force majuere

8/12/2019 Force Majuere

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FORCE MAJUERE

Blackstone, in his Commentaries on English Law, defines it as Inevitable accident or casualty; an accident produced by any physical causewhich is irresistible; such as lightning. tempest, perils of the sea, inundation,or earthquake; the sudden illness or death of a person. (2 Blackstone'sCommentaries, 122; Story in Bailments, sec. 25.)

Escriche, in his Dicc ionar io de Legis lac ion y Jur isprudencia, definesfuerza mayor as

follows.The event which we could neither foresee nor resist; as f or example, thelightning stroke, hail, inundation, hurricane, public enemy, attack byrobbers; Vis major est,says Cayo, ea quae consilio humano neque providerineque vitari potest. Accident and mitigating circumstances.

Bouvier defines the same asAny accident due to natural cause, directly exclusively without humanintervention, such as could not have been prevented by any kind ofoversight, pains and care reasonably to have been expected. (Law Reports,1 Common Pleas Division, 423; Law Reports, 10 Exchequer, 255

GOTESCO INVESTMENT CORPORATION, petitioner,vs.GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and her 15-year old daughter,plaintiff Lina Delza E. Chatto went t o see the movie "Mother Dear" at Superama I theater, owned by defendantGotesco Investment Corporation. They bought balcony tickets but even then were unable to find seats consideringthe number of people patronizing the movie. Hardly ten (10) minutes after entering the theater, the ceiling of itsbalcony collapsed. The theater was plunged into darkness and pandemonium ensued. Shocked and hurt, plaintiffsmanaged to crawl under the fallen ceiling. As soon as they were able to get out to the street they walked the nearbyFEU Hospital where they were confined and treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from June 5 toJune 19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr.Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:

Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA in July 1982 for furthertreatment (Exh "E"). She was treated at the Cook County Hospital in Chicago, Illinois. She stayed in the U.S. forabout three (3) months during which time she had to return to the Cook County Hospital five (5) or, six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due toforcemajeure. It maintained that its theater did not suffer from any structural or construction defect.

Considering the collapse of the ceiling of its theater's balcony barely four (4) years after its construction, itbehooved defendant-appellant to conduct an exhaustive study of the reason for the tragic incident. On this score,the effort of defendant-appellant borders criminal nonchalance. Its witness Jesus Lim Ong testified

Clearly, there was no authoritative investigation conducted by impartial civil and structural engineers on the causeof the collapse of the theater's ceiling, Jesus Lim Ong is not an engineer, He is a graduate of architecture from theSt. Louie (sic) University in Baguio City. It does not appear he has passed the government examination forarchitects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr. Ong about the cause of the collapse of the ceiling

of their theater cannot be equated, as an act, of God. To sustain that proposition is to introduce sacrilege in ourjurisprudence.

Petitioner could have easily discovered the cause of the collapse if indeed it were due toforce majeure. To Ourmind, the real reason why Mr. Ong could not explain the cause or reason is that either he did not actually conductthe investigation or that he is, as the respondent Court impliedly held, incompetent. He is not an engineer, but anarchitect who had not even passed the government's examination. Verily, post-incident investigation cannot beconsidered as material to the present proceedings. What is significant is the finding of the trial court, affirmed by therespondent Court, that the collapse was due to construction defects. There was no evidence offered to overturn thisfinding. The building was constructed barely four (4) years prior to the accident in question. It was not shown thatany of the causes denominates as force majeureobtained immediately before or at the time of the collapse of theceiling. Such defects could have been easily discovered if only petitioner exercised due diligence and care inkeeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no adequateinspection of the premises before the date of the accident. His answers to the leading questions on inspectiondisclosed neither the exact dates of said. inspection nor the nature and extent of the same. That the structuraldesigns and plans of the building were duly approved by the City Engineer and the building permits and certificateof occupancy were issued do not at all prove that there were no defects in the construction, especially as regardsthe ceiling, considering that no testimony was offered to prove that it was ever inspected at all.

That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the collapsewas due toforce majeure, petitioner would still be liable because it was guilty of negligence, which the trial courtdenominated asgross. As gleaned from Bouvier's definition of and Cockburn's elucidation onforce majeurefor oneto be exempt from any liability because of it, he must have exercised care, i.e., he should not have been guilty ofnegligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the respondent Court,but in the sweeping conclusion of petitioner. We agree with the respondent Court that petitioner offered noreasonable objection to the exhibits. More than this, however, We note that the exhibits were admitted not as

independent evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto. Neither were the exhibits madethe main basis for the award of damages. As to the latter, including the award for attorney's fees, the testimonialevidence presented is sufficient to support the same; moreover, petitioner was not deprived of its right to test the,truth or falsity of private respondents' testimony through cross-examination or refute t heir claim by its own evidence.It could not then be successfully argued by petitioner that the admission of the exhibits violated the hearsay rule. As


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this Court sees it, the trial court admitted such merely as independently relevant statements, which was notobjectionable, for:

Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsayrule does not apply, but the statement may be shown. Evidence as to the making of such statement is notsecondary but primary, for the statement itself may constitute a fact; in issue, or be circumstantially relevant as tothe existence of such a fact. 16

Furthermore, and with particular reference to the documents issued in the United States of America (Exhibits "F","F-1" to "F-13", inclusive), the main objection thereto was not that they are hearsay. In its written comment and/oropposition to documentary exhibits, petitioner objected to their admission on the following grounds only:

. . . for being incompetent evidence considering that the same were not duly authenticated bythe responsible consular and/or embassy officials authorized to authenticate the saiddocuments. 17

UTHEASTERN COLLEGE INC., petitioner,

vs.

COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOSDIMAANO, CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.

Private respondents are owners of a house at 326 College Road, Pasay City, while petitionerowns a four-storey school building along the same College Road. On October 11, 1989, atabout 6:30 in the morning, a powerful typhoon "Saling" hit Metro Manila. Buffeted by verystrong winds, the roof of petitioner's building was partly ripped off and blown away, landing onand destroying portions of the roofing of private respondents' house. After the typhoon hadpassed, an ocular inspection of the destroyed building was conducted by a team of engineersheaded by the city building official, Engr. Jesus L . Reyna. Pertinent aspects of the latter'sReport

5dated October 18, 1989 stated, as follows:

Another factor and perhaps the most likely reason for the dislodging of the roofing structuraltrusses is the improper anchorage of the said trusses to the roof beams. The 1/2' diametersteel bars embedded on the concrete roof beams which serve as truss anchorage are notbolted nor nailed to the trusses. Still, there are other steel bars which were not even bent to thetrusses, thus, those trusses are not anchored at a ll to the roof beams.

It then recommended that "to avoid any further loss and damage to lives, limbs and property ofpersons living in the vicinity," the fourth floor of subject school building be declared as a"structural hazard."

The pivot of inquiry here, determinative of the other issues, is whether the damage on the roofof the building of private respondents resulting from the impact of the falling portions of theschool building's roof ripped off by the strong winds of typhoon "Saling", was, within legalcontemplation, due to fortuitous event? If so, petitioner cannot

The antecedent of fortuitous event or caso fortuitois found in the Partidaswhich defines it as"an event which takes place by accident and could not have been foreseen."

9Escriche

elaborates it as "an unexpected event or act of God which could neither be foreseen norresisted."

10Civilist Arturo M. Tolentino adds that "[f]ortuitous events may be produced by two

general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc . and(2) by the act of man, such as an armed invasion, attack by bandits, governmental p rohibitions,robbery, etc."

11

In order that a fortuitous event may exempt a person from liability, it is necessary that he befree from any previous negligence or misconduct by reason of which the loss may have beenoccasioned. An act of God cannot be invoked for the protection of a person who has beenguilty of gross negligence in not trying to forestall its possible adverse consequences. When aperson's negligence concurs with an act of God in producing damage or injury to another, suchperson is not exempt from liability by showing that the immediate or proximate cause of the

damages or injury was a fortuitous event. When the effect is found to be partly the result of theparticipation of manwhether it be from active intervention, or neglect, or failure to act thewhole occurrence is hereby humanized, and removed from the rules applicable to acts ofGod.

13

In the case under consideration, the lower court accorded full credence to the finding of theinvestigating team that subject school building's roofing had "no sufficient anchorage to hold itin position especially when battered by strong winds." Based on such finding, the trial courtimputed negligence to petitioner and ad judged it liable for damages to private respondents.

There is no question that a typhoon or storm is a fortuitous event, a natural occurrence whichmay be foreseen but is unavoidable despite any amount of foresight, diligence or care.

15In

order to be exempt from liability arising from any adverse consequence engendered thereby,there should have been no human participation amounting to a negligent act.

16In other words;

the person seeking exoneration from liability must not be guilty of negligence. Negligence, as

commonly understood, is conduct which naturally or reasonably creates undue risk or harm toothers. It may be the failure to observe that degree of care, precaution, and vigilance which thecircumstances justify demand,

17or the omission to do something which a prudent and

reasonable man, guided by considerations which ordinarily regulate the conduct of humanaffairs, would


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do.18

From these premises, we proceed to determine whether petitioner was negligent, suchthat if it were not, the damage caused to private respondents' house could have been avoided?

At the outset, it bears emphasizing that a person claiming damages for the negligence ofanother has the burden of proving the existence of fault or negligence causative of his injury orloss. The facts constitutive of negligence must be affirmatively established by competentevidence, not merely by presumptions and conclusions without basis in fact. Privaterespondents, in establishing the culpability of petitioner, merely relied on the aforementioned

report submitted by a team which made an ocularinspection of petitioner's school buildingafter the typhoon. As the term imparts, an ocularinspection is one by means of actual sight orviewing. What is visual to the eye through, is not always reflective of the real cause behind.For instance, one who hears a gunshot and then sees a wounded pe rson, cannot alwaysdefinitely conclude that a third person shot the victim. It could have been self -inflicted orcaused accidentally by a stray bullet. The relationship of cause and effect must be clearlyshown.

In the present case, other than the said ocular inspection, no investigation was conducted todetermine the real cause of the partial unroofing of petitioner's school building. Privaterespondents did not even show that t he plans, specifications and design of said school buildingwere deficient and defective. Neither did they prove any substantial deviation from theapproved plans and specifications. Nor did they conclusively establish that the construction ofsuch building was basically flawed.

21

On the other hand, pe titioner elicited from one of the witnesses of private respondents, citybuilding official Jesus Reyna, that the original plans and design of petitioner's school buildingwere approved prior to its construction. Engr. Reyna admitted that it was a legal requirementbefore the construction of any building to obtain a permit from the city building official . In likemanner, after construction of the building, a certification must be secured from the sameofficial attesting to the readiness for occupancy of the edifice. Having obtained both buildingpermit and certificate of occupancy, these are, at the very least,prima facieevidence of theregular and proper construction of subject school building.

22

Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon " Saling",the same city official gave the go-signal for such repairs without any deviation from theoriginal designand subsequently, authorized the use of the entire fourth floor of the samebuilding. These only prove that subject building suffers from no structural defect, contrary tothe report that its "U-shaped" form was "structurally defective." Having given his unqualifiedimprimatur, the city building official is presumed to have properly performed his duties inconnection therewith.

Moreover, the city building official, who has been in the city government service since 1974,admitted in open court that no complaint regarding any defect on t he same structure has everbeen lodged before his office prior to the institution of the case at bench. It is a matter ofjudicial notice that typhoons are common occurrences in this country. If subject schoolbuilding's roofing was not firmly anchored to its trusses, obviously, it could no t have withstoodlong years and several typhoons even stronger than "Saling."

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of

the appellate court. We thus hold that petitioner has not been s hown negligent or at faultregarding the construction and maintenance of its school building in question and that typhoon"Saling" was the proximate cause of the damage suffered by private respondents' house.

With this disposition on the pivotal issue, private respondents' claim fo r actual and moraldamages as well as attorney's fees must fail. Petitioner cannot be made to answer for a purelyfortuitous event. More so because no bad faith or willful act to cause damage was alleged andproven to warrant moral damages.

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,vs.HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIAJUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN,

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 astrong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains andconsequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated andwhen the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, venturedout of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceedednorthward towards the direction of the Five Sisters Emporium, of which she was the owner and proprietress, to lookafter the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero, thedeceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, andby Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida andLinda walked side by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceasedscreamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doingso because on the spot where the deceased sank they saw an electric wire dangling from a post and moving insnake-like fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of A ntonioYabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that thewater was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema buildingwhich was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately.With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the


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police to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Thenthe party waded to the house on Guerrero Street. The floodwater was receding and the lights inside the house wereout indicating that the electric current had been cut off in Guerrero. Yabes instructed his boys to fish for the body ofthe deceased. The body was recovered about two meters from an electric post.

In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power PlantEngineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in theirelectric meter which indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M.,

he set out of the Laoag NPC Compound on an i nspection. On the way, he saw grounded and disconnected lines.Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decidedto go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at theintersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street "and theother end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of theINELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of thedeath of Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilarstreets to which the body had been taken. Using the resuscitator which was a standard equipment in his jeep andemploying the skill he acquired from an in service training on resuscitation, he tried to revive the deceased. Hisefforts proved futile. Rigor mortiswas setting in. On the left palm of the deceased, Engr. Juan noticed a hollowwound. Proceeding to the INELCO Office, he met two linemen on the way. He told them about the grounded lines ofthe INELCO In the afternoon of the same day, he went on a third inspection trip preparatory to the restoration ofpower. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, ConradoAsis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to prove that on and evenbefore June 29, 1967 the electric service system of the INELCO in the whole franchise area, including Area No. 9which covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that mightconstitute a hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 hadbeen newly-installed prior to the date in question. As a public service operator and in line with its business ofsupplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries topersons and damage to property in c ase of natural calamities such as floods, typhoons, fire and others. Defendanthad 12 linesmen charged with the duty of making a round-the-clock check-up of the areas respectively assigned tothem.

Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or notpetitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of

the trial court's factual findings for its own was proper.

Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA actedcorrectly in disposing the argument that petitioner be exonerated f rom liability since typhoons and floods arefortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be

held responsible, it was not said eventuality which directly caused the victim's death. It was through the interventionof petitioner's negligence that death took place. We subscribe t o the conclusions of the respondent CA when itfound:

In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours ofJune 29, 1967, extraordinary diligence requires a supplier of electricity to be inconstant vigil to prevent or avoid anyprobable incident that might imperil life or limb. The evidence does not show that d efendant did that. On thecontrary, evidence discloses that there were no men (linemen o r otherwise) policing the area, nor even manning its

office. (CA Decision, pp. 24-25, Rollo)

Indeed, under the circumstances of the case, petitioner was n egligent in seeing to it that no harm is done to thegeneral public"... considering that electricity is an agency, subtle and deadly, the measure of care required ofelectric companies must be commensurate with or proportionate to the danger. The duty of exercising this highdegree of diligence and care extends to every place where persons have a right to be" (Astudillo vs. Manila Electric,55 Phil. 427). The negligence of petitioner having been shown, it may not n ow absolve itself from liability by arguingthat the victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with thenegligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but forhis own negligent conduct or omission" (38 Am. Jur., p. 649).

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It isimperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof andbrave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong(see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were on their way to the latter's

grocery store "to see to it that the goods were not flooded." As such, shall We punish her for exercising her right toprotect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk ofpersonal injury? Definitely not. For it has been held that a person is excused from the force of the rule, that when hevoluntarily assents to a known danger he must abide by the consequences, if an e mergency is found to exist or ifthe life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to r escue hisendangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly,an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impendingloss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to bewithout regard to petitioner's consent as she was on her way to protect her merchandise. Hence, privaterespondents, as heirs, may not be barred from recovering damages as a result of the death caused by petitioner'snegligence (ibid., p. 1165, 1166).


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METRO MANILA TRANSIT CORPORATION, petitioner,vs.THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.

At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita Custodio boarded as a payingpassenger a public utility jeepney with plate No. D7 305 PUJ Pilipinas 1979, then driven by defendant AgudoCalebag and owned by his co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated located inBicutan, Taguig, Metro Manila, where she then worked as a machine operator earning P16.25 a day. While the

passenger jeepney was travelling at (a) fast clip along DBP Avenue, Bicutan, Taguig, Metro Manila another fastmoving vehicle, a Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB (Philippines) "79driven by defendant Godofredo C. Leonardo was negotiating Honeydew Road, Bicutan, Taguig, Metro Manilabound for its terminal at Bicutan. As both vehicles approached the intersection of DBP Avenue and HoneydewRoad they failed to slow down and slacken their speed; neither did they blow their horns to warn approachingvehicles. As a consequence, a collision between them occurred, the passenger jeepney ramming the left sideportion of the MMTC bus. The collision impact caused plaintiff-appellant Nenita Custodio to hit the front windshieldof the passenger jeepney and (she) was thrown out therefrom, falling onto the pavement u nconscious with seriousphysical injuries. She was brought to the Medical City Hospital where she regained consciousness only after one(1) week. Thereat, she was confined for twenty-four (24) days, and as a consequence, she was unable to work forthree and one half months

The reorganized trial court, in its decision of August 1, 1989, 10found both drivers of the colliding vehicles

concurrently negligent for non-observance of appropriate traffic rules and regulations and f or failure to take theusual precautions when approaching an intersection. As joint tort feasors, both drivers, as well as defendantLamayo, were held solidarily liable for damages sustained by plaintiff Custodio. Defendant MMTC, on the bases ofthe evidence presented was, however, absolved from liability for the accident on the ground that it was not onlycareful and diligent in choosing and screening applicants for job openings but was also strict and diligent insupervising its employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules andregulations before the start of duty, a nd that it checked its employees to determine whether or not they werepositive for alcohol and followed other rules and regulations and guidelines of the Bureau of Land Transportationand of the company.

2. In any event, we do not find the evidence presented by petitioner sufficiently convincing to prove the diligence ofa good father of a family, which for an employer doctrinally translates into its observance of due diligence in theselection and supervision of its employees but which mandate, to use an oft-quoted phrase, is more often honoredin the breach than in the observance.

Petitioner attempted to essay in detail the company's procedure for screening job applicants and supervising itsemployees in the field, through the testimonies of Milagros Garbo, as its training officer, and Christian Bautista, asits transport supervisor, both of whom naturally and expectedly testified for MMTC. It then concluded with itssweeping pontifications that "thus, there is no doubt that considering the nature of the business of petitioner, itwould not let any applicant-drivers to be (sic) admitted without undergoing the rigid selection and training process

with the end (in) view of protecting the public in general and its passengers in particular; . . . thus, there is no doubtthat applicant had fully complied with the said requirements otherwise Garbo should not have allowed him toundertake the next set of requirements . . . and the training conducted consisting of seminars and actual drivingtests were satisfactory otherwise he should have not been allowed to drive the subject vehicle. 41

These statements strike us as both presumptuous and in the nature ofpetitio principii, couched in generalities andshorn of any supporting evidence to boost their verity. As earlier observed, respondent court could not but expresssurprise, and thereby its incredulity, that witness Garbo neither testified nor presented any evidence that driver

Leonardo had complied with or had undergone all the clearances and trainings she took pains to recite andenumerate. The supposed clearances, results of seminars and tests which Leonardo allegedly submitted andcomplied with were never presented in court despite the fact that, if true, then they were obviously in the possessionand control of petitioner. 42

The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180, of the Civil Codeprovisions on quasi-delicts as all the elements thereof are present, to wit: (1) damages suffered by the plaintiff, (2)fault or negligence of the defendant or some other person for whose act he must respond, and (3) the connection ofcause and effect between fault or negligence of the defendant and the damages incurred by plaintiff. 43It is to benoted that petitioner was originally sued as employer of driver Leonardo under Article 2180, the pertinent parts ofwhich provides that:

The obligation imposed by article 2176 is demandable not only for one's own acts oromissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for damages caused by their employees and household helpersacting within the scope of their assigned tasks, even though the former are not engaged inany business or industry.

xxx xxx xxx

With the allegation and subsequent proof of negligence against the defendant driver and of an em ployer-employeerelation between him and his co-defendant MMTC in this instance, the case in undoubtedly based on a quasi-delictunder Article 2180 47When the employee causes damage due to his own negligence while performing his ownduties, there arises thejuris tantum presumption that the employer is negligent, 48rebuttable only by proof ofobservance of the diligence of a good father of a family. For failure to rebut such legal presumption of negligence inthe selection and supervision of employees, the employer is likewise responsible for damages, 49the basis of theliability being the relationship ofpater familias or on the employer's own negligence. 50

As early as the case ofGutierrez vs. Gutierrez, 51and thereafter, we have consistently held that where the injury isdue to the concurrent negligence of the drivers of the colliding vehicles, the drivers and owners of the said vehicles


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shall be primarily, directly and solidarily liable for damages and it is immaterial that one action is based on quasi-delictand the other on culpa contractual, as the solidarily of the obligation is justified by the very nature thereof. 52

It should be borne in mind that the legal obligation of employers to observe due diligence in the selection andsupervision of employees is not to be considered as an empty play of words or a mere formalism, as appears to bethe fashion of the times, since the non-observance thereof actually becomes the basis of their vicarious liabilityunder Article 2180.

On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition:

. . . . In order tat the owner of a vehicle may be considered as having exercised all diligenceof a good father of a family, he should not have been satisfied with the mere possession of aprofessional driver's license; he should have carefully examined the applicant for employmentas to his qualifications, his experience and record of service. These steps appellant failed toobserve; he has therefore, failed to exercise all due diligence required of a good father of afamily in the choice or selection of driver.

Due diligence in the supervision of employees, on the other hand, includes the formulation of suitable rules andregulations for the guidance of employees and the issuance of proper instructions intended for the protection of thepublic and persons with whom the e mployer has relations through his or its employees and the imposition ofnecessary disciplinary measures upon employees in case of breach or as may be warranted to ensure theperformance of acts indispensable to the business of and beneficial to their employer. 53To this, we add that actualimplementation and monitoring of consistent compliance with said rules should be the constant concern of the

employer, acting through dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficientand plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring andsupervision. As the negligence of the employee gives rise to the presumption of negligence on the part of theemployer, the latter has the burden of proving that it has been diligent not only in the selection of employees butalso in the actual supervision of their work. The mere allegation of the existence of hiring procedures andsupervisory policies, without anything more, is decidedly not sufficient to overcome presumption.

We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation of variouscompany policies on safety without showing that they were being complied with is not sufficient to exempt petitionerfrom liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting andemploying the erring driver the recruitment procedures and company policies on efficiency and safety werefollowed." 54Paying lip-service to these injunctions or merely going through the motions of compliance therewith willwarrant stern sanctions from the Court.

These obligations, imposed by the law and public policy in the interests and for the safety of the commuting public,herein petitioner failed to perform. Respondent court was definitely correct in ruling that ". . . due diligence in theselection and supervision of employee (is) not proved by mere testimonies to the effect that its applicant has

complied with all the company requirements before one is admitted as an employee but without proof thereof." 55Itis further a distressing commentary on petitioner that it is a government-owned public utility, maintained by publicfunds, and organized for the public welfare.

G.R. No. L-83524 October 13, 1989

ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners,vs.

The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a fishing boat ownedby the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating its way from Marinduque to Manila.Somewhere near Maricabon Island and Cape Santiago, the boat figured in a collision with an inter-island vessel,the M/V Asia Philippines owned by the private respondent Trans-Asia Shipping Lines, Inc. As a consequence of thecollision, the F/B Marjolea sank, taking with it its fish catch.

After the mishap, the captains of both vessels filed their respective marine protests with the Board of Marine Inquiryof the Philippine Coast Guard. The Board conducted an investigation for the purpose of determining the proximatecause of the maritime collision.

On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch was attributable tothe negligence of the employees of the private respondent who were on board the M/V Asia Philippines during thecollision. The findings made by the Board served as the basis of a subsequent Decision of the Commandant of the

Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia Philippines was suspendedfrom pursuing his profession as a marine officer. 1

On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent before Branch117 of the Regional Trial Court in Pasay City.2The suit was docketed as Civil Case No. 2907-P.

The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of prescription. Heargued that under Article 1146 of the Civil Code, 3the prescriptive period for instituting a Complaint for damagesarising from a quasi-delict like a maritime collision is four years. He maintained that the petitioners should have filedtheir Complaint within four years from the date when their cause of action accrued, i.e.,from April 8, 1976 when themaritime collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond thefour-year prescriptive period.

For their part, the petitioners contended that maritime collisions have peculiarities and characteristics which onlypersons with special skill, training and experience like the members of the Board of Marine Inquiry can properlyanalyze and resolve. The petitioners argued that the r unning of the prescriptive period was tolled by the filing of themarine protest and that their cause of action accrued only on April 29, 1982, the date when the Decisionascertaining the negligence of the crew of the M/V Asia Philippines had become final, and that the four-year


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prescriptive period under Article 1146 of the Civil Code should be computed from the said date. The petitionersconcluded that inasmuch as the Complaint was filed on May 30, 1985, the same was seasonably filed.

In an Order dated September 25, 1986,4the trial court denied the Motion filed by the private respondent. The trialcourt observed that in ascertaining negligence relating to a maritime collision, there is a need to rely on highlytechnical aspects attendant to such collision, and that the Board of Marine Inquiry was constituted pursuant to thePhilippine Merchant Marine Rules and Regulations, which took effect on January 1, 1975 by virtue of Letter ofInstruction No. 208 issued on August 12, 1974 by then President Ferdinand E. Marcos, precisely to answer the

need. The trial court went on to say that the four-year prescriptive period provided i n Article 1146 of the Civil Codeshould begin to run only from April 29, 1982, the date when the negligence of the crew of the M/V Asia Philippineshad been finally ascertained. The pertinent portions of the Order of the trial court are as follows

We can only extend scant consideration to respondent judge's reasoning that in view of thenature of the marine collision that allegedly involves highly technical aspects, the running ofthe prescriptive period should only commence from the finality of the investigation conductedby the Marine Board of Inquiry (sic) and the decision of the Commandant, Philippine CoastGuard, who has original jurisdiction over the mishap. For one, while it is true that the findingsand recommendation of the Board and the decision of the Commandant may be helpful to thecourt in ascertaining which of the parties are at fault, still the former (court) is not bound bysaid findings and decision. Indeed, the same findings and decision could be entirely orpartially admitted, modified, amended, or disregarded by the court according to its lights and

judicial discretion. For another, if the accrual of a cause of action will be made to depend onthe action to be taken by certain government agencies, then necessarily, the tolling of theprescriptive period would hinge upon the discretion of such agencies. Said alternative it is

easy to foresee would be fraught with hazards. Their investigations might be delayed and lagand then witnesses in the meantime might not be available or disappear, or certaindocuments may no longer be available or might be mislaid. ... 9

The petitioners filed a Motion for the reconsideration of the said Decision but the same was denied by the Court ofAppeals in a Resolution dated May 27, 1988.10

Hence, the instant Petition wherein the arguments raised by the petitioner before the trial court are reiterated.11Inaddition thereto, the petitioner contends that the Decision of the Court of Appeals 12The private respondent filed itsComment on the Petition seeking therein the dismissal of the same. 13It is also contended by the privaterespondent that the ruling of the Court in Vasquez is not applicable to the case at bar because the said caseinvolves a maritime collision attributable to a fortuitous event. In a subsequent pleading, the private r espondentargues that the Philippine Merchant Marine Rules and Regulations cannot have the effect of repealing theprovisions of the Civil Code on prescription of actions.14

On September 19,1988, the Court resolved to give due course to the petition. 15After the parties filed theirrespective memoranda, the case was deemed submitted for decision.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a quasi-delict must beinstituted within four (4) years. The prescriptive period begins from the day the quasi-delict is committed. In Paulanvs. Sarabia,16this Court ruled that in an action for damages arising from the collision of two (2) trucks, the actionbeing based on a quasi-delict, the four (4) year prescriptive period must be counted f rom the day of the collision.

InEspanol vs. Chairman, Philippine Veterans Administration, 17this Court held as follows-

The right of action accrues when there exists a cause of action, which consists of 3 elements,

namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arisesor is created; b) an obligation on the part of defendant to respect such right; and c) an act oromission on the part of such defendant violative of the right of the plaintiff ... It is only whenthe last element occurs or takes place that it can be said in law that a cause of action hasarisen ... .

From the foregoing ruling, it is clear that the prescriptive period must be c ounted when the last element occurs ortakes place, that is, the time of the commission of an act or omission violative of the right of the plaintiff, which is thetime when the cause of action arises.

It is therefore clear that in this action for damages arising from the collision of two (2) vessels the four (4) yearprescriptive period must be counted from the day of the collision. The aggrieved party need not wait for adetermination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault ornegligence of the other party before he can file an action for damages. The ruling in Vasquez does not apply in thiscase. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence

or fault of the owners, agents or personnel of the other vessel.

Thus, the respondent court correctly found that the action of petitioner has prescribed. The collision occurred onApril 8, 1976. The complaint for damages was filed iii court only on May 30, 1 985, was beyond the four (4) yearprescriptive period.

WHEREFORE, the petition is dismissed. No costs.

SO ORDERED.

force majuere

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