G. R. No. L-7763. December 02, 1957

Appeal from a judgment of the Court of First Instance of Davao absolving defendant from liability for the accidental death of Quirino  Gregorio.  It came to  this Court as the amount demanded in the complaint is  more  than P50,000.

On or before June 2,  1952, defendant  was  the owner of a truck.   He had  a driver and a cargador or driver’s helper by the name of Francisco Romera.   In the afternoon of June  2,  19B2, defendant ordered Romera to  drive his truck,  with instructions  to follow  another truck  driven by his driver and help the latter  in  crossing Sumlog river which was then flooded, should it be  unable to cross the river because of the flood.  Romera at that time was not a licensed driver.  He only  had a student’s permit, issued to him  on  March  31, 1952  (Exhibit “1”).  The truck started from the town of Lupon  at about 5:30  o’clock in the afternoon, driven by Romera.  Some  persons boarded the truck and among them was one policeman by the name of Venancio Orfanel.  While  the  truck was on  the way, it made a stop and then Orfanel  took the wheel from Romera, while the latter stayed on the driver’s left, reclined on a  spare tire inside of the truck.   As to the circumstances under which Orfanel was able to take hold of  and drive the truck, there is  some  dispute  and this matter will be taken up later  in the decision.

While the  truck  was  being  driven by  Orfanel,  with another  truck ahead of it driven by defendant’s driver, it so happened that they  came to a truck that was trying to park  on the left side  of the road.  Romera suggested to Orfanel that he shift to low gear and  Orfanel did so. But as they approached the. parking truck, and in order to  avoid colliding with  it, Orfanel  swerved  the truck towards the right.  It so happened that at that time two pedestrians were  on the  right side of the road.   As the truck had swerved  to  the right and  was proceeding to hit  the  said  pedestrians,  Romera told Orfanel to apply the  brake, but  Orfanel instead of  doing so put  his  foot on the gasoline and  the  truck did  not stop but went on and hit and  ran over one of the  pedestrians, by the name of Quirino Gregorio.   The plaintiffs-appellants in this action are  Gregorio’s widow and his children and heirs.  Because of  the accident,  Orfanel was  prosecuted  for homicide with reckless imprudence.  He pleaded guilty to the charge and was sentenced accordingly.

As  hinted  above, an  important issue  in the case has relation  to the circumstances  under  which Orfanel  was ablei to take  hold of the wheel and drive the truck.   To sustain the  theory  that  defendant’s  cargador Francisco Romera was negligent,  plaintiffs introduced  one Javier A.  Dayo as  a witness.   According to this witness the truck was speeding  at the rate of 20 miles an hour.  According to him also, while the truck was about to pass by their  house  of one Lucio,  running at a speed of 20 miles per  hour,  he heard Romera shouting “hand brake!  hand brake!”; that both Orfanel and Romera tried  to turn the driver’s  wheel  to the left and direct  the  truck  towards the  left to avoid the collision.   According to this  witness also, Romera gave the  wheel to  Orfanel  voluntarily upon the  request of the latter.

Plaintiffs  also sought to prove that Romera gave the truck voluntarily to the policeman by presenting the affidavit of Romera made on June S, 1952 (Exhibit “1”).   This affidavit, however, is inadmissible as evidence  against the Vda. de Gregorio, et al. vs. Go Chong defendant because it is hearsay with respect to him.  It may not be considered as  part of the res gestae either, because the affidavit was taken one day after the incident.

Against the above evidence, the defendant testified that he gave  positive instructions to Romera not to  allow anybody to drive the truck, and Romera himself testified that he had warned Orfanel  that his master  prohibited him from allowing anybody  to drive the truck,  but that as Orfanel  was  a uniformed policeman and insisted that he drive the truck, and that  as he believed that the policeman knew how to drive,  he let him  drive the truck.

We are of  the belief that defendant’s claim that Romera gave  the wheel to the policeman for fear of, or out of respect for, the latter, has been proved by a preponderance of the evidence.   The testimony of  witness Dayo is not corroborated  by any other testimony.  As he testified that he was two meters behind Romera, he could not have noticed with exactness the circumstances under which the policeman was able to get hold  of the wheel and drive the truck and his testimony in that respect cannot be believed.  We are, therefore, forced to the conclusion that the defendant’s cargador, or  Francisco Romera, gave the wheel  to Orfanel out of respect for the latter, who was a uniformed policeman and because he believed that the latter had both the ability and the authority  to drive the truck, especially as he himself had only a student’s permit and not a driver’s license.

The court  a quo  dismissed  the  action  on the ground that as the  death or  accident  was caused by  an act or. omission, of  a person  who  is not in  any  way related to the defendant, and as such act or omission was punishable by law,  and as  a matter  of  fact  he had already  been punished therefor, no civil liability should be imposed upon the defendant. Against this  decision the plaintiffs have appealed to this  Court, contending  that when  defendant permitted his  cargador,  who  wag  not  provided with  a driver’s  license, to drive the truck, he thereby  violated the provisions of the  Revised Motor Vehicle Law (section 28, Act No. 3992),  and  that this constitutes negligence per se.   (People vs.  Santos,  et al., CA-G.  R. No. 1088- 1089R.)   But admitting  for  the  sake of  argument  that the defendant had  so violated the law, or may be  deemed negligent in entrusting the truck to one who is not provided with  a  driver’s  license, it is clear that  lie may  not be declared  liable  for the accident  because  his negligence was  not the  direct  and  proximate  cause  thereof.   The leading  case in  this jurisdiction  on negligence is  that of Taylor vs.  Manila  Electric Railroad and Light  Company, 16 Phil. 8.   Negligence as a source of obligation both under’ the civil law  and  in American eases  was  carefully  considered  and it was held:

“We agree  with counsel for appellant that under the  Civil  Code, MS under the  generally accepted doctrine in the United  States, the plaintiff  in an  action such as that  under  consideration,  in  order to establish his right to a recovery,  must  establish by competent evidence:

“(1) Damages to the plaintiff.
“(2) Negligence by act or omission of which defendant personally, or some person  for whose acts it  must respond, was guilty.
“(3) The connection of cause  and effect  between the negligence and the damage.”   (Taylor vs. Manila Electric Railroad and Light  Co., supra,  p. 15.)

In  accordance with the decision of the Supreme Court of  Spain, in order that a person may be  held  guilty for damage  through  negligence,  it  is  necessary  that  there be an  act or  omission  on the part of the person who is to  be  charged   with the liability  and  that  damage  is produced  by the said act  or  omission.

“In  accordance  with the fundamental principle of  proof, that the burden thereof is  upon the  plaintiff,  it is  apparent that  it is the duty  of him  who  shall  claim  damages to establish  their existence.  The  decisions of April 8, 1896,  and March 18, July  6, and September  27, 1898, have especially supported the principle, the first setting’ forth in detail the necessary points of the proof. which are  two:  An  Act or omission  on the  part of  the person who is to he  charged with the liability, and the production of the damage by  said act or omission.

“This includes, by inference,  the establishment’ of a  relation of cause or effect between the act or the omission and the damage; the latter must be  the  direct result of one o£ the first two.  As the decision of March  22, 1881, said,  it is necessary that  the damages  result  immediately and  directly from an act performed culpably  and wrongfully; ‘necessarily presupposing a legal ground for Imjuitability.’ ”  (Taylor vs.  Manila Electric Railroad and  Light Co., supra, p. 28.)

It is  evident that  the proximatej  immediate and direct cause  of  the  death  of  the plaintiffs’  intestate  was the negligence  of Orfanel,  a uniformed policeman, ,who  took the  wheel  of the truck from defendant’s  cargador, in spite  of the protest  of the  latter.   The  reason for absolving  the defendant  therefor is  not because the  one responsible for the accident had already received indemnification  for the  accident, but because  there is  no direct and proximate causal  connection between  the negligence or violation of the law by  the  defendant to the death of the plaintiffs* intestate.

For the foregoing considerations,  the judgment appealed from  is  hereby  affirmed,  “without  costs.

Paras, C. J., Bengzon, Padilla,  Montemayor, Reyes,  A., Bautista Angelo,  Reyes, J. B. L., Endencia, and Felix, JJ., concur.