MANILA RAILROAD COMPANY, PETITIONER, VS. MACARIA BALLESTEROS, TIMOTEO CAMAYO, JOSE REYES AND JULIAN MAIMBAN, JR., RESPONDENTS.

In civil case No. 45968 of the Court of First Instance of Manila
(Macaria Ballesteros, Timoteo Camayo, Jose Reyes and Julian Maimban,
Jr. vs. Manila Railroad Company) the defendant was adjudged
to pay damages in the following amounts: P2,400 to Macaria Ballesteros;
P4,000 to Timoteo Camayo; P3,000 to Jose Reyes; and P2,000, plus P1,000
as attorneys fees, to Julian Maimban, Jr.

The defendant appealed from the judgment, but upon motion by the
plaintiffs the trial court, by order dated October 14, 1961, dismissed
the appeal on the ground that it was “manifestly and palpably frivolous
and interposed ostensibly to delay the settlement of the just and
reasonable claims of the herein plaintiffs, which have been pending
since 1958,” The defendant moved to reconsider, and upon denial of its
motion instituted in this Court the instant petition for mandamus to
set aside the order of dismissal and to order respondent court to give
due course to the appeal.

In filing the petition directly with this Court, petitioner
evidently intended to raise only questions of law in the appeal
contemplated, since under Rule 41, section 15, “when erroneously a
motion to dismiss an appeal is granted or a record on appeal is
disallowed by the trial court, a proper petition for mandamus may be
filed in the appellate court;” and under section 17(6) of the Judiciary
Act this Court may review on appeal only questions of law in civil
cases decided by inferior courts unless the value in controversy
exceeds P200,000.

The fact that an appeal is frivolous and interposed only for
purposes of delay has been recognized as a valid ground to deny
issuance of the writ of mandamus to compel the trial court to approve and certify the appeal. In De la Cruz vs. Blanco and Quevedo, 73 Phil. 596, We held:

“And where as in the instant case, the dismissal has
been ordered by the trial court, it would not be disturbed in the
Appellate Court if the latter finds the appeal to have been interposed
ostensibly for delay. It has been held that a frivolous appeal is one
presenting no justiciable question or one so readily cognizable as
devoid of merit on the face of the record that there is little, if any,
prospect that it can over succeed. The instant case is one such
instance in which the appeal is evidently without merit, taken
manifestly for delay.”

And in Paner vs. Yatco, 87 Phil. 271, We denied the writ
prayed for and held that “while strictly and legally speaking the
petition may be granted, we may, before acting thereon, inquire into
the facts involved in order to determine whether once the writ is
granted and the case is brought up here on appeal the appellant has any
chance, even possibility, of having the basic decision of the trial
court set aside or modified; for if the appellant has not that prospect
or likelihood then the granting of the writ and the consequent appeal
would be futile and would mean only a waste of time to the parties and
to this Court.”

The material facts, as found by respondent court in its decision,
are as follows: Private respondents hers, plaintiffs below, were
passengers on petitioner’s bus, the driver of which was Jose Anastacio.
In Bayombong, Nueva Vizcaya, Anastacio stopped the bus and got off to
replace a defective spark plug. While he was thus engaged, one Dionisio
Abello, an auditor assigned to defendant company by the General
Auditing Office, took the wheel and told the driver to sit somewhere
else. With Abello driving, the bus proceeded on its way, from time to
time stopping to pick up passengers. Anastacio tried twice to take the
wheel back but Abello would not relinquish it. Then, in the language of
the trial court, “while the bus was negotiating between Km. posts 328
and 329 (in Isabela) a freight truck . . . driven by Marcial Nocum . .
. bound for Manila, was also negotiating the same place; when these two
vehicles were about to meet at the bend of the road Marcial Nocum, in
trying to evade several holes on the right lane, where his truck was
running, swerved his truck towards the middle part of the road and in
so doing, the left front fender and left side of the freight truck
smashed the left side of the bus resulting in extensive damages to the
body of the bus and injuries to seventeen of its passengers, . . . .
including the plaintiffs herein.”

In rejecting petitioner’s contention that the negligence of Marcial
Nocuin could not be imputed to it and relieved it from liability, the
trial court found that Dionisio Abello “was likewise reckless when he
was driving the bus at the rate of from 40 to 50 kilometers per hour on
a bumpy road at the moment of the collision.”

Another defense put up by petitioner is that since Abello was not
its employee it should not be held responsible for his acts. This
defense was correctly overruled by the trial court, considering the
provisions of Article 1763 of the Civil Code and section 48(b) of the
Motor Vehicle Law, which respectively provide as follows:

ART. 1763. A common carrier is responsible for
injuries suffered by a passenger on account of the willful acts or
negligence of other passengers or of strangers, if the common carrier’s
employees through the exercise of the diligence of a good father of a
family could have prevented or stopped the act or omission.

SEC.
48(b). No professional chauffeur shall permit any unlicensed person to
drive the motor vehicle under his control, or permit a person, sitting
beside him or in any other part of the car, to interfere with him in
the operation ox the motor vehicle, by allowing said person to take
hold of the steering wheel, or in any other manner take part in the
manipulation or control of the car.

It appears further, and so the trial court found, that there were
negotiations between the parties to compromise the case, as a result of
which respondents herein, plaintiffs below, considerably reduced their
claims to the amounts subsequently awarded in the judgment; that
petitioner had in fact settled the claims of the other passengers who
were also injured in the same accident and even the claim for damages
filed in another action by the owner of the freight truck; and that the
Government Corporate Counsel himself, who represents herein petitioner,
rendered two separate opinions (Op. No. 86, May 19, 1960; and Op. No.
99, series of 1961) wherein, after analyzing the facts and the law
applicable, he reached the conclusion that the acts of the bus
personnel, particularly “in allowing Mr. Abello to drive despite two
occasions when the bus stopped and the regular driver could have taken
over, constitute reckless imprudence and wanton injurious conduct on
the part of the MRR employees,” On the basis of those opinions the
Government Corporate Counsel advised petitioner that the offer of the
claimants was reasonable and should be accepted. His advice, however,
was not favorably acted upon, petitioner obviously preferring to
litigate.

The issues proposed to be taken up on appeal, as set forth in the
petition, are whether or not Dionisio Abello acted with reckless
negligence while driving petitioner’s bus at the time of the accident,
and whether or not petitioner may be held liable on account of such
negligence, considering that he was not its employee. These are no
longer justiciable questions which would justify our issuing the
peremptory writ prayed for. The first is a question of fact on which
the affirmative finding of respondent court is not reviewable by Us;
and the second is one as to which there can be no possible doubt in
view of the Pr°-visions of the Civil Code and of the Motor Vehicle Law
hereinbefore cited. There would be no point in giving the appeal due
course.

The writ prayed for is denied, with costs against petitioner.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P., and Sanchez, JJ., concur.