EN BANC

[G.R. No. L-22533. February 9, 1967.]

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners, vs.PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRESBONIFACIO, respondents.

Placido B. Ramos and Renato L. Ramos for petitioners.

Trinidad & Borromeo for respondents.

SYLLABUS

1. APPEAL; CREDIBILITY OF WITNESS NOT FOR THE SUPREME COURT TO RE-EXAMINE. — This Court has consistently respected the findings of fact of the Courtof Appeals with some few exceptions which do not obtain herein.

2. APPEAL; QUESTIONS OF LAW AND FACT DISTINGUISHED. — For a question tobe one of law it must involve no examination of the probative value of the evidencepresented by the litigants or any of them. And the distinction is well known. There isa question of law in a given case when the doubt or difference arises as to what thelaw is on a certain state of facts; there is a question of fact when the doubt ordifference arises as to the truth or falsehood of alleged facts.

3. CIVIL LAW; DUE DILIGENCE IN THE SELECTION OF A DRIVER ILLUSTRATED.— The uncontradicted testimony of (the) personnel manager of defendant company,was to the effect that defendant driver was first hired as a member of the bottlecrop in the production department: that when he was hired as a driver, defendantcompany had size him by looking into his background, asking him to submitclearances, and later on, he was sent to the pool house to take the usual driver'sexamination, consisting of, first, theoretical examination and second, the practicaldriving examination, all of which he had undergone, and that the defendantcompany was a member of the Safety Council. In view therefore, we are of sensethat defendant company had exercised the diligence of a good father of a family inthe choice or selection of defendant driver.

4. ID.; DUE DILIGENCE IN THE SUPERVISION OF EMPLOYEE DISCUSSED;ARTICLE 2180 OF THE CIVIL CODE CONSTRUED. — From Article 2180, two thingsare apparent; (1) That when an injury is caused by the negligence of a servant oremployee there instantly arises a presumption of law that there was negligence onthe part of the master or employer either in the selection of the servant oremployee, or in supervision over him after the selection; or both; and (2) that thepresumption is juris tantum and not juris et de jure, and consequently may berebutted. It follows necessarily that if the employer shows to the satisfaction of thecourt that in selection and supervision he has exercised the care and diligence of a

good father of a family, the presumption is overcome and he is relieved fromliability.

5. APPEAL; MATTERS NOT RAISED AND ARGUED IN THE LOWER COURTCANNOT BE VENTILATED IN THE SUPREME COURT FOR THE FIRST TIME. —Appellant's other assignment of errors are likewise outside the purview of thisCourt's reviewing power. Thus, the question of whether PEPSI-COLA violated theRevised Motor Vehicles Law and rules and regulations related thereto, not havingbeen raised and argued in the Court of Appeals, cannot be ventilated herein for thefirst time.

D E C I S I O N

BENGZON, J.P., J p:

On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I.1 and Andres Bonifacio in the Court of First Instance of Manila as a consequence of acollision, on May 10, 1958, involving the car of Placido Ramos and a tractor-truckand trailer of PEPSI-COLA. Said car was at the time of the collision driven byAugusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor- truck was thendriven by its driver and co-defendant Andres Bonifacio.

After trial, the Court of First Instance rendered judgment on April 15, 1961, findingBonifacio negligent and declaring that PEPSI- COLA had not sufficiently proved itshaving exercised the due diligence of a good father of a family to prevent thedamage. PEPSI- COLA and Bonifacio, solidarily, were ordered to pay the plaintiffsP2,638.50 actual damages; P2,000.00 moral damages; P2,000.00 as exemplarydamages; and, P1,000.00 attorney's fees with costs.

Not satisfied with this decision, the defendants appealed to the Court of Appeals.

Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as itfound defendant Bonifacio negligent, but modified it by absolving defendant PEPSI-COLA from liability, finding that, contrary to the plaintiff's contention, PEPSI-COLAsufficiently proved due diligence in the selection of its driver Bonifacio.

Plaintiffs thereupon appealed to Us through this petition for review of the Court ofAppeals' decision. And appellants would argue before this Court that defendantPEPSI-COLA's evidence failed to show that it had exercised due diligence n theselection of its driver in question.

Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor,thus:

"The uncontradicted testimony of Juan T. Añasco, personnelmanager of defendant company, was to the effect that defendantdriver was first hired as a member of the bottle crop in the production

department; that when he was hired as a driver, 'we had size [sic] himby looking into his background, asking him to submit clearances,previous experience, physical examination and later on, he was sent tothe pool house to take the usual driver's examination, consisting of:'First, theoretical examination and second, the practical drivingexamination,' all of which he had undergone, and that the defendantcompany was a member of the Safety Council. In view hereof, we are ofthe sense that defendant company had exercised the diligence of agood father of a family in the choice or selection of defendant driver. Inthe case of Campo vs. Camarote, No. L-9147 (1956), 53 O.G. 2794,cited in appellee's brief, our Supreme Court had occasion to put it downas a rule that 'In order that the defendant may be considered as havingexercised all the diligence of a good father of a family, he should havebeen satisfied with the mere possession of a professional driver'slicense; he should have carefully examined the applicant foremployment as to his qualifications, his experiences and record ofservice.' Defendant Company has taken all these steps. 2

Appellants herein seek to assail the foregoing portion of the decision under reviewby taking issue with the testimony of Añasco upon which the findings of duediligence aforestated are rested. Thus, it is now contended that Añasco, being PEPSI-COLA's employee, is a biased and interested witness; and that his testimony is notbelievable.

It is rather clear, therefore, that appellants would raise herein an issue of fact andcredibility, something as to which this Court has consistently respected the findingsof the Court of Appeals, with some few exceptions, which do not obtain herein. 3

Stated differently, Añasco's credibility is not for this Court now to re-examine. Andsaid witness having been found credible by the Court of Appeals, his testimony, asaccepted by said Court, cannot at this stage be assailed. As We said in Co Tao vs.Court of Appeals, L-9194, April 25, 1957, assignments of error involving thecredibility of witnesses and which in effect dispute the findings of fact of the Courtof Appeals, cannot be reviewed in these proceedings. For a question to be one of lawit must involve no examination of the probative value of the evidence presented bythe litigants or any of them. 4 And the distinction is well-known: There is a questionof law in a given case when the doubt or difference arises as to what the law is on acertain state of facts; there is a question of fact when the doubt or difference arisesas to the truth or the falsehood of alleged facts. 5

From all this it follows that for the purposes of this appeal, it must be taken asestablished that, as testified to by Añasco, PEPSI- COLA did in fact carefully examinethe driver-applicant Bonifacio as to his qualifications, experiences and record ofservice, taking all steps mentioned by the Court of Appeals in its decision alreadyquoted.

Such being the case, there can be no doubt that PEPSI-COLA exercised the requireddue diligence in the selection of its driver. As ruled by this Court in Campo vs.Camarote, 53 O.G. 2794, 2797: "In order that the defendant may be considered as

having exercised all diligence of a good father of a family, he should not be satisfiedwith the mere possession of a professional driver's license; he should have carefullyexamined the applicant for employment as to his qualifications, his experience andrecord of service."

It should perhaps be stated that in the instant case no question is raised as to duediligence in the supervision by PEPSI-COLA of its driver. Article 2180 of the CivilCode provides inter alia:

". . . The owners and managers of en establishment or enterpriseare likewise responsible for damages caused by their employees in theservice of the branches in which the letter are employed or on theoccasion of their functions.

xxx xxx xxx

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

And construing a similar provision of the old Civil Code, this Court said in Bahiavs. Litonjua, 30 Phil. 624, 627:

"From this article two things are apparent: (1) That when an injuryis caused by the negligence of a servant or employee there instantlyarises a presumption of law that there was negligence on the part ofthe master or employer either in the selection of the servant oremployee, or in supervision over him after the selection, or both; and(2) that the presumption is juris tantum and not jure et de juris, andconsequently may be rebutted. It follows necessarily that if theemployer shows to the satisfaction of the court that in selection andsupervision he has exercised the care and diligence of a good father ofa family, the presumption is overcome and he is relieved from liability."

As pointed out, what appellants here contend as not duly proved by PEPSI-COLA isonly due diligence in the selection of its driver. And, parenthetically, it is notsurprising that appellants thus confine their arguments to this aspect of duediligence, since the record — as even appellants' brief (pp. 13-17) reflects in quotingin part the testimony of PEPSI-COLA's witness — would show sufficient evidence toestablish due diligence in the supervision by PEPSI-COLA of its drivers, includingBonifacio.

Appellants' other assignment of errors are likewise outside the purview of thisCourts' reviewing power. Thus, the question of whether PEPSI-COLA violated theRevised Motor Vehicle Law. and rules and regulations related thereto, not havingbeen raised and argued in the Court of Appeals, cannot be ventilated herein for thefirst time. 6 And the matter of whether or not PEPSI-COLA did acts to ratify thenegligent act of its driver is a factual issue not proper herein.

Wherefore, the decision of the Court of Appeals is hereby affirmed, with costsagainst appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and RuizCastro, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION

May 16, 1967

BENGZON, J.P., J p:

Petitioners seek a reconsideration 1 of Our decision 2 in the instant case affirming intoto the challenged decision of the Court of Appeals absolving respondent PEPSI-COLA from liability. In Our decision, We refrained from passing on the merits of thequestion whether PEPSI-COLA in operating the tractor-truck and trailer, violated theRev. Motor Vehicles Law 3 and the rules and regulations related thereto, for theprocedural reason that it did not appear to have been raised before the Court ofAppeals.

It now appears, however, that said question was raised in a motion to reconsiderfiled with the Court of Appeals which resolved the same against petitioners. Dueconsideration of the matter on its merits, convinces Us that the decision of theCourt of Appeals should still be affirmed in toto.

Petitioners impute to PEPSI-COLA the violation of subpars. I and 4(d), par. (a), Sec.27 of M.V.O. Administrative Order No. 1, dated Sept. 1, 1951, in that at the time ofthe collision the trailer-truck, which had a total weight of 30,000 k. gms., was (a)being driven at a speed of about 30 k.p.h., or beyond the 15 k.p.h. limit set and (b)was not equipped with a rear-vision mirror nor provided with a helper for the driver.

The cited provisions read:

"SECTION 27. — Registration, operation, and inspection of truck-trailer combinations, semi-trailers, and tractors.

"(a) No trailer or semi-trailer having a gross weight of morethan 2,000 kilograms and is not equipped with effective brakes on atleast two opposite wheels of the rear axle and are so controlled that thebrakes will act in unison with or preceding the effective action of thebrakes of the tractor-truck shall be registered for operation for publichighways of the Philippines; provided, that the trailers without brakesmay be registered from year to year for operation under the followingconditions:

"1. No such trailer shall be operated at any time at a speed, inexcess of 15 kilometers per hour in conjunction with a tractor-truck,the actual gross weight of which is less than twice the weight of thetrailer.

xxx xxx xxx

"4(d) Tractor-trucks shall be either equipped with rear-visionmirror to enable the driver to see vehicles approaching from the rear orshall carry a helper who shall be so stationed on the truck or trailer thathe will constantly have a view of the rear. He shall be provided withmeans of effectively signalling to the driver to give way to overtakingvehicles.

"4(e) No truck and trailer combination shall be operated at aspeed greater than 30 kilometers per hours."

It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to trailersor semi-trailers having a gross weight of more than 2,000 kgms., AND which are"not equipped with effective brakes on at least two opposite wheels of the rearaxle and are so controlled that the brakes will act in unison with or preceding theeffective action of the brakes of the tractor-truck . . ." This is the condition set inthe proviso in par. (a), supra, wherein "trailers without [such] brakes may beregistered from year to year for operation . . .", i.e., they should not "be operatedat any time at a speed in excess of 15 kilometers per hour in conjunction with atractor-truck . . ." But there was no finding by the Court of Appeals that the truck-trailer here did not have such brakes. In the absence of such fact, it is subpar. 4(e), supra, that will apply. And petitioners admit that the truck-trailer was beingdriven at about 30 k.p.h.

It is a fact that driver Bonifacio was not accompanied by a helper on the night of thecollision since he was found to be driving alone. However, there is no finding thatthe tractor-truck did not have a rear-vision mirror. To be sure, the records disclosethat Pat. Rodolfo Pahate, the traffic policeman who went to the collision scene,testified that he saw the tractor-truck there but he does not remember if it had anyrear-vision mirror. 4 This cannot prove lack of rear- vision mirror. And the citedprovision — subpar. 4(d) — is complied if either of the two alternatives, i.e., havinga rear-vision mirror or a helper, is present. Stated otherwise, said provision isviolated only where there is a positive finding that the tractor-truck did not haveboth rear-vision mirror and a helper for the driver.

Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of theRev. Motor Vehicles Law, providing that:

"No motor vehicle operating as a single unit shall exceed thefollowing dimensions:

"Over all width . . . 2.5 meters"

xxx xxx xxx

since there was an express finding that the truck-trailer was 3 meters wide.However, Sec. 9(d) of the same law, as amended, providing that —

"SEC. 9. Special permits, fees for. — The chief of the Motor

Vehicles Office with the approval of the Secretary of Public Works andCommunications shall establish regulations and a tariff of additional feesunder which special permits may be issued in the discretion of the Chiefof the Motor Vehicles Office or his deputies, for each of the followingspecial cases, and without such special permit, no such motor vehiclesshall be operated on the public highways . . .

xxx xxx xxx

"(d) For registration or fees of a motor vehicle exceeding thelimit of permissible dimensions specified in subsections (b) and (c) ofsection eight-A hereof." (Emphasis supplied)

xxx xxx xxx

expressly allows the registration or use of motor vehicles exceeding the limits ofpermissible dimensions specified in subsec. (b) of Sec. 8-A. So, to conclude thatthere was a violation of law — which indisputably constitutes negligence, at thevery least — it is not enough that the width of the tractor-truck exceed the limitin Sec. 8-A; in addition, it must also appear that there was no special permitgranted under Sec. 9. Unfortunately for petitioners, that vital factual link ismissing. There was no proof much less any finding to that effect. And it wasincumbent upon petitioners-appellants to have proved lack of such permit sincethe tractor-truck and the trailer were registered. 5 Compliance with law andregularity in the performance of official duty — in this case, the issuance ofproper registration papers — are presumed 6 and prevail over mere surmises.Having charged a violation of law, the onus of substantiating the same fell uponpetitioners-appellants. Hence, the conclusion that there was a violation of thelaw lacks factual basis.

Petitioners would also have Us abandon the Bahia ruling. 7 In its stead, We areurged to apply the Anglo-American doctrine, of respondent superior. We cannothowever, abandon the Bahia ruling without going against the explicit mandate ofthe law. A motor vehicle owner is not an absolute insurer against all damagescaused by its driver. Article 2180 of our Civil Code is very explicit that the owner'sresponsibility shall cease once it proves that it has observed the diligence of a goodfather of a family to prevent damage. The Bahia case merely clarified what thatdiligence consists of, namely, diligence in the selection and supervision of the driver-employee.

Neither could We apply the respondent superior principle. Under Article 2180 of theCivil Code, the basis of an employer's liability is his own negligence, not that of hisemployees. The former is made responsible for failing to properly and diligentlyselect and supervise his erring employees. We do not - and have never - followedthe respondent superior rule. 8 So, the American rulings cited by petitioners, basedas they are on said doctrine, are not authoritative here.

In view of the foregoing, the motion for reconsideration is hereby denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Ruiz

Castro JJ., concur.

Footnotes

1. For brevity hereinafter called PEPSI-COLA.

2. Underscoring supplied.

3. Among the exceptions to the rule that findings of fact by the Court of Appealscannot be reviewed on appeals by certiorari are:

1. When the conclusion is a finding grounded entirely on speculation, surmisesor conjectures: Joaquin vs. Navarro, 93 Phil. 257.

2. When the inference made is manifestly mistaken, absurd or impossible: Lunavs. Linatok, 74 Phil. 15.

3. Where there is a grave abuse of discretion: Buyco vs. People, 95 Phil. 453; 51Off. Gaz., 2927.

4. When the judgment is based on a misapprehension of facts: Cruz vs. Sosing,94 Phil. 26.

5. When the findings of fact are conflicting: Casica vs. Villaseca, L-9590, April 30,1957.

6. When the Court of Appeals, in making its findings, went beyond the issues ofthe case and the same is contrary to the admissions of both appellant andappellee: Evangeslista vs. Alto Surety & Insurance Co., 103 Phil. 401.

4. Cf . II Moran, COMMENTS ON THE RULES OF COURT, 1963 ed., p. 412.

5. See II Martin, RULES OF COURT IN THE PHILIPPINES, 255; II Bouvier's LAWDICTIONARY, 2784.

6. Tan Si Kiok vs. Tiacho, 79 Phil. 696.

1. Typographical errors appearing in the printed motion for reconsideration havebeen corrected upon petitioner's request granted by US.

2. Promulgated Feb. 9. 1967.

3. Act No. 3992.

4. Session of Jan. 13, 1960, T.S.N., p. 68.

5. See Pars. 2 and 3 of Complaint, Rollo, p. 44.

6. Rule 131, Sec. 5(m) and (ff), Rev. Rules of Court.

7. Bahia vs. Litonjua, 30 Phil. 624, which held that once the employer satisfactorily

shows that in the selection and supervision of the driver, he has exercised thecare and diligence of a good father of a family, he is relieved from liability.

8. Cangco vs. M.R.R., 38 Phil. 768; Cuison vs. Norton, 55 Phil. 18.