FIRST DIVISION

G.R. No. 131541. October 20, 2000.

THERMOCHEM INCORPORATED and JEROME O. CASTRO, petitioners, vs. LEONORA NAVAL and THE COURT OF APPEALS, respondents.

Quirante and Associates Law Offices for petitioners.

Carpio Ferrer Evangelista Law Office for private respondent.

SYNOPSIS

In a damage suit arising from a collision of vehicles between the Nissan Pathfinder owned by petitioner company, and the taxicab of respondent, the driver of petitioner company, petitioner Castro, was found negligent and petitioners were ordered, jointly and severally, to pay private respondent actual, compensatory and exemplary damages and attorney's fees. The Court of Appeals affirmed said decision.

On appeal, the Supreme Court issued a Resolution which required private respondent to file her Comment, but the Resolution could not be served. The Supreme Court held: that it is the duty of the party and his counsel to inform the court of any change of his address; that due to private respondent's failure to file comment, the case may be decided on the basis of the evidence on record, without prejudice to disciplinary action against the disobedient party; that the issue of whether or not a party is negligent, is factual, the trial court's findings on which are generally conclusive; that the driver of the Nissan Pathfinder was liable although the brake malfunctioned, but the taxi driver was also liable for contributory negligence because he made a U-turn knowing that vehicles coming from Rosario bridge (where the Nissan Pathfinder came from) were on a downhill slope.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; SERVICE OF NOTICE OR PLEADINGS; DUTY OF COUNSEL TO INFORM COURT OF CHANGE OF ADDRESS. Service of notice or other pleadings which are required by the

2. ID.; ID.; EFFECT OF FAILURE TO COMPLY WITH COURT ORDER TO FILE COMMENT; CASE AT BAR. What is the effect of the failure of a private respondent to comply with a court order to file Comment? Courts are given the option to dispense with the filing of the Comment and consider the case as deemed submitted for decision. Under

3. LEGAL ETHICS; HTDAac

4. REMEDIAL LAW; EVIDENCE; ISSUE OF WHETHER A PARTY IS NEGLIGENT IS FACTUAL; CASE AT BAR. The issue of whether a party is negligent is a question of fact. It is a time-honored precept that the Supreme Court is not a trier of facts, although it has authority to review and reverse factual findings of lower courts if these do not conform to evidence. It is also settled that findings of fact of the trial court, particularly when affirmed by the Court of Appeals, is binding on the Supreme Court and generally conclusive, especially if it has not been adequately shown that no significant facts and circumstances were overlooked or disregarded which when considered would have altered the outcome of the disposition.

5. CIVIL LAW; DAMAGES; LACK OF FORESIGHT MAKES TAXI DRIVER LIABLE FOR CONTRIBUTORY NEGLIGENCE IN CASE AT BAR. The driver of the taxi is contributorily liable. U-turns are not generally advisable particularly on major streets. The taxi was hit on its side which means that it had not yet fully made a turn to the other lane. The driver of the taxi ought to have known that vehicles coming from the Rosario bridge are on a downhill slope. Obviously, there was lack of foresight on his part, making him contributorily liable.

D E C I S I O N

YNARES-SANTIAGO, J p:

This damage suit arose from a collision of vehicles based on the following facts:

"(O)n May 10, 1992, at around 12:00 o'clock midnight, Eduardo Edem was driving a "Luring Taxi" along Ortigas Avenue, near Rosario, Pasig, going towards Cainta. Prior to the collision, the taxicab was parked along the right side of Ortigas Avenue, not far from the Rosario Bridge, to unload a passenger. Thereafter, the driver executed a U-turn to traverse the same road, going to the direction of EDSA. At this point, the Nissan Pathfinder traveling along the same road going to the direction of Cainta collided with the taxicab. The point of impact was so great that the taxicab was hit in the middle portion and was pushed sideward, causing the driver to lose control of the vehicle. The taxicab was then dragged into the nearby Question Tailoring Shop, thus, causing damage to the said tailoring shop, and its driver, Eduardo Eden, sustained injuries as a result of the incident."

Private respondent, as owner of the taxi, filed a damage suit against petitioner, Thermochem Incorporated, as the owner of the Nissan Pathfinder, and its driver, petitioner Jerome Castro. After trial, the lower court adjudged petitioner Castro negligent and ordered petitioners, jointly and severally, to pay private respondent actual, compensatory and exemplary damages plus attorney's fees and costs of suit. The dispositive portion of the Decision of the Regional Trial Court, Branch 150 of Makati City dated September 25, 1995, reads:

In view of all the foregoing, judgment is hereby rendered ordering the defendants, jointly and severally, to pay plaintiff the following:

1. The amount of P47,850.00 as actual damages;

2. The amount of P45,000.00 as compensatory damages for unrealized income;

3. The amount of P10,000.00 as exemplary damages;

4. The amount of P10,000.00 as and for attorney's fees; and

5. Cost of suit. ASHaDT

SO ORDERED.

On appeal, the Court of Appeals affirmed the judgment of the court a quo. Hence, this petition for review on certiorari. The petition was denied on February 2, 1998 for failure to submit an explanation why no personal service of copies of certain pleadings was made as required by Upon petitioners' motion for reconsideration, the petition was reinstated and private respondent was required to file her Comment in a Resolution dated June 22, 1998. A copy of the said Resolution was sent by registered mail to private respondent's counsel but the same was returned to sender. In a separate Resolution issued on the same date, this Court ordered that a copy of the June 22, 1998 Resolution be served personally on private respondent's counsel. As the said Resolution was also returned unserved, "the Court Resolved to consider the said Resolution as SERVED." After more than a year, no Comment has been filed. Considering that private respondent was given only ten (10) days to file her Comment, that period had already lapsed ten days after the June 23, 1999 Resolution which stated that the June 22, 1998 resolution as "served."

Service of notice or other pleadings which are required by the unless service upon the party himself is ordered by the court. It is the party and his counsel's responsibility to device a system for the receipt of mail intended for them just as it is the duty of counsel to inform the court of a change in his address. In the case at bar, private respondent's counsel never notified the Court of any change of his address or whether he no longer holds office in his last address of record. Neither was the Court informed if his ties with his client has been severed. Insofar as the Court is concerned, the last address on record is the place where all notices shall be served until the Court is officially informed to the contrary. What is the effect of the failure of a private respondent to comply with a court order to file Comment?

Courts are given the option to dispense with the filing of the Comment and consider the case as deemed submitted for decision. Under when the respondent in an original action filed with the court fails to file its comment, the case may be decided on the basis of the evidence on record without prejudice to disciplinary action against the disobedient party. Concomitant thereto is the where no comment is filed upon the expiration of the period to comment in an original action or a petition for review, the case shall be deemed submitted for decision. Both provisions are applicable to a petition for review filed with the Supreme Court as provided in Moreover, a lawyer who fails to submit the required Comment manifests willful disobedience to a lawful order of the Supreme Court, a clear violation of the Counsel must remember that his actions and omissions are binding on his client. He should not neglect legal matters entrusted to him as his negligence therefrom shall render him liable.

The petition lacks merit. CDEaAI

The issue of whether a party is negligent is a question of fact. It is a time-honored precept that the Supreme Court is not a trier of facts, although it has authority to review and reverse factual findings of lower courts if these do not conform to evidence. It is also settled that findings of fact of the trial court, particularly when affirmed by the Court of Appeals, is binding on the Supreme Court and generally conclusive, especially if it has not been adequately shown that no significant facts and circumstances were overlooked or disregarded which when considered would have altered the outcome of the disposition. DISTcH

The driver of the oncoming Nissan Pathfinder vehicle was liable and the driver of the U-turning taxicab was contributorily liable. Contrary to petitioners' contention, the fact that a party had no opportunity to avoid the collision is of his own making and this should not relieve him of liability. From petitioner Castro's testimonial admissions, it is established that he was driving at a speed faster than 50 kilometers per hour because it was a downhill slope coming from the Rosario bridge. But as he allegedly stepped on the brake, it locked causing his Nissan Pathfinder to skid to the left and consequently hit the taxicab. The sudden malfunction of the vehicle's brake system is the usual excuse of drivers involved in collisions which are the result of speedy driving, particularly when the road is downhill.

Malfunction or loss of brake is not a fortuitous event. Between the owner and his driver, on the one hand, and third parties such as commuters, drivers and pedestrians, on the other, the former is presumed to know about the conditions of his vehicle and is duty bound to take care thereof with the diligence of a good father of the family. A mechanically defective vehicle should avoid the streets. As petitioner's vehicle was moving downhill, the driver should have slowed down since a downhill drive would naturally cause the vehicle to accelerate. Moreover, the record shows that the Nissan Pathfinder was on the wrong lane when the collision occurred. This was a disregard of traffic safety rules. The law considers what would be reckless, blameworthy or negligent in a man of ordinary diligence and prudence and determines liability by that. Even assuming arguendo that loss of brakes is an act of God, by reason of their negligence, the fortuitous event became humanized, rendering the Nissan driver liable for the ensuing damages.

As mentioned earlier, the driver of the taxi is contributorily liable. U-turns are not generally advisable particularly on major streets. The taxi was hit on its side which means that it had not yet fully made a turn to the other lane. The driver of the taxi ought to have known that vehicles coming from the Rosario bridge are on a downhill slope. Obviously, there was lack of foresight on his part, making him contributorily liable. Most public utility drivers disregard signs and traffic rules especially during the night when traffic enforcers manning the streets disappear with the light. In driving vehicles, the primary concern should be the safety not only of the driver or his passengers, but also his fellow motorists. AIHECa

Considering the contributory negligence of the driver of private respondent's taxi, the award of P47,850.00, for the repair of the taxi, should be reduced in half. All other awards for damages are deleted for lack of merit.

WHEREFORE, based on the foregoing, the assailed decision is MODIFIED. Petitioners are ordered to pay, jointly and severally, to private respondent the amount of P23,925.00 as actual damages. All other awards are DELETED. TaDAHE

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Footnotes

1. His surname is spelled "Eden" in the records.

2. Court of Appeals (CA) Decision dated Nov. 21, 1997 penned by Justice Imperial, with Justices Dela Cruz and Tuquero, concurring, p. 1; Rollo, p. 19.

3. Civil Case No. 93-1488; RTC Records, p. 243.

4. CA Decision, p. 24.

5. Rollo, p. 30.

6. Rollo, p. 37.

7. Resolution dated December 2, 1998; Rollo, p. 42.

8. Rollo, p. 43.

9. Resolution dated June 23, 1999.

10. 152 SCRA 555 (1987); 120 SCRA 768 (1983); , 161 SCRA 589 (1988).

11. 18 SCRA 91 (1966); 79 Phil. 3; , 76 Phil. 850; 4 SCRA 338 (1962);

12. 266 SCRA 17 (1997) cited in G.R. No. 120972, July 19, 1999.

13. Effect of failure to file comment. When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without prejudice to any disciplinary action which the court may take against the disobedient party.

14. When case deemed submitted for judgment. A case shall be deemed submitted for judgment:

A. In ordinary appeals.

1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the DEacIT

2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing.

B. In original actions and petitions for review.

1) Where no comment is filed, upon the expiration of the period to comment.

2) Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing.

3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. (italics supplied).

15. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitutions, laws, and Rules 46, 48, 49, 51, 52 and this

a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court;

16. Administrative Case No. 5307, August 9, 2000.

17. Administrative Case No. 4646, April 6, 2000; citing 298 SCRA 388 (1998); , 300 SCRA 320 (1998).

18. 285 SCRA 1 (1998).

19. G.R. No. 103453, Sept. 21, 1999; G.R. No. 116109, Sept. 14, 1999; citing 274 SCRA 540 (1997); , 268 SCRA 677 (1997); , G.R. No. 108846, October 26, 1999; G.R. No. 133148, November 17, 1999; , G.R. No. 110610, October 8, 1998; G.R. No. 113851, October 8, 1998; cited in G.R. No. 123045, November 16, 1999.

20. 296 SCRA 128 (1998); 187 SCRA 735 (1990); 152 SCRA 627 (1987).

21. G.R. No. 125947, June 8, 2000.

22. The exceptions are:

1. the conclusion is a finding grounded entirely on speculation or conjecture;

2. the inference made is manifestly absurd;

3. there is grave abuse of discretion in the appreciation of facts;

4. the judgment is premised on a misapprehension of facts;

5. the findings of fact are conflicting;

6. the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both the appellant and the appellee. 342 Phil. 187 citing 158 SCRA 138 (1988); 191 SCRA 218 (1990); 252 SCRA 457 (1996). In G.R. No. 109849, January 26, 1997 cited in 283 SCRA 66-67 (1997) the Court enumerated ten (10) instances where questions of facts may be raised in a petition under

23. 148 SCRA 353 (1987) cited in , G.R. No. 133323, March 9, 2000.

24. 167 SCRA 363 (1988); 37 Phil. 809 cited in , G.R. No. 108135-36, Sept. 30, 1999.

25. G.R. No. 125018, April 6, 2000.