GLAN PEOPLE’S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM AND PAUL ZACARIAS Y INFANTE, PETITIONERS, VS. INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIB…

There is a two-fold message in this judgment that bears stating
at the outset.  The first, an obvious
one, is that it is the objective facts established by proofs presented in a controversy that determine the
verdict, not the plight of the persons involved, no matter how deserving of
sympathy and commiseration because, for example, an accident of which they are
the innocent victims has brought them to reduced circumstances or otherwise
tragically altered their lives.  The
second is that the doctrine laid down many, many years ago in Picart vs. Smith,^[1]
continues to be good law to this day.

The facts giving rise to the controversy at bar are tersely and
quite accurately recounted by the Trial Court as follows:^[2]

“Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the
jeep owned by the Bacnotan Consolidated
Industries, Inc., with Calibo at the wheel, as it
approached from the South Lizada Bridge
going towards the direction of Davao
City at about 1:45 in the afternoon of July 4, 1979.  At
about that time, the cargo truck, loaded with cement bags, GI sheets, plywood,
driven by defendant Paul Zacarias y Infante, coming
from the opposite direction of Davao City and bound
for Glan, South Cotabato,
had just crossed said bridge.  At about
59 yards after crossing the bridge, the cargo truck and the jeep collided as a
consequence of which Engineer Calibo died while Roranes and Patos sustained
physical injuries.  Zacarias
was unhurt.  As a result of the impact,
the left side of the truck was slightly damaged while the left side of the
jeep, including its fender and hood, was extensively damaged.  After the impact, the jeep fell and rested on
its right side on the asphalted road a few meters to the rear of the truck,
while the truck stopped on its wheels on the road.

On November
27, 1979, the instant
case for damages was filed by the surviving spouse and children of the late
Engineer Calibo who are residents of Tagbilaran City against the driver and owners of the cargo
truck.

For failure to file its answer to the third party complaint, third
party defendant, which insured the cargo truck involved, was declared in default.”

The case filed by the heirs of Engineer Calibo — his widow and minor children, private respondents herein — was docketed as Civil Case No. 3283 of the
Court of First Instance of Bohol.^[3] Named defendants in the complaint were
“Felix S. Agad, George Lim and Felix Lim ** (who) appear to be the co-owners of
the Glan People’s
Lumber and Hardware ** (and) Paul Zacarias y Infante.”^[4] The defendants’ answer
however alleged that the lumber and hardware business was exclusively owned by
George Y. Lim, this being evidenced by the Certificate of Registration issued by the
Bureau of Domestic Trade; Fabio S. Agad was not a
co-owner thereof but “merely employed by ** George Y. Lim as bookkeeper”;
and Felix Lim had no connection whatever with said business, “he being a
child only eight (8) years of age.”^[5]

“After (trial, and) a careful evaluation of the evidence,
both testimonial and documentary,” the Court reached the conclusion “that the
plaintiffs failed to establish by preponderance of evidence the negligence, and thus
the liability, of the defendants.” Accordingly, the Court dismissed the complaint
(and defendants’ counterclaim) “for
insufficiency of evidence.” Likewise dismissed was third-party complaint
presented by the defendants against the insurer of the truck. 
The circumstances leading to the Court’s conclusion just mentioned, are detailed in the Court’s decision, as follows:

1.  Moments before its
collision with the truck being operated
by Zacarias, the jeep of the deceased Calibo was
“zigzagging.”^[6]

2.  Unlike Zacarias who readily submitted himself to investigation by
the police, Calibo’s companions, Roranes
(an accountant), and Patos, who suffered injuries on
account of the collision, refused to be so investigated or give statements to the police officers.  This, plus Roranes’ waiver of the right to institute criminal
proceedings against Zacarias’, and the fact that
indeed no criminal case was ever instituted in Court against Zacarias, were “telling indications that they
did not attribute the happening to defendant Zacarias‘
negligence or fault.”^[7]

3.  Roranes‘
testimony, given in plaintiffs’ behalf, was “not as clear and detailed as
that of ** Zacarias,” and was “uncertain
and even contradicted by the physical facts and the police investigators Dimaano and Esparcia.”^[8]

4.  That there were skid
marks left by the truck’s tires at the scene, and none by the jeep,
demonstrates that the driver of the truck had applied the brakes and the jeep’s
driver had not; and that the jeep had on impact fallen on its right side is
indication that it was running at high speed. 
Under the circumstances, according to the Court, given “the
curvature of the road and the descending grade of the jeep’s lane, it was
negligence on the part of the driver of the jeep, Engr.
Calibo, for not reducing his speed upon sight of the truck and failing to apply the brakes as he got
within collision range with the truck.”

5.  Even if it be
considered that there was some antecedent negligence on the part of Zacarias shortly before the collision, in that he had
caused his truck to run some 25
centimeters to the left of the center of the road, Engr.
Calibo had the last clear chance of avoiding the
accident because he still had
ample room in his own lane to steer clear of the truck, or he could simply have
braked to a full stop.

The Court of Appeals saw things differently.  It rendered judgment^[9]
on the plaintiffs’ appeal,^[10]
reversing the decision of the Trial Court. 
It found Zacarias to be negligent on the basis
of the following circumstances, to wit:

1)  “the truck driven by
defendant Zacarias occupied the lane of the jeep when
the collision occurred,” and although Zacarias
saw the jeep from a distance of about 150 meters, he “did not drive his
truck back to his lane in order to avoid collision with the oncoming jeep
**;”^[11]
what is worse, “the truck
driver suddenly applied his brakes even as he knew that he was still within the
lane of the jeep;”^[12]
had both vehicles stayed in their respective lanes, the collision would never
have occurred, they would have passed “alongside each other safely;”^[13]

2)  Zacarias
had no license at the time; what he handed to Pfc. Esparcia,
on the latter’s demand, was the “driver’s license of his co-driver
Leonardo Baricuatro;”^[14]

3)  the
waiver of the right to file criminal charges against Zacarias
should not be taken against “plaintiffs” Roranes
and Patos who had the right, under the law, to opt
merely to bring a civil suit.^[15]

The Appellate Court opined that Zacarias‘
negligence “gave rise to the presumption of negligence on the part of his
employer, and their liability is both primary and solidary.”
It therefore ordered “the defendants jointly and solidarily
to indemnify the plaintiffs the following
amounts:

(1)  P30,000.00 for the
death of Orlando Calibo;

(2)  P378,000.00 for the
loss of earning capacity of the deceased

(3)  P15,000.00 for
attorney’s fees;

(4)  Cost of suit.”^[16]

The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have
appealed to this Court on certiorari and pray for a reversal of
the judgment of the Intermediate Appellate Court which, it is claimed, ignored
or ran counter to the established facts. 
A review of the record confirms the merit of this assertion and persuades
this Court that said judgment indeed disregarded facts clearly and undisputably demonstrated by the proofs.  The appealed judgment, consequently, will have to be reversed.

The finding that “the truck driven by defendant Paul Zacarias occupied the lane of the jeep when the collision
occurred” is a loose one, based on nothing more than the showing that at
the time of the accident, the truck driven by Zacarias
had edged over the painted center line of the road into the opposite lane by a
width of twenty-five (25) centimeters. 
It ignores the fact that by the uncontradicted
evidence, the actual center line of the road was not that indicated by the painted stripe but, according to
measurements made and testified to by Patrolman Juanito
Dimaano, one of the two officers who investigated
the accident, correctly lay thirty-six (36) centimeters farther to the
left of the truck’s side of said stripe.

The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to the
effect that the jeep’s lane was three (3) meters and seventy-five (75)
centimeters wide, and that of the truck three (3) meters and three (3)
centimeters, measured from the center stripe to the corresponding side lines or
outer edges of the road.^[17]
The total width of the road being, therefore, six (6) meters and seventy-eight
(78) centimeters, the true center line equidistant from both side lines would
divide the road into two lanes each three (meters) and thirty-nine (39)
centimeters wide.  Thus, although it was
not disputed that the truck overrode the painted stripe by twenty-five (25)
centimeters, it was still at least eleven (11) centimeters away from its side of
the true center line of the road and well inside its own lane when the
accident occurred.  By this same
reckoning, since it was unquestionably the jeep that rammed into the stopped
truck, it may also be deduced that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane
of the truck by at least the same 11-centimeter width of space.

Not only was the truck’s lane, measured from the incorrectly
located center stripe uncomfortably narrow, given that vehicle’s width of two
(2) meters and forty-six (46) centimeters; the adjacent road shoulder was also virtually impassable, being about three (3)
inches lower than the paved surface of the road and “soft” — not
firm enough to offer traction for safe passage — besides which, it sloped
gradually down to a three foot-deep ravine with a river below.^[18] The truck’s lane as erroneously demarcated
by the center stripe gave said vehicle barely half a meter of clearance from
the edge of the road and the dangerous shoulder and little room for maneuver,
in case this was made necessary by traffic contingencies or road conditions, if
it always kept to said lane.  It being
also shown that the accident happened at or near the point of the truck’s
approach to a curve,^[19] which called for extra precautions against
driving too near the shoulder, it could hardly be accounted negligent on the
part of its driver to intrude temporarily, and by only as small as a
twenty-five centimeter-wide space (less than ten inches), into the opposite
lane in order to insure his vehicle’s safety. 
This, even supposing that said maneuver was in fact an intrusion into
the opposite lane, which was not the case at all as just pointed out.

Nor was the Appellate Court correct in finding that Paulino Zacarias had acted
negligently in applying his brakes instead of getting back inside his lane upon
espying the approaching jeep.  Being well
within his own Iane, as has already been explained,
he had no duty to swerve out of the jeep’s way as said Court would have had him
do.  And even supposing that he was in
fact partly inside the opposite lane,
coming to a full stop with the jeep still thirty (30) meters away cannot be
considered an unsafe or imprudent
action, there also being uncontradicted evidence that
the jeep was “zigzagging”^[20] and hence no way of telling in which
direction it would go as it approached the
truck.

Also clearly erroneous is the finding of the Intermediate
Appellate Court that Zacarias had no driver’s license
at the time.  The traffic accident report
attests to the proven fact that Zacarias voluntarily
surrendered to the investigating officers his driver’s license, valid for 1979,
that had been renewed just the day before the accident, on July 3, 1979.^[21] The Court was apparently misled by the
circumstance that when said driver was first asked to show his license by the
investigators at the scene of the collision, he had first inadvertently
produced the license of a fellow driver, Leonardo Baricuatro,
who had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato.^[22]

The evidence not only acquits Zacarias
of any negligence in the matter; there are also quite a few significant
indicators that it was rather Engineer Calibo’s
negligence that was the proximate cause of the accident.  Zacarias had told
Patrolman Dimaano at the scene of the collision and
later confirmed in his written statement at the police headquarters^[23]
that the jeep had been “zigzagging,” which is to say that it was travelling or being driven erratically at the time.  The other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident
had remarked on the jeep’s “zigzagging.”^[24]
There is moreover more than a suggestion that Calibo
had been drinking shortly before the accident. 
The decision of the Trial
Court adverts to further testimony of Esparcia to the
effect that three of Calibo’s companions at the beach party he was driving home
from when the collision occurred, who, having left ahead of him went to the
scene when they heard about the accident, had said that there had been a
drinking spree at the party and, referring to Calibo,
had remarked:  “Sabi
na huag nang
mag drive . . . . pumipilit,” (loosely translated, “He was
advised not to drive, but he insisted.”).

It was Calibo whose driver’s license
could not be found on his person at the scene of the accident, and was reported
by his companions in the jeep as having been lost with his wallet at said scene, according to the traffic accident
report, Exhibit “J”.  Said
license unexplainedly found its way into the record
some two years later.

Reference has already been made to the finding of the Trial Court
that while Zacarias readily submitted to
interrogation and gave a detailed statement to the police investigators
immediately after the accident, Calibo’s two
companions in the jeep and supposed eyewitnesses, Agripino
Roranes and Maximo Patos, refused to give
any statements.  Furthermore, Roranes who, together with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal case against Zacarias.^[25]

Even, however, ignoring these telltale, indicia of negligence on the part of Calibo,
and assuming some antecedent negligence on the part of Zacarias
in failing to keep within his designated lane, incorrectly demarcated as it
was, the physical facts, either expressly found by the Intermediate Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve the latter of
any actionable responsibility for the accident under the rule of the last clear
chance.

Both drivers, as the Appellate Court found, had had a full view
of each other’s vehicle from a distance of one hundred fifty meters.  Both vehicles were travelling
at a speed of approximately thirty kilometers per hour.^[26]
The private respondents have admitted that the truck was already at a full stop
when the jeep plowed into it.  And they
have not seen fit to deny or impugn petitioners’ imputation that they also
admitted the truck had been brought to
a stop while the jeep was still thirty meters away.^[27] From these facts the logical conclusion
emerges that the driver of the jeep had what judicial doctrine has
appropriately called the last clear chance to avoid the accident,
while still at that distance of thirty meters from the truck, by stopping in
his turn or swerving his jeep away from the truck, either of which he had
sufficient time to do while running at a speed of only thirty kilometers per
hour.  In those circumstances, his duty
was to seize that opportunity of avoidance, not merely rely on a supposed right
to expect, as the Appellate Court would have it, the truck to swerve and leave him a clear path.

The doctrine of the last clear chance provides
as valid and complete a defense to accident liability today as it did
when invoked and applied in the 1918 case of
Picart vs. Smith, supra, which involved a similar state of
facts.  Of those facts, which should be familiar to every student of law, it is
only necessary to recall the summary made in the syllabus of this Court’s
decision that:

“(t)he plaintiff was riding a pony on
a bridge.  Seeing an automobile ahead he
improperly pulled his horse over to the railing on the right.  The driver of the
automobile, however, guided his car toward the plaintiff without diminution of
speed until he was only a few feet away. 
He then turned to the right but passed so closely to the horse that the
latter being frightened, jumped around and was killed by the passing car.  ***.”

Plaintiff Picart
was thrown off his horse and suffered contusions which required several days of
medical attention.  He sued the defendant
Smith for the value of his animal, medical expenses and damage to his apparel
and obtained judgment from this Court which, while finding that there was
negligence on the part of both
parties, held that that of the defendant was the immediate and determining
cause of the accident and that of the plaintiff “*** the more remote
factor in the case”:

“It goes without
saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road.  But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover which agent is immediately and directly
responsible.  It will be noted that the
negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. 
Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of
the other party.”

Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-petitioner) George Lim,
an inquiry into whether or not the evidence supports the latter’s additional
defense of due diligence in the selection and supervision of said driver is no longer necessary and will not be
undertaken.  The fact is that there is
such evidence in the record which has not been controverted.

It must be pointed out, however, that the Intermediate Appellate
Court also seriously erred in holding the petitioners Pablo S. Agad and Felix Lim solidarily
liable for the damages awarded in its appealed decision, as alleged owners,
with petitioner George Lim, of Glan People’s Lumber
and Hardware, employer of petitioner Zacarias.  This manifestly disregarded, not only the
certificate of registration issued by the Bureau of Domestic Trade identifying Glan People’s
Lumber and Hardware as a business name registered by George Lim,^[28] but also unimpugned
allegations in the petitioners’ answer to the complaint that Pablo S. Agad was only an employee of George Lim and that Felix Lim,
then a child of only eight (8) years, was in no way connected with the
business.

In conclusion, it must also be stated that there is no doubt of
this Court’s power to review the
assailed decision of the Intermediate Appellate Court under the authority of
precedents recognizing exceptions to the familiar rule binding it to observe
and respect the latter’s findings of fact. 
Many of those exceptions may be cited to support the review here
undertaken, but only the most obvious — that said findings directly conflict
with those of the Trial Court — will suffice.^[29] In
the opinion of this Court and after a careful review of the record, the
evidence singularly fails to support the findings of the Intermediate Appellate
Court which, for all that appears, seem to have been prompted rather by
sympathy for the heirs of the deceased Engineer Calibo
than by an objective appraisal of the proofs and a correct application of the
law to the established facts.  Compassion
for the plight of those whom an accident has robbed of the love and support of
a husband and father is an entirely natural and understandable sentiment.  It should
not, however, be allowed to stand in the way of, much less to influence, a just
verdict in a suit at law.

WHEREFORE, the appealed judgment of the Intermediate
Appellate Court is hereby REVERSED, and the complaint against herein
petitioners in Civil Case No. 3283 of the Court of First Instance of Bohol, Branch IV, is DISMISSED.  No pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco, Grino-Aquino,
and Medialdea,
JJ., concur.

^[1]
37 Phil. 809

^[2] Rollo, pp. 102-103

^[3] Assigned to Branch IV, Judge Fernando S.
Ruiz, presiding

^[4] Rollo, p. 64

^[5] Id.,
pp. 67-68

^[6] Id.,
pp. 106-107.  This was testified
to by Zacarias and Police Officer Esparcia

^[7] Id.,
p. 106

^[8] Ibid.

^[9] On December 21, 1984, the ponente being
Pascual, J., with whom concurred Camilon
and Jurado, JJ.

^[10] AC–G.R. CV No. 00470

^[11] Rollo, p. 57

^[12] Id.,
p. 59

^[13] Id.,
pp. 58-59

^[14] Id.,
p. 57

^[15] Id.,
p. 58

^[16] Id.,
p. 60

^[17]
TSN, April 29, 1981, p. 36

^[18] TSN July 21, 1981, pp. 15-16, 32; TSN April 29,
1981, pp. 37-38, 45

^[19] Exh. “4-A”

^[20] see infra, footnote [11]

^[21] Exhibit “J”

^[22] TSN Sept. 10, 1981, p.m., pp. 62-65; TSN July 22,
1981, p. 65

^[23] Exhibit 15; see also TSN Sept. 9,
1981, p.m., p. 18

^[24]
TSN July 22, 1981, pp. 73-76

^[25] supra, p. 3-5

^[26] Rollo, p. 57

^[27]
Petition for Review, p. 21; Rollo, p. 26

^[28] Rollo, p. 71

^[29] Remalante vs. Tibe and CA,
158 SCRA 138; Bunag vs. CA, 158 SCRA 299; Maclan vs. Santos, 156 SCRA 542, citing Garcia vs. CA, 33
SCRA 622 and Alsua-Betts vs. CA, 92 SCRA 332;
Vallarta vs. IAC, 151 SCRA 679; Manlapaz vs.
CA, 147 SCRA 236