Philippine Supreme Court Jurisprudence > Year 2010 > July 2010 Decisions > [G.R. No. 148974 : July 02, 2010] OMC CARRIERS, INC. AND JERRY A�ALUCAS Y PITALINO, PETITIONERS, VS. SPOUSES ROBERTO C. NABUA AND ROSARIO T. NABUA, RESPONDENTS. :

Before this Court is a petition for review on certiorari,^[1] under Rule 45 of the Rules of Court, seeking to set aside the December 28, 1999 Decision^[2] and July 3, 2001 Resolution^[3] of the Court of Appeals (CA) in CA-G.R. CV No. 60034. The CA affirmed, with modification, the Decision^[4] of the Regional Trial Court (RTC), National Capital Judicial Region, Branch 224, Quezon City, in Civil Case No. Q-95-24838, which found petitioners liable to respondents for damages.

The facts of the case are as follows:

On August 4, 1995, at about 3:00 p.m., an Isuzu private tanker with plate no. PCH 612, owned by and registered in the name of petitioner OMC Carriers, Inc. and then being driven by its employee Jerry P. Aסalucas (Aסalucas), was cruising along Quirino Highway towards the general direction of Lagro, Quezon City. At Barangay Pasong Putik, Novaliches, Quezon City, the aforesaid private tanker hit a private vehicle, an Isuzu Gemini with plate no. NDF 372, which was making a left turn towards a nearby Caltex gasoline station. The impact heavily damaged the right side portion of the latter motor and mortally injured its 18-year-old driver, Reggie T. Nabua, who was later pronounced dead on arrival at the Fairview Polymedic Hospital.^[5]

Respondent spouses Berlino and Rosario Nabua, the parents of the victim, filed a Complaint^[6] for damages against petitioners and the General Manager of OMC Carriers, Chito Calauag,^[7] before the RTC of Quezon City, Branch 224. The complaint was docketed as Civil Case No. Q-95-24838 and entitled, Spouses Berlino C. Nabua and Rosario T. Nabua, Plaintiffs, vs. OMC Carriers, Inc., its General Manager, Chito Calauag, and Jerry Aסalucas y Pitalino, Defendants.

On January 19, 1998, the RTC rendered a Decision,^[8] the dispositive portion of which reads:

Accordingly, therefore, the Court finds and renders judgment in favor of the plaintiffs as against defendants and ordering the latter to pay the plaintiffs, jointly and solidarily, the following:

1. P110,000.00 for actual damages, or for money spent during the funeral, wake and burial of the deceased Regie Nabua;
   
2. P2,000,000.00 for compensatory damages and the amount of P60,000.00 as indemnity for the death of Reggie Nabua;
   
3. P100,000.00 as moral damages and another P100,000.00 as exemplary damages; and
   
4. P50,000.00 as attorney's fees;
   
5. Costs of the suit.
   

IT IS SO ORDERED.^[9]

Aggrieved, petitioners appealed the RTC Decision to the CA. On December 28, 1999, the CA rendered a Decision, partially granting the petition, the dispositive portion of which states:

WHERFORE, the appealed decision is AFFIRMED subject to the following modifications:

1. Absolving appellant Chito Calauag from liability for the death of Regie Nabua; and
   
2. Deleting, for want of basis, the following damages awarded by the court a quo, viz:
   
   
   1. P2,000,000.00 as lost earnings of the deceased; and
      
   2. P100,000.00 as exemplary damages.
      

SO ORDERED.^[10]

Not satisfied with the CA's disposition of their petition, petitioners filed a Partial Motion for Reconsideration.^[11] On July 3, 2001, the CA issued a Resolution denying petitioners' motion for reconsideration.

Hence, herein petition, with petitioners raising the following assignment of errors, to wit:

1. THE COURT OF APPEALS, WITH DUE RESPECT, COMMITTED ERROR IN ITS DECISION WHEN IT DISREGARDED OR REFUSED TO FOLLOW AND APPLY THE APPLICABLE RULINGS OF THIS HONORABLE COURT WHICH NOW FORM THE LAW OF THE LAND.
   
   
2. AS A RESULT OF THE COURT OF APPEALS' REFUSAL TO FOLLOW AND APPLY THE JURISPRUDENCE LAID DOWN BY THIS HONORABLE COURT, ITS DECISION TENDS TO MODIFY, AMEND OR REJECT THE JURISPRUDENCE APPLICABLE TO THE CASE AT BAR.^[12]

The petition is partly meritorious.

Prefatorily, this Court shall address petitioners' position that the proximate and immediate cause of the accident was the negligence of the victim, Reggie Nabua.^[13] This Court is not persuaded as the same is a question of fact.

A petition for review on certiorari under Rule 45 of the Rules of Court should include only questions of law  questions of fact are not reviewable. A question of law exists when the doubt centers on what the law is on a certain set of facts, while a question of fact exists when the doubt centers on the truth or falsity of the alleged facts. There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. Once the issue invites a review of the evidence, the question is one of fact.^[14]

Factual findings of the Court of Appeals are binding on the Court. Absent grave abuse of discretion, the Court will not disturb the factual findings of the Court of Appeals.^[15] In Encarnacion v. Court of Appeals,^[16] the Court held that, "unless there is a clearly grave or whimsical abuse on its part, findings of fact of the appellate court will not be disturbed. The Supreme Court will only exercise its power of review in known exceptions such as gross misappreciation of evidence or a total void of evidence."

After a painstaking review of the records of the case at bar, this Court holds that petitioners' stand is bereft of any evidence to support it as both the RTC and CA had correctly found that the proximate cause of the accident was the negligence of petitioner Aסalucas. The testimony of eyewitness Marlon Betiranta shows that the victim, Reggie Nabua, was driving at a slow pace when he was entering the Caltex station, to wit:

Q -	You mean to say that you were immediately behind this Gemini car?
A -	Yes, sir.
Q-	Now, when this Gemini car was about to go to the direction of the Caltex Station coming from the right portion, what did you notice this car or the driver did?
A -	He gave a sign that he was going at (sic)the left, sir.
Q -	And did you notice the manner by which this driver was driving at that time, when he made the sign?
A -	Yes, sir.
Q -	What?
A -	He were (sic) just in a slow pace, sir.
Q -	Now, Mr. Witness, when this vehicle Gemini met an accident and have (sic) a collision you said, with the other vehicle, please explain to the Court the type of vehicle that had a collision with this Gemini?
A -	It was a large tanker truck, sir.[17]

In addition, another eyewitness corroborated the testimony of Betiranta that the victim was slowly driving his car towards the gas station.  He also emphasized that the truck which bumped the Gemini car was very fast.  Second eyewitness Teddy Villarama testified, thus:

"Q -	Now, you said, Mr. Witness that you saw this car entering the gasoline station, can you tell the Court how fast or the speed of this vehicle or at what phase (sic) were they moving?
A -	Very[,] very slow.
Q -	How about the truck, did you notice what is the phase (sic) of the truck?
A -	The truck was very fast that it suddenly came in."[18]

Lastly, even petitioners' own witness, PO3 Edgardo Talacay, testified that petitioners' truck left skid marks, which would not be present if the truck was running in a normal speed, to wit:

Q -	Do you know, as a traffic investigator, Mr. Witness, what causes skid marks?
A -	Well, the cause of skid marks is (sic), if the vehicle is running in a speed greater that what the law is being regulated (sic), it cause skid marks when you apply the breaks.
Q -	What about sudden application of breaks upon notice of danger ahead, will it cause skid marks?
A-	It will cause skid marks because your intention is to stop your driven vehicle right then and there.
Q-	Although the vehicle may not be running necessarily beyond the lawful speed?
A -	I think, if the vehicle is running in a normal speed, skid marks would not be present in the mishap.
Q-	Notwithstanding, the sudden application of breaks?
A-	Yes, sir.
Court
Q -	The skid marks, Mr. Witness, refer to the skid marks made by the truck or the Isuzu Gemini?
A -	Made by the truck, your Honor.
x x x x[19]

All told, this Court is convinced, and thus affirms the findings of fact of the RTC and the CA that the proximate cause of the accident was the negligence of petitioner Aסalucas.

Having resolved the same, this Court shall now address the defense of petitioner company that they exercised due diligence in the selection and supervision of their employees. On this note, the CA ruled that petitioners had failed to overturn the presumption of negligence on the part of the employer, to wit:

In their defense, the appellants' witnesses have admittedly testified at length regarding the hiring and supervisory policies of the appellant company. While they were able to amply demonstrate the implantation of the company's hiring procedure insofar as appellant Jerry Aסalucas was concerned, the same witnesses failed to similarly individualize the company's purported supervisory policies. The introduction of evidence showing the employer exercised the required amount of care in selecting its employees is only half of the employer's burden is (sic) overcome. The question of diligent supervision depends on the circumstances of employment, which, in the instant case was not sufficiently proved by the appellants. In discounting merit from the appellants' second assignment of error, this Court is, consequently, guided by the principle that the existence of hiring procedure and supervisory policies cannot be casually invoked to overturn the presumption of negligence on the part of the employer.^[20]

Article 2180 of the Civil Code provides:

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

It is thus clear that the employer of a negligent employee is liable for the damages caused by the latter. When an injury is caused by the negligence of an employee, there instantly arises a presumption of the law that there was negligence on the part of the employer, either in the selection of his employee or in the supervision over him after such selection.  However, the presumption may be overcome by a clear showing on the part of the employer that he has exercised the care and diligence of a good father of a family in the selection and supervision of his employee.^[21] In other words, the burden of proof is on the employer.^[22] Thus, petitioners must prove two things: first, that they had exercised due diligence in the selection of petitioner Aסalucas, and second, that after hiring Aסalucas, petitioners had exercised due diligence in supervising him.

The question is: how does an employer prove that he indeed exercised the diligence of a good father of a family in the selection and supervision of his employee? The case of Metro Manila Transit Corporation v. Court of Appeals^[23] is instructive:

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of presenting at the trial such amount of evidence required by law to obtain a favorable judgment....In making proof in its or his case, it is paramount that the best and most complete evidence is formally entered.

Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. Petitioner's attempt to prove its "deligentissimi patris familias" in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony.

Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as would convincingly and undoubtedly prove its observance of the diligence of a good father of a family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab Corp. vs. Ex-Meralco Employees Transportation Co., et al., set amidst an almost identical factual setting, where we held that:

x x x x

The failure of the defendant company to produce in court any `record' or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefore by both the trial court and the opposing counsel, argues strongly against its pretensions.

We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to prove due observance of all the diligence of a good father of a family as would constitute a valid defense to the legal presumption of negligence on the part of an employer or master whose employee has by his negligence, caused damage to another. x x x (R)educing the testimony of Albert to its proper proportion, we do not have enough trustworthy evidence left to go by. We are of the considerable opinion, therefore, that the believable evidence on the degree of care and diligence that has been exercised in the selection and supervision of Roberto Leon y Salazar, is not legally sufficient to overcome the presumption of negligence against the defendant company. (Italics supplied.)^[24]

In the case at bar, while this Court may be satisfied that petitioner company had exercised due diligence in the selection of petitioner Aסalucas, the focus now shifts as to whether or not petitioner company had satisfied the test of due supervision.

Petitioner company's attempt to prove that it had exercised due diligence of a good father of a family in the supervision of petitioner Aסalucas is summarized in its Memorandum^[25] and was testified to by its Operations Manager, Chito Calauag, to wit:

1. The new employee was given formal/written papers as to things expected from him as a driver; about driving habits, about things he should do just in case and was issued guidelines, circulars both from OMC Carriers (Exhs. 6, 6-A, 6-B, 6-C, 6-D, 6-E) and from Petron (Exhs. 8, 8-A to 8-A-5);
   
   
2. That the circulars and guidelines are placed in each of the tankers to see to it that they are brought to the knowledge and attention of the drivers and helpers;
   
   
3. That every carbarn time, the Chief Mechanic and Asst. Operations Manager check the tanker for any sign of damage to ascertain if the driver had been involved in an accident;
   
   
4. That every weekend, when the drivers are paid their salaries/wages, the Cashier is made to examine the licenses of the drivers to know if they had been issued Traffic Violation Tickets;
   
   
5. That if the license has expired or a ticket had been issued and has expired, the driver is grounded until the licenses is (sic) renewed or the license, if confiscated has been redeemed;
   
   
6. That, in the meantime, a substitute driver is assigned to the tanker to temporarily take the place of the grounded driver.^[26]

After a thorough and extensive review of the records, this Court is unconvinced that petitioner company had satisfactorily discharged its burden. The alleged Memorandum (Exhibit 6) alluded to by petitioner company amounts to nothing more than a "reminder memo on offenses punishable by dismissal,"^[27] wherein specific offenses are spelled out to which erring employees may be punished by the company. Likewise, the alleged circulars^[28] from Petron amount to nothing more than minutes of the "Haulers Meeting," a list of "Hot Spots" and a "Table of Penalties." These circulars do not, in any way, concern safety procedures to prevent accident or damage to property or injury to people on the road. It bears to stress that the existence of supervisory policies cannot be casually invoked to overturn the presumption of negligence on the part of the employer.^[29]

The testimonies relating to the checking of damages during carbarn time, the inspection if drivers were given traffic violation tickets and inspection of the validity of the drivers' licenses are all oral evidence without any object or documentary evidence to support them.  Like in Metro Transit, this Court is unable to accept the self-serving nature of the testimonies without any other evidence. The alleged daily inspections conducted were not supported by any evidence on record. Moreover, even the seminars regarding safety and driving,^[30] allegedly conducted by petitioners' witness, Max Pagsaligan, were not satisfactorily established in evidence. Specifically, there is no record that petitioner Aסalucas attended such seminars.

Normally, employers keep files concerning the qualifications, work experience, training, evaluation, and discipline of their employees.^[31] The failure of petitioners to put forth evidence to substantiate the testimonies of the witnesses is certainly fatal to its cause.

Having resolved the same, this Court shall now address the issue of damages.  Petitioners contend that the CA erred when it affirmed the RTC's award of P60,000.00 as death indemnity and P100,000.00 as moral damages. Petitioners contend that such an award was contrary to prevailing jurisprudence. In addition, petitioners also argue that the award of attorney's fees was without legal basis.

The same is meritorious.

Death indemnity has been fixed by jurisprudence at P50,000.00.^[32] Hence, the amount awarded by the RTC and the CA must be reduced accordingly. On the issue of moral damages, prevailing jurisprudence fixes moral damages of P50,000.00 for death.^[33] It must be stressed that moral damages are not intended to enrich a plaintiff at the expense of the defendant.^[34] They are awarded to allow the plaintiff to obtain means, diversion or amusements that will serve to alleviate the moral suffering he/she has undergone due to the defendant's culpable action and must, perforce, be proportional to the suffering inflicted.^[35] Thus, given the circumstances of the case at bar, an award of P50,000.00 as moral damages is proper.

Next, the rule on the award of attorney's fees is that there must be a justification for the same. In the absence of a statement why attorney's fees were awarded, the same should be disallowed.^[36] On this note, after reading through the text of the CA decision, this Court finds that the same is bereft of any findings of fact and law to justify the award of attorney's fees. While it may be safe to surmise that the RTC granted attorney's fees as a consequence of its grant of exemplary damages, such cannot be said for the CA, since the same deleted the award of exemplary damages after finding that petitioner Aסalucas was not grossly negligent. The CA did not explain why it was still awarding attorney's fees to respondents, therefore, such an award must be deleted.

While petitioners did not put in error the award of actual damages, this Court feels that the same should nevertheless be reviewed as an appellate court is clothed with ample authority to review rulings even if they are not assigned as errors. This is especially so if the court finds that their consideration is necessary in arriving at a just decision of the case before it.^[37]

For one to be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and the best evidence obtainable by the injured party.^[38] Actual damages are such compensation or damages for an injury that will put the injured party in the position in which he had been before he was injured. They pertain to such injuries or losses that are actually sustained and susceptible of measurement. To justify an award of actual damages, there must be competent proof of the actual amount of loss. Credence can be given only to claims which are duly supported by receipts.^[39]

In the case at bar, respondents only submitted the following evidence to substantiate their claim for actual damages:

Provisional Receipt No. 773, dated August 13, 1995, issued by La Funeraria Novaliches. (Exhibit "A")	P28,000.00
Official Receipt Nos.  105675, dated August 12, 1995, issued by Philippine Memorial Park Inc. for payment of interment fees received from respondents. (Exhibit "B")	P3,900.00
Official Receipt No. 105656, dated August 8, 1995, issued by Philippine Memorial Park Inc. for payment of interment fees received from respondents. (Exhibit "B-1")	P2,000.00
Letter-Certification, dated August 17, 1995 from Philippine Memorial Park, Inc. to certify the amount of the lot used for the burial of Mr. Reggie Nabua. (Exhibit "C")	P24,000.00
Official Receipt No. 10596, dated August 4, 1995, issued by Fairview Polymedic Clinic for emergency treatment of Reggie Nabua. (Exhibit "D")	P 1,273.50
TOTAL	P59,173.50

Based on the foregoing, the RTC erred when it awarded the amount of P110,000.00 as actual damages, as the said amount was not duly substantiated with receipts. Hence, the amount of actual damages that can only be recovered is P59,173.50.

Lastly, although respondents did not appeal the CA Decision, they now pray in their Memorandum^[40] that this Court reinstate the RTC award of P2,000,000.00 as compensatory damages which was deleted by the CA.^[41] Respondents point out that the victim, Reggie Nabua, was 18 years old and at the time of his death, a freshman taking up Industrial Engineering.  On this point, Metro Manila Transit Corporation v. Court of Appeals^[42] is instructive, to wit:

x x x Art. 2206 of the Civil Code provides that in addition to the indemnity for death caused by a crime or quasi delict, the "defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; . . ." Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money.  Evidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession.  In People v. Teehankee, no award of compensation for loss of earning capacity was granted to the heirs of a college freshman because there was no sufficient evidence on record to show that the victim would eventually become a professional pilot.  But compensation should be allowed for loss of earning capacity resulting from the death of a minor who has not yet commenced employment or training for a specific profession if sufficient evidence is presented to establish the amount thereof x x x.^[43]

x x x x

In sharp contrast with the situation obtaining in People v. Teehankee, where the prosecution merely presented evidence to show the fact of the victim's graduation from high school and the fact of his enrollment in a flying school, the spouses Rosales did not content themselves with simply establishing Liza Rosalie's enrollment at UP Integrated School. They presented evidence to show that Liza Rosalie was a good student, promising artist, and obedient child. She consistently performed well in her studies since grade school. A survey taken in 1984 when Liza Rosalie was twelve years old showed that she had good study habits and attitudes. Cleofe Chi, guidance counselor of the University of the Philippines Integrated School, described Liza Rosalie as personable, well-liked, and with a balanced personality. Professor Alfredo Rebillon, a faculty member of the University of the Philippines College of Fine Arts, who organized workshops which Liza Rosalie attended in 1982 and 1983, testified that Liza Rosalie had the potential of eventually becoming an artist. Professor Rebillon's testimony is more than sufficiently established by the 51 samples of Liza Rosalie's watercolor, charcoal, and pencil drawings submitted as exhibits by the spouses Rosales. Neither MMTC nor Pedro Musa controverted this evidence.^[44]

In the case at bar, respondents only testified to the fact that the victim, Reggie Nabua, was a freshman taking up Industrial Engineering at the Technological Institute of the Philippines in Cubao.^[45] Unlike in Metro Transit where evidence of good academic record, extra-curricular activities, and varied interests were presented in court, herein respondents offered no such evidence. Hence, the CA was correct when it deleted the award of compensatory damages amounting to P2,000,000.00, as the same is without any basis.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 60034 is AFFIRMED with MODIFICATION. The award of death indemnity is REDUCED to P50,000.00. The award of actual damages is hereby REDUCED to P59,173.50. The award of moral damages is likewise REDUCED  to  P50,000.00. The award of attorney's fees is DELETED. All other awards of the Court of Appeals are AFFIRMED. Following jurisprudence,^[46] petitioners are ordered to PAY legal interest of 6% per annum from the date of promulgation of the Decision dated January 19, 1998 of the Regional Trial Court, National Capital Judicial Region, Branch 224, Quezon City and 12% per annum from the time the Decision of this Court attains finality, on all sums awarded until their full satisfaction.

SO ORDERED.

Carpio, (Chairperson), Nachura, Abad, and Mendoza, JJ., concur.

Endnotes:

---

^[1] Rollo, pp. 8-14.

^[2] Penned by Associate Justice Fermin A. Martin, Jr., with Associate Justices B.A. Adefuin de la Cruz and Martin S. Villarama, Jr. (now a member of this Court), concurring; id. at 18-32.

^[3] Id. at 16.

^[4] Records, pp. 183-189.

^[5] CA Decision, rollo, pp. 19-20.

^[6] Records, pp. 1-6.

^[7] Spelled as "Caluag" in some pleadings.

^[8] Records, pp. 183-189.

^[9] Records, p. 189.

^[10] Rollo, pp. 30-31.

^[11] CA rollo, pp. 96-104.

^[12] Rollo, p. 10.

^[13] Id. at 12.

^[14] Pagsibigan v. People, G.R. No. 163868, June 4, 2009, 588 SCRA 249, 256.

^[15] Encarnacion v. Court of Appeals, G.R. No. 101292, June 8, 1993, 223 SCRA 279, 282.

^[16] Id. at 284.

^[17] TSN, June 3, 1996, pp. 9-10. (Emphasis supplied.)

^[18] TSN, August 22, 1996, pp. 11-12. (Emphasis supplied.)

^[19] TSN, June 20, 1997, pp. 26-27. (Emphasis supplied).

^[20] Rollo, pp. 29-30.  (Citations omitted.)

^[21] Baliwag Transit, Inc. v. Court of Appeals, 330 Phil. 785, 789 (1999).

^[22] Syki v. Begasa, 460 Phil. 381, 386 (2003).

^[23] G.R. No. 104408, June 21, 1993, 223 SCRA 521.

^[24] Id. at 535-536.  (Emphasis ours.)

^[25] Rollo, pp. 49-61.

^[26] Id. at 56-57.

^[27] Records, pp. 141-144.

^[28] Id. at 147-154.

^[29] Fabre, Jr. v. Court of Appeals, G.R. No. 111127,  July 26, 1996, 259 SCRA 426, 434-435.

^[30] TSN, October 15, 1997, pp. 18, 27.

^[31] Metro Manila Transit Corporation v. Court of Appeals, 359 Phil. 18, 33 (1998).

^[32] Philippine Hawk Corporation v. Vivian Tan Lee, G.R. No. 166869, February 16, 2010.

^[33] Id.

^[34] Spouses Hernandez v. Dolor, 479 Phil. 593, 605 (2004).

^[35] Id.

^[36] Lozano v. Ballesteros, G.R. No. 49470, April 8, 1991, 195 SCRA 681, 691.

^[37] Cuaton v. Salud, 465 Phil. 999, 1006 (2004).

^[38] People v. Dela Cruz, G.R. No. 168173, December 24, 2008, 575 SCRA 412, 446-447.

^[39] B.F Metal Corporation v. Spouses Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA 618, 626-627.

^[40] Rollo, pp. 62-72.

^[41] Id. at 65.

^[42] Supra note 31.

^[43] Id. at 38-39.

^[44] Id. at 40-41.

^[45] TSN, February 14, 1996, p. 13; TSN, February 28, 1996, p. 17.

^[46] Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, July 12, 1994, 234 SCRA 78.