VALLACAR TRANSIT, INC., PETITIONER, VS. JOCELYN CATUBIG, RESPONDENT.

For review under Rule 45 of the Rules of Court is the Decision^[1] dated November 17, 2005 and the Resolution^[2] dated November 16, 2006 of the Court Appeals in CA-G.R. CV No. 66815, which modified the Decision^[3]
dated January 26, 2000 of the Regional Trial Court (RTC), Branch 30 of
Dumaguete City, in Civil Case No. 11360, an action for recovery of
damages based on Article 2180, in relation to Article 2176, of the Civil
Code, filed by respondent Jocelyn Catubig against petitioner Vallacar
Transit, Inc.  While the RTC dismissed respondent’s claim for damages,
the Court of Appeals granted the same.

The undisputed facts are as follows:

Petitioner is engaged in the business of transportation and the franchise owner of a Ceres Bulilit bus with Plate No. T-0604-1348.  Quirino C. Cabanilla (Cabanilla) is employed as a regular bus driver of petitioner.

On
January 27, 1994, respondent’s husband, Quintin Catubig, Jr. (Catubig),
was on his way home from Dumaguete City riding in tandem on a
motorcycle with his employee, Teddy Emperado (Emperado).  Catubig was
the one driving the motorcycle.  While approaching a curve at kilometers
59 and 60, Catubig tried to overtake a slow moving ten-wheeler cargo
truck by crossing-over to the opposite lane, which was then being
traversed by the Ceres Bulilit bus driven by Cabanilla, headed
for the opposite direction. When the two vehicles collided, Catubig and
Emperado were thrown from the motorcycle.  Catubig died on the spot
where he was thrown, while Emperado died while being rushed to the
hospital.

On February 1, 1994, Cabanilla was charged with
reckless imprudence resulting in double homicide in Criminal Case No.
M-15-94 before the Municipal Circuit Trial Court (MCTC) of
Manjuyod-Bindoy-Ayungon of the Province of Negros Oriental.  After
preliminary investigation, the MCTC issued a Resolution on December 22,
1994, dismissing the criminal charge against Cabanilla.  It found that
Cabanilla was not criminally liable for the deaths of Catubig and
Emperado, because there was no negligence, not even contributory, on
Cabanilla’s part.

Thereafter, respondent filed before the RTC on
July 19, 1995 a Complaint for Damages against petitioner, seeking
actual, moral, and exemplary damages, in the total amount of
P484,000.00, for the death of her husband, Catubig, based on Article
2180, in relation to Article 2176, of the Civil Code.  Respondent
alleged that petitioner is civilly liable because the latter’s employee
driver, Cabanilla, was reckless and negligent in driving the bus which
collided with Catubig’s motorcycle.

Petitioner, in its Answer
with Counterclaim, contended that the proximate cause of the vehicular
collision, which resulted in the deaths of Catubig and Emperado, was the
sole negligence of Catubig when he imprudently overtook another vehicle
at a curve and traversed the opposite lane of the road.  As a special
and affirmative defense, petitioner asked for the dismissal of
respondent’s complaint for not being verified and/or for failure to
state a cause of action, as there was no allegation that petitioner was
negligent in the selection or supervision of its employee driver.

In the Pre-Trial Order^[4]
dated June 10, 1997, the parties stipulated that the primary issue for
trial was whether or not petitioner should be held liable for Catubig’s
death.  Trial then ensued.

Police Officer (PO) 2 Robert B. Elnas (Elnas),^[5] Emilio Espiritu (Espiritu),^[6] Dr. Norberto Baldado, Jr. (Dr. Baldado),^[7] Peter Cadimas (Cadimas),^[8] and respondent^[9] herself testified in support of respondent’s complaint.

PO2
Elnas conducted an investigation of the collision incident.  According
to PO2 Elnas, the bus was running fast, at a speed of 100 kilometers per
hour, when it collided with the motorcycle which was trying to overtake
a truck.  The collision occurred on the lane of the bus. Catubig was
flung 21 meters away, and Emperado, 11 meters away, from the point of
impact.  The motorcycle was totaled; the chassis broke into three parts,
and the front wheel and the steering wheel with the shock absorbers
were found 26 meters and 38 meters, respectively, from the collision
point.  In contrast, only the front bumper of the bus suffered damage.

Cadimas
personally witnessed the collision of the bus and the motorcycle. He
recalled that he was then waiting for a ride to Dumaguete City and saw
the Ceres Bulilit bus making a turn at a curve.  Cadimas signaled
the said bus to halt but it was running fast. Cadimas also recollected
that there was a cargo truck running slow in the opposite direction of
the bus.  Cadimas next heard a thud and saw that the bus already
collided with a motorcycle.

Espiritu was the photographer who
took photographs of the scene of the accident. He identified the five
photographs which he had taken of Catubig lying on the ground, bloodied;
broken parts of the motorcycle; and the truck which Catubig tried to
overtake.

Dr. Baldado was the medico-legal doctor who conducted
the post-mortem examination of Catubig’s body.  He reported that Catubig
suffered from the following injuries: laceration and fracture of the
right leg; laceration and fracture of the left elbow; multiple abrasions
in the abdominal area, left anterior chest wall, posterior right arm,
and at the back of the left scapular area; and contusion-hematoma just
above the neck.  Dr. Baldado confirmed that Catubig was already dead
when the latter was brought to the hospital, and that the vehicular
accident could have caused Catubig’s instantaneous death.

Respondent
herself testified to substantiate the amount of damages she was trying
to recover from petitioner for Catubig’s death, such as Catubig’s
earning capacity; expenses incurred for the wake and burial of Catubig,
as well as of Emperado; the cost of the motorcycle; and the costs of the
legal services and fees respondent had incurred.

Respondent’s
documentary exhibits consisted of her and Catubig’s Marriage Contract
dated August 21, 1982, their two children’s Certificate of Live Births,
Catubig’s College Diploma dated March 24, 1983, the list and receipts of
the expenses for Catubig’s burial, the sketch of the collision site
prepared by PO2 Elnas, the excerpts from the police blotter, the
photographs of the collision,^[10] and the Post Mortem Report^[11] on Catubig’s cadaver prepared by Dr. Baldado.

In an Order^[12] dated October 6, 1998, the RTC admitted all of respondent’s aforementioned evidence.

On the other hand, Rosie C. Amahit (Amahit)^[13] and Nunally Maypa (Maypa)^[14] took the witness stand for petitioner.

Amahit
was a Court Stenographer at the MCTC who took the transcript of
stenographic notes (TSN) in Criminal Case No. M-15-94 against
Cabanilla.  Amahit verified that the document being presented by the
defense in the present case was a true and correct copy of the TSN of
the preliminary investigation held in Criminal Case No. M-15-94 on May
25, 1994, and another document was a duplicate original of the MCTC
Resolution dated December 22, 1994 dismissing Criminal Case No. M-15-94.

Maypa
is the Administrative and Personnel Manager at the Dumaguete branch of
petitioner.  He started working for petitioner on September 22, 1990 as a
clerk at the Human Resources Development Department at the Central
Office of petitioner in Bacolod City.  Sometime in November 1993, he
became an Administrative Assistant at the Dumaguete branch of
petitioner; and in August 1995, he was promoted to his current position
at the same branch.

While he was still an Administrative
Assistant, Maypa was responsible for the hiring of personnel including
drivers and conductors.  Maypa explained that to be hired as a driver,
an applicant should be 35 to 45 years old, have at least five years
experience in driving big trucks, submit police, court, and medical
clearances, and possess all the necessary requirements for driving a
motor vehicle of more than 4,500 kilograms in gross weight such as a
professional driver’s license with a restriction code of 3. The
applicant should also pass the initial interview, the actual driving and
maintenance skills tests, and a written psychological examination
involving defensive driving techniques.  Upon passing these
examinations, the applicant still had to go through a 15-day
familiarization of the bus and road conditions before being deployed for
work.  Maypa, however, admitted that at the time of his appointment as
Administrative Assistant at the Dumaguete branch, Cabanilla was already
an employee driver of petitioner.

Maypa further explained the
investigation and grievance procedure followed by petitioner in cases of
vehicular accidents involving the latter’s employee drivers.  Maypa
related that Cabanilla had been put on preventive suspension following
the vehicular accident on January 27, 1994 involving the bus Cabanilla
was driving and the motorcycle carrying Catubig and Emperado.  Following
an internal investigation of said accident conducted by petitioner,
Cabanilla was declared not guilty of causing the same, for he had not
been negligent.

Lastly, Maypa recounted the expenses petitioner incurred as a result of the present litigation.

The
documentary exhibits of petitioner consisted of the TSN of the
preliminary investigation in Criminal Case No. M-15-94 held on May 25,
1994 before the MCTC of Manjuyod-Bindoy-Ayungon of the Province of
Negros Oriental; Resolution dated December 22, 1994 of the MCTC in the
same case; and the Minutes dated February 17, 1994 of the Grievance
Proceeding conducted by petitioner involving Cabanilla.^[15]

The RTC, in its Order^[16] dated November 12, 1999, admitted all the evidence presented by petitioner.

On
January 26, 2000, the RTC promulgated its Decision favoring
petitioner.  Based on the sketch prepared by PO2 Elnas, which showed
that “the point of impact x x x occurred beyond the center lane near a
curve within the lane of the Ceres bus[;]”^[17]
plus, the testimonies of PO2 Elnas and Cadimas that the motorcycle
recklessly tried to overtake a truck near a curve and encroached the
opposite lane of the road, the RTC ruled that the proximate cause of the
collision of the bus and motorcycle was the negligence of the driver of
the motorcycle, Catubig.  The RTC, moreover, was convinced through the
testimony of Maypa, the Administrative and Personnel Manager of the
Dumaguete branch of petitioner, that petitioner had exercised due
diligence in the selection and supervision of its employee drivers,
including Cabanilla.

After trial, the RTC concluded:

WHEREFORE,
finding preponderance of evidence in favor of the [herein petitioner]
that the [herein respondent’s] husband is the reckless and negligent
driver and not the driver of the [petitioner], the above-entitled case
is hereby ordered dismissed.

[Petitioner’s] counterclaim is also dismissed for lack of merit.^[18]

Respondent
appealed to the Court of Appeals. In its Decision dated November 17,
2005, the appellate court held that both Catubig and Cabanilla were
negligent in driving their respective vehicles.  Catubig, on one hand,
failed to use reasonable care for his own safety and ignored the hazard
when he tried to overtake a truck at a curve. Cabanilla, on the other
hand, was running his vehicle at a high speed of 100 kilometers per
hour.  The Court of Appeals also brushed aside the defense of petitioner
that it exercised the degree of diligence exacted by law in the conduct
of its business.  Maypa was not in a position to testify on the
procedures followed by petitioner in hiring Cabanilla as an employee
driver considering that Cabanilla was hired a year before Maypa assumed
his post at the Dumaguete branch of petitioner.

Thus, the Court of Appeals decreed:

WHEREFORE,
based on the foregoing, the assailed decision of the trial court is
modified.  We rule that [herein petitioner] is equally liable for the
accident in question which led to the deaths of Quintin Catubig, Jr. and
Teddy Emperado and hereby award to the heirs of Quintin Catubig, Jr.
the amount [of] P250,000.00 as full compensation for the death of the
latter.^[19]

The Court of Appeals denied the motion for reconsideration of petitioner in a Resolution dated November 16, 2006.

Hence, the instant Petition for Review.

Petitioner
asserts that respondent’s complaint for damages should be dismissed for
the latter’s failure to verify the same.  The certification against
forum shopping attached to the complaint, signed by respondent, is not a
valid substitute for respondent’s verification that she “has read the
pleading and that the allegations therein are true and correct of her
personal knowledge or based on authentic records.”^[20] 
Petitioner cited jurisprudence in which the Court ruled that a pleading
lacking proper verification is treated as an unsigned pleading, which
produces no legal effect under Section 3, Rule 7 of the Rules of Court.

Petitioner
also denies any vicarious or imputed liability under Article 2180, in
relation to Article 2176, of the Civil Code.  According to petitioner,
respondent failed to prove the culpability of Cabanilla, the employee
driver of petitioner.  There are already two trial court decisions (i.e.,
the Resolution dated December 22, 1994 of the MCTC of
Manjuyod-Bindoy-Ayungon of the Province of Negros Oriental in Criminal
Case No. M-15-94 and the Decision dated January 26, 2000 of the RTC in
the instant civil suit) explicitly ruling that the proximate cause of
the collision was Catubig’s reckless and negligent act.  Thus, without
the fault or negligence of its employee driver, no liability at all
could be imputed upon petitioner.

Petitioner additionally argues,
without conceding any fault or liability, that the award by the Court
of Appeals in respondent’s favor of the lump sum amount of P250,000.00
as total death indemnity lacks factual and legal basis.  Respondent’s
evidence to prove actual or compensatory damages are all self-serving,
which are either inadmissible in evidence or devoid of probative value. 
The award of moral and exemplary damages is likewise contrary to the
ruling of the appellate court that Catubig should be equally held liable
for his own death.

Respondent maintains that the Court of
Appeals correctly adjudged petitioner to be liable for Catubig’s death
and that the appellate court had already duly passed upon all the issues
raised in the petition at bar.

The petition is meritorious.

At the outset, we find no procedural defect that would have warranted the outright dismissal of respondent’s complaint.

Respondent
filed her complaint for damages against petitioner on July 19, 1995,
when the 1964 Rules of Court was still in effect.  Rule 7, Section 6 of
the 1964 Rules of Court provided:

Sec. 6. Verification.–A
pleading is verified only by an affidavit stating that the person
verifying has read the pleading and that the allegations thereof are
true of his own knowledge.

Verifications based on “information and belief,” or upon “knowledge, information and belief,” shall be deemed insufficient.

On
July 1, 1997, the new rules on civil procedure took effect.  The
foregoing provision was carried on, with a few amendments, as Rule 7,
Section 4 of the 1997 Rules of Court, viz:

SEC. 4. Verification.
– Except when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit.

A
pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
knowledge and belief.

A pleading required to be verified
which contains a verification based on “information and belief,” or upon
“knowledge, information and belief,” or lacks a proper verification,
shall be treated as an unsigned pleading.”

The same provision was again amended by A.M. No. 00-2-10, which became effective on May 1, 2000.  It now reads:

SEC. 4. Verification. – Except
when otherwise specifically required by law or rule, pleadings need not
be under oath, verified or accompanied by affidavit.

A pleading
is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct of his personal
knowledge or based on authentic records.

A pleading required to
be verified which contains a verification based on “information and
belief” or upon “knowledge, information and belief,” or lacks a proper
verification, shall be treated as an unsigned pleading.

The
1997 Rules of Court, even prior to its amendment by A.M. No. 00-2-10,
clearly provides that a pleading lacking proper verification is to be
treated as an unsigned pleading which produces no legal effect. 
However, it also just as clearly states that “[e]xcept when otherwise
specifically required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.”  No such law or rule specifically
requires that respondent’s complaint for damages should have been
verified.

Although parties would often submit a joint verification and certificate against forum shopping, the two are different.

In Pajuyo v. Court of Appeals,^[21] we already pointed out that:

A
party’s failure to sign the certification against forum shopping is
different from the party’s failure to sign personally the verification. 
The certificate of non-forum shopping must be signed by the party, and
not by counsel. The certification of counsel renders the petition
defective.

On the other hand, the requirement on verification of a
pleading is a formal and not a jurisdictional requisite.  It is
intended simply to secure an assurance that what are alleged in the
pleading are true and correct and not the product of the imagination or a
matter of speculation, and that the pleading is filed in good faith.
The party need not sign the verification.  A party’s representative,
lawyer or any person who personally knows the truth of the facts alleged
in the pleading may sign the verification.^[22]

In
the case before us, we stress that as a general rule, a pleading need
not be verified, unless there is a law or rule specifically requiring
the same. Examples of pleadings that require verification are: (1) all
pleadings filed in civil cases under the 1991 Revised Rules on Summary
Procedure; (2) petition for review from the Regional Trial Court to the
Supreme Court raising only questions of law under Rule 41, Section 2;
(3) petition for review of the decision of the Regional Trial Court to
the Court of Appeals under Rule 42, Section 1; (4) petition for review
from quasi-judicial bodies to the Court of Appeals under Rule 43,
Section 5; (5) petition for review before the Supreme Court under Rule
45, Section 1; (6) petition for annulment of judgments or final orders
and resolutions under Rule 47, Section 4; (7) complaint for injunction
under Rule 58, Section 4; (8) application for preliminary injunction or
temporary restraining order under Rule 58, Section 4; (9)  application
for appointment of a receiver under Rule 59, Section 1; (10) application
for support pendente lite under Rule 61, Section 1; (11) petition for certiorari against the judgments, final orders or resolutions of constitutional commissions under Rule 64, Section 2; (12) petition for certiorari, prohibition, and mandamus under Rule 65, Sections 1 to 3; (13) petition for quo warranto
under Rule 66, Section 1; (14) complaint for expropriation under Rule
67, Section 1; (15) petition for indirect contempt under Rule 71,
Section 4, all from the 1997 Rules of Court; (16) all complaints or
petitions involving intra-corporate controversies under the Interim
Rules of Procedure on Intra-Corporate Controversies; (17) complaint or
petition for rehabilitation and suspension of payment under the Interim
Rules on Corporate Rehabilitation; and (18) petition for declaration of
absolute nullity of void marriages and annulment of voidable marriages
as well as petition for summary proceedings under the Family Code.

In
contrast, all complaints, petitions, applications, and other initiatory
pleadings must be accompanied by a certificate against forum shopping,
first prescribed by Administrative Circular No. 04-94, which took effect
on April 1, 1994, then later on by Rule 7, Section 5 of the 1997 Rules
of Court.  It is not disputed herein that respondent’s complaint for
damages was accompanied by such a certificate.

In addition,
verification, like in most cases required by the rules of procedure, is a
formal, not jurisdictional, requirement, and mainly intended to secure
an assurance that matters which are alleged are done in good faith or
are true and correct and not of mere speculation.  When circumstances
warrant, the court may simply order the correction of unverified
pleadings or act on it and waive strict compliance with the rules in
order that the ends of justice may thereby be served.^[23]

We agree with petitioner, nonetheless, that respondent was unable to prove imputable negligence on the part of petitioner.

Prefatorily,
we restate the time honored principle that in a petition for review
under Rule 45, only questions of law may be raised.  It is not our
function to analyze or weigh all over again evidence already considered
in the proceedings below, our jurisdiction is limited to reviewing only
errors of law that may have been committed by the lower court.  The
resolution of factual issues is the function of lower courts, whose
findings on these matters are received with respect.  A question of law
which we may pass upon must not involve an examination of the probative
value of the evidence presented by the litigants.^[24]

The
above rule, however, admits of certain exceptions.  The findings of
fact of the Court of Appeals are generally conclusive but may be
reviewed when: (1) the factual findings of the Court of Appeals and the
trial court are contradictory; (2) the findings are grounded entirely on
speculation, surmises or conjectures; (3) the inference made by the
Court of Appeals from its findings of fact is manifestly mistaken,
absurd or impossible; (4) there is grave abuse of discretion in the
appreciation of facts; (5) the appellate court, in making its findings,
goes beyond the issues of the case and such findings are contrary to the
admissions of both appellant and appellee; (6) the judgment of the
Court of Appeals is premised on a misapprehension of facts; (7) the
Court of Appeals fails to notice certain relevant facts which, if
properly considered, will justify a different conclusion; and (8) the
findings of fact of the Court of Appeals are contrary to those of the
trial court or are mere conclusions without citation of specific
evidence, or where the facts set forth by the petitioner are not
disputed by respondent, or where the findings of fact of the Court of
Appeals are premised on the absence of evidence but are contradicted by
the evidence on record.^[25]

The issue of negligence is basically factual.^[26] 
Evidently, in this case, the RTC and the Court of Appeals have
contradictory factual findings: the former found that Catubig alone was
negligent, while the latter adjudged that both Catubig and petitioner
were negligent.

Respondent based her claim for damages on Article 2180, in relation to Article 2176, of the Civil Code, which read:

Art.
2176.  Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done.  Such fault
or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions
of this Chapter.

Art. 2180.  The obligation imposed by Article
2176 is demandable not only for one’s own acts or omissions, but also
for those persons for whom one is responsible.

x x x x

Employers
shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

x x x x

The
responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.

There is merit
in the argument of the petitioner that Article 2180 of the Civil Code –
imputing fault or negligence on the part of the employer for the fault
or negligence of its employee – does not apply to petitioner since the
fault or negligence of its employee driver, Cabanilla, which would have
made the latter liable for quasi-delict under Article 2176 of the Civil
Code, has never been established by respondent.  To the contrary, the
totality of the evidence presented during trial shows that the proximate
cause of the collision of the bus and motorcycle is attributable solely
to the negligence of the driver of the motorcycle, Catubig.

Proximate
cause is defined as that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.  And more
comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the
final event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as
an ordinary prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to some person
might probably result therefrom.^[27]

The
RTC concisely articulated and aptly concluded that Catubig’s overtaking
of a slow-moving truck ahead of him, while approaching a curve on the
highway, was the immediate and proximate cause of the collision which
led to his own death, to wit:

Based on the
evidence on record, it is crystal clear that the immediate and proximate
cause of the collision is the reckless and negligent act of Quintin
Catubig, Jr. and not because the Ceres Bus was running very fast.  Even
if the Ceres Bus is running very fast on its lane, it could not have
caused the collision if not for the fact that Quintin Catubig, Jr. tried
to overtake a cargo truck and encroached on the lane traversed by the
Ceres Bus while approaching a curve.  As the driver of the
motorcycle, Quintin Catubig, Jr. has not observed reasonable care and
caution in driving his motorcycle which an ordinary prudent driver would
have done under the circumstances.  Recklessness on the part of Quintin
Catubig, Jr. is evident when he tried to overtake a cargo truck while
approaching a curve in Barangay Donggo-an, Bolisong, Manjuyod, Negros
Oriental.  Overtaking is not allowed while approaching a curve in the
highway (Section 41(b), Republic Act [No.] 4136, as amended).  Passing
another vehicle proceeding on the same direction should only be resorted
to by a driver if the highway is free from incoming vehicle to permit
such overtaking to be made in safety (Section 41(a), Republic Act [No.]
4136).  The collision happened because of the recklessness and
carelessness of [herein respondent’s] husband who was overtaking a cargo
truck while approaching a curve.  Overtaking another vehicle while
approaching a curve constitute reckless driving penalized not only under
Section 48 of Republic Act [No.] 4136 but also under Article 365 of the
Revised Penal Code.

The Court commiserate with the [respondent]
for the untimely death of her husband.  However, the Court as dispenser
of justice has to apply the law based on the facts of the case.  Not
having proved by preponderance of evidence that the proximate cause of
the collision is the negligence of the driver of the Ceres bus, this
Court has no other option but to dismiss this case.^[28] (Emphases supplied.)

The
testimonies of prosecution witnesses Cadimas and PO2 Elnas that
Cabanilla was driving the bus at a reckless speed when the collision
occurred lack probative value.

We are unable to establish the
actual speed of the bus from Cadimas’s testimony for he merely stated
that the bus did not stop when he tried to flag it down because it was
“running very fast.”^[29]

PO2
Elnas, on the other hand, made inconsistent statements as to the actual
speed of the bus at the time of the collision.  During the preliminary
investigation in Criminal Case No. M-15-94 before the MCTC, PO2 Elnas
refused to give testimony as to the speed of either the bus or the
motorcycle at the time of the collision and an opinion as to who was at
fault.^[30]  But during the
trial of the present case before the RTC, PO2 Elnas claimed that he was
told by Cabanilla that the latter was driving the bus at the speed of
around 100 kilometers per hour.^[31]

As
the RTC noted, Cadimas and PO2 Elnas both pointed out that the
motorcycle encroached the lane of the bus when it tried to overtake,
while nearing a curve, a truck ahead of it, consistent with the fact
that the point of impact actually happened within the lane traversed by
the bus.  It would be more reasonable to assume then that it was Catubig
who was driving his motorcycle at high speed because to overtake the
truck ahead of him, he necessarily had to drive faster than the truck. 
Catubig should have also avoided overtaking the vehicle ahead of him as
the curvature on the road could have obstructed his vision of the
oncoming vehicles from the opposite lane.

The evidence shows that
the driver of the bus, Cabanilla, was driving his vehicle along the
proper lane, while the driver of the motorcycle, Catubig, had overtaken a
vehicle ahead of him as he was approaching a curvature on the road, in
disregard of the provision of the law on reckless driving, at the risk
of his life and that of his employee, Emperado.

The presumption that employers are negligent under Article 2180 of the Civil Code flows from the negligence of their employees.^[32] 
Having adjudged that the immediate and proximate cause of the collision
resulting in Catubig’s death was his own negligence, and there was no
fault or negligence on Cabanilla’s part, then such presumption of fault
or negligence on the part of petitioner, as Cabanilla’s employer, does
not even arise.  Thus, it is not even necessary to delve into the
defense of petitioner that it exercised due diligence in the selection
and supervision of Cabanilla as its employee driver.

WHEREFORE, premises considered, the petition is GRANTED.  The Decision dated November 17, 2005 and Resolution dated November 16, 2006 of the Court Appeals in CA-G.R. CV No. 66815 are SET ASIDE
and the Decision dated January 26, 2000 of the Regional Trial Court,
Branch 30 of Dumaguete City, dismissing  Civil Case No. 11360 is REINSTATED.

SO ORDERED.

Corona, C.J., (Chairperson), Velasco, Jr., Peralta,^* and Perez, JJ., concur.

---

^* Per Special Order No. 994 dated May 27, 2011.

^[1] Rollo,
pp. 58-68; penned by Associate Justice Enrico A. Lanzanas with
Associate Justices Mercedes Gozo-Dadole and Pampio A. Abarintos,
concurring.

^[2] Id. at 70-71.

^[3] Id. at 85-102.

^[4] Records, pp. 69-70.

^[5] TSN, August 19, 1997.

^[6] TSN, December 9, 1997, pp. 1-14.

^[7] Id. at 14-22.

^[8] TSN, August 18, 1998.

^[9] TSN, July 28, 1997.

^[10] Records, pp. 119-147.

^[11] Id. at 7.

^[12] Id. at 153.

^[13] TSN, October 20, 1998.

^[14] TSN, December 7, 1998 and December 17, 1998.

^[15] Records, pp. 192-215.

^[16] Id. at 222.

^[17] Id. at 90.

^[18] Rollo, p. 102.

^[19] Id. at 67-68.

^[20] Id. at 23.

^[21] G.R. No. 146364, June 3, 2004, 430 SCRA 492.

^[22] Id. at 508-509.

^[23] Jimenez vda. De Gabriel v. Court of Appeals, 332 Phil. 157, 165 (1996).

^[24] Land Bank of the Philippines v. Monet’s Export and Manufacturing Corporation, 493 Phil. 327, 338 (2005).

^[25] Id. at 338-339.

^[26] Pestaño v. Sumayang, 400 Phil. 740, 749 (2000).

^[27] Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526, 535-536.

^[28] Rollo, p. 101.

^[29] TSN, August 18, 1998, p. 3.

^[30] Excerpts from the TSN dated May 25, 1994, in Criminal Case No. M-15-94, are as follows:

^[31] Pertinent portion of TSN dated August 19, 1997, pp. 21-22, are quoted as follows,:

^[32] McKee v. Intermediate Appellate Court, G.R. No. 68102, July 16, 1992, 211 SCRA 517, 544.