This is a petition for review on certiorari which seeks to reverse and set aside:  (1) the decision of the Court of Appeals^[1] promulgated on October 27, 1998 in CA-G.R. CV No. 54080 entitled "Viron Transportation Co., Inc. vs. Alberto delos Santos and Rudy Samidan" affirming the decision of the Regional Trial Court of Manila^[2] in Civil Case No. 93-67283 and (2) the resolution of the Court of Appeals promulgated on April 14, 1999 denying the motion for reconsideration.

The said civil case is an action to recover damages based on quasi-delict filed as a result of a vehicular accident in the afternoon of August 16, 1993 between a passenger bus owned by petitioner Viron Transportation Co., Inc. and a Forward Cargo Truck owned by private respondent Rudy Samidan.

The conflicting versions of the accident were summarized by the trial court and adopted by the Court of Appeals in the assailed decision. The version of petitioner is as follows:

"Plaintiff, a public utility transportation company, is the registered owner of Viron Transit Bus No. 1080, with Plate No. TB-AVC-332; while the defendant Rudy Samidan is the registered owner of the Forward Cargo Truck with Plate No. TDY-524 which, at the time of the vehicular accident in question, was driven and operated by the defendant Alberto delos Santos y Natividad.  On August 16, 1993, at around 2:30 in the afternoon, the aforesaid bus was driven by plaintiff's regular driver Wilfredo Villanueva along MacArthur Highway within the vicinity of Barangay Parsolingan, Gerona, Tarlac coming from the North en route to its destination in Manila. It was following the Forward Cargo Truck proceeding from the same direction then being driven, as aforesaid, by the defendant Alberto delos Santos.  The cargo truck swerved to the right shoulder of the road and, while about to be overtaken by the bus, again swerved to the left to occupy its lane. It was at that instance that the collision occurred, the left front side of the truck collided with the right front side of the bus causing the two vehicles substantial damages."^[3]

On the other hand, the version of private respondents is as follows:

"Defendant Alberto delos Santos was the driver of defendant Rudy Samidan of the latter's vehicle, a Forward Cargo Truck with Plate No. TDY-524, on that fateful day in question.  At about 12:30 in the afternoon of August 16, 1993, he was driving said truck along the National Highway within the vicinity of Barangay Parsolingan, Gerona, Tarlac.  The Viron bus with Body No. 1080 and Plate No., TB-AVC-332, driven by Wilfredo Villanueva y Gaudia, tried to overtake his truck, and he swerved to the right shoulder of the highway, but as soon as he occupied the right lane of the road, the cargo truck which he was driving  was hit by the Viron bus on its left front side, as the bus swerved to his lane to avoid an incoming bus on its opposite direction.  With the driver of another truck dealing likewise in vegetables, Dulnuan, the two of them and the driver of the Viron bus proceeded to report the incident to the Gerona Police Station.  A Vehicular Traffic Report was prepared by the police (See Exhibit "D"), with a Sketch of the relative positions of the circumstances leading to the vehicular collision.  x x x."^[4]

After trial, the lower court dismissed petitioner's complaint and sustained the private respondents' counterclaim for damages. It ordered the petitioner to pay the following amounts:

1. P19,500.00, with interest thereon at 6% per annum from the date of complaint, as actual damages, until the same shall have been fully paid and satisfied;
   
   
2. P10,000.00 as additional compensatory damages for transportation and accommodations during the trial of this case;
   
   
3. P10,000.00 for and as attorney's fees; and
   
   
4. Costs of suit."^[5]

Not satisfied therewith, petitioner appealed to the Court of Appeals which as mentioned at the outset affirmed in toto the decision of the lower court.  Its motion for reconsideration having been denied, petitioner came to us claiming that the Court of Appeals gravely erred

a) ... IN FINDING THAT THE ACCIDENT WAS DUE TO THE FAULT OF THE PETITIONER'S DRIVER;

b) ... IN FINDING THE PETITIONER LIABLE FOR DAMAGES WHEN THE COUNTERCLAIM FAILED TO STATE A CAUSE OF ACTION FOR THERE IS NO AVERMENT WHATSOEVER THEREIN THAT SAID PETITIONER FAILED TO EXERCISE DUE DILIGENCE OF A GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS DRIVERS OR EMPLOYEES;

c) ... IN AWARDING COMPENSATORY OR ACTUAL DAMAGES AS WELL AS, TRAVELLING EXPENSES AND ATTORNEY'S FEES WHEN THE SAME WERE NOT SUBSTANTIATED OR BUTTRESSED BY THE EVIDENCE ON RECORD;

d) ... IN AFFIRMING THE DECISION OF THE COURT A QUO DENYING PETITIONER'S MOTION TO PRESENT REBUTTAL EVIDENCE.^[6]

We resolved to give due course to the petition and required the parties to submit their respective memoranda after due consideration of the allegations, issues and arguments adduced in the petition, the comment thereon by the private respondents, and the reply to the comment filed by the petitioner.  The petitioner and private respondents filed their respective memoranda in due time.

The first imputed error is without merit.  Petitioner endeavors to have this Court review the factual findings of the trial court as sustained by the Court of Appeals finding the driver of the Viron passenger bus at fault as the collision resulted from the latter's failed attempt to overtake the cargo truck.

We are unable to sustain petitioner's contention.  The rule is settled that the findings of the trial court especially when affirmed by the Court of Appeals, are conclusive on this Court when supported by the evidence on record.^[7] The Supreme Court will not assess and evaluate all over again the evidence, testimonial and documentary adduced by the parties to an appeal particularly where, such as here, the findings of both the trial court and the appellate court on the matter coincide.^[8] Indeed, petitioner has failed to show compelling grounds for a reversal of the following findings and conclusions of the trial court and the Court of Appeals:

"There is no doubt whatsoever, in the mind of the Court, on the basis of the documentary evidence (Exhibits "D", "4" and "5") and the testimonies of the witnesses, that the vehicular collision was due to the negligence of plaintiff's regular driver, Wilfredo Villanueva y Gaudia, at that time.  The cargo truck was on its proper lane at the time of the collision.  In fact, the cargo truck even swerved to the right shoulder of the road to give much room for the Viron bus to pass.  Notwithstanding the condition of the road and the in-coming Dagupan Bus from the opposite direction, the Viron bus nonetheless proceeded to overtake the cargo truck, bringing about the collision.  The evidence is uniform as to that fact.  Indeed, no witnesses for the plaintiff ever contradicted the obtrusive fact that it was while in the process of overtaking the cargo truck that the Viron bus collided with the former vehicle.

It is here well to recall that the driver of an overtaking vehicle must see to it that the conditions are such that an attempt to pass is reasonably safe and prudent, and in passing must exercise reasonable care.  In the absence of clear evidence of negligence on the part of the operator of the overtaken vehicle, the courts are inclined to put  the blame for an accident occurring while a passage is being attempted on the driver of the overtaking vehicle (People vs. Bolason, (C.A.) 53 Off. Gaz. 4158).  As already intimated elsewhere in this judgment, no evidence was presented by the plaintiff to even intimate at the negligence of the driver of the cargo truck."^[9]

It is plain to see that the fault or negligence was attributable to the driver of the Viron passenger bus. Petitioner proceeds to attack, albeit feebly, the credibility of the two witnesses presented by private respondents, namely, Alberto delos Santos himself, who was then the driver of the Forward Cargo Truck and a certain Manuel Dulnuan, who was then travelling along the same highway coming from the opposite direction when the accident occurred.  According to petitioner, the two witnesses contradicted each other when "witness Dulnuan testified that the petitioner's passenger bus while attempting to overtake the respondents' truck, noticed the Dagupan passenger bus coming from the opposite direction and to avoid hitting said passenger bus, the Viron Transit passenger bus swerved to the right, hitting in the process the front left side portion of the respondents' truck;" while, "witness Alberto delos Santos testified that prior to the accident, he swerved his truck to the right shoulder of the road (western lane) and when he attempted to return to his lane, the accident happened." Contrary to petitioner's assertion, the testimonies of the two witnesses complement, if not corroborate each other.  The Viron passenger bus collided with the cargo truck in a vain attempt to overtake the latter.  At the sight of an oncoming bus in the opposite direction, the Viron passenger bus swerved to the right lane which was then occupied by the cargo truck resulting in the collision of the two vehicles.  In reference to Alberto delos Santos' testimony, the lower court pointed out that the said driver of the cargo truck was on its proper lane at the time of impact, and even swerved earlier toward the right shoulder of the road just to give room to the bus.  In any event, it is doctrinally entrenched that the assessment of the trial judge as to the issue of credibility binds the appellate court because he is in a better position to decide the issue, having heard the witnesses and observed their deportment and manner of testifying during the trial, except when the trial court has plainly overlooked certain facts of substance and value, that, if considered, might affect the result of the case, or where the assessment is clearly shown to be arbitrary.^[10] Petitioner has not shown this case to fall under the exception.

The second imputed error is without merit either. Petitioner contends that private respondents' counterclaim failed to state a cause of action for there is no averment therein that petitioner failed to exercise the diligence of a good father of a family in the selection and supervision of its drivers or employees. It is to be noted that petitioner Viron Transportation Co., Inc., as the registered owner of the bus involved in the subject vehicular accident originally brought the action for damages against private respondents.  Private respondents as defendants in the court a quo denied any liability and filed instead a counterclaim for damages claiming that it was the driver of the bus who was at fault in the operation of the bus. We find that the counterclaim of private respondents alleges the ultimate facts constituting their cause of action.  It is not necessary to state that petitioner was negligent in the supervision or selection of its employees, as its negligence is presumed by operation of law. The liability of the employer was explained in a case thus:

"As employers of the bus driver, the petitioner is, under Article 2180 of the Civil Code, directly and primary liable for the resulting damages.  The presumption that they are negligent flows from the negligence of their employee.  That presumption, however, is only juris tantum, not juris et de jure.  Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage.  Article 2180 reads as follows:

"The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

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

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

The diligence of a good father referred to means the diligence in the selection and supervision of employees.^[11]

In fine, when the employee causes damage due to his own negligence while performing his own duties, there arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a good father of a family.^[12] Petitioner, through its witnesses, namely, Danilo Azardon, a shop supervisor and Fernando Mallare, an administrative officer, failed to rebut such legal presumption of negligence in the selection and supervision of employees, thus, petitioner as the employer is  responsible for damages, the basis of the liability being the relationship of pater familias or on the employer's own negligence.^[13] Hence, with the allegations and subsequent proof of negligence against the bus driver of petitioner, the lower courts correctly adjudged petitioner liable for damages.

Be that as it may, it is too late in the day for petitioner to raise failure to state a cause of action as an issue.  Rule 9, Section 2 of the Rules of Court provides as a general rule that "defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived." An exception is made where there is a "failure to state a cause of action which may be alleged in a later pleading, if one is permitted, or by motion for judgment on the pleadings, or at the trial on the merits; x x x." Applying said rule, petitioner is now barred from raising said issue, which it did only for the first time in the Court of Appeals and subsequently before this Court.  Petitioner did not raise the said issue in a later pleading, i.e. answer to the counterclaim, or at any time during the trial.

The fourth imputed error is likewise without merit. The Court of Appeals committed no error  in declaring the case submitted for decision even without the testimony of petitioner's rebuttal witness.  Petitioner has only itself to blame for its failure to present its rebuttal witness as the Court of Appeals explained thus:

"Appellant's claim that the court a quo erred in not allowing it to present rebuttal evidence, thus depriving it of its day in court is without merit.  A review of the records would show that appellant was given ample opportunity to present its rebuttal evidence but failed to so do.  It was appellant itself which sought the postponements and cancellations of the hearings, after its motion for the presentation of rebuttal evidence had been granted."^[14]

There is, however, merit in the third imputed error. We find that with respect to the award of damages, an oversight was committed by the Court of Appeals.  The Court of Appeals justified the award of actual damages as follows:

"In the case at bench, the award of actual damages cannot be said to be devoid of factual and legal basis.  Appellees were able to prove that damage had been suffered by the cargo truck, the amount of which is shown in Exhibit 3, the estimate of repair expenses.  Moreover, the picture of the damaged cargo truck (Exh. 1), more or less, supports the amount of damage reflected in the repair estimate (Exh. 3).

As to the award of attorney's fees, the Court finds the same just and reasonable. The award of attorney's fees is proper where the acts and omissions of a party have compelled the other party to litigate or incur expenses to protect his rights and such may be recovered when deemed by the court as just and equitable, as in the case at bar. x x x."^[15]

Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.^[16] 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.^[17] Considering that the actual damages suffered by private respondents were based only on a job estimate and a photo showing the damage to the truck, there is absence of competent proof on the specific amounts of actual damages suffered. Neither were the transportation and accommodation expenses during the trial supported by competent proof, the lower court having relied merely on the unsubstantiated allegations of private respondents.

Nonetheless, in the absence of competent proof on the actual damages suffered, a party is entitled to temperate damages.  Article 2224 of the Civil Code provides that:

"Art. 2224.  Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty."

There is no doubt that the damage sustained by private respondents' cargo truck was due to the fault or negligence of petitioner's bus driver.  The Court deems the amount of P10,000.00 to be reasonable given the circumstances.^[18]

With respect to the award of attorney's fees, there is likewise neither factual nor legal basis therefor.  This case does not fall under any of the instances found in Article 2208 of the Civil Code^[19] for the proper award of attorney's fees.  The futility of petitioner's resort to judicial action without more could not be taken against it.  It cannot be said that petitioner filed a clearly unfounded civil action against the private respondents.  A resort to judicial processes and a subsequent defeat therein are not per se evidence of a clearly unfounded suit, this is in line with the policy that no penalty should be placed on the right to litigate.^[20]

WHEREFORE, the challenged decision of the Court of Appeals promulgated on October 27, 1998 in CA-G.R. CV No. 54080 affirming that of the Regional Trial Court of Manila, Branch 55, is hereby modified insofar as it awarded actual damages to private respondents Alberto delos Santos y Natividad and Rudy Samidan in the amount of P19,500.00 and an additional P10,000.00 as expenses for transportation and accommodation during the trial for lack of evidentiary bases therefor.  Considering the fact, however, that the cargo truck sustained damages due to the negligence or fault of petitioner, the award of P10,000.00 in favor of private respondents as and for temperate damages is in order.  The award of P10,000.00 as attorney's fees is DELETED for reasons above-stated.

SO ORDERED.

Melo, (Chairman), Vitug, and Panganiban, JJ., concur.

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^[1] Seventeenth Division composed of the ponente J. Artemio G. Tuquero and JJ. Eubolo G. Verzola and Renato C. Dacudao, concurring.

^[2] Penned by Judge Hermogenes R. Liwag.

^[3] CA Decision, p.3; Rollo, p. 36.

^[4] CA Decision, pp. 3-4; Rollo, pp. 36-37.

^[5] Rollo of CA-G.R. CV No. 54080, p. 29.

^[6] Rollo, pp. 95-96.

^[7] Fortune Motors (Phils.) Corporation vs. Court of Appeals, 267 SCRA 653 (1997).

^[8] Olan vs. Court of Appeals, 287 SCRA 504 (1998).

^[9] Rollo, pp. 37-38.

^[10] Pag-ibig Village Association vs. Angon, 294 SCRA 554 (1998).

^[11] Ramos vs. Pepsi-Cola Bottling Co., 19 SCRA 289 (1967); McKee vs. Intermediate Appellate Court, 211 SCRA 517 (1992).

^[12]  Metro Manila Transit Corp. vs. Court of Appeals, 223 SCRA 521 (1993).

^[13] Ibid.

^[14] Rollo, p. 40.

^[15] Rollo, pp. 39-40, underscoring supplied.

^[16] Marina Properties Corporation vs. Court of Appeals, 294 SCRA 273 (1998).

^[17] Sanitary Steam Laundry, Inc. vs. Court of Appeals, 300 SCRA 20 (1998).

^[18] Article 2225 of the Civil Code provides:

"Art. 2225. Temperate damages must be reasonable under the circumstances."

^[19] ART. 2208.  In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

(1)  When exemplary damages are awarded;

(2)  When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;

(3)  In criminal cases of malicious prosecution against the plaintiff;

(4)  In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5)  Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim;

(6)  In actions for legal support;

(7)  In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8)  In actions for indemnity under workmen's compensation and employer's liability laws;

(9)  In a separate civil action to recover civil liability arising from a crime;

(10)  When at least double judicial costs are awarded;

(11)  In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

^[20] Morales vs. Court of Appeals, 274 SCRA 282 (1997).