transportation law cases (fulltexts)

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TRANSPORTATION LAW CASES

G.R. No. 122039 May 31, 2000

VICENTE CALALAS,petitioner,vs.COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA,respondents.

MENDOZA, J.:

This is a petition for review on certiorariof the decision1of the Court of Appeals, dated March 31,1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, andawarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action forbreach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, thena college freshman majoring in Physical Education at the Siliman University, took a passenger

jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity ofabout 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at theback of the door at the rear end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. Asshe was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as shewas doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped theleft rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal

third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of thefracture, long leg circular casting, and case wedging were done under sedation. Her confinement inthe hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V.Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three monthsand would have to ambulate in crutches during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of thecontract of carriage by the former in failing to exercise the diligence required of him as a commoncarrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the ownerof the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of

liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It tookcognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, forquasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable toCalalas for the damage to his jeepney.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground thatSunga's cause of action was based on a contract of carriage, not quasi-delict, and that the commoncarrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed
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the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. Thedispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE,and another one is entered ordering defendant-appellee Vicente Calalas to payplaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence ofVerena was the proximate cause of the accident negates his liability and that to rule otherwise wouldbe to make the common carrier an insurer of the safety of its passengers. He contends that thebumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assailsthe award of moral damages to Sunga on the ground that it is not supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and theowner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and,therefore, the principle ofres judicatadoes not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil CaseNo. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damagecaused to petitioner's jeepney. On the other hand, the issue in this case is whether petitioner is liableon his contract of carriage. Thefirst, quasi-delict, also known as culpa aquiliana or culpa extracontractual, has as its source the negligence of the tortfeasor. The second, breach of contractor culpa contractual, is premised upon the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established because it is thebasis of the action, whereas in breach of contract, the action can be prosecuted merely by provingthe existence of the contract and the fact that the obligor, in this case the common carrier, failed totransport his passenger safely to his destination.2In case of death or injuries to passengers, Art.

1756 of the Civil Code provides that common carriers are presumed to have been at fault or to haveacted negligently unless they prove that they observed extraordinary diligence as defined in Arts.1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden ofproof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva andhis driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga. It isimmaterial that the proximate cause of the collision between the jeepney and the truck was thenegligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasi-
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delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to aperson where there is no relation between him and another party. In such a case, the obligation iscreated by law itself. But, where there is a pre-existing contractual relation between the parties, it isthe parties themselves who create the obligation, and the function of the law is merely to regulatethe relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated bythe Civil Code are those respecting the diligence required of common carriers with regard to the

safety of passengers as well as the presumption of negligence in cases of death or injury topassengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for reasons ofpublic policy, are bound to observe extraordinary diligence in the vigilance over thegoods and for the safety of the passengers transported by them, according to all thecircumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed inarticles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence forthe safety of the passengers is further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as humancare and foresight can provide, using the utmost diligence of very cautious persons,with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers arepresumed to have been at fault or to have acted negligently, unless they prove thatthey observed extraordinary diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose,and it became the duty of petitioner to prove that he had to observe extraordinary diligence in thecare of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide,using the utmost diligence of very cautious persons, with due regard for all the circumstances" asrequired by Art. 1755? We do not think so. Several factors militate against petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion beingexposed about two meters from the broad shoulders of the highway, and facing the middle of thehighway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the LandTransportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such amanner as to obstruct or impede the passage of any vehicle, nor, while dischargingor taking on passengers or loading or unloading freight, obstruct the free passage ofother vehicles on the highway.

Second, it is undisputed that petitioner's driver took in more passengers than the allowed seatingcapacity of the jeepney, a violation of 32(a) of the same law. It provides:

Exceeding registered capacity. No person operating any motor vehicle shall allowmore passengers or more freight or cargo in his vehicle than its registered capacity.


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The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to whichthe other passengers were exposed. Therefore, not only was petitioner unable to overcome thepresumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidenceshows he was actually negligent in transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension

seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the manyvictims of the tragedies in our seas should not be compensated merely because those passengersassumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner'scontention that the jeepney being bumped while it was improperly parked constitutes caso fortuito.

A caso fortuitois an event which could not be foreseen, or which, though foreseen, wasinevitable.3This requires that the following requirements be present: (a) the cause of the breach isindependent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is suchas to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtordid not take part in causing the injury to thecreditor.4Petitioner should have foreseen the danger of parking his jeepney with its body protrudingtwo meters into the highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive and withoutbasis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in thatschool year 1989-1990 at the Silliman University, majoring in Physical Education.Because of the injury, she was not able to enroll in the second semester of thatschool year. She testified that she had no more intention of continuing with herschooling, because she could not walk and decided not to pursue her degree, majorin Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, shecried in pain because of her injured left foot. As a result of her injury, the OrthopedicSurgeon also certified that she has "residual bowing of the fracture side." Shelikewise decided not to further pursue Physical Education as her major subject,because "my left leg . . . has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of theinjuries that she suffered. Under Article 2219 of the Civil Code, she is entitled torecover moral damages in the sum of P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on abreach of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code .5As anexception, such damages are recoverable: (1) in cases in which the mishap results in the death of a

passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the casesin which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6

In this case, there is no legal basis for awarding moral damages since there was no factual findingby the appellate court that petitioner acted in bad faith in the performance of the contract of carriage.Sunga's contention that petitioner's admission in open court that the driver of the jeepney failed toassist her in going to a nearby hospital cannot be construed as an admission of bad faith. The factthat it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was
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utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition byVerena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, datedSeptember 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages isDELETED.

SO ORDERED.

Footnotes

1Penned by Justice Renato C. Dacudao and concurred in by Justices Quirino D. AbadSantos, Jr. (now retired) and B.A. Adefuindela Cruz (now retired); rollo, pp. 38-53.

2Rollo, pp. 55-56.

3Docketed as Civil Case No. 8122; records, pp. 1-5.

4Id. at pp.53-56.

5Id.at pp. 72-74.

6Id. at pp. 307-310; Penned by Judge Teofisto L. Calumpang.

7Penned by Judge Arsenio J. Magpale (now Associate Justice of the Court ofAppeals); rollo,pp. 57-79.

8Rollo, p.79

9Id.at p. 221.

10Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause ofhis injury, he cannot recover damages. But if his negligence was only contributory, theimmediate and proximate cause of the injury being the defendants lack of due care, theplaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

11Yambao v. Zuiga, G.R. No. 146173, December 11, 2003, 418 SCRA 266, 271.

12Child Learning Center Inc. v. Tagario, G.R. No. 150920, November 25, 2005.

13TSN, August 12, 1987, p.31.

14Id. at p. 10.

15Id. at p. 13.

16Id.

17Id.
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18Id. at p. 24.

19TSN, March 25, 1987, p. 31.

20TSN, August 29, 1985, p. 9.

21Id. at p.10.

22TSN, October 20, 1987, pp. 10-11.

23Valenzuela v. Court of Appeals,323 Phil. 374, 388 (1996).

24Ma-ao Sugar Central Co., Inc. v. Court of Appeals, G.R. No. 83491, August 27, 1990, 189SCRA 88, 93.

25See Smith Bell Dodwell Shipping Agency Corporation v. Borja, 432 Phil. 913, 922 (2002).

26Tugade, Sr. v. Court of Appeals 455 Phil. 258, 280-281 (2003), citing Viron TransportationCo., Inc., v. Delos Santos, 399 Phil. 243, 253 (2000); Victory Liner, Inc. v. Heirs of Malecdan,442 Phil. 784, 793 (2002).

27Supra note 11 at pp 273-274.

28Id., at pp. 273-275.

29TSN, August 12, 1987, pp.24-25.

30Id. at p. 26.

31

Id.32Lambert v. Heirs of Ray Castillon, G.R. No. 160709, February 23, 2005, 452 SCRA 285,293, citing Syki v. Begasa,G.R. No. 149149, October 23, 2003, 414 SCRA 237, 244.

33G.R. No. L-65295, March 10, 1987, 148 SCRA 353, 370.

34Id. at p. 371.

35G.R. No. 138060, September 1, 2004, 437 SCRA 426.

36Id. at p. 451.
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PHILIPPINE CHARTER INSURANCE CORPORATION, peti t ioner,vs. CHEMOIL LIGHTERAGE CORPORATION, respondent.

D E C I S I O N

CHICO-NAZARIO,J.:

Before Us is a petition for review on certiorari which assails the Decision ofthe Court of Appeals[1]in CA-G.R. CV No. 56209, dated 18 December 1998.The Decision reversed and set aside the decision of the Regional Trial Court(RTC),[2]Branch 16, City of Manila, which ordered herein respondent to paythe petitioners claim in the amount ofP5,000,000.00 with legal interest fromthe date of the filing of the complaint.

THE FACTS

Petitioner Philippine Charter Insurance Corporation is a domesticcorporation engaged in the business of non-life insurance. RespondentChemoil Lighterage Corporation is also a domestic corporation engaged in thetransport of goods.

On 24 January 1991, Samkyung Chemical Company, Ltd., based in Ulsan,South Korea, shipped 62.06 metric tons of the liquid chemical DIOCTYLPHTHALATE (DOP) on board MT TACHIBANA which was valued atUS$90,201.57 under Bill of Lading No. ULS/MNL-1[3]and another 436.70metric tons of DOP valued at US$634,724.89 under Bill of Lading No.ULS/MNL-2[4]to the Philippines. The consignee was Plastic Group Phils., Inc.(PGP) in Manila.

PGP insured the cargo with herein petitioner Philippine Charter InsuranceCorporation against all risks. The insurance was under Marine Policies No.MRN-30721[5]dated 06 February 1991 for P31,757,969.19 and No. MRN-30722[6]for P4,514,881.00. Marine Endorsement No. 2786[7]dated 11 May1991 was attached and formed part of MRN-30721, amending the lattersinsured value to P24,667,422.03, and reduced the premium accordingly.

The ocean tanker MT TACHIBANA unloaded the cargo to Tanker BargeLB-1011 of respondent Chemoil Lighterage Corporation, which shall transportthe same to Del Pan Bridge in Pasig River. Tanker Barge LB-1011 wouldunload the cargo to tanker trucks, also owned by the respondent, and haul itby land to PGPs storage tanks in Calamba, Laguna.
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Upon inspection by PGP, the samples taken from the shipment showeddiscoloration from yellowish to amber, demonstrating that it was damaged, asDOP is colorless and water clear. PGP then sent a letter to the petitionerdated 18 February 1991[8]where it formally made an insurance claim for theloss it sustained due to the contamination.

The petitioner requested an independent insurance adjuster, the GITInsurance Adjusters, Inc. (GIT), to conduct a Quantity and Condition Survey ofthe shipment. On 22 February 1991, GIT issued a Report,[9]part of whichstates:

As unloading progressed, it was observed on February 14, 1991 that DOP samples

taken were discolored from yellowish to amber. Inspection of cargo tanks showed

manhole covers of ballast tanks ceilings loosely secured. Furthermore, it was noted

that the rubber gaskets of the manhole covers of the ballast tanks re-acted to the

chemical causing shrinkage thus, loosening the covers and cargo ingress to the rustyballast tanks[10]

On 13 May 1991, the petitioner paid PGP the amountof P5,000,000.00[11]as full and final payment for the loss. PGP issued aSubrogation Receipt to the petitioner.

Meanwhile, on 03 April 1991, PGP paid the respondent the amountof P301,909.50 as full payment for the latters services, as evidenced byOfficial Receipt No. 1274.[12]

On 15 July 1991, an action for damages was instituted by the petitioner-insurer against respondent-carrier before the RTC, Branch 16, City of Manila,docketed as Civil Case No. 91-57923.[13]The petitioner prayed for actualdamages in the amount of P5,000,000.00, attorneys fees in the amount of noless than P1,000,000.00, and costs of suit.

An Answer with Compulsory Counterclaim[14]was filed by the respondenton 05 September 1991. The respondent admitted it undertook to transport theconsignees shipment from MT TACHIBANA to the Del Pan Bridge, PasigRiver, where it was transferred to its tanker trucks for hauling to PGPsstorage tanks in Calamba, Laguna. The respondent alleged that before theDOP was loaded into its barge (LB-1011), the surveyor/representative ofPGP, Adjustment Standard Corporation, inspected it and found the sameclean, dry, and fit for loading. The entire loading and unloading of theshipment were also done under the control and supervision of PGPssurveyor/representative. It was also mentioned by the respondent that thecontract between it and PGP expressly stipulated that it shall be free from anyand all claims arising from contamination, loss of cargo or part thereof; that
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the consignee accepted the cargo without any protest or notice; and that thecargo shall be insured by its owner sans recourseagainst all risks. Assubrogee, the petitioner was bound by this stipulation. As carrier, no fault andnegligence can be attributed against respondent as it exercised extraordinarydiligence in handling the cargo.[15]

After due hearing, the trial court rendered a Decision on 06 January 1997,the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in favor of

plaintiff ordering defendant to payplaintiffs claim of P5,000,000.00 with legal

interest from the date of the filing of the complaint. The counterclaims are

DISMISSED.[16]

Aggrieved by the trial courts decision, the respondent sought relief with

the Court of Appeals where it alleged in the main that PGP failed to file anynotice, claim or protest within the period required by Article 366 of the Code ofCommerce, which is a condition precedent to the accrual of a right of actionagainst the carrier.[17]A telephone call which was supposedly made by acertain Alfred Chan, an employee of PGP, to one of the Vice Presidents of therespondent, informing the latter of the discoloration, is not the notice requiredby Article 366 of the Code of Commerce.[18]

On 18 December 1998, the Court of Appeals promulgated its Decisionreversing the trial court, the dispositive portion of which reads:

WHEREFORE, the decision appealed from is hereby REVERSED AND SETASIDEand a new one is entered dismissing the complaint.[19]

A petition for review on certiorari[20]was filed by the petitioner with thisCourt, praying that the decision of the trial court be affirmed.

After the respondent filed its Comment[21]and the petitioner filed itsReply[22]thereto, this Court issued a Resolution[23]on 18 August 1999, givingdue course to the petition.

ASSIGNMENT OF ERRORS

The petitioner assigns as errors the following:

I
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THE APPELLATE COURT GRAVELY ERRED IN FINDING THAT THE NOTICE

OF CLAIM WAS NOT FILED WITHIN THE REQUIRED PERIOD.

II

THE APPELLATE COURT GRAVELY ERRED IN NOT HOLDING THATDAMAGE TO THE CARGO WAS DUE TO THE FAULT OR NEGLIGENCE OF

RESPONDENT CHEMOIL.

III

THE APPELLATE COURT GRAVELY ERRED IN SETTING ASIDE THE TRIAL

COURTS DECISION AND IN DISMISSING THE COMPLAINT.[24]

ISSUES

Synthesized, the issues that must be addressed by this Court are:

I

WHETHER OR NOT THE NOTICE OF CLAIM WAS FILED WITHIN THE

REQUIRED PERIOD. If the answer is in the affirmative,

II

WHETHER OR NOT THE DAMAGE TO THE CARGO WAS DUE TO THEFAULT OR NEGLIGENCE OF THE RESPONDENT.

THE COURTS RULINGS

Article 366 of the Code of Commerce has profound application in the caseat bar. This provision of law imparts:

Art. 366. Within twenty-four hours following the receipt of the merchandise a claim

may be made against the carrier on account of damage or average found upon openingthe packages, provided that the indications of the damage or average giving rise to the

claim cannot be ascertained from the exterior of said packages, in which case said

claim shall only be admitted at the time of the receipt of the packages.
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After the periods mentioned have elapsed, or after the transportation charges have

been paid, no claim whatsoever shall be admitted against the carrier with regard to the

condition in which the goods transported were delivered.

As to the first issue, the petitioner contends that the notice of

contamination was given by Alfredo Chan, an employee of PGP, to Ms.Encarnacion Abastillas, Vice President for Administration and Operations ofthe respondent, at the time of the delivery of the cargo, and therefore, withinthe required period.[25]This was done by telephone.

The respondent, however, claims that the supposed notice given by PGPover the telephone was denied by Ms. Abastillas. Between the testimonies of

Alfredo Chan and Encarnacion Abastillas, the latters testimony is purportedlymore credible because it would be quite unbelievable and contrary tobusiness practice for Alfredo Chan to merely make a verbal notice of claim

that involves millions of pesos.[26]

On this point, the Court of Appeals declared:

. . . We are inclined to sustain the view that a telephone call made to defendant-

company could constitute substantial compliance with the requirement of notice

considering that the notice was given to a responsible official, the Vice-President, who

promptly replied that she will look into the matter. However, it must be pointed out

that compliance with the period for filing notice is an essential part of the

requirement, i.e.. immediately if the damage is apparent, or otherwise within twenty-

four hours from receipt of the goods, the clear import being that prompt examination

of the goods must be made to ascertain damage if this is not immediately apparent.

We have examined the evidence, and We are unable to find any proof of compliance

with the required period, which is fatal to the accrual of the right of action against the

carrier.[27]

The petitioner is of the view that there was an incongruity in the findings offacts of the trial court and the Court of Appeals, the former allegedly holdingthat the period to file the notice had been complied with, while the latter heldotherwise.

We do not agree. On the matter concerning the giving of the notice ofclaim as required by Article 366 of the Code of Commerce, the finding of factof the Court of Appeals does not actually contradict the finding of fact of thetrial court. Both courts held that, indeed, a telephone call was made by

Alfredo Chan to Encarnacion Abastillas, informing the latter of thecontamination. However, nothing in the trial courts decision stated that thenotice of claim was relayed or filed with the respondent-carrier immediately or
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within a period of twenty-four hours from the time the goods were received.The Court of Appeals made the same finding. Having examined the entirerecords of the case, we cannot find a shred of evidence that will precisely andultimately point to the conclusion that the notice of claim was timely relayed orfiled.

The allegation of the petitioner that not only the Vice President of therespondent was informed, but also its drivers, as testified by Alfredo Chan,during the time that the delivery was actually being made, cannot be givengreat weight as no driver was presented to the witness stand to prove this.Part of the testimony of Alfredo Chan is revealing:

Q:

Mr. Witness, were you in your plant site at the time these various cargoes weredelivered?

A: No, sir.

Q: So, do you have a first hand knowledge that your plant representative informed thedriver of the alleged contamination?

A: What do you mean by that?

Q: Personal knowledge [that] you yourself heard or saw them [notify] the driver?

A: No, sir.[28]

From the preceding testimony, it is quite palpable that the witness AlfredoChan had no personal knowledge that the drivers of the respondent wereinformed of the contamination.

The requirement that a notice of claim should be filed within the periodstated by Article 366 of the Code of Commerce is not an empty or worthlessproviso. In a case, we held:

The object sought to be attained by the requirement of the submission of claims in

pursuance of this article is to compel the consignee of goods entrusted to a carrier to

make prompt demand for settlement of alleged damages suffered by the goods while

in transport, so that the carrier will be enabled to verify all such claims at the time of

delivery or within twenty-four hours thereafter, and if necessary fix responsibility andsecure evidence as to the nature and extent of the alleged damages to the goods while

the matter is still fresh in the minds of the parties.[29]

In another case, we ruled, thus:
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More particularly, where the contract of shipment contains a reasonable requirement

of giving notice of loss of or injury to the goods, the giving of such notice is a

condition precedent to the action for loss or injury or the right to enforce the carriers

liability. Such requirement is not an empty formalism. The fundamental reason or

purpose of such a stipulation is not to relieve the carrier from just liability, but

reasonably to inform it that the shipment has been damaged and that it is charged withliability therefore, and to give it an opportunity to examine the nature and extent of the

injury. This protects the carrier by affording it an opportunity to make an investigation

of a claim while the matter is fresh and easily investigated so as to safeguard itself

from false and fraudulent claims.[30]

The filing of a claim with the carrier within the time limitation thereforeactually constitutes a condition precedent to the accrual of a right of actionagainst a carrier for loss of, or damage to, the goods. The shipper orconsignee must allege and prove the fulfillment of the condition. If it fails to doso, no right of action against the carrier can accrue in favor of the former. Theaforementioned requirement is a reasonable condition precedent; it does notconstitute a limitation of action.[31]

The second paragraph of Article 366 of the Code of Commerce is alsoedifying. It is not only when the period to make a claim has elapsed that noclaim whatsoever shall be admitted, as no claim may similarly be admittedafter the transportation charges have been paid.

In this case, there is no question that the transportation charges havebeen paid, as admitted by the petitioner, and the corresponding officialreceipt[32]duly issued. But the petitioner is of the view that the payment forservices does not invalidate its claim. It contends that under the secondparagraph of Article 366 of the Code of Commerce, it is clear that if notice orprotest has been made prior to payment of services, claim against the badorder condition of the cargo is allowed.

We do not believe so. As discussed at length above, there is no evidenceto confirm that the notice of claim was filed within the period provided forunder Article 366 of the Code of Commerce. Petitioners contention proceedsfrom a false presupposition that the notice of claim was timely filed.

Considering that we have resolved the first issue in the negative, it istherefore unnecessary to make a resolution on the second issue.

WHEREFORE, in view of all the foregoing, the Decision of the Court ofAppeals dated 18 December 1998, which reversed and set aside the decisionof the trial court, is hereby AFFIRMED in toto. No pronouncement as to costs.

SO ORDERED.
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G.R. No. 144723 February 27, 2006

LARRY ESTACION,Petitioner,vs.NOE BERNARDO, thru and his guardian ad l i tem ARLIE BERNARDO, CECILIABANDOQUILLO and GEMINIANO QUINQUILLERA,Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorarifiled by Larry Estacion (petitioner) seeking to annul theDecision dated April 17, 20001of the Court of Appeals (CA) in CA-GR CV No. 41447 whichaffirmed in totothe decision of the Regional Trial Court (RTC) of Dumaguete City, Branch 41,Negros Oriental, holding petitioner and his driver Bienvenido Gerosano (Gerosano) liable fordamages for the injury sustained by Noe Bernardo (respondent Noe). Also assailed is the appellatecourts Resolution dated August 16, 20002denying petitioners motion for reconsideration.

In the afternoon of October 16, 1982, respondent Noe was going home to Dumaguete fromCebu,viaBato and Tampi. At Tampi, he boarded a Ford Fiera passenger jeepney with plate no.NLD 720 driven by respondent Geminiano Quinquillera (Quinquillera), owned by respondent CeciliaBandoquillo (Bandoquillo), and was seated on the extension seat placed at the center of the Fiera.From San Jose, an old woman wanted to ride, so respondent Noe offered his seat. Since the Fierawas already full, respondent Noe hung or stood on the left rear carrier of the vehicle. Somewherealong Barangay Sto. Nio, San Jose, Negros Oriental, between kilometers 13 and 14, the Fierabegan to slow down and then stopped by the right shoulder of the road to pick up passengers.Suddenly, an Isuzu cargo truck, owned by petitioner and driven by Gerosano, which was traveling inthe same direction, hit the rear end portion of the Fiera where respondent Noe was standing. Due tothe tremendous force, the cargo truck smashed respondent Noe against the Fiera crushing his legsand feet which made him fall to the ground. A passing vehicle brought him to the Silliman UniversityMedical Center where his lower left leg was amputated.

Police investigation reports showed that respondent Noe was one of the 11 passengers of the Fierawho suffered injuries; that when the Fiera stopped to pick up a passenger, the cargo truck bumpedthe rear left portion of the Fiera; that only one tire mark from the front right wheel of the cargo truckwas seen on the road. A sketch of the accident was drawn by investigator Mateo Rubia showing therelative positions of the two vehicles, their distances from the shoulder of the road and the skidmarks of the right front wheel of the truck measuring about 48 feet.

On February 18, 1993, respondent Noe, through his guardian ad litemArlie Bernardo, filed with theRTC of Dumaguete City a complaint3for damages arising from quasi delictagainst petitioner as theregistered owner of the cargo truck and his driver Gerosano. He alleged that the proximate cause ofhis injuries and suffering was the reckless imprudence of Gerosano and petitioners negligence in

the selection of a reckless driver and for operating a vehicle that was not roadworthy. He prayed foractual damages, loss of income, moral and exemplary damages, attorneys fees, litigation expensesand costs of suit.

Petitioner and his driver Gerosano filed their Answer4denying the material allegations in thecomplaint. They, in turn, filed a third party complaint5against respondents Bandoquillo andQuinquillera, as owner and driver respectively of the Fiera. They alleged that it was the recklessimprudence of respondent driver Quinquillera and his clear violation of the traffic rules andregulations which was the proximate cause of the accident and asked for indemnification for
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whatever damages they would be sentenced to pay. Respondents Bandoquillo and Quinquillera filedtheir Answer to the third party complaint asking for the dismissal of the third party complaint and forpayment of attorneys fees.

Driver Gerosano was charged criminally for reckless imprudence resulting to multiple physicalinjuries with damage to property before the Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan

and San Jose, Negros Oriental. On November 16, 1987, the MCTC rendered its decision6

findinghim guilty of the crime charged and was sentenced to four months and one day to two years andfour months and to pay the costs.

On February 18, 1993, the RTC rendered its judgment in the civil case,7the dispositive portion ofwhich reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered, ordering defendantsGerosano and Estacion, to pay plaintiff, jointly or solidarily, the following:

1. P129,584.20 for actual damages in the form of medical and hospitalization expenses;

2. P50,000.00 for moral damages, consisting of mental anguish, moral shock, seriousanxiety and wounded feelings;

3. P10,000.00 for attorneys fees; and

4. P5,000.00 for litigation expenses.

SO ORDERED.8

The trial court ruled that the negligence of Gerosano, petitioners driver, is the direct and proximatecause of the incident and of the injuries suffered by respondent Noe; that Gerosanos grossnegligence and reckless imprudence had been confirmed by the Judgment in Criminal Case No.

463; that based on the findings of the police investigator, the faulty brakes caused the cargo truck tobump the Fiera; that the Traffic Accident Report showed that the tire mark of the cargo truckmeasuring 48 feet is visibly imprinted on the road where the incident took place indicating that thesaid vehicle was speeding fast; that the existence of one tire mark of the cargo truck proved that thesaid vehicle had a faulty brake, otherwise, it would have produced two tire marks on the road; andthat the photographs taken right after the incident also showed who the guilty party was.

The trial court did not give credence to the argument of petitioner and his driver that the truck wasproperly checked by a mechanic before it was dispatched for a trip. It found that petitioner isnegligent in maintaining his vehicle in good condition to prevent any accident to happen; thatpetitioner is liable under Article 2180 of the Civil Code as employer of driver Gerosano for beingnegligent in the selection and supervision of his driver as well as for maintaining and operating avehicle that was not roadworthy; and that petitioner and his driver are solidarily liable for all thenatural and probable consequences of their negligent acts or omissions. The trial court dismissedthe third party complaint filed by petitioner and his driver against respondents Bandoquillo andQuinquillera.

Dissatisfied, only petitioner appealed to the CA. On April 17, 2000, the CA rendered the assaileddecision which affirmed in toto the decision of the trial court. Petitioners motion for reconsiderationwas denied in a Resolution dated August 16, 2000.
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Hence, the herein petition for review.

Petitioner submits the following issues for resolution:9

WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING THAT PETITIONER LARRYESTACION EXERCISED THE DUE DILIGENCE OF A GOOD FATHER OF A FAMILY TO

PREVENT DAMAGE DESPITE ABUNDANCE OF EVIDENCE TO THAT EFFECT;

WHETHER THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PETITIONER LARRYESTACION EXERCISED DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF HISEMPLOYEE AND IN MAINTAINING HIS CARGO TRUCK ROADWORTHY AND IN GOODOPERATING CONDITION;

WHETHER THE COURT OF APPEALS ERRED IN EXONERATING RESPONDENTS CECILIABANDOQUILLO AND GEMINIANO QUINQUILLERA.

In his Memorandum, petitioner contends that he was able to establish that he observed the diligenceof a good father of a family not only in the selection of his employees but also in maintaining his

truck roadworthy and in good operating condition; that the CA erred in exonerating respondentsBandoquillo and Quinquillera, owner and driver, respectively of the Fiera from liability when theirnegligence was the proximate cause of respondent Noes injuries; that respondent Noes act ofstanding in the rear carrier of the Fiera is in itself negligence on his part which was aggravated bythe fact that respondent Quinquillera overtook the cargo truck driven by Gerosano on the curve andsuddenly cut into the latters lane; that due to the overloading of passengers, Gerosano was not ableto see the brake lights of the Fiera when it suddenly stopped to pick up passengers; that overloadingis in violation of the applicable traffic rules and regulations and Article 2185 is explicit when itprovides that "unless there is proof to the contrary, it is presumed that a person driving a motorvehicle has been negligent if at the time of the mishap, he was violating any traffic regulation"; thatsince the Fiera driver was negligent, there arises a presumption that respondent Bandoquillo, asowner of the Fiera, is negligent in the selection and supervision of her employee; that assumingpetitioner Estacion and his driver are not entirely blameless, the negligence of Quinquillera issufficient basis why the respective liabilities should be delineated vis--vis their degree of negligenceconsistent with Article 217910of the Civil Code.

Respondent Noe filed his Memorandum alleging that the first and second issues raised are factual innature which are beyond the ambit of a petition for review; that petitioner failed to overcome thepresumption of negligence thus he is liable for the negligence of his driver Gerosano; and that thethird issue is best addressed to respondents Bandoquillo and Quinquillera.

Respondents Bandoquillo and Quinquillera failed to file their memorandum despite receipt of ourResolution requiring them to submit the same.

We find it apropos to resolve first the third issue considering that the extent of the liability of

petitioner and his driver is dependent on whether respondents Bandoquillo and Quinquillera are theones negligent in the vehicular mishap that happened in the afternoon of October 16, 1982 whererespondent Noe was injured, resulting in the amputation of his left leg.

At the outset, the issue raised is factual in nature. Whether a person is negligent or not is a questionof fact which we cannot pass upon in a petition for review on certiorari, as our jurisdiction is limited toreviewing errors of law.11As a rule, factual findings of the trial court, affirmed by the CA, are final andconclusive and may not be reviewed on appeal. The established exceptions are: (1) when theinference made is manifestly mistaken, absurd or impossible; (2) when there is grave abuse of
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discretion; (3) when the findings are grounded entirely on speculations, surmises or conjectures; (4)when the judgment of the CA is based on misapprehension of facts; (5) when the findings of fact areconflicting; (6) when the CA, in making its findings, went beyond the issues of the case and thesame is contrary to the admissions of both appellant and appellee; (7) when the findings of fact areconclusions without citation of specific evidence on which they are based; (8) when the CAmanifestly overlooked certain relevant facts not disputed by the parties and which, if properly

considered, would justify a different conclusion; and (9) when the findings of fact of the CA arepremised on the absence of evidence and are contradicted by the evidence on record.12

On the basis of the records of this case, we find that there is cogent reason for us to review thefactual findings of the lower courts to conform to the evidence on record and consider this case asan exception to the general rule.

The trial court and the appellate court had made a finding of fact that the proximate cause of theinjury sustained by respondent Noe was the negligent and careless driving of petitioners driver,Gerosano, who was driving at a fast speed with a faulty brake when the accident happened. We seeno cogent reason to disturb the trial courts finding in giving more credence to the testimony ofrespondent Noe than the testimony of Gerosano, petitioners truck driver.

The correctness of such finding is borne by the records. In his testimony, Gerosano said that he wasdriving the truck at a speed of about 40 kilometers per hour;13that the Fiera was behind him butupon reaching the curve, i.e.,after passing San Jose going to Dumaguete, the Fiera overtook himand blocked his way;14that he was 10 meters from the Fiera prior to the impact15when he appliedthe brakes16and tried to evade the Fiera but he still hit it.17

We agree with the trial court and the appellate court when they found that the truck was running at afast speed because if Gerosano was really driving at a speed of 40 kilometers per hour andconsidering that the distance between the truck and the Fiera in front was about 10 meters, he hadmore than enough time to slacken his speed and apply his break to avoid hitting the Fiera. However,from the way the truck reacted to the application of the brakes, it showed that Gerosano was drivingat a fast speed because the brakes skidded a lengthy 48 feet as shown in the sketch of police

investigator Rubia of the tire marks visibly printed on the road.

Moreover, the photographs taken after the incident and the testimony of Gerosano as to the extentof damage to the truck, i.e. the trucks windshield was broken and its hood was damaged after theimpact,18further support the finding of both courts that Gerosano was driving at a fast pace.

The accident was further caused by the faulty brakes of the truck. Based on the sketch report, therewas only one tire mark of the right tire of the cargo truck during the incident which, as testified to bypolice investigator Rubia, meant that the brakes of the truck were not aligned otherwise there wouldbe two tire marks impressions on the road.19Although petitioner contends that there are other factorsto explain why only one skid mark was found at the place of the incident, such as the angle andedges of the road as well as the balance of the weight of the cargo laden in the truck, he failed to

show that indeed those factors were present to prove his defense. Such claim cannot be givencredence considering that investigator Rubia testified that the body of the truck was very much onthe road, i.e.,not over the shoulder of the road,20and the road was straight.21Indeed, it is thenegligent act of petitioners driver of driving the cargo truck at a fast speed coupled with faulty brakeswhich was the proximate cause of respondent Noes injury.

Petitioners claim that right after overtaking the cargo truck, the Fiera driver suddenly stopped to pickup three passengers from the side of the road; that the overloading of passengers prevented histruck driver from determining that the Fiera had pulled over to pick up passengers as the latters
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brakelights were obstructed by the passengers standing on the rear portion of the Fiera were notsubstantiated at all. Respondent Quinquillera, the driver of the Fiera, testified that the distance fromthe curve of the road when he stopped and picked up passengers was estimated to be about 80 to90 feet.22In fact, from the sketch drawn by investigator Rubia, it showed a distance of 145 feet fromthe curve of the road to the speed tire mark (which measured about 48 feet) visibly printed on theroad to the Fiera. This means that the Fiera driver did not stop immediately after the curve as what

petitioner claims. Moreover, Gerosano admitted that his truck was at a distance of 10 meters prior tothe impact. The distance between the two vehicles was such that it would be impossible forGerosano not to have seen that the Fiera had pulled over to pick up passengers.

However, we agree with petitioner that respondent Noes act of standing on the rear carrier of theFiera exposing himself to bodily injury is in itself negligence on his part. We find that the trial courtand the CA erred when they failed to consider that respondent Noe was also guilty of contributorynegligence. Contributory negligence is conduct on the part of the injured party, contributing as alegal cause to the harm he has suffered, which falls below the standard to which he is required toconform for his own protection.23

It has been established by the testimony of respondent Noe that he was with four or five otherpersons standing on the rear carrier of the Fiera since it was already full. Respondent Noes act ofstanding on the left rear carrier portion of the Fiera showed his lack of ordinary care and foresightthat such act could cause him harm or put his life in danger. It has been held that "to hold a personas having contributed to his injuries, it must be shown that he performed an act that brought abouthis injuries in disregard of warning or signs of an impending danger to health andbody.24Respondent Noes act of hanging on the Fiera is definitely dangerous to his life and limb.

We likewise find merit in petitioners contention that respondent Quinquillera, the Fiera driver, wasalso negligent. There is merit to petitioners claim that there was overloading which is in violation oftraffic rules and regulations. Respondent Noe himself had testified that he was standing at the rearportion of the Fiera because the Fiera was already full. Respondent Quinquillera should not havetaken more passengers than what the Fiera can accommodate. If the Fiera was not overloaded,respondent Noe would not have been standing on the rear carrier and sustained such extent of

injury.

Furthermore, we find that respondent Quinquillera was negligent in allowing respondent Noe tostand on the Fieras rear portion. Section 32(c) of Article III of Republic Act No. 4136, otherwiseknown as "The Land Transportation and Traffic Code" provides:

(c) Riding on running boardsNo driver shall allow any person to ride on running board, step boardor mudguard of his motor vehicle for any purpose while the vehicle is in motion.

Respondent Quinquilleras act of permitting respondent Noe to hang on the rear portion of the Fierain such a dangerous position creates undue risk of harm to respondent Noe. Quinquillera failed toobserve that degree of care, precaution and vigilance that the circumstances justly demand. Thus,

respondent Noe suffered injury.25

Since respondent Quinquillera is negligent, there arises apresumption of negligence on the part of his employer, respondent Bandoquillo, in supervising heremployees properly. Such presumption was not rebutted at all by Bandoquillo. Thus, the CA erred inaffirming the dismissal of the third party complaint filed by petitioner against respondentsQuinquillera and Bandoquillo.

Petitioner contends that he was able to establish that he exercised the due diligence of a good fatherof a family in the selection of his employees as well as in the maintenance of his cargo truck in goodoperating condition. He claims that in addition to looking at Gerosanos drivers license, he
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accompanied the latter in his first two trips, during which he ascertained Gerosanos competence asa driver, petitioner being a driver himself; that the truck driven by Gerosano has never figured in anyaccident prior to the incident involved; that upon his acquisition of the cargo truck on March 16,1982, only 7 months prior to the incident, the same was thoroughly checked up and reconditioned;and that he had in his employ a mechanic who conducted periodic check-ups of the engine andbrake system of the cargo truck.

We are not persuaded.

Article 2180 of the Civil Code provides:

Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts oromissions, but also for those of persons for whom one is responsible.

x x x

Employers shall be liable for the damages caused by their employees and household helpers actingwithin the scope of their assigned tasks, even though the former are not engaged in any business or

industry.

x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove thatthey observed all the diligence of a good father of a family to prevent damage.

As the employer of Gerosano, petitioner is primarily and solidarily liable for the quasi-delictcommitted by the former. Petitioner is presumed to be negligent in the selection andsupervision of his employee by operation of law and may be relieved of responsibility for thenegligent acts of his driver, who at the time was acting within the scope of his assigned task, only ifhe can show that he observed all the diligence of a good father of a family to prevent damage .26

In Yambao v. Zuniga,27we have clarified the meaning of the diligence of a good father of a family,thus:

The "diligence of a good father" referred to in the last paragraph of the aforecited statute meansdiligence in the selection and supervision of employees. Thus, when an employee, while performinghis duties, causes damage to persons or property due to his own negligence, there arises thejuristantumpresumption that the employer is negligent, either in the selection of the employee or in thesupervision over him after the selection. For the employer to avoid the solidary liability for a tortcommitted by his employee, an employer must rebut the presumption by presentingadequate and convincing proof that in the selection and supervision of his employee, he orshe exercises the care and diligence of a good father of a family.x x x

Petitioners claim that she exercised due diligence in the selection and supervision of her driver,Venturina, deserves but scant consideration. Her allegation that before she hired Venturina sherequired him to submit his drivers license and clearances is worthless, in view of her failureto offer in evidence certified true copies of said license and clearances . Bare allegations,unsubstantiated by evidence, are not equivalent to proof under the rules of evidence. x x x

In any case, assuming arguendo that Venturina did submit his license and clearances when heapplied with petitioner in January 1992, the latter still fails the test of due diligence in the selection of
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her bus driver. Case law teaches that for an employer to have exercised the diligence of agood father of a family, he should not be satisfied with the applicants mere possession of aprofessional drivers license; he must also carefully examine the applicant for employment asto his qualifications, his experience and record of service. Petitioner failed to present convincingproof that she went to this extent of verifying Venturinas qualifications, safety record, and drivinghistory. The presumption juris tantum that there was negligence in the selection of her bus driver,

thus, remains unrebutted.

Nor did petitioner show that she exercised due supervision over Venturina after his selection. For aspointed out by the Court of Appeals, petitioner did not present any proof that she drafted andimplemented training programs and guidelines on road safety for her employees. In fact, therecord is bare of any showing that petitioner required Venturina to attend periodic seminarson road safety and traffic efficiency.Hence, petitioner cannot claim exemption from any liabilityarising from the recklessness or negligence of Venturina.

In sum, petitioners liability to private respondents for the negligent and imprudent acts of her driver,Venturina, under Article 2180 of the Civil Code is both manifest and clear. Petitioner, having failed torebut the legal presumption of negligence in the selection and supervision of her driver, isresponsible for damages, the basis of the liability being the relationship ofpater familiasor on theemployers own negligence. x x x28(Emphasis supplied)

Petitioner failed to show that he examined driver Gerosano as to his qualifications, experience andservice records. In fact, the testimony of driver Gerosano in his cross-examination showed the non-observance of these requirements. Gerosano testified that petitioner was his first employer inDumaguete and that he was accepted by petitioner on the very day he applied for the job ;29that hisdrivers license was issued in Mindanao where he came from30and that while petitioner asked himabout his driving record in Mindanao, he did not present any document of his driving record.31Suchadmission clearly established that petitioner did not exercise due diligence in the selection of hisdriver Gerosano.

Moreover, the fact that petitioners driver Gerosano was driving in an efficient manner when

petitioner was with him in his first two trips would not conclusively establish that Gerosano was not atall reckless. It could not be considered as due diligence in the supervision of his driver to exemptpetitioner from liability. In the supervision of his driver, petitioner must show that he had formulatedtraining programs and guidelines on road safety for his driver which the records failed to show. Wefind that petitioner failed to rebut the presumption of negligence in the selection and supervision ofhis employees.

Moreover, there was also no proof that he exercised diligence in maintaining his cargo truckroadworthy and in good operating condition. While petitioners mechanic driver testified that he madea routine check up on October 15, 1982, one day before the mishap happened, and found the truckoperational, there was no record of such inspection.

Turning now to the award of damages, since there was contributory negligence on the part ofrespondent Noe, petitioners liability should be mitigated in accordance with Article 2179 of the CivilCode which provides:

When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannotrecover damages. But if his negligence was only contributory, the immediate and proximate cause ofthe injury being the defendants lack of due care, the plaintiff may recover damages, but the courtsshall mitigate the damages to be awarded.
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The underlying precept of the above article on contributory negligence is that a plaintiff who is partlyresponsible for his own injury should not be entitled to recover damages in full but must bear theconsequences of his own negligence. The defendant must thus be held liable only for the damagesactually caused by his negligence.32

In Phoenix Construction, Inc., v. Intermediate Appellate Court,33where we held that the legal and

proximate cause of the accident and of Dionisios injuries was the wrongful and negligent manner inwhich the dump truck was parked but found Dionisio guilty of contributory negligence on the night ofthe accident, we allocated most of the damages on a 20-80 ratio. In said case, we required Dionisioto bear 20% of the damages awarded by the appellate court, except as to the award of exemplarydamages, attorneys fees and costs.

In the present case, taking into account the contributing negligence of respondent Noe, we likewiserule that the demands of substantial justice are satisfied by distributing the damages also on a 20-80ratio excluding attorneys fees and litigation expenses.34Consequently, 20% should be deductedfrom the actual and moral damages awarded by the trial court in favor of respondent Noe, that is:20% of P129,584.20 for actual damages isP25,916.84 and 20% of P50,000.00 for moral damagesis P10,000.00. Thus, after deducting the same, the award for actual damages shouldbe P103,667.36 and P40,000.00 for moral damages or 80% of the damages so awarded.

Petitioner and respondents Bandoquillo and Quinquillera are jointly and severally liable for the 80%of the damages as well as attorneys fees and litigation expenses conformably with ourpronouncement in Tiu v. Arriesgado35where we held:

The petitioners, as well as the respondents Benjamin Condor and Sergio Pedrano are jointly andseverally liable for said amount, conformably with the following pronouncement of the Courtin Fabre, Jr. v. Court of Appeals:

The same rule of liability was applied in situations where the negligence of the driver of the bus onwhich plaintiff was riding concurred with the negligence of a third party who was the driver of anothervehicle, thus causing an accident. In Anuran v. Buo, Batangas Laguna Tayabas Bus Co. v.Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the buscompany, its driver, the operator of the other vehicle and the driver of the vehicle were jointly andseverally held liable to the injured passenger or the latters heirs. The basis ofthis allocation ofliability was explained in Viluan v. Court of Appeals, thus:

"Nor should it make difference that the liability of petitioner [bus owner] springs from contract whilethat of respondents [owner and driver of other vehicle] arises from quasi delict.As early as 1913, wealready ruled inGutierrez v. Gutierrez,56 Phil. 177, that in case of injury to a passenger due to thenegligence of the driver of the bus on which he was riding and of the driver of another vehicle, thedrivers as well as the owners of the two vehicles are jointly and severally liable for damages. Somemembers of the Court, though, are of the view that under the circumstances they are liable on quasidelict."36

WHEREFORE, the instant petition is PARTIALLY GRANTED. The assailed Decision of the Court ofAppeals dated April 17, 2000 as well as its Resolution dated August 16, 2000are AFFIRMEDwithMODIFICATIONto the effect that the dispositive portion of the Decision datedFebruary 18, 1993 of the Regional Trial Court of Dumaguete City in Civil Case No. 8122, shouldread as follows:
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