G.R. No.

146141

October 17, 2008

ERNESTO CANADA, doing bu ine under t!e n"#e "nd t$%e o& '()*A++ ,RE(G'T SER-(CES, petitioners, vs. A++ CO..OD(T(ES .AR/ET(NG COR0ORAT(ON, respondents. DEC(S(ON NAC'1RA, J.2 At bar is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Ernesto P. Canada, challenging the Nove ber !5, !""" #ecision! and the $ctober !!, %&&& Resolution% of the Court of Appeals 'CA( in CA)*.R. C+ No. 4,4-.. /he facts0 Petitioner Ernesto P. Canada 'petitioner( is engaged in business of providing truc1ing and hauling services under the na e 2i)3all 4reight 5ervices. Respondent All Co odities 6ar1eting Corporation 'respondent( has been a valued client of petitioner for several years. $n $ctober %-, !"7., respondent contracted petitioner8s services to haul and deliver one thousand '!,&&&( sac1s of sugar fro Pier !7, North 2arbor in /ondo, 6anila to the Pepsi Cola Plant at 6untinlupa, 6etro 6anila 'now 6untinlupa City(. /he transaction was covered by 9ay 3ills: #elivery Receipt Nos. 5,4&, and 5,4!4 of All 5tar /ransport, ;nc. 'All 5tar(, but duly signed by petitioner8s driver. As agreed, petitioner loaded respondent8s !,&&& sac1s of sugar into his two '%( truc1s< however, the sa e were never delivered to the Pepsi Cola Plant. /he drivers of the truc1s, along with the helpers, had since vanished into thin air. Respondent de anded pay ent of the value of the sugar, but the de and was not heeded. Conse=uently, respondent filed a co plaint5 against petitioner with the Regional /rial Court 'R/C( of 6a1ati to recover the value of the lost sugar. /he case was doc1eted as Civil Case No. !77%.. ;n his answer,. petitioner ad itted that respondent contracted hi to haul and deliver !,&&& sac1s of sugar, but denied that the cargo did not reach their destination. 2e averred that the cargo were delivered to the Pepsi Cola Plant in 6untinlupa City on $ctober %-, !"7.. 2e re>ected responsibility for the clai arguing that the loss of the goods was either due to respondent8s negligence or

due to fortuitous event.- 3y way of counterclai , petitioner asserted his right to pay ent of P,5&,&&&.&&, representing the value of the truc1 that was allegedly sei?ed by respondent. ;n due course, the R/C rendered >udg ent7 against petitioner, decreeing that0 ;N +;E9 /2ERE$4, this case is hereby resolved in favor of the @respondentA and @petitionerA is hereby ordered to0 a. pay the @respondentA the su of P,5&,&&&.&& representing the value of the sugar lost, plus the interest that have accrued thereon fro the filing of this co plaint until its actual pay ent< b. pay the @respondentA the other actual losses it suffered by reason of the non) delivery of the sugar in ter s of unearned inco e, cost of oney and opportunity lost in the a ount of P5&,&&&.&&< c. pay the @respondentA the a ount of P5&,&&&.&& as and for eBe plary da ages< d. pay the cost of suit, litigation eBpenses and attorney8s fees in the su e=uivalent to %&C of the clai hereunder, plus the per appearance fee of P,&&.&&. 5$ $R#ERE#." Aggrieved, petitioner appealed to the CA. 2e raised an argu ent that was totally new and was never raised before the R/C, to wit D2i 3all 4reight 5ervices was not the co on carrier of respondent< hence, cannot be held liable for the value of the lost sugar. $n Nove ber !5, !""", the CA rendered the assailed #ecision. Affir ing the R/C and re>ecting petitioner8s new theory, the CA noted that petitioner had argued his case before the court a quo without denying his contract with respondent< that it was only after the adverse >udg ent was rendered that petitioner began to deny his contract with respondent. ;t thus ruled that petitioner is estopped fro presenting this issue for the first ti e on appeal. /he CA also re>ected petitioner8s defense of fortuitous event for lac1 of basis, and sustained the finding of liability against hi . Petitioner filed a !!, %&&&. otion for reconsideration, but the CA struc1 it down on $ctober

Petitioner is now before us assailing the finding of liability against hi . ;n gist, he denied his contract of carriage with respondent and passes responsibility to All 5tar /ransport ;nc. 'All 5tar(, whose na e appeared in the 9aybill:#elivery Receipt. Petitioner also assails the dis issal of his counterclai . /he petition is devoid of erit.

Records show that the theory of petitioner before the trial court was different fro the one he espoused in the appellate court. At the trial court stage, petitioner insisted that the goods were delivered to the Pepsi Cola Plant. 2e further argued that the loss was either due to the fault of respondent or due to fortuitous event. After the R/C rendered an adverse decision, petitioner adopted a new theory, denying his contract with respondent and passing all the responsibility to All 5tar. As a rule, no =uestion will be entertained on appeal unless it has been raised in the court below. Points of law, theories, issues and argu ents not brought to the attention of the lower court ordinarily will not be considered by a reviewing court because they cannot be raised for the first ti e at that late stage. 3asic considerations of due process underlie this rule. ;t would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the ti e of the hearing before the trial court.!& /o per it petitioner at this stage to change his theory would thus be unfair to respondent, and offend the basic rules of fair play, >ustice and due process.!! ;n this light, we agree with the following dis=uisition of the CA re>ecting petitioner8s aneuver0 None whatsoever can be unraveled fro the records which would show that @petitionerA was in no way a party to the contract. /here is nothing on record as well that would tend to show that a certain All 5tar erely hired @petitionerA. As a atter of fact, during the trial the @respondent8sA witness specifically testified that @petitioner8sA services have been engaged by All Co odities 6ar1eting Corporation for five years. Again, this was never disputed nor rebutted by the @petitionerA. @PetitionerA as a atter of fact had fought its case before the lower court without denying its relationship or contract with the @respondentA until @theA >udg ent was rendered against hi . 2e raised the defense that the truc1 was hi>ac1ed. /hat it is only now that he belie the clai of the @respondentA of the contract between the . 5i ply put, this was an issue never brought out before the court a =uo, hence, @petitionerA is now estopped to present as such before this Court.!%

Eust as eaningful, petitioner had ad itted his contract of carriage with respondent in the court a quo. /o recall, petitioner in his answer ad itted paragraphs 5 and . of the co plaint!, which referred to the contract between hi and respondent.!4 #uring the trial, petitioner also ad itted that the truc1 drivers and helpers who loaded the goods were his e ployees.!5 2e even tried to settle the case a icably, but negotiations for settle ent had failed. /hese were un ista1able ad issions of petitioner8s contractual relation with respondent. 9e have always adhered to the fa iliar doctrine that an ad ission ade in the course of the trial, either by verbal or written anifestations, or stipulations, cannot be controverted by the party a1ing such ad ission< they beco e conclusive on hi , and all proofs sub itted by hi contrary thereto or inconsistent therewith should be ignored, whether an ob>ection is interposed by the adverse party or not.!. /his doctrine is e bodied in 5ection 4, Rule !%" of the Rules of Court0 5EC. 4. Judicial admissions. F An ad ission, verbal or written, ade by a party in the course of the proceedings in the sa e case, does not re=uire proof. /he ad ission ay be contradicted only by showing that it was ade through palpable ista1e or that no such ad ission was ade. ;n the absence of a co pelling reason to the contrary, petitioner8s ad ission of his contract with respondent is definitely binding on hi . Accordingly, we sustain the CA in re>ecting petitioner8s newly)contrived assertion that he carried the goods for and in behalf of All 5tar. Petitioner also atte pted to eBculpate hi self fro incident was a caso fortuito. 9e disagree. liability by insisting that the

/he eBe pting circu stance of caso fortuito ay be availed of only when0 'a( the cause of the unforeseen and uneBpected occurrence was independent of the hu an will< 'b( it was i possible to foresee the event which constituted the caso fortuito or, if it could be foreseen, it was i possible to avoid< 'c( the occurrence ust be such as to render it i possible to perfor an obligation in a nor al anner< and 'd( the person tas1ed to perfor the obligation ust not have participated in any course of conduct that aggravated the accident.!None of these ele ents is present in this case. $ther than petitioner8s bare)faced assertion that the cargo were lost due to fortuitous event, no evidence was offered to substantiate it. $n the contrary, we find supported by evidence on record the conclusions of the trial court and the CA that the loss of the sugar was

due to the negligence of petitioner. /he CA, therefore, co error in sustaining the finding of liability against petitioner.

itted no reversible

2owever, it is error for the R/C and the CA to award actual da ages of P,5&,&&&.&& for the value of the lost sugar, and P5&,&&&.&& for the actual losses that respondent allegedly suffered by reason of the non)delivery of the cargo. A perusal of the records discloses that no sufficient evidence was proffered to support respondent8s plea for actual da ages. ;ndeed, the state ent in the co plaint would suffice as a clai for da ages.!7 2owever, ere allegation is not proof.!" ;t is ele entary that to recover da ages there ust be pleading and proof of actual da ages suffered. /hus0 A party is entitled to an ade=uate co pensation for such pecuniary loss actually suffered by hi as he has duly proved. 5uch da ages, to be recoverable, ust not only be capable of proof, but ust actually be proved with a reasonable degree of certainty. 9e have e phasi?ed that these da ages cannot be presu ed and courts, in a1ing an award ust point out specific facts which could afford a basis for easuring whatever co pensatory or actual da ages are borne. %& No actual da ages can thus be awarded to respondent. 2owever, respondent ay still be awarded da ages in the concept of te perate or oderate da ages. 9hen the court finds that so e pecuniary loss has been suffered but the a ount cannot, fro the nature of the case, be proven with certainty, te perate da ages ay be recovered. /e perate da ages ay be allowed in cases where fro the nature of the case, definite proof of pecuniary loss cannot be adduced, although the court is convinced that the aggrieved party suffered so e pecuniary loss.%! Gndoubtedly, pecuniary loss had been suffered by respondent in this case. 3ut due to the insufficiency of evidence before us, we cannot establish the a ount of such loss with certainty. ;n this regard, considering the attendant circu stances, we find the a ount of P%5&,&&&.&& to be sufficient. /he grant of te perate da ages paves the way for the award of eBe plary da ages. Gnder Article %%,4 of the Civil Code, a showing that the plaintiff is entitled to te perate da ages allows the award of eBe plary da ages.%%/hus, we uphold the award of P5&,&&&.&& as eBe plary da ages.

5i ilarly, we uphold respondent8s entitle ent to attorney8s fees, but we fiB the a ount at P5&,&&&.&&. 4inally, we sustain the dis issal of petitioner8s counterclai this score, we are in full accord with the CA. for lac1 of erit. $n

3'ERE,ORE, the instant petition for certiorari is DEN(ED. /he Nove ber !5, !""" #ecision of the Court of Appeals in CA)*.R. C+ No. 4,4-. is A,,(R.ED with .OD(,(CAT(ONS. /he award of actual da ages is deleted and, in lieu thereof, te perate da ages a ounting to P%5&,&&&.&& are awarded. Petitioner is also ordered to payP5&,&&&.&& as eBe plary da ages and P5&,&&&.&& by way of attorney8s fees. Petitioner shall also pay legal interest of .C interest per annu on all su s awarded fro the date of the pro ulgation of the decision of the trial court, and !%C interest per annu fro the ti e the #ecision of this Court attains finality until their full satisfaction. Costs against petitioner. SO ORDERED.