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CA-G.R. CV NO. 83839

FIFTH DIVISION

[ CA-G.R. CV NO. 83839, July 31, 2006 ]

MILAGROS REYES, DARYL REYES AND DENISE REYES,PLAINTIFFS-APPELLEES, VS. FIVE STAR BUS CO., INC., DEFENDANT-APPELLANT.

D E C I S I O N

BARRIOS, J.:

Because of that vehicular incident on March 29, 1998 along MacArthur Highway in Brgy. San Agustin, San Miguel, Tarlac, the appellees Milagros and her minor children Daryl and Denise, all surnamed Reyes (or appellees for brevity unless referred to by their names), filed against the appellant Pangasinan Five Star Bus Co., Inc. (or Five Star) a case for Damages before the Regional Trial Court of Kalookan City.  Judgment was rendered in their favor disposing that:
WHEREFORE, prescinding from the foregoing, this Court finds the defendant, Five Star Bus Co., Inc., liable to pay the plaintiffs, Milagros Reyes, Daryl Reyes and Denise Reyes, the following:
  1. One Hundred Thousand Pesos (Php100,000.00) for the death indemnities of Darly Reyes and his son Mark Davis Reyes;

  2. One Million Seven Hundred Thirty Nine Thousand Seven Hundred Pesos (Php1,739,700.00) for lost income of Darly Reyes;

  3. Two Hundred Ten Thousand Pesos (Php210,000.00) for medical and hospitalization expenses;

  4. Two Million Pesos (Php2,000,000.00) for moral and compensatory damages;

  5. Fifty Thousand Pesos (Php50,000.00) for exemplary damages; and

  6. Fifty Thousand Pesos (Php50,000.00) for attorney’s fees.
No costs. (p. 378, record, Vol. III)
The road incident happened at about 1:50 a.m. as the appelllees and their family were traveling south towards Manila on board two (2) vehicles both owned by Milagros, a jeepney with plate number URC-396 and a Mitsubishi Lancer with Plate No. PWJ 252.    Ahead was the jeepney driven by her cousin-in-law Reggie Reyes and on board was her son Mark Davis.  Trailing the jeepney was the Mitsubishi Lancer driven by her husband Darly, with Milagros and their other children as passengers. Traveling at the other lane going north to the opposite direction was a passenger bus with Plate No. NXW-658 owned and operated by Five Star and driven by its employee Eustaquio Loyola (or Loyola).  The bus encroached on the lane for southbound vehicles and collided with the jeepney and caromed on the Lancer which was about 15 meters behind the jeepney.  Because of the collision Darly and Mark Davis died instantaneously, the Lancer and jeepney were totally wrecked, and the other riders suffered grave injuries. Darly was then 34 years old and earning, while Mark Davis was 8.

In their complaint the appellees averred that at the time of the collision, Loyola was driving in a reckless manner and at an excessive speed without due regard to traffic rules.  The bus was running out of its proper lane and had encroached the lane of the jeepney and the Lancer.  At the time of the accident Loyola had no driver’s license and was holding only an expired Traffic Violation Receipt (TVR).    As a result of the accident and the untimely demise of Darly and Mark Davis, appellees sought the award of damages and attorney’s fees in the total amount of P10,580,000.00, broken down as follows:
P150,000.00 as compensatory damages for the funeral and interment of Daryl and Mark;

P60,000.00 representing expenses for hospitalization, medicine and treatment which appellees sustained;

P40,000.00 as the estimated expenses for future corrective surgery and treatment for Milagros' fractured leg;

P600,000.00 combined cost of the two vehicles that were damaged;

P5,580,000.00 representing the amount of Daryl’s expected income;

P4,000,000.00 for moral damages; and

P150,000.00 as attorney’s fees.
Five Star denied liability and claimed that at the time of the accident its driver Loyola was not driving recklessly and was cruising at a speed of about 50 kph only.  The Lancer was tailgating the jeepney and both were traveling at about 80 kph in the opposite direction.  While running at a very high speed, these two vehicles occupied their left lane and when they tried to return to their correct lane both drivers miscalculated and sideswiped the Five Star bus one after the other.  This damaged the left side of the bus just beside the driver’s seat.

According to Five Star it is not possible for its driver Loyola to have been overtaking another vehicle because the road during those hours was almost without vehicles.  It denied too that its bus could not be possibly maneuvered from one lane to another because it was a straight road. Five Star also alleged that the police report does not conform with the scene sketch report of the accident. The positions of the vehicles after the collision would show that it was the appellees' vehicles that had encroached on the lane of the bus so much so that after the accident the jeepney was found in the shoulder of the lane of the bus.  Five Star averred that the drivers of the car and the jeepney were the ones who had been reckless and careless and drove without regard to the safety of their own passengers.  It defended too that the fact that Loyola had no license and was only a holder of a TVR, is inconsequential to the accident.  Five Star alleged that the driver of the jeepney was a holder of a mere non-professional driver’s license and Darly had an expired non-professional driver’s license.  In refuting the allegation that it was negligent, Five Star claimed that it has been very careful and diligent in the selection and supervision of its employees and drivers.  With these arguments, Five Star  averred that it is the appellees who should be liable for damages and attorney’s fees.

On March 24, 2004, the court a quo rendered the appealed judgment.  Insisting that it is not liable, Five Star brought this appeal assigning the following as the errors committed by the court a quo:
  1. THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT’S DRIVER LOYOLA AS THE DIRECT AND PROXIMATE CAUSE OF THE COLLISION;

  2. THE TRIAL COURT ERRED WHEN IT DID NOT DISMISS THE COMPLAINT FOR LACK OF CAUSE OF ACTION, ABSENT THE ELEMENT OF NEGLIGENCE AND RECKLESSNESS OF APPELLANT’S DRIVER LOYOLA;

  3. THE TRIAL COURT ERRED WHEN IT DECLARED THAT DEFENDANT COMPANY FAILED TO EXERCISE DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEE (page 36 dec);

  4. THE TRIAL COURT ERRED WHEN IT AWARDED DAMAGES ARISING FROM LOSS OF EARNINGS OF HUSBAND OF APPELLEE MILAGROS REYES WHO DIED AS A RESULT OF THE COLLISION DESPITE UTTER LACK OF EVIDENCE ON THIS POINT AND WHEN IT ALSO AWARDED MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEES. (p. 85, rollo)
Negligence  is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury (Jarco Marketing Corporation vs. Court of Appeals, 321 SCRA 375).  From the evidence presented it was established that the driver of the bus was negligent and that he was the proximate cause of the collision.  The collective testimonies from the appellees point out that the bus had encroached on the lane of the car and the jeepney (tsn, February 25, 1999, p. 9, August 4, 2000, p. 8).  These testimonies was corroborated by the testimony of SPO1 Danilo Espiritu who went to  the scene of the accident to investigate and prepared the sketch and the Vehicular Traffic Accident Report (Exhs.”M” and “K”, pp. 22 and 25, Vol. IV, record).  It was stated in the said report that:
That the Sarao pass-type jeepney and the Mitsubishi lancer were traveling toward south direction of their authorized lane and upon reaching on (sic) aforementioned place accidentally bumped and hit by the Five Star bus from opposite direction which was (sic)  then encroached their path. (ibid)
and as aptly found by the court a quo:
The sketch prepared by SPO1 Espiritu shows that the point of impact, or the spot where the vehicles collided, was within the lane that properly belonged to the jeepney and the car.  The point of impact was where the thicker debris, consisting of fragmented glass, hardened soil and other forms of rubbish, had aggregated, and this was found within the western side of the road or the right lane if one is going toward the south. (p. 373, Vol. III, record)
The argument of Five Star that the police report does not conform with the sketch report because of the positions of the vehicles, is without merit.  Certainly mobile vehicles in a collision would not come to a dead stop and remain in their original positions because of the momentum and impact.  The accident report explains the rested positions of the vehicles as:
x x x Due to the strong impact, the sarao jeepney plunged at the western part of the road while the Mitsubishi lancer swerved to the western shoulder of the hi-way facing east. (Exh.”K”, p. 22, Vol. IV, record)
The trial court’s observation pertaining to the Five Star driver’s condition at the time of the accident, is notable.  It said that:
The truth is that Loyola was more sleepy than confused or shocked.  The bus driver, long paired with Reynaldo Veloria as his bus conductor, was assigned  to ply the route from the defendant’s bus terminal in Pasay City to Dagupan City and was required to observe specific schedules of departure and arrival at each point.  Thus the bus manned by Loyola and Veloria, as driver and conductor respectively, would leave its Pasay City terminal at 9:00 in the  evening and with travel time of five to six hours from Pasay City to Dagupan City, their bus would arrive at about 2:00 in the afternoon.  This hectic and exhausting routine apparently left Loyola and  his conductor, Veloria, hardly any time to rest and sleep, which prompted this Court to ask whether the two were getting enough rest and sleep.  The Court further clarified from Veloria, to wit:

“COURT: Q And that time between 1:00 and 2:00 (o’clock in the morning  when the accident occurred), you (were) also sleepy at that  time because you said you remitted your collection and you  did not rest, did I get you right?
A We can also take our rest after remitting the money.

Q And you sleep only for about 2 or 3 hours?
A Yes, Your Honor.

Q So that 1:00 (in the morning) of the following day, that is March 28, you only sleep for 3 hours, (so) there is a tendency for the person to feel sleepy?
A Sometimes, Your Honor.

Q That is why when you started the conversation with Mr. Loyola you observed that he was not already conscious or alert?
A No, Your Honor.” (tsn, April 26, 2002, pp. 19-21)

In his previous testimony, Veloria testifying on cross-examination, declared that from Moncada to San Manuel, he engaged Loyola, while the latter was driving the bus, in a running conversation.  Reminded that it is a strict rule imposed by almost all transportation companied not to allow anyone to engage the driver in conversation while the bus is in motion, Veloria said he felt it necessary “in order to make him alert.” (TSN, April 26, 2002, p. 13)

Thus, the foregoing circumstances deduced from the testimony of Veloria could lead to the conclusion that Loyola, because of his hectic schedule, was so drowsy and exhausted at the time of the collision that he was not able to manage and drive his bus in a careful and prudent manner.  He had unconsciously swerved into the lane occupied by the two smaller vehicles. (pp. 373-374, Vol. III, record)
The court a quo did not err when it declared that Five Star failed to exercise due diligence in the supervision and selection of its employees.  Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision (culpa in vigilando) of its employees.  To avoid liability for a quasi-delict committed by his employee, an employer must overcome the presumption by presenting convincing proof that he exercised the care and diligence of a good father of a family in the selection and supervision of his employees. x x x.  It is not enough that the employees chosen be competent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its employees (Delsan Transport Lines, Inc. vs. C & A Construction, Inc., 412 SCRA 524).  Five Star failed to match this criteria.  Its having allowed Loyola to drive with an expired TVR, glaringly speaks against its supposed diligence.

It is undisputed that at the time of the accident Loyola did not possess a driver’s license but was merely holding a TVR allowing him to drive for a definite period which at the time had already expired.   And from the testimony of SPO1 Marcelino Peralta, he was the investigating officer when Loyola was involved in another vehicular accident on December 31, 1997.  On said date Loyola no longer had a driver’s license and was holding only another TVR issued to him five days earlier when he was apprehended for still another traffic violation.  The TVR which Loyola presented at the time of the accident on March 30, 1998, was still the TVR that SPOI Marcelino Peralta issued to him in the December 31, 1997 incident and which was long expired.   Undoubtedly, Five Star failed to exercise over this driver the due diligence required by law.

Sufficient evidence was presented  to support the award of the court a quo for medical, hospitalization and funeral expenses.  On the  loss of earning capacity, We find credible the testimony of  Milagros that her deceased husband was earning a net income of P15,000.00 a month from hiring out his  taxi and jeepney.  Considering the line of business of the deceased, no documentary evidence can be expected to prove how much these units were earning for him daily. 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) (Smith Bell Dodwell Shipping Agency Corporation vs. Borja, 383 SCRA 341, 342).  In arriving at the total amount of earning capacity,  the court a quo correctly followed the formula laid down.

An award of moral damages would require certain conditions to be met, to wit:  (1) first, there must be an injury, whether physical, metal or psychological, clearly sustained by the claimant; (2) second, there  must be culpable act or omission factually established; (3) third the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; (4) fourth, the award of damages is predicated on any of the cases stated in Article 2219 of the Civil Code (National Power Corporation vs. Campos, Jr., 405 SCRA 194).  All of these conditions are present in this case.   However We find though that the award of P2,000,000.00 should be reduced. As for the awards of exemplary damages and attorney’s fees,  there is no reason to expunge nor alter these.

WHEREFORE, except for the amount of moral damages which is hereby reduced to P1,000,000.00, the Decision appealed from is hereby AFFIRMED and the appeal is DENIED.

SO ORDERED.

Guariña III and Romilla-Lontok, JJ., concur.

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