Travel and Tours Advisers Inc. v. Cruz Et - Al. (G.R. No. 199282)

8/26/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 787
G.R. No. 199282. March 14, 2016.*
TRAVEL & TOURS ADVISERS, INCORPORATED, petitioner, vs.

ALBERTO CRUZ, SR., EDGAR HERNANDEZ and VIRGINIA
MUÑOZ, respondents.
Remedial Law; Civil Procedure; Appeals; Supreme Court; The

Supreme Court (SC) is not duty-bound to analyze and weigh all over again
the evidence already considered in the proceedings below. This rule,
however, is not without exceptions.—Jurisprudence teaches us that “(a)s a
rule, the jurisdiction of this Court in cases brought to it from the Court of
Appeals x x x is limited to the review and revision of errors of law allegedly
committed by the appellate court, as its findings of fact are deemed
conclusive. As such, this Court is not duty bound to analyze and weigh all
over again the evidence already considered in the proceedings below. This
rule, however, is not without exceptions.” The findings of fact of the Court
of Appeals, which are, as a general rule, deemed conclusive, may admit of
review by this Court: (1) when the factual findings of the Court of Appeals
and the trial court are contradictory; (2) when the findings are grounded
entirely on speculation, surmises, or conjectures; (3) when the infer-
_______________
* THIRD DIVISION.
298
298 SUPREME COURT REPORTS ANNOTATED

Travel & Tours Advisers, Incorporated vs. Cruz, Sr.
ence made by the Court of Appeals from its findings of fact is

manifestly mistaken, absurd, or impossible; (4) when there is grave abuse of
discretion in the appreciation of facts; (5) when the appellate court, in
making its findings, goes beyond the issues of the case, and such findings
www.central.com.ph/sfsreader/session/0000016cc9c75e301c1b0015003600fb002c009e/t/?o=False 1/30
are contrary to the admissions of both appellant and appellee; (6) when the
judgment of the Court of Appeals is premised on a misapprehension of
facts; (7) when the Court of Appeals fails to notice certain relevant facts
which, if properly considered, will justify a different conclusion; (8) when
the findings of fact are themselves conflicting; (9) when the findings of fact
are conclusions without citation of the specific evidence on which they are
based; and (10) when the findings of fact of the Court of Appeals are
premised on the absence of evidence but such findings are contradicted by
the evidence on record.
Same; Same; Same; Petition for Review on Certiorari; Well-entrenched
is the prevailing jurisprudence that only errors of law and not of facts are
reviewable by the Supreme Court (SC) in a petition for review on certiorari
under Rule 45 of the Revised Rules of Court, which applies with greater
force to the Petition under consideration because the factual findings by the
Court of Appeals (CA) are in full agreement with what the trial court found.
—The issues presented are all factual in nature and do not fall under any of
the exceptions upon which this Court may review. Moreover, well-
entrenched is the prevailing jurisprudence that only errors of law and not of
facts are reviewable by this Court in a petition for review on certiorari
under Rule 45 of the Revised Rules of Court, which applies with greater
force to the Petition under consideration because the factual findings by the
Court of Appeals are in full agreement with what the trial court found.
Common Carriers; Transportation Law; A public utility vehicle can
and may veer away from its usual route as long as it does not go beyond its
allowed route in its franchise.—Petitioner now claims that the bus was not
out of line when the vehicular accident happened because the PUB (public
utility bus) franchise that the petitioner holds is for provincial operation
from Manila-Ilocos Norte/Cagayan-Manila, thus, the bus is allowed to
traverse any point between Manila-Ilocos Norte/Cagayan-Manila. Such
assertion is correct. “Veering away from the usual route” is different from
being “out of line.” A public utility vehicle can and may veer away from its
usual route as
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VOL. 787, MARCH 14, 2016 299

long as it does not go beyond its allowed route in its franchise, in this
case, ManilaIlocos Norte/Cagayan-Manila. Therefore, the bus cannot be
considered to have violated the contents of its franchise. On the other hand,
it is indisputable that the jeepney was traversing a road out of its allowed
route. Necessarily, this case is not that of “in pari delicto” because only one
party has violated a traffic regulation. As such, it would seem that Article
2185 of the New Civil Code is applicable where it provides that: Art. 2185.
Unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was
violating any traffic regulation.
Same; Vicarious Liability; Quasi-Delicts; When an injury is caused by
the negligence of an employee there instantly arises a presumption of the
law that there was negligence on the part of the employer either in the
selection of his employee or in the supervision over him after such selection.
—Article 2180, in relation to Article 2176, of the Civil Code provides that
the employer of a negligent employee is liable for the damages caused by
the latter. When an injury is caused by the negligence of an employee there
instantly arises a presumption of the law that there was negligence on the
part of the employer either in the selection of his employee or in the
supervision over him after such selection. The presumption, however, may
be rebutted by a clear showing on the part of the employer that it had
exercised the care and diligence of a good father of a family in the selection
and supervision of his employee. Hence, to escape solidary liability for
quasi-delict committed by an employee, the employer must adduce
sufficient proof that it exercised such degree of care. In this case, the
petitioner failed to do so.
Same; Same; Same; In the selection of prospective employees,
employers are required to examine them as to their qualifications,
experience, and service records. On the other hand, due diligence in the
supervision of employees includes the formulation of suitable rules and
regulations for the guidance of employees, the issuance of proper
instructions intended for the protection of the public and persons with whom
the employer has relations through his or its employees and the imposition
of necessary disciplinary measures upon employees in case of breach or as
may be warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer.—In the selection of prospective
employees,
300

employers are required to examine them as to their qualifications,

experience, and service records. On the other hand, due diligence in the
supervision of employees includes the formulation of suitable rules and
regulations for the guidance of employees, the issuance of proper
instructions intended for the protection of the public and persons with whom
the employer has relations through his or its employees and the imposition
of necessary disciplinary measures upon employees in case of breach or as
may be warranted to ensure the performance of acts indispensable to the

business of and beneficial to their employer. To this, we add that actual
implementation 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
this case, as shown by the above findings of the RTC, petitioner was not
able to prove that it exercised the required diligence needed in the selection
and supervision of its employee.
Same; Same; Same; Contributory Negligence; The proximate cause of
the death of Alberto Cruz, Jr. is the negligence of petitioner’s bus driver,
with the contributory negligence of respondent Edgar Hernandez, the driver
and owner of the jeepney, hence, the heirs of Alberto Cruz, Jr. shall recover
damages of only fifty percent (50%) of the award from petitioner and its
driver.—The petitioner and its driver, therefore, are not solely liable for the
damages caused to the victims. The petitioner must thus be held liable only
for the damages actually caused by his negligence. It is, therefore, proper to
mitigate the liability of the petitioner and its driver. The determination of the
mitigation of the defendant’s liability varies depending on the circumstances
of each case. The Court had sustained a mitigation of 50% in Rakes v. AG &
P, 7 Phil. 359 (1907); 20% in Phoenix Construction, Inc. v. Intermediate
Appellate Court, 148 SCRA 353 (1987), and LBC Air Cargo, Inc. v. Court
of Appeals, 241 SCRA 619 (1995); and 40% in Bank of the Philippine
Islands v. Court of Appeals, 216 SCRA 51 (1992), and Philippine Bank of
Commerce v. Court of Appeals, 269 SCRA 695 (1997). In the present case,
it has been established that the proximate cause of the death of Alberto
Cruz, Jr. is the negligence of petitioner’s bus driver, with the contributory
negligence of respondent Edgar Hernandez, the driver and owner of the
jeepney, hence, the heirs of Alberto Cruz, Jr. shall recover damages of only
50% of the award from petitioner and its driver. Necessarily, 50% shall be
bourne by respondent Edgar Hernandez. This is pursu-
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ant to Rakes v. AG & P and after considering the circumstances of this

case.
Attorney’s Fees; As to the award of attorney’s fees, it is settled that the
award of attorney’s fees is the exception rather than the general rule;
counsel’s fees are not awarded every time a party prevails in a suit because
of the policy that no premium should be placed on the right to litigate.—As
to the award of attorney’s fees, it is settled that the award of attorney’s fees
is the exception rather than the general rule; counsel’s fees are not awarded
every time a party prevails in a suit because of the policy that no premium
should be placed on the right to litigate. Attorney’s fees, as part of damages,
are not necessarily equated to the amount paid by a litigant to a lawyer. In
the ordinary sense, attorney’s fees represent the reasonable compensation
paid to a lawyer by his client for the legal services he has rendered to the
latter; while in its extraordinary concept, they may be awarded by the court
as indemnity for damages to be paid by the losing party to the prevailing
party. Attorney’s fees as part of damages are awarded only in the instances
specified in Article 2208 of the Civil Code. As such, it is necessary for the
court to make findings of fact and law that would bring the case within the
ambit of these enumerated instances to justify the grant of such award, and
in all cases it must be reasonable. In this case, the RTC, in awarding
attorney’s fees, reasoned out that [w]hile there is no document submitted to
prove that the plaintiffs spent attorney’s fees, it is clear that they paid their
lawyer in the prosecution of this case for which they are entitled to the
same. Such reason is conjectural and does not justify the grant of the award,
thus, the attorney’s fees should be deleted. However, petitioner shall still
have to settle half of the cost of the suit.
PETITION for review on certiorari of the decision and resolution of

the Court of Appeals.
The facts are stated in the opinion of the Court.
M.M. Lazaro & Associates for petitioner.
Westremundo Y. De Guzman for respondents.
302

PERALTA, J.:
For resolution of this Court is the Petition for Review on

Certiorari under Rule 45 of the Revised Rules of Court dated
December 28, 2011, of petitioner Travel & Tours Advisers, Inc.
assailing the Decision1 dated May 16, 2011 and Resolution2 dated
November 10, 2011 of the Court of Appeals (CA), affirming with
modifications the Decision3 dated January 30, 2008 of the Regional
Trial Court (RTC), Branch 61, Angeles City finding petitioner
jointly and solidarily liable for damages incurred in a vehicular
accident.
The facts follow.
Respondent Edgar Hernandez was driving an Isuzu Passenger
Jitney (jeepney) that he owns with plate number DSG 944 along
AngelesMagalang Road, Barangay San Francisco, Magalang,
Pampanga, on January 9, 1998, around 7:50 p.m. Meanwhile, a

Daewoo passenger bus (RCJ Bus Lines) with plate number NXM
116, owned by petitioner Travel and Tours Advisers, Inc. and driven
by Edgar Calaycay travelled in the same direction as that of
respondent Edgar Hernandez’ vehicle. Thereafter, the bus bumped
the rear portion of the jeepney causing it to ram into an acacia tree
which resulted in the death of Alberto Cruz, Jr. and the serious
physical injuries of Virginia Muñoz.
Thus, respondents Edgar Hernandez, Virginia Muñoz and
Alberto Cruz, Sr., father of the deceased Alberto Cruz, Jr., filed a
complaint for damages, docketed as Civil Case No. 9006 before the
RTC claiming that the collision was due to the reckless, negligent
and imprudent manner by which Edgar Calaycay was driving the
bus, in complete disregard to
_______________
1 Penned by Associate Justice Ramon M. Bato, Jr., with Associate Justices Juan
Q. Enriquez, Jr. and Florito S. Macalino, concurring; Rollo, pp. 39-57.
2 Id., at p. 58.
3 Penned by Judge Bernardita Gabitan Erum, id., at pp. 79-98.
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existing traffic laws, rules and regulations, and praying that

judgment be rendered ordering Edgar Calaycay and petitioner Travel
& Tours Advisers, Inc. to pay the following:
1. For plaintiff Alberto Cruz, Sr.

a. The sum of P140,000.00 for the reimbursement
of the expenses incurred for coffin, funeral expenses,
for vigil, food, drinks for the internment (sic) of Alberto
Cruz, Jr. as part of actual damages;
b. The sum of P300,000.00, Philippine Currency,
as moral, compensatory and consequential damages;
c. The sum of P6,000.00 a month as lost of (sic)
income from January 9, 1998 up to the time the
Honorable Court may fixed (sic);
2. For plaintiff Virginia Muñoz:
a. The sum of P40,000.00, Philippine Currency, for
the reimbursement of expenses for hospitalization,
medicine, treatment and doctor’s fee as part of actual

damages;
b. The sum of P150,000.00 as moral,
compensatory and consequential damages;
3. For plaintiff Edgar Hernandez:
a. The sum of P42,400.00 for the damage sustained
by plaintiff’s Isuzu Passenger Jitney as part of actual
damages, plus P500.00 a day as unrealized net income
for four (4) months;
b. The sum of P150,000.00, Philippine Currency,
as moral compensatory and consequential damages;
4. The sum of P50,000.00, Philippine Currency, as
attorney’s fees, plus P1,000.00 per appearance fee in court;
5. Litigation expenses in the sum of P30,000.00; and
6. To pay the cost of their suit.
304

Other reliefs just and equitable are likewise prayed for.4
For its defense, the petitioner claimed that it exercised the

diligence of a good father of a family in the selection and
supervision of its employee Edgar Calaycay and further argued that
it was Edgar Hernandez who was driving his passenger jeepney in
reckless and imprudent manner by suddenly entering the lane of the
petitioner’s bus without seeing to it that the road was clear for him to
enter said lane. In addition, petitioner alleged that at the time of the
incident, Edgar Hernandez violated his franchise by travelling along
an unauthorized line/route and that the jeepney was overloaded with
passengers, and the deceased Alberto Cruz, Jr. was clinging at the
back thereof.
On January 30, 2008, after trial on the merits, the RTC rendered
judgment in favor of the respondents, the dispositive portion of the
decision reads:
WHEREFORE, premises considered, judgment is hereby

rendered ordering the defendants Edgar Calaycay Ranese and
Travel & Tours Advisers, Inc. to jointly and solidarily pay the
following:
I. 1. To plaintiff Alberto Cruz, Sr. and his family —
a) the sum of P50,000.00 as actual and
compensatory damages;
b) the sum of P250,000.00 for loss of earning

capacity of the decedent Alberto Cruz, Jr.; and
c) the sum of P50,000.00 as moral damages.
2. To plaintiff Virginia Muñoz —
compensatory damages; and
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4 Complaint dated April 22, 1998, id., at p. 70.
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VOL. 787, MARCH 14, 2016 305

b) the sum of P150,000.00 as moral damages.

3. To Edgar Hernandez —
compensatory damages.
II. The sum of P50,000.00 as attorney’s fees, and
III. The sum of P4,470.00 as cost of litigation.
SO ORDERED.
Angeles City, Philippines, January 30, 2008.5
Petitioner filed its appeal with the CA, and on May 16, 2011, the
appellate court rendered its decision, the decretal portion of which
reads as follows:
WHEREFORE, the instant appeal is PARTLY GRANTED.

The assailed Decision of the RTC, Branch 61, Angeles City,
dated January 30, 2008, is AFFIRMED with
MODIFICATIONS. The defendants are ordered to pay, jointly
and severally, the following:
1. To plaintiff Alberto Cruz, Sr. and family —
a) the sum of P25,000.00 as actual damages;
b) the sum of P250,000.00 for the loss of earning
capacity of the decedent Alberto Cruz, Jr.;
c) the sum of P50,000.00 as civil indemnity for the
death of Alberto Cruz, Jr.;
d) the sum of P50,000.00 as moral damages;
2. To plaintiff Virginia Muñoz —
a. the sum of P16,744.00 as actual damages; and
b) the sum of P30,000.00 as moral damages.
3. To plaintiff Edgar Hernandez —
a) The sum of P40,200.00 as actual damages.
_______________
5 Rollo, p. 98.
306

4. The award of attorney’s fees (P50,000.00) and

cost of litigation (P4,470.00) remains.
SO ORDERED.6
Hence, the present petition wherein the petitioner assigned the

following errors:
I.
THE PETITIONER’S BUS WAS NOT “OUT OF LINE”;
II.
THE FACT THAT THE JEEPNEY WAS BUMPED ON
ITS LEFT REAR PORTION DOES NOT
PREPONDERANTLY PROVE THAT THE DRIVER OF
THE BUS WAS THE NEGLIGENT PARTY;
III.
THE DECEASED ALBERTO CRUZ, JR. WAS
POSITIONED AT THE RUNNING BOARD OF THE
JEEPNEY;
IV.
THE BUS DRIVER WAS NOT SPEEDING OR
NEGLIGENT WHEN HE FAILED TO STEER THE BUS TO
A COMPLETE STOP;
V.
THE PETITIONER EXERCISED EXTRAORDINARY
DILIGENCE OF A GOOD FATHER OF A FAMILY IN ITS
SELECTION AND SUPERVISION OF DRIVER
CALAYCAY; AND
VI.
THERE IS NO FACTUAL AND LEGAL BASIS FOR
THE VARIOUS AWARDS OF MONETARY DAMAGES.7
_______________
6 Id., at p. 56.
7 Id., at pp. 14-15.
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VOL. 787, MARCH 14, 2016 307

According to petitioner, contrary to the declaration of the RTC,

the petitioner’s passenger bus was not “out-of-line” and that
petitioner is actually the holder of a PUB (public utility bus)
franchise for provincial operation from Manila-Ilocos
Norte/Cagayan-Manila, meaning the petitioner’s passenger bus is
allowed to traverse any point between ManilaIlocos Norte/Cagayan-
Manila. Petitioner further asseverates that the fact that the driver of
the passenger bus took the Magalang Road instead of the Bamban
Bridge is of no moment because the bridge was under construction
due to the effects of the lahar; hence closed to traffic and the
Magalang Road is still in between the points of petitioner’s
provincial operation. Furthermore, petitioner claims that the jeepney
was traversing a road way out of its allowed route, thus, the
presumption that respondent Edgar Hernandez was the negligent
party.
Petitioner further argues that respondent Edgar Hernandez failed
to observe that degree of care, precaution and vigilance that his role
as a public utility called for when he allowed the deceased Alberto
Cruz, Jr., to hang on to the rear portion of the jeepney.
After due consideration of the issues and arguments presented by
petitioner, this Court finds no merit to grant the petition.
Jurisprudence teaches us that “(a)s a rule, the jurisdiction of this
Court in cases brought to it from the Court of Appeals x x x is
limited to the review and revision of errors of law allegedly
committed by the appellate court, as its findings of fact are deemed
conclusive. As such, this Court is not duty bound to analyze and
weigh all over again the evidence already considered in the
proceedings below.8 This rule, however, is not without exceptions.”9
The findings of fact of the
_______________
8 Fuentes v. Court of Appeals, 335 Phil. 1163, 1168; 268 SCRA 703, 708 (1997).
9 Gaw v. Intermediate Appellate Court, G.R. No. 70451, March 24, 1993, 220
SCRA 405, 413; citing Morales v. Court of Appeals, 274
308

Court of Appeals, which are, as a general rule, deemed

conclusive, may admit of review by this Court:10
(1) when the factual findings of the Court of Appeals and
the trial court are contradictory;
(2) when the findings are grounded entirely on speculation,
surmises, or conjectures;
(3) when the inference made by the Court of Appeals from
its findings of fact is manifestly mistaken, absurd, or
impossible;
(4) when there is grave abuse of discretion in the
appreciation of facts;
(5) when the appellate court, in making its findings, goes
beyond the issues of the case, and such findings are contrary
to the admissions of both appellant and appellee;
(6) when the judgment of the Court of Appeals is premised
on a misapprehension of facts;
(7) when the Court of Appeals fails to notice certain
relevant facts which, if properly considered, will justify a
different conclusion;
(8) when the findings of fact are themselves conflicting;
_______________
Phil. 674; 197 SCRA 391 (1991); and Navarra v. Court of Appeals, G.R. No.
86237, December 17, 1991, 204 SCRA 850.
10 Reyes v. Court of Appeals, 328 Phil. 171; 264 SCRA 35 (1996); Vda. de
Alcantara v. Court of Appeals, 322 Phil. 490; 252 SCRA 457 (1996); Quebral v.
Court of Appeals, G.R. No. 101941, January 25, 1996, 252 SCRA 353, 368 (citing
Calde v. Court of Appeals, G.R. No. 93980, June 27, 1994, 233 SCRA 376). See also
Cayabyab v. Intermediate Appellate Court, G.R. No. 75120, April 28, 1994, 232
SCRA 1; Engineering & Machinery Corporation v. Court of Appeals, 322 Phil. 161;
252 SCRA 156 (1996); Chua Tiong Tay v. Court of Appeals, 312 Phil. 1128; 243
SCRA 183 (1995); Dee v. Court of Appeals, G.R. No. 111153, November 21, 1994,
238 SCRA 254, 263; and Asia Brewery, Inc. v. Court of Appeals, G.R. No. 103543,
July 5, 1993, 224 SCRA 437, 443; Fuentes v. Court of Appeals, supra note 8.
309
VOL. 787, MARCH 14, 2016 309
(9) when the findings of fact are conclusions without

citation of the specific evidence on which they are based; and
(10) when the findings of fact of the Court of Appeals are
premised on the absence of evidence but such findings are
contradicted by the evidence on record.
The issues presented are all factual in nature and do not fall under
any of the exceptions upon which this Court may review. Moreover,
well-entrenched is the prevailing jurisprudence that only errors of
law and not of facts are reviewable by this Court in a petition for
review on certiorari under Rule 45 of the Revised Rules of Court,
which applies with greater force to the Petition under consideration
because the factual findings by the Court of Appeals are in full
agreement with what the trial court found.11
Nevertheless, a review of the issues presented in this petition
would still lead to the finding that petitioner is still liable for the
damages awarded to the respondents but with certain modifications.
The RTC and the CA are one in finding that both vehicles were
not in their authorized routes at the time of the incident. The
conductor of petitioner’s bus admitted on cross-examination that the
driver of the bus veered off from its usual route to avoid heavy
traffic. The CA thus observed:
First. As pointed out in the assailed Decision, both

vehicles were not in their authorized routes at the time of the
mishap. FRANCISCO TEJADA, the conductor of defendant-
appellant’s bus, admitted on crossexamination that the driver
of the bus passed through Magalang Road instead of Sta. Ines,
which was the usual route, thus:
xxx
_______________
11 Boneng v. People, 363 Phil. 594, 605; 304 SCRA 252 (1999).
310

Q: What route did you take from Manila to Laoag, Ilocos

Sur?
A: Instead of Sta. Ines, we took Magalang Road, sir.
Q: So that is not your usual route that you are taking?

A: No, sir, it so happened that there was heavy traffic at
Bamban, Tarlac, that is why we took the Magalang Road.
xxx
The foregoing testimony of defendant-appellant’s own
witness clearly belies the contention that its driver took the
Magalang Road instead of the Bamban Bridge because said
bridge was closed and under construction due to the effects of
lahar. Regardless of the reason, however, the irrefutable fact
remains that defendant-appellant’s bus likewise veered from
its usual route.12
Petitioner now claims that the bus was not out of line when the
vehicular accident happened because the PUB (public utility bus)
franchise that the petitioner holds is for provincial operation from
Manila-Ilocos Norte/Cagayan-Manila, thus, the bus is allowed to
traverse any point between Manila-Ilocos Norte/Cagayan-Manila.
Such assertion is correct. “Veering away from the usual route” is
different from being “out of line.” A public utility vehicle can and
may veer away from its usual route as long as it does not go beyond
its allowed route in its franchise, in this case, ManilaIlocos
Norte/Cagayan-Manila. Therefore, the bus cannot be considered to
have violated the contents of its franchise. On the other hand, it is
indisputable that the jeepney was traversing a road out of its allowed
route. Necessarily, this case is not that of “in pari delicto” because
only one party has violated a traffic regulation. As such, it would
seem that Article 2185 of the New Civil Code is applicable where it
provides that:
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12 Rollo, p. 44. (Emphasis ours)
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VOL. 787, MARCH 14, 2016 311

Art. 2185. Unless there is proof to the contrary, it is

presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any
traffic regulation.
The above provision, however, is merely a presumption. From

the factual findings of both the RTC and the CA based on the
evidence presented, the proximate cause of the collision is the

negligence of the driver of petitioner’s bus. The jeepney was
bumped at the left rear portion. Thus, this Court’s past ruling,13 that
drivers of vehicles who bump the rear of another vehicle are
presumed to be the cause of the accident, unless contradicted by
other evidence, can be applied. The rationale behind the
presumption is that the driver of the rear vehicle has full control of
the situation as he is in a position to observe the vehicle in front of
him.14 Thus, as found by the CA:
Second. The evidence on record preponderantly shows that it was

the negligence of defendant-appellant’s driver, EDGAR
CALAYCAY, that was the proximate cause of the collision.
Even without considering the photographs (Exhibit “N,” “N-1,”
and “N-2”) showing the damage to the jeepney, it cannot be denied
that the said vehicle was bumped in its left rear portion by
defendantappellant’s bus. The same was established by the
unrebutted testimonies of plaintiffs-appellees EDGAR
HERNANDEZ and VIRGINIA MUÑOZ, as follows:
EDGAR HERNANDEZ
xxx
Q: Now, according to you, you were not able to reach the
town proper of Magalang because your vehicle was bumped.
In what portion of your vehicle was it bumped, Mr. Witness?
_______________
13 Raynera v. Hiceta, 365 Phil. 546; 306 SCRA 102 (1999).

14 Id.
312

A: At the left side edge portion of the vehicle, sir.

Q: When it was bumped on the rear left side portion,
what happened to your vehicle?
A: It was bumped strongly, sir, and then, “sinulpit
ya,” sir.
Q: When your vehicle was “sinulpit” and hit an
acacia tree, what happened to the acacia tree?
A: The jeepney stopped and Alberto Cruz died and
some of my passengers were injured, sir.
xxx
VIRGINIA MUÑOZ
xxx
Q: What portion of the vehicle wherein you were
boarded that was hit by the Travel Tours Bus?
A: The rear portion of the jeep, sir.
Q: It was hit by the Travel Tours Bus?
A: Yes, sir.
Q: What happened to you when the vehicle was
bumped?
A: I was thrown off the vehicle, sir.
xxx
It has been held that drivers of vehicles “who bump
the rear of another vehicle” are presumed to be “the cause of
the accident, unless contradicted by other evidence.” The
rationale behind the presumption is that the driver of the rear
vehicle has full control of the situation as he is in a position to
observe the vehicle in front of him.
In the case at bar, defendant-appellant failed to
overturn the foregoing presumption. FRANCISCO TEJADA,
the conductor of the bus who was admittedly “seated in front,
beside the driver’s seat,” and thus had an unimpeded view of
the road, declared on direct examination that the jeepney was
about 10 to 15 meters away from the bus when he first saw
said vehicle on the road. Clearly, the bus driver, EDGAR
CALAYCAY, would
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VOL. 787, MARCH 14, 2016 313

have also been aware of the presence of the jeepney and,

thus, was expected to anticipate its movements.
However, on cross-examination, TEJADA claimed that the
jeepney “suddenly appeared” before the bus, passing it
diagonally, and causing it to be hit in its left rear side. Such
uncorroborated testimony cannot be accorded credence by this
Court because it is inconsistent with the physical evidence of
the actual damage to the jeepney. On this score, We quote with
approval the following disquisition of the trial court:
x x x (F)rom the evidence presented, it was
established that it was the driver of the RCJ Line Bus
which was negligent and recklessly driving the bus of
the defendant corporation.
Francisco Tejada, who claimed to be the conductor

of the bus, testified that it was the passenger jeepney
coming from the pavement which suddenly entered
diagonally the lane of the bus causing the bus to hit the
rear left portion of the passenger jeepney. But such
testimony is belied by the photographs of the jeepney
(Exhs. N and N-1). As shown by Exh. N-1, the jeepney
was hit at the rear left portion and not when the jeepney
was in a diagonal position to the bus otherwise, it
should have been the left side of the passenger jeepney
near the rear portion that could have been bumped by
the bus. It is clear from Exh. N-1 and it was even
admitted that the rear left portion of the passenger
jeepney was bumped by the bus. Further, if the jeepney
was in diagonal position when it was hit by the bus, it
should have been the left side of the body of the jeepney
that could have sustained markings of such bumping. In
this case, it is clear that it is the left rear portion of the
jeepney that shows the impact of the markings of the
bumping. The jeepney showed that it had great damage
on the cen-
314

ter of the front portion (Exh. N-2). It was the center

of the front portion that hit the acacia tree (Exh. N). As
admitted by the parties, both vehicles were running
along the same direction from west to east. As testified
to by Francisco Tejada, the jeepney was about ten (10)
to fifteen (15) meters away from the bus when he
noticed the jeepney entering diagonally the lane of the
bus. If this was so, the middle left side portion of the
jeepney could have been hit, not the rear portion. The
evidence is clear that the bus was in fast run-
ning condition, otherwise, it could have stopped to
evade hitting the jeepney. The hitting of the acacia tree
by the jeepney, and the damages caused on the jeepney
in its front (Exh. N-2) and on its rear left side show that
the bus was running very fast.
xxxx
Assuming ex gratia argumenti that the jeepney was in a
“stop position,” as claimed by defendant-appellant, on the
pavement of the road 10 to 15 meters ahead of the bus before
swerving to the left to merge into traffic, a cautious public

utility driver should have stepped on his brakes and slowed
down. The distance of 10 to 15 meters would have allowed the
bus with slacked speed to give way to the jeepney until the
latter could fully enter the lane. Obviously, as correctly found
by the court a quo, the bus was running very fast because even
if the driver stepped on the brakes, it still made contact with
the jeepney with such force that sent the latter vehicle
crashing head-on against an acacia tree. In fact, FRANCISCO
TEJADA effectively admitted that the bus was very fast when
he declared that the driver “could not suddenly apply the
break (sic) in full stop because our bus might turn turtle
x x x.” Incidentally, the allegation in the appeal brief that the
driver could not apply the brakes with force because of the
possibility that the bus might turn turtle “as they were
approaching the end of the gradient or the decline of the
sloping terrain or topography of the road-
315
VOL. 787, MARCH 14, 2016 315

way” was only raised for the first time in this appeal and,
thus, may not be considered. Besides, there is nothing on
record to substantiate the same.
Rate of speed, in connection with other circumstances, is
one of the principal considerations in determining whether a
motorist has been reckless in driving a vehicle, and evidence
of the extent of the damage caused may show the force of the
impact from which the rate of speed of the vehicle may be
modestly inferred. From the evidence presented in this case, it
cannot be denied that the bus was running very fast. As held
by the Supreme Court, the very fact of speeding is indicative
of imprudent behavior, as a motorist must exercise ordinary
care and drive at a reasonable rate of speed commensurate
with the conditions encountered, which will enable him to
keep the vehicle under control and avoid injury to others using
the highway.15
From the above findings, it is apparent that the proximate cause

of the accident is the petitioner’s bus and that the petitioner was not
able to present evidence that would show otherwise. Petitioner also
raised the issue that the deceased passenger, Alberto Cruz, Jr. was
situated at the running board of the jeepney which is a violation of a
traffic regulation and an indication that the jeepney was overloaded
with passengers. The CA correctly ruled that no evidence was

presented to show the same, thus:
That the deceased passenger, ALBERTO CRUZ, JR., was

clinging at the back of the jeepney at the time of the mishap
cannot be gleaned from the testimony of plaintifff-appellee
VIRGINIA MUÑOZ that it was she who was sitting on the
left rearmost of the jeepney.
VIRGINIA MUÑOZ herself testified that there were only
about 16 passengers onboard the jeepney when the subject
incident happened. Considering the testimony of plaintiff-
appellee EDGAR HERNANDEZ that the seat-
_______________
15 Rollo, pp. 44-48. (Citations omitted; emphasis ours)
316

ing capacity of his jeepney is 20 people, VIRGINIA’s

declaration effectively overturned defendant-appellant’s
defense that plaintiff-appellee overloaded his jeepney and
allowed the deceased passenger to cling to the outside railings.
Yet, curiously, the defense declined to cross-examine
VIRGINIA, the best witness from whom defendant-appellant
could have extracted the truth about the exact location of
ALBERTO CRUZ, JR. in or out of the jeepney. Such failure is
fatal to defendant-appellant’s case. The only other evidence
left to support its claim is the testimony of the conductor,
FRANCISCO TEJADA, that there were 3 passengers who
were clinging to the back of the jeepney, and it was the
passenger clinging to the left side that was bumped by the
bus. However, in answer to the clarificatory question from
the court a quo, TEJADA admitted that he did not really
see what happened, thus:
Q: What happened to the passenger clinging to
the left side portion?
A: He was bumped, your Honor.
Q: Why, the passenger fell?
A: I did not really see what happened, Mam [sic],
what I know he was bumped.
This, despite his earlier declaration that he was seated in front

of the bus beside the driver’s seat and knew what happened to
the passengers who were clinging to the back of the jeepney.
Indubitably, therefore, TEJADA was not a credible witness,
and his testimony is not worthy of belief.16
Consequently, the petitioner, being the owner of the bus and the
employer of the driver, Edgar Calaycay, cannot escape liability.
Article 2176 of the Civil Code provides:
Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay
_______________
16 Id., at pp. 48-49. (Citations omitted; emphasis ours)
317
VOL. 787, MARCH 14, 2016 317

for the damage done. Such fault or negligence, if there is no

preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
Complementing Article 2176 is Article 2180 which states the

following:
The obligation imposed by Article 2176 is demandable not

only for one’s own acts or omissions, but also for those of
persons for whom one is responsible x x x.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged
in any business or industry x x x.
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
Article 2180, in relation to Article 2176, of the Civil Code

provides that the employer of a negligent employee is liable for the
damages caused by the latter. When an injury is caused by the
negligence of an employee there instantly arises a presumption of
the law that there was negligence on the part of the employer either
in the selection of his employee or in the supervision over him after

such selection. The presumption, however, may be rebutted by a
clear showing on the part of the employer that it had exercised the
care and diligence of a good father of a family in the selection and
supervision of his employee. Hence, to escape solidary liability for
quasi-delict committed by an employee, the employer must adduce
sufficient proof that it exercised such degree of care.17
_______________
17 Baliwag Transit, Inc. v. Court of Appeals, 330 Phil. 785, 789-790; 262 SCRA
230, 234 (1996), citing China Air Lines, Ltd. v. Court of Appeals, 264 Phil. 15, 26;
185 SCRA 449, 459 (1990).
318

In this case, the petitioner failed to do so. The RTC and the CA
exhaustively and correctly ruled as to the matter, thus:
Thus, whenever an employee’s (defendant EDGAR

CALAYCAY) negligence causes damage or injury to another,
there instantly arises a presumption that the employer
(defendant-appellant) failed to exercise the due diligence of a
good father of the family in the selection or supervision of its
employees. To avoid liability for a quasi-delict committed by
its employee, an employer must overcome the presumption by
presenting convincing proof that it exercised the care and
diligence of a good father of a family in the selection and
supervision of its employee. The failure of the defendant-
appellant to overturn this presumption was meticulously
explained by the court a quo as follows:
The position of the defendant company that it cannot
be held jointly and severally liable for such damages
because it exercised the diligence of a good father of a
family, that (sic) does not merit great credence.
As admitted, Edgar Calaycay was duly authorized by
the defendant company to drive the bus at the time of
the incident. Its claim that it has issued policies, rules
and regulations to be followed, conduct seminars and
see to it that their drivers and employees imbibe such
policies, rules and regulations, have their drivers and
conductors medically checked-up and undergo drug-
testing, did not show that all these rudiments were

applied to Edgar Calaycay. No iota of evidence was
presented that Edgar Calaycay had undergone all these
activities to ensure that he is a safe and capable drivers
[sic]. In fact, the defendant company did not put up a
defense on the said driver. The defendant company did
not even secure a counsel to defend the driver. It did not
present any evidence to show it ever counseled such
driver to be careful in his
319
VOL. 787, MARCH 14, 2016 319

driving. As appearing from the evidence of the

defendant corporation, the driver at the time of the
incident was Calaycay, Francisco (Exh. 9) and the
conductor was Tejada. This shows that the defendant
corporation does not exercise the diligence of a good
father of a family in the selection and supervision of the
employees. It does not even know the correct and true
name of its drivers. The testimony of Rolando Abadilla,
Jr. that they do not have the records of Edgar Calaycay
because they ceased operation due to the death of his
father is not credible. Why only the records of Edgar
Calaycay? It has the inspection and dispatcher reports
for January 9, 1998 and yet it could not find the records
of Edgar Calaycay. As pointed out by the Supreme
Court in a line of cases, the evidence must not only be
credible but must come from a credible witness. No
proof was submitted that Edgar Calaycay attended such
alleged seminars and examinations. Thus, under Art.
2180 of the Civil Code, Employers shall be liable for
the damage caused by their employees and household
helper acting within the scope of their assigned tasks,
even though the former are not engaged in any business
or industry. The liability of the employer for the
tortuous acts or negligence of its employer [sic] is
primary and solidary, direct and immediate, and not
conditional upon the insolvency of prior recourse
against the negligent employee. The cash voucher for
the alleged lecture on traffic rules and regulations (Exh.
12) presented by the defendant corporation is for
seminar allegedly conducted on May 20 and 21, 1995
when Edgar Calaycay was not yet in the employ of the
defendant corporation. As testified to by Rolando

Abadilla, Jr., Edgar Calaycay stated his employment
with the company only in 1996. Rolando Abadilla, Jr.
testified that
320

copies of the manual (Exh. 8) are given to the

drivers and conductors for them to memorize and
know the same, but no proof was presented that
indeed Edgar Calaycay was among the recipients.
Nobody testified categorically that indeed Edgar
Calaycay underwent any of the training before
being employed by the defendant company. All
the testimonies are generalizations as to the
alleged policies, rules and regulations but no
concrete evidence was presented that indeed
Edgar Calaycay underwent such familiarization,
trainings and seminars before he got employed
and during that time that he was performing his
duties as a bus driver of the defendant
corporation. Moreover, the driver’s license of the
driver was not even presented. These omissions
did not overcome the liability of the defendant
corporation under Article 2180 of the Civil Code.
xxx
The observation of the court a quo that defendant-
appellant failed to show proof that EDGAR
CALAYCAY did in fact undergo the seminars
conducted by it assumes greater significance when
viewed in the light of the following admission made by
ROLANDO ABADILLA, JR., General Manager of the
defendant-appellant corporation, that suggest
compulsory attendance of said seminars only among
drivers and conductors in Manila, thus:
xxxx
Q: How many times does (sic) the seminars being
conducted by your company a year?
A: Normally, it is a minimum of two (2) seminars
per year, sir.
Q: In these seminars that you conduct, are all drivers
and conductors obliged to attend?
A: Yes, sir, if they are presently in Manila.
Q: It is only in Manila that you conduct seminars?

A: Yes, sir.
xxx
321
VOL. 787, MARCH 14, 2016 321

Moreover, with respect to the selection process,

ROLANDO ABADILLA, JR. categorically admitted in open
court that EDGAR CALAYCAY was not able to produce the
clearances required by defendant-appellant upon employment,
thus:
xxx
Q: By the way, Mr. Witness, do you know this Edgar
Calaycay who was once employed by your company as
a driver?
A: Yes, sir.
Q: Have you seen the application of Edgar
Calaycay?
A: Yes, sir.
Q: From what I have seen, what documents did he
submit in applying as a driver in your business?
Atty. De Guzman: Very leading, your Honor.
Q: Before a driver could be accepted, what
document is he required to submit?
A: The company application form; NBI clearance;
police clearance; barangay clearance; mayor’s
clearance and other clearances, sir.
Q: Was he able to reproduce these clearances by Mr.
Calaycay?
A: No, sir.
x x x 18
In the selection of prospective employees, employers are required

to examine them as to their qualifications, experience, and service
records.19 On the other hand, due diligence in the supervision of
employees includes the formulation of suitable rules and regulations
for the guidance of employees, the issuance of proper instructions
intended for the protection of the public and persons with whom the
employer has rela-
_______________
18 Rollo, pp. 49-52. (Citations omitted)
19 Metro Manila Transit Corporation v. Court of Appeals, 359 Phil. 18, 32; 298
SCRA 495, 504 (1998).
322

tions through his or its employees and the imposition of

necessary disciplinary measures upon employees in case of breach
or as may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to their employer. To
this, we add that actual implementation 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.20 In this case, as
shown by the above findings of the RTC, petitioner was not able to
prove that it exercised the required diligence needed in the selection
and supervision of its employee.
Be that as it may, this doesn’t erase the fact that at the time of the
vehicular accident, the jeepney was in violation of its allowed route
as found by the RTC and the CA, hence, the owner and driver of the
jeepney likewise, are guilty of negligence as defined under Article
2179 of the Civil Code, which reads as follows:
When the plaintiff’s negligence was the immediate and

proximate cause of his injury, he cannot recover damages. But
if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant’s lack of
due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.
The petitioner and its driver, therefore, are not solely liable for
the damages caused to the victims. The petitioner must thus be held
liable only for the damages actually caused by his negligence.21 It is,
therefore, proper to mitigate the liability of the petitioner and its
driver. The determination of the
20 Metro Manila Transit Corporation v. Court of Appeals, G.R.

No. 104408, June 21, 1993, 223 SCRA 521, 540-541.
21 See Syki v. Begasa, 460 Phil. 381, 391; 414 SCRA 237, 244
(2003).
323
VOL. 787, MARCH 14, 2016 323

mitigation of the defendant’s liability varies depending on the

circumstances of each case.22 The Court had sustained a mitigation
of 50% in Rakes v. Atlantic, Gulf and Pacific Co.;23 20% in Phoenix
Construction, Inc. v. Intermediate Appellate Court24 and LBC Air
Cargo, Inc. v. Court of Appeals;25 and 40% in Bank of the Philippine
Islands v. Court of Appeals26 and Philippine Bank of Commerce v.
Court of Appeals.27
In the present case, it has been established that the proximate
cause of the death of Alberto Cruz, Jr. is the negligence of
petitioner’s bus driver, with the contributory negligence of
respondent Edgar Hernandez, the driver and owner of the jeepney,
hence, the heirs of Alberto Cruz, Jr. shall recover damages of only
50% of the award from petitioner and its driver. Necessarily, 50%
shall be bourne by respondent Edgar Hernandez. This is pursuant to
Rakes v. Atlantic, Gulf and Pacific Co. and after considering the
circumstances of this case.
In awarding damages for the death of Alberto Cruz, Jr., the CA
ruled as follows:
For the death of ALBERTO CRUZ, JR. the court a quo

awarded his heirs P50,000.00 as actual and compensatory
damages; P250,000.00 for loss of earning capacity; and
another P50,000.00 as moral damages. However, as pointed
out in the assailed Decision dated January 30, 2008, only the
amount paid (P25,000.00) for funeral services rendered by
Magaleña Memorial Home was duly receipted (Exhibit “E-
1”). It is settled that actual damages must be substantiated by
documentary evidence, such as receipts, in order to prove
expenses incurred as a result of the death of the victim. As
such, the award for
_______________
22 Lambert v. Heirs of Ray Castillon, 492 Phil. 384, 396; 452 SCRA 285, 293
(2005).
23 7 Phil. 359 (1907).
24 232 Phil. 327; 148 SCRA 353 (1987).
25 311 Phil. 715; 241 SCRA 619 (1995).
26 G.R. No. 102383, November 26, 1992, 216 SCRA 51.
27 336 Phil. 667; 269 SCRA 695 (1997).
324

actual damages in the amount of P50,000.00 must be modified

accordingly.
Under Article 2206 of the Civil Code, the damages for
death caused by a quasi-delict shall, in addition to the
indemnity for the death itself which is fixed by current
jurisprudence at P50,000.00 and which the court a quo failed
to award in this case, include loss of the earning capacity of
the deceased and moral damages for mental anguish by reason
of such death. The formula for the computation of loss of
earning capacity is as follows:
Net earning capacity = Life expectancy x [Gross Annual
Income Living Expenses (50% of gross annual income)],
where life expectancy = 2/3 (80 the age of the deceased)
Evidence on record shows that the deceased was earning
P6,000.00 a month as smoke house operator at Pampanga’s
Best, Inc., as per Certification (Exhibit “K”) issued by the
company’s Production, Manager, Enrico Ma. O. Hizon, on
March 18, 1998, his gross income therefore amounted to
P72,000.00 [P6,000.00 x 12]. Deducting 50% therefrom
(P36,000.00) representing the living expenses, his net annual
income amounted to P36,000.00. Multiplying this by his life
expectancy of 40.67 years [2/3(80-19)] having died at the
young age of 19, the award for loss of earning capacity should
have been P1,464,000.00. Considering, however, that his heirs
represented by his father, ALBERTO CRUZ, SR., no longer
appealed from the assailed Decision dated January 30, 2008,
and no discussion thereon was even attempted in plaintiffs-
appellees’ appeal brief, the award for loss of earning capacity
in the amount of P250,000.00 stands.
Moral damages in the amount of P50,000.00 is adequate
and reasonable, bearing in mind that the purpose for making
such award is not to enrich the heirs of the victim but to
compensate them however inexact for injuries to their
feelings.
x x x28
_______________
28 Rollo, pp. 52-54. (Citations omitted)
325
VOL. 787, MARCH 14, 2016 325

In summary, the following were awarded to the heirs of Alberto

Cruz, Jr.:
1) P25,000.00 as actual damages;
2) P250,000.00 for the loss of earning;
3) P50,000.00 as civil indemnity for the death of Alberto Cruz,
Jr.; and
4) P50,00.00 as moral damages.
Petitioner contends that the CA erred in awarding an amount for
the loss of earning capacity of Alberto Cruz, Jr. It claims that the
certification from the employer of the deceased stating that when he
was still alive, he earned P6,000.00 per month was not presented and
identified in open court. In that aspect, petitioner is correct. The
records are bereft that such certification was presented and identified
during the trial. It bears stressing that compensation for lost income
is in the nature of damages and as such requires due proof of the
damages suffered; there must be unbiased proof of the deceased’s
average income.29
Therefore, applying the above disquisitions, the heirs of Alberto
Cruz, Jr. shall now be awarded the following:
1) P12,500.00 as actual damages;
2) P25,000.00 as civil indemnity for the death of Alberto Cruz,
Jr., and
3) P25,000.00 as moral damages.
In the same manner, petitioner is also partly responsible for the
injuries sustained by respondent Virginia Muñoz hence, of the
P16,744.00 actual damages and P30,000.00 moral damages awarded
by the CA, petitioner is liable for half of those amounts. Anent
respondent Edgar Hernandez, due to his contributory negligence, he
is only entitled to re-
_______________
29 People v. Ereño, 383 Phil. 30, 46; 326 SCRA 157, 170 (2000).
326

ceive half the amount (P40,200.00) awarded by the CA as actual

damages which is P20,100.00.
As to the award of attorney’s fees, it is settled that the award of
attorney’s fees is the exception rather than the general rule; counsel’s
fees are not awarded every time a party prevails in a suit because of
the policy that no premium should be placed on the right to litigate.
Attorney’s fees, as part of damages, are not necessarily equated to
the amount paid by a litigant to a lawyer. In the ordinary sense,
attorney’s fees represent the reasonable compensation paid to a
lawyer by his client for the legal services he has rendered to the
latter; while in its extraordinary concept, they may be awarded by
the court as indemnity for damages to be paid by the losing party to
the prevailing party. Attorney’s fees as part of damages are awarded
only in the instances specified in Article 220830 of the Civil Code.
As such, it is necessary for
_______________
30 Art. 2208. In the absence of stipulation, attorney’s fees and expenses of

litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff’s plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and
skilled workers;
(8) In actions for indemnity under workmen’s compensation and employees
liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
327
VOL. 787, MARCH 14, 2016 327

the court to make findings of fact and law that would bring the
case within the ambit of these enumerated instances to justify the
grant of such award, and in all cases it must be reasonable.31 In this
case, the RTC, in awarding attorney’s fees, reasoned out that [w]hile
there is no document submitted to prove that the plaintiffs spent
attorney’s fees, it is clear that they paid their lawyer in the

prosecution of this case for which they are entitled to the same.32
Such reason is conjectural and does not justify the grant of the
award, thus, the attorney’s fees should be deleted. However,
petitioner shall still have to settle half of the cost of the suit.
WHEREFORE, the Petition for Review on Certiorari under
Rule 45, dated December 28, 2011, of petitioner Travel & Tours
Advisers, Inc. is DENIED. However, the Decision dated May 16,
2011 of the Court of Appeals is MODIFIED as follows:
The petitioner and Edgar Calaycay are ORDERED to jointly and
severally PAY the following:
1. To respondent Alberto Cruz, Sr. and family:
a) P12,500.00 as actual damages;
b) P25,000.00 as civil indemnity for the death of Alberto
Cruz, Jr.; and
c) P25,000.00 as moral damages.
2. To respondent Virginia Muñoz:
_______________
(11) In any other case where the court deems it just and equitable that
attorney’s fees and expenses of litigation should be recovered.
In all cases, the attorney’s fees and expenses of litigation must be reasonable.
(Emphasis supplied)
31 Benedicto v. Villaflores, 646 Phil. 733, 742; 632 SCRA 446, 455 (2010).
32 Rollo, p. 98
328


b) P15,000.00 as moral damages.
3. To respondent Edgar Hernandez:
a) P20,100.00 as actual damages; and
4. The sum of P2,235.00 as cost of litigation.
Respondent Edgar Hernandez is also ORDERED to PAY the

following:
1. To respondent Alberto Cruz, Sr. and family:

b) P25,000.00 as civil indemnity for the death of Alberto
Cruz, Jr.; and
c) P25,000.00 as moral damages.

2. To respondent Virginia Muñoz:
b) P15,000.00 as moral damages;, and
3. The sum of P2,235.00 as cost of litigation.
SO ORDERED.
Velasco, Jr. (Chairperson), Perez, Reyes and Jardeleza, JJ.,

concur.
Petition denied, judgment modified.
Notes.—The liability of the employer for the negligent conduct

of its subordinate is direct and primary, subject only to the defense
of due diligence in the selection and supervision of the employee. (R
Transport Corporation vs. Yu, 750 SCRA 696 [2015])
329
VOL. 787, MARCH 14, 2016 329

Article 1756 of the Civil Code provides that “[i]n case of death of
or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in Articles 1733 and
1755.” (G.V. Florida Transport, Inc. vs. Heirs of Romeo L. Battung,
Jr., 772 SCRA 579 [2015])
——o0o——
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8/26/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 787

G.R. No. 199282. March 14, 2016.*

TRAVEL & TOURS ADVISERS, INCORPORATED, petitioner, vs.

Remedial Law; Civil Procedure; Appeals; Supreme Court; The

298 SUPREME COURT REPORTS ANNOTATED

ence made by the Court of Appeals from its findings of fact is

VOL. 787, MARCH 14, 2016 299

300 SUPREME COURT REPORTS ANNOTATED

employers are required to examine them as to their qualifications,

may be warranted to ensure the performance of acts indispensable to the

VOL. 787, MARCH 14, 2016 301

ant to Rakes v. AG & P and after considering the circumstances of this

PETITION for review on certiorari of the decision and resolution of

302 SUPREME COURT REPORTS ANNOTATED

For resolution of this Court is the Petition for Review on

Pampanga, on January 9, 1998, around 7:50 p.m. Meanwhile, a

VOL. 787, MARCH 14, 2016 303

existing traffic laws, rules and regulations, and praying that

1. For plaintiff Alberto Cruz, Sr.

medicine, treatment and doctor’s fee as part of actual

304 SUPREME COURT REPORTS ANNOTATED

Other reliefs just and equitable are likewise prayed for.4

For its defense, the petitioner claimed that it exercised the

WHEREFORE, premises considered, judgment is hereby

b) the sum of P250,000.00 for loss of earning

4 Complaint dated April 22, 1998, id., at p. 70.

VOL. 787, MARCH 14, 2016 305

b) the sum of P150,000.00 as moral damages.

WHEREFORE, the instant appeal is PARTLY GRANTED.

a) The sum of P40,200.00 as actual damages.

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4. The award of attorney’s fees (P50,000.00) and

Hence, the present petition wherein the petitioner assigned the

7 Id., at pp. 14-15.

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According to petitioner, contrary to the declaration of the RTC,

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Court of Appeals, which are, as a general rule, deemed

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Travel & Tours Advisers, Incorporated vs. Cruz, Sr.

(9) when the findings of fact are conclusions without

First. As pointed out in the assailed Decision, both

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Q: What route did you take from Manila to Laoag, Ilocos

Q: So that is not your usual route that you are taking?

12 Rollo, p. 44. (Emphasis ours)

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Art. 2185. Unless there is proof to the contrary, it is

The above provision, however, is merely a presumption. From

evidence presented, the proximate cause of the collision is the

Second. The evidence on record preponderantly shows that it was

13 Raynera v. Hiceta, 365 Phil. 546; 306 SCRA 102 (1999).

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A: At the left side edge portion of the vehicle, sir.

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have also been aware of the presence of the jeepney and,

Francisco Tejada, who claimed to be the conductor

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ter of the front portion (Exh. N-2). It was the center