MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, AND THE MINORS, EPHRAIM CAEDO, EILEEN CAEDO, ROSE ELAINE CAEDO, SUING THROUGH THEIR FATHER, MARCIAL T. CAEDO, AS GUARDIAN AD LITEM, PLAI…

As a result of a
vehicular accident in which plain­tiff Marcial Caedo and several members of his family were injured
they filed this suit for recovery of damages from the
defendants.  The judgment, rendered by
the Court of First Instance of Rizal on February 26, 1960 (Q-2952), contains
the following disposition:

“IN VIEW OF THE FOREGOING, the court renders a judgment, one
in favor of the plaintiffs and against the defendants, Yu Khe
Thai and Rafael Bernardo, jointly and
severally, to pay to plaintiffs Marcial Caedo et al., the sum of P1, 929.
70 for actual damages; P48, 000.00 for moral damages; P10, 000.00 for exemplary
damages; and P5,000.00 for attorney’s fees, with costs
against the defendants.  The counterclaim of the defendants against
the plaintiffs is hereby or­dered dismissed, for lack of merits.”

On March 12, 1960
the judgment was amended so as to include an additional award of P3, 705.11 in
favor of the plaintiffs for the damage sustained by their car in the ac­cident.

Both parties appealed to
the Court of Appeals, which certified the case to us in view of the total
amount of the plaintiffs’ claim.

There are two principal questions posed for resolution:  (1) who was responsible for the accident? and (2) if it was defendant Rafael Bernardo, was his
employer, defendant Yu Khe Thai, solidarily
liable with him? On the first question the trial court found Rafael Bernardo
negligent; and on the second, held his employer solidarily
liable with him.

The mishap occurred at about 5:30
in the morning of March 24, 1958
on Highway 54 (now E. de los Santos
Avenue) in the vicinity of San
Lorenzo Village.  Marcial was driving
his Mercury car on his way from his home in Quezon City to the airport, where
his son Ephraim was scheduled to take a plane for Mindoro. 
With them in the car were Mrs. Caedo and three
daughters.  Coming from the opposite
direction was the Cadillac of Yu Khe Thai, with his
driver Rafael Bernardo at the wheel, taking the owner from his Parañaque home to Wack Wack for his regular round of golf.  The two cars were travel­ing at fairly
moderate speeds, considering the condition of the road and the absence of
traffic – the Mercury at 40 to 50 kilometers per hour, and the Cadillac at
approximately 30 to 35 miles (48 to 56 kilometers).  Their headlights were mutually noticeable
from a distance.  Ahead of the Cadillac,
going in the same direction, was a carretela
owned by a certain Pedro Bautista.  The carretela was towing another horse by means of a
short rope coiled around the rig’s ver­tical post on the right side and held at
the other end by Pedro’s son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he
saw it in front of him, only eight meters away. 
This is the first clear indication of his negligence.  The carretela
was provided with two lights, one on each side, and they should have given him
sufficient warning to take the
necessary precautions.  And even if he
did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him
from afar if he had been careful, as it must have been in the beam of his headlights
for a considerable while.

In the meantime the
Mercury was coming on its own lane from the opposite direction.  Bernardo, instead of slowing dawn or stopping
altogether behind the carretela until that
lane was clear, veered to the left in order to pass.  As he did so the curved end of his car’s
right rear bumper caught the forward rim of the rig‘s left wheel, wrench­ing it off and carrying
it along as the car skidded obliquely to the other lane, where it collided with
the oncoming vehicle.  On his part Caedo had seen the Cadillac on its own lane; he slackened
his speed, judged the distances in relation to the carretela
and concluded that the Cadillac would wait behind.  Bernardo, however, decided to take a gamble –
beat the Mercury to the point where it would be in line with the carretela, or else squeeze in between them in any
case.  It was a risky maneuver either
way, and the risk should have been quite ob­vious.  Or, since the car was moving at from 30 to 35
miles per hour (or 25 miles according to Yu Khe Thai) it was al­ready too late to apply the
brakes when Bernardo saw the carretela only
eight meters in front of him, and so he had to swerve to the left in spite of
the presence of the oncoming car on the opposite lane.  As it was, the clearance Bernardo gave for his
car’s right side was
insufficient.  Its rear bumper, as already stated, caught the wheel of the carretela
and wrenched it loose.  Caedo, confronted with the unexpected situation, tried to
avoid the collision at the last moment by going farther to the right, but was
unsuccessful.  The photographs taken at
the scene show that the right wheels of his car were on the unpaved shoulder of
the road at the moment of impact.

There is no doubt at all that the collision was
directly traceable to Rafael Bernardo’s negligence and that he must be
held liable for the damages suffered by the plaintiffs.  The next question is whether or not Yu Khe Thai, as owner
of the Cadillac, is solidarily liable with the
driver.  The applicable law is Article
2184 of the Civil Code, which reads:

“ART. 2184.  In motor
vehicle mishaps, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have, by the use of due diligence, pre­vented the
misfortune.  It is disputably presumed that a driver
was negligent, if he has been found guilty of reckless driving or vio­lating
traffic regulations at least twice within the next preceding two months.”

Under
the foregoing provision, if the causative factor was the driver’s negligence,
the owner of the vehicle who was
present is likewise held liable if he could have prevented the mishap by the
exercise of due diligence.  The rule is not new, although formulated as law for the first time in the new Civil Code. 
It was expressed in Chapman vs. Underwood (1914) 27 Phil. 374, where
this Court held:

“x x
x The same
rule applies where the owner is present, unless the negligent acts of
the driver are continued for such a length of time as to give the owner a
reasonable op­portunity to observe them and to direct his driver to desist therefrom.  An owner
who sits in his automobile, or other vehicle, and permits his driver to
continue in a violation of the law by the performance of negligent acts, after he has had a
reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts.  The
owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour,
without any effort to stop him, although he has had a reasonable opportunity
to do so, becomes himself responsible, both criminally and civil­ly, for the
results produced by the acts of the chauffeur. 
On the other hand, if the driver, by a sudden act of negligence, and
without the owner having a reasonable
opportunity to prevent the act or its
continuance, injures a person or violates
the criminal law, the owner
of the automobile, although present therein at the time the act was committed, is not respon­sible, either civilly or
criminally, therefor. 
The act complained of must be continued in the presence of the owner
for such a length of time that the owner, by his acquiescence, makes his
driver’s act his own.”

The basis of the master’s liability
in civil law is not respondeat superior but rather the
relationship of pater familias.  The theory is that ultimately the negligence
of the servant, if known to the master and susceptible of timely correction by
him, reflects his own negligence if he fails to correct it in order to prevent
injury or damage.

In the present case the defendants’ evidence is that Rafael Bernardo had been Yu Khe Thai’s driver since 1937, and before that had been
employed by Yutivo Sons Hardware Co. in the same
capacity for over ten years.  During that time he had no
record of violation of traffic laws and regulations.  No negligence for having employed him at all
may be imputed to his master.  Negligence
on the part of the
latter, if any, must be sought in the immediate setting and circumstances of the
accident, that is, in his failure to detain the driver from pursuing a course which not only
gave him clear notice of the danger but also sufficient time to act upon
it.  We do not see that such
negligence may be imputed.  The car, as
has been stated, was not running at an unreasonable speed.  The road was wide and open, and devoid of
traffic that early morning.  There was no
reason for the car owner to be in any special state of alert.  He had reason to rely on the skill and
experience of his driver.  He became aware of
the presence of the carretela when his car was
only twelve meters behind it, but then his failure to see it earlier did not
constitute negligence, for he was not himself at the wheel.  And even when he did see it at that distance,
he could not have anticipated his driver’s sudden decision to pass the carretela on its left side in spite of the fact that
another car was approaching from the opposite direction.  The time element was such that there was no
reasonable opportunity for Yu Khe Thai to assess the risks involved and
warn the driver accordingly.  The thought
that entered his mind, he said, was that if he sounded a sudden warning it
might only make the other man nervous and make the situation worse.  It was a thought that, wise or not, connotes
no absence of that due diligence required by law to prevent the misfortune.

The test of imputed
negligence under Article 2184 of
the Civil Code is, to a great degree,
necessarily subjective.  Car owners are
not held to a uniform and inflexible standard of diligence as are professional drivers.  In many cases they refrain from driving their own cars and instead
hire other persons to drive for them precisely because they are not trained or
endowed with sufficient discernment to know the rules of traffic or to
appreciate the relative dangers posed
by the different situations that are continually encountered on the road.  What would be a negligent omission under the
aforesaid Article on the part of a car
owner who is in the prime of age and knows how to handle a motor vehicle is not
necessarily so on the part, say, of an
old and infirm person who is not
similarly equipped.

The law does not require that a person must possess a certain measure of
skill or proficiency either in the mechanics of driving or in the observance of
traffic rules before he may own a motor vehicle.  The test of his negligence, within the
meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the accident.  And as far as perception is concerned, absent a minimum level imposed by
law, a maneuver that appears to be fraught with danger to one passenger may
appear to be entirely safe and commonplace to another.  Were the law to require a uniform standard of
perceptiveness, employment of professional drivers by car owners who, by their
very inadequacies, have real need of drivers’ services, would be effectively
proscribed.

We hold that the
imputation of liability to Yu Khe Thai, solidarity
with Rafael Bernardo, is an error.  The
next question refers to the sums adjudged by the trial court as damages.  The award of P48, 000 by way of moral damages
is itemized as follows:

Plaintiffs appealed from
the award, claiming that the Court should have granted them also actual or
compensatory damages, aggregating P225,000, for the injuries they sus­tained. Defendants, on the
other hand, maintain that the amounts
awarded as moral damages are excessive and should be reduced.  We find no justification for either
side.  The amount of actual damages
suffered by the individual plain­tiffs by reason of their injuries,
other than expenses for medical
treatment, has not been shown by the
evidence.  Actual damages, too be
compensable, must be proven.  Pain and
suffering are not capable of pecuniary estimation, and constitute a proper
ground for granting moral, not actual, damages, as provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

“MARCIAL T. CAEDO:

A.     
Contusion, with hematoma, scalp, frontal left; abrasions, chest wall,
anterior;

B.     Multiple fractures, ribs, right, 1st to 5th inclusive. Third rib has a double fracture; Subparieto-pleural hematoma;
Basal disc atelectasis, lung, right lower lobe, secondary;

C.     Pseudotosis, left, secondary to pro­bable basal
fracture, skull.

JUANA SANGALANG CAEDO:

A.     
Abrasions, multiple:

(1) frontal
region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.

B.    
Wound, lacerated, irregular, deep,
frontal;

C.     Fracture, simple, 2nd rib posterior, left with displacement.

D.    
Fracture, simple, base, proximal
phalanx, right big toe.

E.     Fracture, simple, base, metatarsals, III and V right.

F.      Concussion, cerebral.

EPHRAIM CAEDO:

A.     
Abrasions, multiple:

(1) left temporal area; (2) left frontal;
(3) left supraorbital

EILEEN CAEDO:

A.     
Lacerated wound (V-shaped), base,
5th finger, right, lateral aspect.

B.     Abrasions, multiple:

 (1)
dorsum, proximal phalanx, middle finger; (2) Knee,
anterior, bilateral; (3) shin, lower
1/3.

ROSE ELAINE CAEDO:

A.  Abrasions, multiple:

(1) upper
and lower lids; (2) left temporal; (3) nasobial
region; (4) leg, lower third, anterior.

MARILYN CAEDO:

A.  Abrasions, multiple:

(1)  
shin, lower 1/3 right;

(2)   arm, lower third

B.
Contusion with hematoma, shin, lower 1/3, anterior
aspect, right. (See Exhibits D, D-1, D-2, D-3, D-4 and D-5)”

It is our opinion that, considering the
nature and extent of the above-mentioned injuries, the amounts of moral damages
granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in
the sense of declaring
defendant-appellant Yu Khe Thai free from liability, and is otherwise
affirmed with respect to defendant Rafael Bernardo, with costs against the
latter.

Concepcion, C.J., Reyes, Dizon, Zaldivar, Sanchez, Castro,
and Capistrano, JJ.,
concur.

Fernando, J., did not take
part.