalos, th bus had "just started" and "was still in slow motion" at the point where

the victim had boarded and was on its platform. 13

It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which is moving

slowly. 14
 An ordinarily prudent person would have made the attempt
board the moving conveyance under the same or similar
circumstances. The fact that passengers board and alight from
slowly moving vehicle is a matter of common experience both the
driver and conductor in this case could not have been unaware of
such an ordinary practice.

The victim herein, by stepping and standing on the

platform of the bus, is already considered a passenger and
is entitled all the rights and protection pertaining to such a
contractual relation. Hence, it has been held that the duty
which the carrier passengers owes to its patrons extends to
persons boarding cars as well as to those alighting therefrom. 15
Common carriers, from the nature of their business and reasons of public policy, are bound to observe

extraordina diligence for the safety of the passengers transported by the according to all the circumstances of

each case. 16
 A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence very cautious persons, with a due regard for all
the circumstances. 17

It has also been repeatedly held that in an action based on a contract of carriage,
the court need not make an express finding of fault or negligence on the part of
the carrier in order to hold it responsible to pay the damages sought by the
passenger. By contract of carriage, the carrier assumes the express obligation to
transport the passenger to his destination safely and observe extraordinary
diligence with a due regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault or negligence of
the carrier. This is an exception to the general rule that negligence must be
proved, and it is therefore incumbent upon the carrier to prove that it has
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the
Civil Code. 18

Moreover, the circumstances under which the driver and the conductor failed to
bring the gravely injured victim immediately to the hospital for medical treatment
is a patent and incontrovertible proof of their negligence. It defies understanding
and can even be stigmatized as callous indifference. The evidence shows that
after the accident the bus could have forthwith turned at Bunk 56 and thence to
the hospital, but its driver instead opted to first proceed to Bunk 70 to allow a
passenger to alight and to deliver a refrigerator, despite the serious condition of
the victim. The vacuous reason given by petitioners that it was the wife of the
deceased who caused the delay was tersely and correctly confuted by respondent
court:

... The pretension of the appellees that the delay was due to the fact that they had to wait for about

twenty minutes for Inocencia Cudiamat to get dressed deserves scant consideration. It is rather

scandalous and deplorable for a wife whose husband is at the verge of dying to have the luxury of

dressing herself up for about twenty minutes before attending to help her distressed and helpless

husband. 19

Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was to inform the

victim's family of the mishap, since it was not said bus driver nor the conductor but the companion of the victim

who informed his family thereof. 20

 In fact, it was only after the refrigerator was
unloaded that one of the passengers thought of sending
somebody to the house of the victim, as shown by the testimony
of Virginia Abalos again, to wit:

Q Why, what happened to your refrigerator at that particular

time?

A I asked them to bring it down because that is the nearest

place to our house and when I went down and asked
somebody to bring down the refrigerator, I also asked
somebody to call the family of Mr. Cudiamat.
 COURT:

Q Why did you ask somebody to call the family of Mr.

Cudiamat?

A Because Mr. Cudiamat met an accident, so I ask

somebody to call for the family of Mr. Cudiamat.

Q But nobody ask(ed) you to call for the family of Mr.

Cudiamat?

A No sir. 21
With respect to the award of damages, an oversight was, however, committed by respondent Court of Appeals in

computing the actual damages based on the gross income of the victim. The rule is that the amount recoverable

by the heirs of a victim of a tort is not the loss of the entire earnings, but rather the loss of that portion of the

earnings which the beneficiary would have received. In other words, only net earnings, not gross earnings, are to

be considered, that is, the total of the earnings less expenses necessary in the creation of such earnings or

income and minus living and other incidental expenses. 22

We are of the opinion that the deductible living and other expense of the deceased may fairly and reasonably be

fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or compensatory damages, respondent

court found that the deceased was 48 years old, in good health with a remaining productive life expectancy of 12

years, and then earning P24,000.00 a year. Using the gross annual income as the basis, and multiplying the same

by 12 years, it accordingly awarded P288,000. Applying the aforestated rule on computation based on the net

earnings, said award must be, as it hereby is, rectified and reduced to P216,000.00. However, in accordance with

prevailing jurisprudence, the death indemnity is hereby increased to P50,000.00. 23

WHEREFORE, subject to the above modifications, the challenged judgment and resolution of

respondent Court of Appeals are hereby AFFIRMED in all other respects.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

 
CHAPTER 3

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 74761 November 6, 1990

NATIVIDAD V. ANDAMO and EMMANUEL R.

ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases
Division) and MISSIONARIES OF OUR LADY OF LA
SALETTE, INC., respondents.

Lope E. Adriano for petitioners.

Padilla Law Office for private respondent.

FERNAN, C.J.:

The pivotal issue in this petition for certiorari, prohibition and

mandamus is whether a corporation, which has built through its
agents, waterpaths, water conductors and contrivances within its
land, thereby causing inundation and damage to an adjacent
land, can be held civilly liable for damages under Articles 2176
and 2177 of the Civil Code on quasi-delicts such that the resulting
civil case can proceed independently of the criminal case.

The antecedent facts are as follows:

Petitioner spouses Emmanuel and Natividad Andamo are the

owners of a parcel of land situated in Biga (Biluso) Silang, Cavite
which is adjacent to that of private respondent,
Missionaries of Our Lady of La Salette, Inc., a religious
corporation.

Within the land of respondent corporation, waterpaths and

contrivances, including an artificial lake, were constructed, which
allegedly inundated and eroded petitioners' land, caused a
young man to drown, damaged petitioners' crops and plants,
washed away costly fences, endangered the lives of
petitioners and their laborers during rainy and stormy
seasons, and exposed plants and other improvements to
destruction.

In July 1982, petitioners instituted a criminal action,

docketed as Criminal Case No. TG-907-82, before the Regional
Trial Court of Cavite, Branch 4 (Tagaytay City), against Efren
Musngi, Orlando Sapuay and Rutillo Mallillin, officers and
directors of herein respondent corporation, for destruction
by means of inundation under Article 324 of the Revised Penal
Code.

Subsequently, on February 22, 1983, petitioners filed another

action against respondent corporation, this time a civil
case, docketed as Civil Case No. TG-748, for damages with
prayer for the issuance of a writ of preliminary injunction
before the same court. 1

On March 11, 1983, respondent corporation filed its answer to the

complaint and opposition to the issuance of a writ of
preliminary injunction. Hearings were conducted including
ocular inspections on the land. However, on April 26, 1984, the
trial court, acting on respondent corporation's motion to dismiss
or suspend the civil action, issued an
order suspending further hearings in Civil Case No, TG-748
until after judgment in the related Criminal Case No. TG-907-82.

RTC DISMISSED THE CIVIL CASE

Resolving respondent corporation's motion to dismiss filed on

June 22, 1984, the trial court issued on August 27, 1984 the
disputed order dismissing Civil Case No. TG-748 for lack of
jurisdiction, as the criminal case which was instituted
ahead of the civil case was still unresolved. Said order was
anchored on the provision of Section 3 (a), Rule III of the Rules
of Court which provides that "criminal and civil actions arising
from the same offense may be instituted separately, but after the
criminal action has been commenced the civil action cannot be
instituted until final judgment has been rendered in the criminal
action." 2

Petitioners appealed from that order to the Intermediate

Appellate Court. 3

On February 17, 1986, respondent Appellate Court, First Civil

Cases Division, promulgated a decision 4 affirming the questioned
order of the trial court. 5 A motion for reconsideration filed by
petitioners was denied by the Appellate Court in its resolution
dated May 19, 1986.

The APPELLATE COURT AFFIRMED THE LOWER COURT

Directly at issue is the propriety of the dismissal of Civil Case No.

TG-748 in accordance with Section 3 (a) of Rule 111 of the Rules
of Court. Petitioners contend that the trial court and the Appellate
Court erred in dismissing Civil Case No. TG-748 since it is
predicated on a quasi-delict. Petitioners have raised a valid point.

It is axiomatic that the nature of an action filed in court is

determined by the facts alleged in the complaint as constituting
the cause of action. 7 The purpose of an action or suit and the law
to govern it, including the period of prescription, is to be
determined not by the claim of the party filing the action, made
in his argument or brief, but rather by the complaint itself, its
allegations and prayer for relief. 8 The nature of an action is not
necessarily determined or controlled by its title or heading but the
body of the pleading or complaint itself. To avoid possible denial
of substantial justice due to legal technicalities, pleadings as well
as remedial laws should be liberally construed so that the litigants
may have ample opportunity to prove their respective claims. 9

Quoted hereunder are the pertinent portions of petitioners'

complaint in Civil Case No. TG-748:

4) That within defendant's land, likewise located at Biga

(Biluso), Silang, Cavite, adjacent on the right side of
the aforesaid land of plaintiffs, defendant constructed
waterpaths starting from the middle-right portion
thereof leading to a big hole or opening, also
constructed by defendant, thru the lower portion of its
concrete hollow-blocks fence situated on the right side
of its cemented gate fronting the provincial highway,
and connected by defendant to a man height inter-
connected cement culverts which were also constructed
and lain by defendant cross-wise beneath the tip of the
said cemented gate, the left-end of the said inter-
connected culverts again connected by defendant to a
big hole or opening thru the lower portion of the same
concrete hollowblocks fence on the left side of the said
cemented gate, which hole or opening is likewise
connected by defendant to the cemented mouth of a
big canal, also constructed by defendant, which runs
northward towards a big hole or opening which was
also built by defendant thru the lower portion of its
concrete hollow-blocks fence which separates the land
of plaintiffs from that of defendant (and which serves
as the exit-point of the floodwater coming from the
land of defendant, and at the same time, the entrance-
point of the same floodwater to the land of plaintiffs,
year after year, during rainy or stormy seasons.
 5) That moreover, on the middle-left portion of its land
just beside the land of plaintiffs, defendant also
constructed an artificial lake, the base of which is soil,
which utilizes the water being channeled thereto from
its water system thru inter-connected galvanized iron
pipes (No. 2) and complimented by rain water during
rainy or stormy seasons, so much so that the water
below it seeps into, and the excess water above it
inundates, portions of the adjoining land of plaintiffs.

6) That as a result of the inundation brought about by

defendant's aforementioned water conductors,
contrivances and manipulators, a young man was
drowned to death, while herein plaintiffs suffered and
will continue to suffer, as follows:

a) Portions of the land of plaintiffs were

eroded and converted to deep, wide and long
canals, such that the same can no longer be
planted to any crop or plant.

b) Costly fences constructed by plaintiffs

were, on several occasions, washed away.

c) During rainy and stormy seasons the lives

of plaintiffs and their laborers are always in
danger.

d) Plants and other improvements on other

portions of the land of plaintiffs are exposed
to destruction. ... 10

A careful examination of the aforequoted complaint shows

that the civil action is one under Articles 2176 and 2177 of
the Civil Code on quasi-delicts.

All the elements of a quasi-delict are present, to wit: (a) damages

suffered by the plaintiff, (b) fault or negligence of the defendant,
or some other person for whose acts he must respond; and (c)
the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the
plaintiff. 11

Clearly, from petitioner's complaint, the waterpaths and

contrivances built by respondent corporation are alleged to have
inundated the land of petitioners. There is therefore, an assertion
of a causal connection between the act of building these
waterpaths and the damage sustained by petitioners. Such
action if proven constitutes fault or negligence which may
be the basis for the recovery of damages.

In the case of Samson vs. Dionisio, 12 the Court applied Article

1902, now Article 2176 of the Civil Code and held that "any
person who without due authority constructs a bank or dike,
stopping the flow or communication between a creek or a lake
and a river, thereby causing loss and damages to a third party
who, like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the payment of
an indemnity for loss and damages to the injured party.

While the property involved in the cited case belonged to the

public domain and the property subject of the instant case is
privately owned, the fact remains that petitioners' complaint
sufficiently alleges that petitioners have sustained and will
continue to sustain damage due to the waterpaths and
contrivances built by respondent corporation. Indeed, the
recitals of the complaint, the alleged presence of damage to the
petitioners, the act or omission of respondent corporation
supposedly constituting fault or negligence, and the causal
connection between the act and the damage, with no pre-
existing contractual obligation between the parties make a
clear case of a quasi delict or culpa aquiliana.

It must be stressed that the use of one's property is not without

limitations. Article 431 of the Civil Code provides that "the owner
of a thing cannot make use thereof in such a manner as to injure
the rights of a third person." SIC UTERE TUO UT ALIENUM
NON LAEDAS. Moreover, adjoining landowners have mutual and
reciprocal duties which require that each must use his own land in
a reasonable manner so as not to infringe upon the rights and
interests of others. Although we recognize the right of an owner
to build structures on his land, such structures must be so
constructed and maintained using all reasonable care so that they
cannot be dangerous to adjoining landowners and can withstand
the usual and expected forces of nature. If the structures
cause injury or damage to an adjoining landowner or a
third person, the latter can claim indemnification for the
injury or damage suffered.

Article 2176 of the Civil Code imposes a civil liability on a person

for damage caused by his act or omission constituting fault or
negligence, thus:

Article 2176. Whoever by act or omission causes

damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and
is governed by the provisions of this chapter.

Article 2176, whenever it refers to "fault or negligence", covers

not only acts "not punishable by law" but also acts criminal in
character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a
criminal act, whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is not
allowed, (if the tortfeasor is actually charged also criminally), to
recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the
awards made in the two cases vary. 13

The distinctness of quasi-delicta is shown in Article 2177 of the

Civil Code, which states:

Article 2177. Responsibility for fault or negligence

under the preceding article is entirely separate
 and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or
omission of the defendant.

According to the Report of the Code Commission "the foregoing

provision though at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal
and civil negligence. The former is a violation of the criminal
law, while the latter is a distinct and independent negligence,
which is a "culpa aquiliana" or quasi-delict, of ancient origin,
having always had its own foundation and individuality, separate
from criminal negligence. Such distinction between criminal
negligence and "culpa extra-contractual" or "cuasi-delito" has
been sustained by decisions of the Supreme Court of Spain ... 14

In the case of Castillo vs. Court of Appeals, 15 this Court held that

a quasi-delict or culpa aquiliana is a separate legal institution
under the Civil Code with a substantivity all its own, and
individuality that is entirely apart and independent from a delict
or crime — a distinction exists between the civil liability
arising from a crime and the responsibility for quasi-delicts
or culpa extra-contractual. The same negligence causing
damages may produce civil liability arising from a crime under the
Penal Code, or create an action for quasi-delicts or culpa extra-
contractual under the Civil Code. Therefore, the acquittal or
conviction in the criminal case is entirely irrelevant in the civil
case, unless, of course, in the event of an acquittal where the
court has declared that the fact from which the civil action arose
did not exist, in which case the extinction of the criminal liability
would carry with it the extinction of the civil liability.

In Azucena vs. Potenciano, 16 the Court declared that in quasi-

delicts, "(t)he civil action is entirely independent of the criminal
case according to Articles 33 and 2177 of the Civil Code. There
can be no logical conclusion than this, for to subordinate the civil
action contemplated in the said articles to the result of the
criminal prosecution — whether it be conviction or acquittal —
would render meaningless the independent character of the civil
action and the clear injunction in Article 31, that his action may
proceed independently of the criminal proceedings and regardless
of the result of the latter."

WHEREFORE, the assailed decision dated February 17, 1986 of

the then Intermediate Appellate Court affirming the order of
dismissal of the Regional Trial Court of Cavite, Branch 18
(Tagaytay City) dated August 17, 1984 is hereby REVERSED and
SET ASIDE. The trial court is ordered to reinstate Civil Case No.
TG-748 entitled "Natividad V. Andamo and Emmanuel R. Andamo
vs. Missionaries of Our Lady of La Salette Inc." and to proceed
with the hearing of the case with dispatch. This decision is
immediately executory. Costs against respondent corporation.

SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur.

Feliciano, J., is on leave.

FIRST DIVISION

G.R. No. 118889 March 23, 1998

FGU INSURANCE CORPORATION, Petitioner, vs. COURT OF

APPEALS, FILCAR TRANSPORT, INC., and FORTUNE
INSURANCE CORPORATION, Respondents.

BELLOSILLO, J.:

For damages suffered by a third party, may an action based

on quasi-delict prosper against a rent-a-car company and,
consequently, its insurer for fault or negligence of the car lessee
in driving the rented vehicle?
This was a two-car collision at dawn. At around 3 o'clock of
21 April 1987, two (2) vehicles, both Mitsubishi Colt Lancers,
cruising northward along Epifanio de los Santos Avenue,
Mandaluyong City, figured in a traffic accident. The car bearing
Plate No. PDG 435 owned by Lydia F. Soriano was being driven at
the outer lane of the highway by Benjamin Jacildone, while the
other car, with Plate No. PCT 792, owned by respondent
FILCAR Transport, Inc. (FILCAR), and driven by Peter Dahl-
Jensen as lessee, was at the center lane, left of the other vehicle.
Upon approaching the corner of Pioneer Street, the car owned by
FILCAR swerved to the right hitting the left side of the car of
Soriano. At that time Dahl-Jensen, a Danish tourist, did not
possess a Philippine driver's license. 1

As a consequence, petitioner FGU Insurance Corporation, in view

of its insurance contract with Soriano, paid the latter P25,382.20.
By way of subrogation, 2 it sued Dahl-Jensen and
respondent FILCAR as well as respondent Fortune
Insurance Corporation (FORTUNE) as insurer of FILCAR
for quasi-delict before the Regional Trial Court of Makati City.

Unfortunately, summons was not served on Dahl-Jensen

since he was no longer staying at his given address; in fact,
upon motion of petitioner, he was dropped from the complaint.

RTC DISMISSED THE CASE

On 30 July 1991 the trial court dismissed the case for failure of
petitioner to substantiate its claim of subrogation.

THE CASE AFFIRMED

On 31 January 1995 respondent Court of Appeals affirmed the

ruling of the trial court although based on another ground, i.e.,
only the fault or negligence of Dahl-Jensen was sufficiently
proved but not that of respondent FILCAR. 4 In other words,
petitioner failed to establish its cause of action for sum of
money based on quasi-delict.
In this appeal, petitioner insists that respondents are liable on the
strength of the ruling in MYC-Agro-Industrial Corporation
v.  Vda. de Caldo 5 that the registered owner of a vehicle is liable
for damages suffered by third persons although the vehicle is
leased to another.

We find no reversible error committed by respondent court in

upholding the dismissal of petitioner's complaint. The pertinent
provision is Art. 2176 of the Civil Code which states: "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  . . . . "

To sustain a claim based thereon, the following requisites must

concur: (a) damage suffered by the plaintiff; (b) fault or
negligence of the defendant; and, (c) connection of cause and
effect between the fault or negligence of the defendant and the
damage incurred by the plaintiff. 6

We agree with respondent court that petitioner failed to prove the

existence of the second requisite, i.e., fault or negligence of
defendant FILCAR, because only the fault or negligence of
Dahl-Jensen was sufficiently established, not that of
FILCAR. It should be noted that the damage caused on the
vehicle of Soriano was brought about by the circumstance that
Dahl-Jensen swerved to the right while the vehicle that he was
driving was at the center lane. It is plain that the negligence was
solely attributable to Dahl-Jensen thus making the damage
suffered by the other vehicle his personal liability. Respondent
FILCAR did not have any participation therein.

Article 2180 of the same Code which deals also with quasi-

delict provides:

The obligation imposed by article 2176 is demandable not only for

one's own acts or omissions, but also for those of persons for
whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.

Guardians are liable for damages caused by the minors or

incapacitated persons who are under their authority and live in
their company.

The owners and managers of an establishment or

enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their

employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.

The State is responsible in like manner when it acts through a

special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case
what is provided in article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and

trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their custody.

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.

The liability imposed by Art. 2180 arises by virtue of a

presumption juris tantum of negligence on the part of the
persons made responsible thereunder, derived from their failure
to exercise due care and vigilance over the acts of subordinates
to prevent them from causing damage. 7 Yet, as correctly
observed by respondent court, Art. 2180 is hardly applicable
because none of the circumstances mentioned therein obtains in
the case under consideration. Respondent FILCAR being
engaged in a rent-a-car business was only the owner of
the car leased to Dahl-Jensen. As such, there was
no vinculum juris between them as employer and employee.
Respondent FILCAR cannot in any way be responsible for
the negligent act of Dahl-Jensen, the former not being an
employer of the latter.

We now correlate par. 5 of Art. 2180 with Art. 2184 of the same
Code which provides: "In motor vehicle mishap, the owner is
solidarily liable with his driver, if the former, who was in the
vehicle, could have by the use of due diligence, prevented the
misfortune . . . .  If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable." Obviously, this
provision of Art. 2184 is neither applicable because of the
absence of master-driver relationship between respondent
FILCAR and Dahl-Jensen. Clearly, petitioner has no cause of
action against respondent FILCAR on the basis of  quasi-
delict; logically, its claim against respondent FORTUNE can
neither prosper.

Petitioner's insistence on MYC-Agro-Industrial Corporation is

rooted in a misapprehension of our ruling therein. In that case,
the negligent and reckless operation of the truck owned by
petitioner corporation caused injuries to several persons and
damage to property. Intending to exculpate itself from liability,
the corporation raised the defense that at the time of the collision
it had no more control over the vehicle as it was leased to
another; and, that the driver was not its employee but of the
lessee. The trial court was not persuaded as it found that the true
nature of the alleged lease contract was nothing more than a
disguise effected by the corporation to relieve itself of the
burdens and responsibilities of an employer. We upheld this
finding and affirmed the declaration of joint and several
liability of the corporation with its driver.

WHEREFORE, the petition is DENIED. The decision of respondent

Court of Appeals dated 31 January 1995 sustaining the dismissal
of petitioner's complaint by the trial court is AFFIRMED. Costs
against petitioner.

SO ORDERED.

Davide, Jr., Vitug, Panganiban and Quisumbing, JJ.,

concur.