IRENEO M. SANTOS, PLAINTIFF AND APPELLE VS. MANUEL S. RUSTIA, DEFENDANT AND APPELLANT.

This case has been certified by the Court of
Appeals for final determination on the ground that there are no
questions of fact involved in the present appeal.

The defendant-appellant in his brief assigns that the lower
Court of First Instance erred, among others, in denying his motion for
reconsideration and new trial based on the ground of “excusable
negligence which ordinary prudence could have have guarded against and
by reason of which such aggrieved party has probably been impaired in
his rights.” (section l (a), Rule 37 of the Rules of Court).
The facts and circumstances alleged to constitute excusable negligence
by which the defendant could not be present during the trial of the
case and judgment “was rendered against him without having had an
opportunity to present evidence in his behalf, are stated in the.
appellant’s motion for new trial and reiterated in his brief.

The question whether or not defendant’s absence during the hearing of
the case in the lower Court of First Instance was due to excusable
negligence under the facts and circumstances specified by him in his
motion for new trial under oath dated March 3, 1949 (pages 2125 of
Record on Appeal) is a question of fact. The attorney for the plaintiff
filed an opposition to said motion for reconsideration and new trial
alleging the facts and circumstances (pages 27-35 of Record en Appeal)
tending to show that there was no excusable negligence. And the lower
court in its order dated April 12, 1949, denied the defendant’s motion
for new trial on the ground “that the motion was without merit and not
presented according to the Rules of Court.” Now the appellant assigns
as erroneous said order denying his motion for new trial on the ground
of excusable negligence, and submits again, among others, the same
question to the appellate court for review and reversal of the decision
of the court a quo.

Corpus Juris, Vol. 45, Sec. 852 has to say the following, applicable a fortiori to excusable negligence;

“Negligence, that is, a failure to comply with some duty of care owed
by one to another, is a mixed question of law and fact, of standards of
care and compliance therewith, involving the preliminary question as to
whether defendant owed any duty of care to plaintiff, and leaving it
for the jury to decide the ultimate facts of negligence, subject to the
exceptions hereinafter stated. Where the standard of care is fixed and
the measure of duty is defined by the law and is the same under all
circumstances, and where compliance therewith is proved or disproved by
uncontradicted evidence or undisputed facts from which only one
inference can reasonably be made, the court may declare defendant to be
guilty or not guilty of negligence as matter of law. Cases, where the
standard of care is fixed, go to the jury only where the evidence of
compliance rests on contradictory evidence or upon disputed facts. But
where the standard of duty is not fixed, but variable, shifting with
the circumstances, as is generally the case, it is for the jury to
determine, under instructions, what the standard of care required in a
particular case is, and whether there has been a compliance with such
requirements.”

The resolution of this Supreme Court in the case of Gabriel Zari vs. Jose R. Santos, ^[*] promulgated on September 29, 1951, from which the dissenter
has also dissented, is squarely applicable to the present case, because
a motion for new trial on the ground of fraud, accident, mistake or
excusable negligence, is substantially similar to the motion for relief
on the same grounds under section 2 of Rule 38. The only difference is
that the petition is called a motion for new trial if filed before a
judgment or order has become final and the petitioner has not been
declared in default, and a motion for relief if filed within sixty days
after the petitioner learns of the judgment, and not more than six
months after that judgment or order complained of was entered.

The distinguished dissenter is confusing a motion for postponement of a
trial before the judgment with a motion for new trial on the ground of
excusable negligence filed after judgment, as well as the effect of
court’s order denying the former with the order denying the latter in
the present case. In his dissenting opinion he only quotes first the
order denying the motion for postponement and then the two assignment
of errors which assails as erroneous the order of February 8, 1949,
denying the motion for postponement, and the order of April 12, 1949,
denying the appellant motion for new trial. In reply thereto, it is
sufficient to say that the facts alleged in the motion as grounds for
new trial are, not only those alleged in the motion for postponement,
but also others tending to show excusable negligence, as will readily
be seen by reading both motions in the Record on Appeal. And the
assignment that “the lower court erred in denying the appellant’s
motion for reconsideration and new trial” does not say nor mean to say
that only question of law is involved, but both question of fact and
law as clearly shown on pages from 4 to 10 of the appellant’s brief.

The dissenter in reply to our answer in the decision to his dissenting
opinion insist in confusing the effects of both motions for
postponement and new trial and of the orders denying them, and says
that he purposely did not quote the order denying the motion for
reconsideration and new trial for lack of merit, because the lower
court, in denying the motion for new trial on the ground that it was
without merit, meant “in effect that the denial was based on the
insufficiency of the facts or reasons alleged in the motion, and not on
the falsity of said facts or reasons which may not have been
controverted or denied.” This is not also correct. As the motion for
reconsideration and,new trial is based on excusable negligence as
ultimate fact, and the probatory facts supported by affidavits alleged
to constitute excusable negligence, the denial of the motion for lack
of merits simply means that the probatory facts, assuming that they are
true, do not constitute excusable negligence, which is primarily a
finding or conclusion of fact. “Negligence, that is, a failure to
comply with some duty or care owed by one to another, is a mixed
question of law and fact,” as well stated in Corpus Juris above quoted
and in the resolution of this Supreme Court in the said case of Zari vs. Santos.

The last argument in support of the amended dissenting opinion is: If
as assigned by the appellant, “the lower court erred in ruling that the
motion for postponement filed by the defendant was not meritorious and
thereby erred in denying the motion for reconsideration and new trial”,
it follows that the lower court did not commit any error in denying the
motion for postponement it did not commit any error in denying the
motion for reconsideration and new trial, because the latter is a mere
outcome of the former. The argument of the appellant is correct,
because if the court have erred in denying the motion for
reconsideration and new trial as a necessary consequence, inasmuch the
latter is also based on the facts alleged in a motion for postponement.
But the reverse is not true, and therefore the argument of the
dissenter is fallacious because, as we have already said, the motion
for new trial is based not only on facts alleged in the motion for
postponement, but on other facts and circumstance which occurred
afterwards as shown in the following excerpt from the defendant’s
motion for new trial (Record on Appeal, pp. 24-25):

“That as the undersigned attorney, in whom the defendant entrusted his
case is the only one who knows the facts of the present case, it would
have been unwise for him to send another lawyer in his office to handle
the defense thereof.

“That, moreover, counsel for the
defendant submitted a motion for postponement, dated January. 18, 1949.
Wherein he prayed that the hearing of this case be transferred to
February 7, 1949, having precisely selected that date because he had in
mind the said meeting of the Pampanga Bus Co., Inc. to held on the
following day, February 8, 1949, and to enable him to return to Manila
from Baguio in time to attend the said meeting.

“That it
is true that a petition for postponement should be presented at least
three days before the hearing of a case. We respectfully invite the
attention of this Honorable Court to the effect that the petition for
postponement was deposited in the Post Office of the City of Manila by
registered air mail on February 5, 1949, that is, three days before the
date set for the hearing of this case. It is a well established rule
under the Rules of Court, and sanctioned by various decisions of the
Supreme Court, that the date of mailing of a pleading is considered the
date of its filing with the court, * * *.”

Wherefore, the present case is remanded to the Court of Appeals for further proceedings.

Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, JJ., concur.

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^[*] Supra, p. 159.

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I dissent.

The
hearing of this case was set for January 26, 1949. upon motion of the
parties, the court postponed hearing to February 8, 1949, stating that
“no further postponement shall be granted in this case.”

In
a motion submitted to the court on the very day of the hearing, the
defendant again asked for postponement, but the court denied said motion
in the following order:

“When this case
was called for trial on the merits, plaintiff, accompanied by this
attorney Mr. Ramon P. Mitra, appealed and manifested his readiness to
enter into trial. Neither defendant nor his attorney appeared. The
Court, therefore, permitted plaintiff to present about to take his
oath, a petition for postponement was handed by the Clerk of court to
the Presiding Judge, sent by Atty. Manuel O. Chan, for the defendant.
Plaintiff vigorously objected to this petition. In the order of this
Court of Januray 25, 1949, postponing the trial of this case for
today, it was clear that no further postponement could be granted.
Defendant and his attorney, Mr.Chan, were duly notified of this order.
The ground upon which the defendant bases his petition for postponement
is not sufficient. Attorney Chan, as secretary of an organization, can
be substituted as his assistant or by any member of the said
organization to act as such during a meeting. The petition doe
postponement signed by one Attorney F. R. Enrile who is supposed to be
an associate in the law firm of Attorney Chan, or at least an employee
in his firm, could have come to appear in this case. Postponements can
not be entertained without powerful reasons, especially if presented on
the day and hour of the trial. Postponement petitions must be presented
at least three days before the hearing with copies furnished to the
opposing counsels to avoid trouble and expenses in coming to court.

“Petition dated February 5, 1949, is therefore, hereby denied. Plaintiff may present his evidence.

“IT IS SO ORDERED.”

After
receiving the evidence for the plaintiff, this court rendered judgment
,in his favor as prayed for in the complaint. Appeal was taken by the
defendant who has assigned the following errors:

“The
lower court erred in ruling that the motion for postponement filed by
the defendant-appellant was not meritorious and thereby erred in
denying the motion for reconsideration and new trial.

“The lower court erred in rendering judgment without giving the defendant opportunity to present his evidence.”

As
may be seen in the above seen in the above assignment of errors, no
findings of facts are assailed, and the only point raised is whether or
not the reasons for the last postponement asked by the appellant are
sufficient. It is significant that the lower court denied appellant’s
motion for postponement and subsequent motion for reconsideration and
new trial, not because the facts relied upon by the appellant are not
true, but because the facts relied upon by the appellant are not true,
but because the facts relied upon by the appellent are not true, but
because said facts did not justify the postponement. In my opinion, the
question is purely of law.

I have not in this case, as
supposed in the majority opinion, misapprehended a motion for
postponement before judgment and a motion for postponement before
judgment and a motion for new trial based on excusable negligence after
judgment; for I purposely did not quote the order denying the motion
for reconsideration and new trial, because it is of no moment. As
admitted in the majority opinion, the motion for reconsideration and
new trial was denied by the lower court on the ground”that the motion
was without merit and not presented according the rules of court,’ and
this clearly means, in effect that the denial was based on this
insufficiency of the facts or reasons alleged in the motion, and not on
the facts or reasons alleged in the motion, and not on the falsity of
said facts or reasons which have not been controverted or denied.

The
majority opinion stated: “And the assignment that ‘the lower court
erred in denying the appellant’s motion for reconsideration and new
trial’ does not say nor mean to say that only question of law is
involved, but both questions of fact and law as clearly shown on pages
from 4 to 10 of the appellant’s brief.” It should be observed
carefully, however, that the assignment of errors of the following
tenor: “The lower court erred in ruling that the motion for
postponement filed by the defendant-appellant was not meritorious and thereby
erred in ruling that the motion for reconsideration and new trial.”
(Italics mine.) The consequence, therefore, is that the assigned error
as to the denial of the motion for reconsideration and new trial is a
mere outcome of the assigned error as to the denial of the motion for
postponement. In other words, the ultimate and decisive question is
whether or not the trial court, upon the undisputed facts appearing not
the trial court, upon the undisputed facts appearing in the record,
erred in denying the motion for postponement. If the court did not
commit any error, the motion for reconsideration and new trial must
necessarily be denied. Otherwise, it must be granted.

Tuason, J., concurs.