DANGWA TRANSPORTATION CO., INC. (DANGWA BUS COMPANY), AND JAMES G. GAYOT, PETITIONERS, VS. HON. MALCOLM G. SARMIENTO, JUDGE, COURT OF FIRST INSTANCE OF PAMPANGA, AND LAWRENCE HE…

The sole issue in this petition for prohibition is whether or not
the Court of First Instance of Pampanga, Branch I, San
Fernando, in Civil Case No. 2515, gravely abused its
discretion in denying petitioner’s motion to dismiss on the ground of improper
venue.

On March 16, 1964, private respondent Lawrence Heller, as a
consequence of the injuries sustained by him when his motorcycle was bumped by
a bus of the Dangwa Transportation Co., Inc., filed
an action with the Court of First Instance of Pampanga,^[1]
against petitioners James G. Gayot, the bus driver,
and Dangwa Transportation Co., Inc., owner of the
bus, and docketed therein as Civil Case No. 2515,^[2]
for damages (actual and compensatory – P30,000.00, moral and exemplary – P14,000.00).  In his complaint, private respondent alleges,
among others, (1) that he is of legal age, single, American citizen, an Airman
First Class of the United States Air Force, and presently assigned and
stationed at Clark Air Base, Pampanga, Philippines;
while the defendant James G. Gayot, is also of legal
age, Filipino, married, and a resident of Engineer’s Hill, Baguio
City and the other defendant Dangwa Bus Company^[3]
is a juridical person or corporation organized and existing in accordance with
the laws of the Republic of the Philippines, with business address at Trinidad
Valley, Benguet, Mountain Province, where summons and
other lawful processes of the court may be served; (2) that James G. Gayot is a driver and employee of said bus company, a common
carrier and registered owner of Dangwa bus bearing
Plate No. PUB-1986; (3) that on December 30, 1963, at Twin Peaks, Kennon Road, Tuba, Benguet,
Mountain Province, this Dangwa bus was driven by
James G. Gayot with such reckless imprudence and at a
greater speed than was reasonable and proper, that the bus collided with
Lawrence Heller who was then riding on his motorcycle; (4) that, as a result of
the collision, the latter sustained serious physical injuries, namely, a closed
fracture of the left femur and a compound fracture of the left tibia, and his
motorcycle was totally wrecked; (5) that, thereafter, he was confined at the
USAF Hospital, Clark Air Base, Angeles, Pampanga; and
(6) that as Airman First Class in the USAF assigned to the 1st Mobile
Communication Group, Clark AFB, he received a monthly pay of $234.00.

On March 25, 1964, the petitioners filed a motion to dismiss^[4] on
the ground that venue was improperly laid with the Court of First Instance of Pampanga under Section 1(c) of Rule 16 of the Revised Rules
of Court, for private respondent, an American citizen, is not a resident of
Clark Air Base, Pampanga, as the first paragraph of
his complaint alleges that he is “presently assigned and stationed at
Clark Air Base, Pampanga, Philippines”, and, as
such, his assignment in the Philippines is temporary since members of the
United States Air Force may be assigned any time to any station under the
exclusive control and decision of the Commanding Officer; and that, pursuant to
Section 2(b), Rule 4, of the Revised Rules of Court, the venue of private
respondent’s action should not be Pampanga but the
City of Baguio or Benguet,
Mountain Province.

On April 8, 1964, the private respondent filed an Opposition^[5]
to the aforesaid motion to dismiss alleging, among others, (1) that the
residence required by the rule (Section 2[b], Rule 4, Revised Rules of Court)
need not necessarily be permanent, it being sufficient that the plaintiff had
his actual residence at the place where the action was brought;^[6] (2)
that he has the privilege to elect which court to file his action and he had
chosen the Court of First Instance of Pampanga,
because he is a resident of Clark Air Base, Pampanga,
not only at the time of the commencement of the present action, but also even
before the accident happened; and (3) that when he alleged in his complaint
that he is stationed in Clark Air Base, Pampanga,
Philippines, he meant to convey that, as long as he stays in the Philippines,
his residence is in Clark Air Base, Pampanga.

On the same day, April 8, 1964, respondent Judge Malcolm G. Sarmiento issued an Order denying petitioners’ motion to
dismiss,^[7]
and stating that private respondent’s actual residence is in Clark Air Base, Pampanga, and his action, therefore, was properly instituted
in said province, for “residence under this action need not be continuous,
it being sufficient that a party, though a foreign subject, has his actual residence
in the place when the action was brought.”^[8]

We find the petition without merit.

There is no question that respondent Lawrence Heller has his
fixed place of abode at Clark Air Base, Pampanga.  There is no showing in the record that Heller
has not resided consistently and with continuity in his place of abode at Clark
Air Base at the time he filed this action.

In Koh v. Court of Appeals,^[9]
We explained that the term “resides” as employed in the rule on venue
on personal actions filed with courts of first instance^[10]
means the place of abode, whether permanent or temporary, of the plaintiff or
the defendant, as distinguished from “domicile” which denotes a fixed
permanent residence to which, when absent, one has the intention of returning.

“It is fundamental in the law governing venue of actions (Rule
4 of the Rules of Court) that the situs for bringing
real and personal civil actions are fixed by the rules to attain the greatest
convenience possible to the parties litigants by taking into consideration the
maximum accessibility to them of the courts of justice.  It is likewise undeniable that the term domicile
is not exactly synonymous in legal contemplation with the term residence,
for it is an established principle in Conflict of Laws that domicile
refers to the relatively more permanent abode of a person while residence
applies to a temporary stay of a person in a given place.  In fact this distinction is very well
emphasized in those cases where the Domiciliary Theory must necessarily
supplant the Nationality Theory in cases involving stateless persons.

“This Court held in the case of Uytengsu
vs. Republic, 50 O.G. 4781, October, 1954, rever­sing its previous stand in Larena v. Ferrer, 61 Phil. 36 and
Nuval v. Guray, 52 Phil.
645, that–

‘There is a difference between domicile and residence.  Residence is used to indicate a place of
abode, whether permanent or temporary; domi­cile denotes a fixed permanent
residence to which when absent, one has the intention of returning.  A man may have a residence in one place and a
domicile in another.  Residence is not
domicile, but domicile is residence coupled with the intention to remain for an
unlimited time.  A man can have but
one domicile for one and the same purpose at any time, but he may have numerous
places of residence.  His place of
residence generally is his place of domicile, but is not by any means,
necessarily so since no length of residence without intention of remaining will
constitute domicile.’ (Italicised for emphasis)

“We note that the law on venue in Courts of First Instance
(Section 2, of Rule 4, Rules of Court) in referring to the parties utilizes the
words ‘resides or may be found,’ and not ‘is domiciled,’ thus:

‘Sec. 2(b) Personal actions – All other actions may be commenced
and tried where the defendant or any of the defendants resides or may be
found, or where the plaintiff or any of the plaintiffs resides, at
the election of the plaintiff.’ (Italicised for
emphasis)

“Applying the foregoing observation to the present case, We
are fully convinced that private respondent Coloma’s protestations of domicile
in San Nicolas, Ilocos Norte, based on his manifested
intention to return there after the retirement of his wife from government
service to justify his bringing of an action for damages against petitioner in
the C.F.I. of Ilocos Norte, is entirely of no moment
since what is of paramount importance is where he actually resided or where he
may be found at the time he brought the action, to comply substantially with
the requirements of Sec. 2(b) of Rule 4, Rules of Court, on venue of personal
actions.” (Koh v. Court of Appeals, supra,
pp. 304-305.)

The same construction of the word “resides” as used in
Section 1, Rule 73, of the Revised Rules of Court, was enunciated in Fule v. Court of Appeals, et al. (G.R. No.
L-40502) and Fule v. Hon. Ernani C. Paño, et al. (G.R.
No. L-42670), decided on November 29,
1976.  Thus, this Court, in
the aforecited cases, stated:

“2.  But, the far-ranging question is this:  What does the term ‘resides’ mean?  Does it refer to the actual residence or
domicile of the decedent at the time of his death?  We lay down the doctrinal rule that the term
‘resides’ connotes ex vi termini ‘actual residence’ as
distinguished from ‘legal residence or domicile.’ This term ‘resides,’ like the
terms ‘residing’ and ‘residence’ is elastic and should be interpreted in the light
of the object or purpose of the statute or rule in which it is
employed.  In the application of venue
statutes and rules–Section 1, Rule 73 of the Revised Rules of Court is of such
nature–residence rather than domicile is the significant
factor.  Even where the statute uses the
word ‘domicile’ still it is construed as meaning residence and not domicile in
the technical sense.  Some cases make a
distinction between the terms ‘residence’ and ‘domicile’ but as generally used
in statutes fixing venue, the terms are synonymous, and convey the same meaning
as the term ‘inhabitant.’ In other words, ‘resides’ should be viewed or
understood in its popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode.  It signifies physical presence in a place and
actual stay thereat.  In this popular
sense, the term means merely residence, that is, personal residence, not legal
residence or domicile.  Residence
simply requires bodily presence as an inhabitant in a given place, while
domicile re­quires bodily presence in that place and also an intention
to make it one’s domicile.  No particular
length of time of residence is required though; however, the residence must be
more than temporary.”

Respondent court having found that private respondent Lawrence
Heller had his actual residence at Clark Air Base, Angeles (now a City), Pampanga, at the time he filed his personal action against
the petitioners, it did not, therefore, gravely abuse its discretion in
refusing to dismiss the case.

WHEREFORE, the petition for prohibition is hereby
DISMISSED, with costs against the petitioners.

Fernando, (Chairman), Barredo, Aquino, and Concepcion, Jr., JJ.,
concur.

^[1]
Annex “A”, Petition, pp. 6-9, Rollo.

^[2]
Entitled “Lawrence Heller,
Plaintiff, versus James G. Gayot and Dangwa Bus Company, Defendants.”

^[3]
Petitioner Dangwa Transportation Co., Inc. was
wrongly designated in the complaint as “Dangwa
Bus Company”.

^[4]
Annex B, Petition, pp. 10-12, Rollo.

^[5]
Annex C, Ibid., pp. 13-15.

^[6] Citing
De La Rosa and Go Kee v. De Borja,
53 Phil. 990, 998; Molina v. De la Riva, 6 Phil. 12.

^[7]
Annex “D”, Petition, pp. 16-19, Rollo.

^[8]
Citing Moran, Comments on the New Rules of
Court, Vol. I, Sec. 2, Rule 4, p. 189, which cited as authority the case
of De la Rosa and Go Kee v. De Borja,
supra.

^[9]
70 SCRA 298.

^[10]
Sec. 2(b), Rule 4, of the Revised Rules of Court.