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1.

ABOITIZ SHIPPING CORPORATION vs. COURT OF APPEALS, LUCILA C. VIANA,


SPS. ANTONIO VIANA and GORGONIA VIANA, and PIONEER STEVEDORING
CORPORATION
(G.R. No. 84458 November 6, 1989)

FACTS:

Anacleto Viana boarded the vessel M/V Antonia, owned by Aboitiz Shipping
Corporation, at the port at San Jose, Occidental Mindoro, bound for Manila.
After said vessel had landed, the Pioneer Stevedoring Corporation took over
the exclusive control of the cargoes loaded on said vessel pursuant to the
Memorandum of Agreement between Pioneer and petitioner Aboitiz.

The crane owned by Pioneer was placed alongside the vessel and one (1)
hour after the passengers of said vessel had disembarked, it started
operation by unloading the cargoes from said vessel. While the crane was
being operated, Anacleto Viana who had already disembarked from said
vessel obviously remembering that some of his cargoes were still loaded in
the vessel, went back to the vessel, and it was while he was pointing to the
crew of the said vessel to the place where his cargoes were loaded that the
crane hit him, pinning him between the side of the vessel and the crane. He
was thereafter brought to the hospital where he later expired three (3) days
thereafter.

Private respondents Vianas filed a complaint for damages against petitioner


for breach of contract of carriage. Aboitiz denied responsibility contending
that at the time of the accident, the vessel was completely under the control
of respondent Pioneer Stevedoring Corporation as the exclusive stevedoring
contractor of Aboitiz, which handled the unloading of cargoes from the vessel
of Aboitiz.

ISSUE:

Whether or not Aboitiz is negligent and is thus liable for the death.

HELD:

Yes.

x x x [T]he victim Anacleto Viana guilty of contributory negligence, but it was


the negligence of Aboitiz in prematurely turning over the vessel to the
arrastre operator for the unloading of cargoes which was the direct,
immediate and proximate cause of the victim's death.

The rule is that the relation of carrier and passenger continues until the
passenger has been landed at the port of destination and has left the vessel
owner's dock or premises. 11 Once created, the relationship will not ordinarily
terminate until the passenger has, after reaching his destination, safely
alighted from the carrier's conveyance or had a reasonable opportunity to
leave the carrier's premises. All persons who remain on the premises a
reasonable time after leaving the conveyance are to be deemed passengers,
and what is a reasonable time or a reasonable delay within this rule is to be
determined from all the circumstances, and includes a reasonable time to see
after his baggage and prepare for his departure. 12 The carrier-passenger
relationship is not terminated merely by the fact that the person transported
has been carried to his destination if, for example, such person remains in the
carrier's premises to claim his baggage.

It is apparent from the foregoing that what prompted the Court to rule as it
did in said case is the fact of the passenger's reasonable presence within the
carrier's premises. That reasonableness of time should be made to depend on
the attending circumstances of the case, such as the kind of common carrier,
the nature of its business, the customs of the place, and so forth, and
therefore precludes a consideration of the time element per se without taking
into account such other factors. It is thus of no moment whether in the cited
case of La Mallorca there was no appreciable interregnum for the passenger
therein to leave the carrier's premises whereas in the case at bar, an interval
of one (1) hour had elapsed before the victim met the accident. The primary

factor to be considered is the existence of a reasonable cause as will justify


the presence of the victim on or near the petitioner's vessel. We believe there
exists such a justifiable cause.

It is of common knowledge that, by the very nature of petitioner's business as


a shipper, the passengers of vessels are allotted a longer period of time to
disembark from the ship than other common carriers such as a passenger
bus. With respect to the bulk of cargoes and the number of passengers it can
load, such vessels are capable of accommodating a bigger volume of both as
compared to the capacity of a regular commuter bus. Consequently, a ship
passenger will need at least an hour as is the usual practice, to disembark
from the vessel and claim his baggage whereas a bus passenger can easily
get off the bus and retrieve his luggage in a very short period of time. Verily,
petitioner cannot categorically claim, through the bare expedient of
comparing the period of time entailed in getting the passenger's cargoes,
that the ruling in La Mallorca is inapplicable to the case at bar. On the
contrary, if we are to apply the doctrine enunciated therein to the instant
petition, we cannot in reason doubt that the victim Anacleto Viana was still a
passenger at the time of the incident. When the accident occurred, the victim
was in the act of unloading his cargoes, which he had every right to do, from
petitioner's vessel. As earlier stated, a carrier is duty bound not only to bring
its passengers safely to their destination but also to afford them a reasonable
time to claim their baggage.
2.
La Mallorca v. Court of Appeals (17 SCRA 739)
Post under case digests, Civil Law at Thursday, February 23, 2012 Posted by
Schizophrenic Mind
Facts: Plaintiffs husband and wife, together with their
minor children, boarded a La Mallorca bus. Upon arrival
at their destination, plaintiffs and their children alighted
from the bus and the father led them to a shaded spot
about 5 meters from the vehicle. The father returned to
the bus to get a piece of baggage which was not
unloaded. He was followed by her daughter Raquel.
While the father was still on the running board awaiting

for the conductor to give his baggage, the bus started to


run so that the father had to jump. Raquel, who was
near the bus, was run over and killed.
Lower court rendered judgment for the plaintiff which
was affirmed by CA, holding La Mallorca liable for quasidelict
and ordering it to pay P6,000 plus P400. La
Mallorco contended that when the child was killed, she
was no longer a passenger and therefore the contract of
carriage terminated.
Issue: Whether or not the contractual obligation
between the parties ceases the moment the passenger
alighted form the vehicle.
Held: On the question whether the liability of the carrier,
as to the child who was already led a place 5 meters
from the bus under the contract of carrier, still persists,
we rule in the affirmative. It is a recognized rules that the
relation between carrier and passengers does not cease
at the moment the passenger alights from the carriers
premises, to be determined from the circumstances. In
this case, there was no utmost diligence. Firstly,
the driver, although stopping the bus, did not put off the
engine. Secondly, he started to run the bus even before
the bus conductor gave him the signal and while the
latter was unloading cargo. Here, the presence of said
passenger near the bus was not unreasonable and the
duration of responsibility still exists. Averment of quasidelict

is permissible under the Rules of Court, although


incompatible with the contract of carriage. The Rules of
Court allows the plaintiffs to allege causes of action in
the alternative, be they compatible with each other or
not (Sec. 2, Rule 1). Even assuming arguendo that the
contract of carriage has already terminated, herein
petitioner can be held liable for the negligence of
its driver pursuant to Art. 2180 of NCC. Decision
MODIFIED. Only question raised in the briefs can be
passed upon, and as plaintiffs did not appeals the award
of P3,000.00 the increase by the CA of the award to
P6,000.00 cannot be sustained.

4.
CASE DIGEST (Transportation Law): Philippine Charter Insurance Corp. vs.
Unknown Owner
PHILIPPINE CHARTER INSURANCE CORPORATION vs. UNKNOWN OWNER OF
THE VESSEL M/V NATIONAL HONOR, NATIONAL SHIPPING CORPORATION OF
THE PHILIPPINES and INTERNATIONAL CONTAINER SERVICES, INC.
[G.R. No. 161833. July 8, 2005]

FACTS:
Petitioner Philippine Charter Insurance Corporation (PCIC) is the insurer of a
shipment on board the vessel M/V National Honor, represented in the
Philippines by its agent, National Shipping Corporation of the Philippines
(NSCP).

The M/V National Honor arrived at the Manila International Container


Terminal (MICT). The International Container Terminal Services, Incorporated

(ICTSI) was furnished with a copy of the crate cargo list and bill of lading, and
it knew the contents of the crate. The following day, the vessel started
discharging its cargoes using its winch crane. The crane was operated by
Olegario Balsa, a winchman from the ICTSI, exclusive arrastre operator of
MICT.

Denasto Dauz, Jr., the checker-inspector of the NSCP, along with the crew and
the surveyor of the ICTSI, conducted an inspection of the cargo. They
inspected the hatches, checked the cargo and found it in apparent good
condition. Claudio Cansino, the stevedore of the ICTSI, placed two sling
cables on each end of Crate No. 1. No sling cable was fastened on the midportion of the crate. In Dauzs experience, this was a normal procedure. As
the crate was being hoisted from the vessels hatch, the mid-portion of the
wooden flooring suddenly snapped in the air, about five feet high from the
vessels twin deck, sending all its contents crashing down hard, resulting in
extensive damage to the shipment.

PCIC paid the damage, and as subrogee, filed a case against M/V National
Honor, NSCP and ICTSI. Both RTC and CA dismissed the complaint.

ISSUE:
Whether or not the presumption of negligence is applicable in the instant
case.

HELD:
No.
We agree with the contention of the petitioner that common carriers, from
the nature of their business and for reasons of public policy, are mandated to
observe extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all the
circumstances of each case. he Court has defined extraordinary diligence in
the vigilance over the goods as follows:

The extraordinary diligence in the vigilance over the goods tendered for
shipment requires the common carrier to know and to follow the required

precaution for avoiding damage to, or destruction of the goods entrusted to it


for sale, carriage and delivery. It requires common carriers to render service
with the greatest skill and foresight and to use all reasonable means to
ascertain the nature and characteristic of goods tendered for shipment, and
to exercise due care in the handling and stowage, including such methods as
their nature requires.

The common carriers duty to observe the requisite diligence in the shipment
of goods lasts from the time the articles are surrendered to or unconditionally
placed in the possession of, and received by, the carrier for transportation
until delivered to, or until the lapse of a reasonable time for their acceptance,
by the person entitled to receive them.] >When the goods shipped are either
lost or arrive in damaged condition, a presumption arises against the carrier
of its failure to observe that diligence, and there need not be an express
finding of negligence to hold it liable. To overcome the presumption of
negligence in the case of loss, destruction or deterioration of the goods, the
common carrier must prove that it exercised extraordinary diligence.

However, under Article 1734 of the New Civil Code, the presumption of
negligence does not apply to any of the following causes:

1. Flood, storm, earthquake, lightning or other natural disaster or calamity;


2. Act of the public enemy in war, whether international or civil;
3. Act or omission of the shipper or owner of the goods;
4. The character of the goods or defects in the packing or in the containers;
5. Order or act of competent public authority.

It bears stressing that the enumeration in Article 1734 of the New Civil Code
which exempts the common carrier for the loss or damage to the cargo is a
closed list. To exculpate itself from liability for the loss/damage to the cargo
under any of the causes, the common carrier is burdened to prove any of the
aforecited causes claimed by it by a preponderance of evidence. If the carrier
succeeds, the burden of evidence is shifted to the shipper to prove that the
carrier is negligent.

Defect is the want or absence of something necessary for completeness or


perfection; a lack or absence of something essential to completeness; a
deficiency in something essential to the proper use for the purpose for which
a thing is to be used. On the other hand, inferior means of poor quality,
mediocre, or second rate. A thing may be of inferior quality but not
necessarily defective. In other words, defectiveness is not synonymous with
inferiority.

xxx

In the present case, the trial court declared that based on the record, the loss
of the shipment was caused by the negligence of the petitioner as the
shipper:

The same may be said with respect to defendant ICTSI. The breakage and
collapse of Crate No. 1 and the total destruction of its contents were not
imputable to any fault or negligence on the part of said defendant in handling
the unloading of the cargoes from the carrying vessel, but was due solely to
the inherent defect and weakness of the materials used in the fabrication of
said crate.

The crate should have three solid and strong wooden batten placed side by
side underneath or on the flooring of the crate to support the weight of its
contents. x x x

3.
G.R. Nos. 66102-04 August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner,


vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO PASCUA,
ET AL., respondents.

Santiago & Santiago for petitioner.

Federico R. Vinluan for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate


Appellate Court (now Court of Appeals) dated July 29, 1983 in AC-G.R. Nos.
CV-65885, CV-65886 and CV-65887 which reversed the decision of the Court
of First Instance (now Regional Trial Court) of Pangasinan dated December 27,
1978; and its resolution dated November 28, 1983 denying the motion for
reconsideration.

It is an established principle that the factual findings of the Court of Appeals


are final and may not be reviewed by this Court on appeal. However, this
principle is subject to certain exceptions. One of these is when the findings of
the appellate court are contrary to those of the trial court (see Sabinosa v.
The Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in
which case, a re-examination of the facts and evidence may be undertaken.
This is Our task now.

The antecedent facts are as follows:

About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua,
Caridad Pascua, Adelaida Estomo, Erlinda Meriales, Mercedes Lorenzo,
Alejandro Morales and Zenaida Parejas boarded the jeepney owned by
spouses Isidro Mangune and Guillerma Carreon and driven by Tranquilino
Manalo at Dau, Mabalacat, Pampanga bound for Carmen, Rosales, Pangasinan
to spend Christmas at their respective homes. Although they usually ride in
buses, they had to ride in a jeepney that day because the buses were full.
Their contract with Manalo was for them to pay P24.00 for the trip. The
private respondents' testimonial evidence on this contractual relationship was

not controverted by Mangune, Carreon and Manalo, nor by Filriters Guaranty


Assurance Corporation, Inc., the insurer of the jeepney, with contrary
evidence. Purportedly riding on the front seat with Manalo was Mercedes
Lorenzo. On the left rear passenger seat were Caridad Pascua, Alejandro
Morales and Zenaida Parejas. On the right rear passenger seat were Catalina
Pascua, Adelaida Estomo, and Erlinda Meriales. After a brief stopover at
Moncada, Tarlac for refreshment, the jeepney proceeded towards Carmen,
Rosales, Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of
the jeepney was detached, so it was running in an unbalanced position.
Manalo stepped on the brake, as a result of which, the jeepney which was
then running on the eastern lane (its right of way) made a U-turn, invading
and eventually stopping on the western lane of the road in such a manner
that the jeepney's front faced the south (from where it came) and its rear
faced the north (towards where it was going). The jeepney practically
occupied and blocked the greater portion of the western lane, which is the
right of way of vehicles coming from the north, among which was Bus No. 753
of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos
Reyes. Almost at the time when the jeepney made a sudden U-turn and
encroached on the western lane of the highway as claimed by Rabbit and
delos Reyes, or after stopping for a couple of minutes as claimed by
Mangune, Carreon and Manalo, the bus bumped from behind the right rear
portion of the jeepney. As a result of the collision, three passengers of the
jeepney (Catalina Pascua, Erlinda Meriales and Adelaida Estomo) died while
the other jeepney passengers sustained physical injuries. What could have
been a festive Christmas turned out to be tragic.

The causes of the death of the three jeepney passengers were as follows (p.
101, Record on Appeal):

The deceased Catalina Pascua suffered the following injuries, to wit: fracture
of the left parietal and temporal regions of the skull; fracture of the left
mandible; fracture of the right humenous; compound fracture of the left
radious and ullma middle third and lower third; fracture of the upper third of
the right tibia and fillnea; avulsion of the head, left internal; and multiple
abrasions. The cause of her death was shock, secondary to fracture and
multiple hemorrhage. The fractures were produced as a result of the hitting of
the victim by a strong force. The abrasions could be produced when a person
falls from a moving vehicles (sic) and rubs parts of her body against a cement

road pavement. . . .

Erlinda Mariles (sic) sustained external lesions such as contusion on the left
parietal region of the skull; hematoma on the right upper lid; and abrasions
(sic) on the left knee. Her internal lesions were: hematoma on the left thorax;
multiple lacerations of the left lower lobe of the lungs; contusions on the left
lower lobe of the lungs; and simple fractures of the 2nd, 3rd, 4th, 5th, 6th,
7th, and 8th ribs, left. The forcible impact of the jeep caused the above
injuries which resulted in her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy of
Dr. Panlasiqui was due to shock due to internal hemorrhage, ruptured spleen
and trauma. . . .

Caridad Pascua suffered physical injuries as follows (p. 101, Record on


Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on the


forehead, multiple abrasions on the forearm, right upper arm, back and right
leg. . . .

The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac,
upon arrival at the scene of the mishap, prepared a sketch (common exhibit
"K" for private respondents "19" for Rabbit) showing the relative positions of
the two vehicles as well as the alleged point of impact (p. 100, Record on
Appeal):

. . . The point of collision was a cement pave-portion of the Highway, about


six (6) meters wide, with narrow shoulders with grasses beyond which are
canals on both sides. The road was straight and points 200 meters north and
south of the point of collision are visible and unobstructed. Purportedly, the
point of impact or collision (Exh. "K-4", Pascua on the sketch Exh. "K"-Pascua)
was on the western lane of the highway about 3 feet (or one yard) from the
center line as shown by the bedris (sic), dirt and soil (obviously from the
undercarriage of both vehicles) as well as paint, marron (sic) from the Rabbit
bus and greenish from the jeepney. The point of impact encircled and marked

with the letter "X" in Exh. "K"-4 Pascua, had a diameter of two meters, the
center of which was about two meters from the western edge of cement
pavement of the roadway. Pictures taken by witness Bisquera in the course of
the investigation showed the relative positions of the point of impact and
center line (Exh. "P"-Pascua) the back of the Rabbit bus (Exh. "P"-1-Pascua"),
the lifeless body of Catalina Pascua (Exh. "P-2 Pascua"), and the damaged
front part of the Rabbit bus (Exh. "P-3 Pascua"). No skid marks of the Rabbit
bus was found in the vicinity of the collision, before or after the point of
impact. On the other hand, there was a skid mark about 45 meters long
purportedly of the jeepney from the eastern shoulder of the road south of,
and extending up to the point of impact.

At the time and in the vicinity of the accident, there were no vehicles
following the jeepney, neither were there oncoming vehicles except the bus.
The weather condition of that day was fair.

After conducting the investigation, the police filed with the Municipal Court of
San Manuel, Tarlac, a criminal complaint against the two drivers for Multiple
Homicide. At the preliminary investigation, a probable cause was found with
respect to the case of Manalo, thus, his case was elevated to the Court of
First Instance. However, finding no sufficiency of evidence as regards the
case of delos Reyes, the Court dismissed it. Manalo was convicted and
sentenced to suffer imprisonment. Not having appealed, he served his
sentence.

Complaints for recovery of damages were then filed before the Court of First
Instance of Pangasinan. In Civil Case No. 1136, spouses Casiano Pascua and
Juana Valdez sued as heirs of Catalina Pascua while Caridad Pascua sued in
her behalf. In Civil Case No. 1139, spouses Manuel Millares and Fidencia
Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140, spouses
Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida
Estomo.

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos
Reyes were all impleaded as defendants. Plaintiffs anchored their suits
against spouses Mangune and Carreon and Manalo on their contractual
liability. As against Rabbit and delos Reyes, plaintiffs based their suits on their
culpability for a quasi-delict. Filriters Guaranty Assurance Corporation, Inc.

was also impleaded as additional defendant in Civil Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to
collect the aggregate amount of P70,060.00 in damages, itemized as follows:
P500.00 for burial expenses; P12,000.00 for loss of wages for 24 years;
P10,000.00 for exemplary damages; P10,000.00 for moral damages; and
P3,000.00 for attorney's fees. In the same case, plaintiff Caridad Pascua
claimed P550.00 for medical expenses; P240.00 for loss of wages for two
months; P2,000.00 for disfigurement of her face; P3,000.00 for physical pain
and suffering; P2,500.00 as exemplary damages and P2,000.00 for attorney's
fees and expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses;
P6,000.00 for the death of Erlinda, P63,000.00 for loss of income; P10,000.00
for moral damages and P3,000.00 for attorney's fees or total of P80,000.00.

In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses;
P6,000.00 for the death of Adelaide, P56,160.00 for loss of her income or
earning capacity; P10,000.00 for moral damages; and P3,000.00 for
attorney's fees.

Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and
expenses of litigation. On the other hand, spouses Mangune and Carreon filed
a cross-claim in the amount of P6,168.00 for the repair of the jeepney and
P3,000.00 for its non-use during the period of repairs.

On December 27, 1978, the trial court rendered its decision finding Manalo
negligent, the dispositive portion of which reads (pp. 113-114, Record on
Appeal):

PREMISES CONSIDERED, this Court is of the opinion and so holds:

1)
That defendants Isidro Mangune, Guillerma Carreon and Tranquilino
Manalo thru their negligence, breached contract of carriage with their

passengers the plaintiffs' and/or their heirs, and this Court renders judgment
ordering said defendants, jointly and severally, to pay the plaintiffs

a)
In Civil Case No. 1136, for the death of Catalina Pascua, to pay her
heirs the amounts of P12,000.00 for indemnity for loss of her life; P41,760.00
for loss of earnings; P324.40 for actual expenses and P2,000.00 for moral
damages;

b)
In the same Civil Case No.1136 for the injuries of Caridad Pascua, to
pay her the amounts of P240.00 for loss of wages, P328.20 for actual
expenses and P500.00 for moral damages;

c)
In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs
(the plaintiffs) the amount of P12,000.00 for indemnity for loss of her life;
P622.00 for actual expenses, P60,480.00 for loss of wages or income and
P2,000.00 for moral damages;

d)
In Civil Case No. 1140, for the death of Erlinda (also called Florida or
Adelaida Estomo), to pay her heirs (the plaintiff the amount of P12,000.00 for
indemnity for the loss of her life; P580.00 for actual expenses; P53,160.00 for
loss of wages or income and P2,000.00 for moral damages.

2)
The defendant Filriters Guaranty Insurance Co., having contracted to
ensure and answer for the obligations of defendants Mangune and Carreon
for damages due their passengers, this Court renders judgment against the
said defendants Filriters Guaranty Insurance Co., jointly and severally with
said defendants (Mangune and Carreon) to pay the plaintiffs the amount
herein above adjudicated in their favor in Civil Case No. 1136 only. All the
amounts awarded said plaintiff, as set forth in paragraph one (1)
hereinabove;

3)
On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the
defendant, Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to pay
jointly and severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the amounts
of P216.27 as actual damages to its Bus No. 753 and P2,173.60 for loss of its
earning.

All of the above amount, shall bear legal interest from the filing of the
complaints.

Costs are adjudged against defendants Mangune, Carreon and Manalo and
Filriters Guaranty.

SO ORDERED

On appeal, the Intermediate Appellate Court reversed the above-quoted


decision by finding delos Reyes negligent, the dispositive portion of which
reads (pp. 55-57, Rollo):

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby


REVERSED as to item No. 3 of the decision which reads:

3)
On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the
defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to pay
jointly and severally, the amounts of P216.27 as actual damages to its Bus
No. 753 and P2,173.60 for loss of its earnings.

and another judgment is hereby rendered in favor of plaintiffs-appellants


Casiana Pascua, Juan Valdez and Caridad Pascua, ordering the Philippine
Rabbit Bus Lines, Inc. and its driver Tomas delos Reyes to pay the former
jointly and severally damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded

Civil Case No. 1136

a)

Indemnity for the loss of life

P12,000.00

b)

Loss of Salaries or earning capacity

14,000.00

c)

Actual damages (burial expenses)

800.00

d)

For moral damages

10,000.00

e)

Exemplary damages

f)

For attorney's fees

3,000.00

3,000.00

Total

P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua:

Civil Case No. 1136

a)

Actual damages (hospitalization expenses)

b)

Moral damages (disfigurement of the

face and physical suffering

8,000.00

c)

2,000.00

Exemplary damages

P550.00

Total

P10,550.00

For the death of Erlinda Arcega Meriales. the parents and/or heirs:

Civil Case No. 1139

a)

Indemnity for loss of life

b)

Loss of Salary or Earning Capacity

20,000.00

c)

Actual damages (burial expenses)

500.00

d)

Moral damages

e)

Exemplary damages

f)

Attorney's fees

3,000.00

P12,000.00

15,000.00

15,000.00

Total

P65,500.00

For the death of Florida Sarmiento Estomo:

Civil Case No. 1140

a)

Indemnity for loss of life

b)

Loss of Salary or Earning capacity

20,000.00

c)

Actual damages (burial expenses)

500.00

d)

Moral damages

e)

Exemplary damages

f)

Attorney's fees

3,000.00

P12,000.00

3,000.00

3,000.00

Total

P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

The issue is who is liable for the death and physical injuries suffered by the
passengers of the jeepney?

The trial court, in declaring that Manalo was negligent, considered the
following (p. 106, Record on Appeal):

(1)
That the unrebutted testimony of his passenger plaintiff Caridad
Pascua that a long ways (sic) before reaching the point of collision, the
Mangune jeepney was "running fast" that his passengers cautioned driver
Manalo to slow down but did not heed the warning: that the right rear wheel
was detached causing the jeepney to run to the eastern shoulder of the road
then back to the concrete pavement; that driver Manalo applied the brakes
after which the jeepney made a U-turn (half-turn) in such a manner that it
inverted its direction making it face South instead of north; that the jeepney
stopped on the western lane of the road on the right of way of the oncoming
Phil. Rabbit Bus where it was bumped by the latter;

(2)
The likewise unrebutted testimony of Police Investigator Tacpal of the
San Manuel (Tarlac) Police who, upon responding to the reported collission,
found the real evidence thereat indicate in his sketch (Exh. K, Pascua ), the
tracks of the jeepney of defendant Mangune and Carreon running on the
Eastern shoulder (outside the concrete paved road) until it returned to the
concrete road at a sharp angle, crossing the Eastern lane and the (imaginary)
center line and encroaching fully into the western lane where the collision
took place as evidenced by the point of impact;

(3)
The observation of witness Police Corporal Cacalda also of the San
Manuel Police that the path of the jeepney they found on the road and
indicated in the sketch (Exh. K-Pascua) was shown by skid marks which he
described as "scratches on the road caused by the iron of the jeep, after its
wheel was removed;"

(4)
His conviction for the crime of Multiple Homicide and Multiple Serious
Physical Injuries with Damage to Property thru Reckless Imprudence by the
Court of First Instance of Tarlac (Exh. 24-Rabbit) upon the criminal Information
by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a result of the collision,
and his commitment to prison and service of his sentence (Exh. 25-Rabbit)
upon the finality of the decision and his failure to appeal therefrom; and

(5)
The application of the doctrine of res-ipsa loquitar (sic) attesting to the
circumstance that the collision occured (sic) on the right of way of the Phil.
Rabbit Bus.

The respondent court had a contrary opinion. Applying primarily (1) the
doctrine of last clear chance, (2) the presumption that drivers who bump the
rear of another vehicle guilty and the cause of the accident unless
contradicted by other evidence, and (3) the substantial factor test. concluded
that delos Reyes was negligent.

The misappreciation of the facts and evidence and the misapplication of the
laws by the respondent court warrant a reversal of its questioned decision
and resolution.

We reiterate that "[t]he principle about "the last clear" chance, would call for
application in a suit between the owners and drivers of the two colliding
vehicles. It does not arise where a passenger demands responsibility from the
carrier to enforce its contractual obligations. For it would be inequitable to
exempt the negligent driver of the jeepney and its owners on the ground that
the other driver was likewise guilty of negligence." This was Our ruling in
Anuran, et al. v. Buo et al., G.R. Nos. L-21353 and L-21354, May 20, 1966,
17 SCRA 224. 1 Thus, the respondent court erred in applying said doctrine.

On the presumption that drivers who bump the rear of another vehicle guilty
and the cause of the accident, unless contradicted by other evidence, the
respondent court said (p. 49, Rollo):

. . . the jeepney had already executed a complete turnabout and at the time
of impact was already facing the western side of the road. Thus the jeepney
assumed a new frontal position vis a vis, the bus, and the bus assumed a new
role of defensive driving. The spirit behind the presumption of guilt on one
who bumps the rear end of another vehicle is for the driver following a
vehicle to be at all times prepared of a pending accident should the driver in
front suddenly come to a full stop, or change its course either through change
of mind of the front driver, mechanical trouble, or to avoid an accident. The
rear vehicle is given the responsibility of avoiding a collision with the front
vehicle for it is the rear vehicle who has full control of the situation as it is in

a position to observe the vehicle in front of it.

The above discussion would have been correct were it not for the undisputed
fact that the U-turn made by the jeepney was abrupt (Exhibit "K," Pascua).
The jeepney, which was then traveling on the eastern shoulder, making a
straight, skid mark of approximately 35 meters, crossed the eastern lane at a
sharp angle, making a skid mark of approximately 15 meters from the
eastern shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos
Reyes could not have anticipated the sudden U-turn executed by Manalo. The
respondent court did not realize that the presumption was rebutted by this
piece of evidence.

With regard to the substantial factor test, it was the opinion of the respondent
court that (p. 52, Rollo):

. . . It is the rule under the substantial factor test that if the actor's conduct is
a substantial factor in bringing about harm to another, the fact that the actor
neither foresaw nor should have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable
(Restatement, Torts, 2d). Here, We find defendant bus running at a fast speed
when the accident occurred and did not even make the slightest effort to
avoid the accident, . . . . The bus driver's conduct is thus a substantial factor
in bringing about harm to the passengers of the jeepney, not only because he
was driving fast and did not even attempt to avoid the mishap but also
because it was the bus which was the physical force which brought about the
injury and death to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 5455, Rollo):

According to the record of the case, the bus departed from Laoag, Ilocos
Norte, at 4:00 o'clock A.M. and the accident took place at approximately
around 12:30 P.M., after travelling roughly for 8 hours and 30 minutes.
Deduct from this the actual stopover time of two Hours (computed from the
testimony of the driver that he made three 40-minute stop-overs), We will
have an actual travelling time of 6 hours and 30 minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.)
driving at an average of 56 km. per hour would take 6 hours and 30 minutes.
Therefore, the average speed of the bus, give and take 10 minutes, from the
point of impact on the highway with excellent visibility factor would be 80 to
90 kms. per hour, as this is the place where buses would make up for lost
time in traversing busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at a
fast speed when the accident occurred because the speed of 80 to 90
kilometers per hour, assuming such calculation to be correct, is yet within the
speed limit allowed in highways. We cannot even fault delos Reyes for not
having avoided the collision. As aforestated, the jeepney left a skid mark of
about 45 meters, measured from the time its right rear wheel was detached
up to the point of collision. Delos Reyes must have noticed the perilous
condition of the jeepney from the time its right rear wheel was detached or
some 90 meters away, considering that the road was straight and points 200
meters north and south of the point of collision, visible and unobstructed.
Delos Reyes admitted that he was running more or less 50 kilometers per
hour at the time of the accident. Using this speed, delos Reyes covered the
distance of 45 meters in 3.24 seconds. If We adopt the speed of 80 kilometers
per hour, delos Reyes would have covered that distance in only 2.025
seconds. Verily, he had little time to react to the situation. To require delos
Reyes to avoid the collision is to ask too much from him. Aside from the time
element involved, there were no options available to him. As the trial court
remarked (pp. 107-108, Record on Appeal):

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes,
could have taken either of two options: (1) to swerve to its right (western
shoulder) or (2) to swerve to its left (eastern lane), and thus steer clear of the
Mangune jeepney. This Court does not so believe, considering the existing
exigencies of space and time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted


that the Western shoulder of the road was narrow and had tall grasses which
would indicate that it was not passable. Even plaintiffs own evidence, the
pictures (Exhs. P and P-2, Pascua) are mute confirmation of such fact. Indeed,
it can be noticed in the picture (Exh. P-2, Pascua) after the Rabbit bus came
to a full stop, it was tilted to right front side, its front wheels resting most

probably on a canal on a much lower elevation that of the shoulder or paved


road. It too shows that all of the wheels of the Rabbit bus were clear of the
roadway except the outer left rear wheel. These observation appearing in
said picture (Exh P-2, Pascua) clearly shows coupled with the finding the
Rabbit bus came to a full stop only five meters from the point of impact (see
sketch, Exh. K-Pascua) clearly show that driver de los Reyes veered his Rabbit
bus to the right attempt to avoid hitting the Mangune's jeepney. That it was
not successful in fully clearing the Mangune jeepney as its (Rabbit's) left front
hit said jeepney (see picture Exh. 10-A-Rabbit) must have been due to
limitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus
could also have swerved to its left (eastern lane) to avoid bumping the
Mangune jeepney which was then on the western lane. Such a claim is
premised on the hypothesis (sic) that the eastern lane was then empty. This
claim would appear to be good copy of it were based alone on the sketch
made after the collision. Nonetheless, it loses force it one were to consider
the time element involved, for moments before that, the Mangune jeepney
was crossing that very eastern lane at a sharp angle. Under such a situation
then, for driver delos Reyes to swerve to the eastern lane, he would run the
greater risk of running smack in the Mangune jeepney either head on or
broadside.

After a minute scrutiny of the factual matters and duly proven evidence, We
find that the proximate cause of the accident was the negligence of Manalo
and spouses Mangune and Carreon. They all failed to exercise the precautions
that are needed precisely pro hac vice.

In culpa contractual, the moment a passenger dies or is injured, the carrier is


presumed to have been at fault or to have acted negligently, and this
disputable presumption may only be overcome by evidence that he had
observed extra-ordinary diligence as prescribed in Articles 1733, 1755 and
1756 of the New Civil Code 2 or that the death or injury of the passenger was
due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).

The negligence of Manalo was proven during the trial by the unrebutted
testimonies of Caridad Pascua, Police Investigator Tacpal, Police Corporal
Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and

Multiple Serious Injuries with Damage to Property thru Reckless Imprudence,


and the application of the doctrine of res ipsa loquitur supra. The negligence
of spouses Mangune and Carreon was likewise proven during the trial (p. 110,
Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru


their witness Natalio Navarro, an alleged mechanic, that he periodically
checks and maintains the jeepney of said defendants, the last on Dec. 23, the
day before the collision, which included the tightening of the bolts. This
notwithstanding the right rear wheel of the vehicle was detached while in
transit. As to the cause thereof no evidence was offered. Said defendant did
not even attempt to explain, much less establish, it to be one caused by a
caso fortuito. . . .

In any event, "[i]n an action for damages against the carrier for his failure to
safely carry his passenger to his destination, an accident caused either by
defects in the automobile or through the negligence of its driver, is not a caso
fortuito which would avoid the carriers liability for damages (Son v. Cebu
Autobus Company, 94 Phil. 892 citing Lasam, et al. v. Smith, Jr., 45 Phil. 657;
Necesito, etc. v. Paras, et al., 104 Phil. 75).

The trial court was therefore right in finding that Manalo and spouses
Mangune and Carreon were negligent. However, its ruling that spouses
Mangune and Carreon are jointly and severally liable with Manalo is
erroneous The driver cannot be held jointly and severally liable with the
carrier in case of breach of the contract of carriage. The rationale behind this
is readily discernible. Firstly, the contract of carriage is between the carrier
and the passenger, and in the event of contractual liability, the carrier is
exclusively responsible therefore to the passenger, even if such breach be
due to the negligence of his driver (see Viluan v. The Court of Appeals, et al.,
G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other words, the
carrier can neither shift his liability on the contract to his driver nor share it
with him, for his driver's negligence is his. 4 Secondly, if We make the driver
jointly and severally liable with the carrier, that would make the carrier's
liability personal instead of merely vicarious and consequently, entitled to
recover only the share which corresponds to the driver, 5 contradictory to the
explicit provision of Article 2181 of the New Civil Code. 6

We affirm the amount of damages adjudged by the trial court, except with
respect to the indemnity for loss of life. Under Article 1764 in relation to
Article 2206 of the New Civil Code, the amount of damages for the death of a
passenger is at least three thousand pesos (P3,000.00). The prevailing
jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see
Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al., G.R.
No. 51165, June 21, 1990 citing De Lima v. Laguna Tayabas Co., G.R. Nos. L35697-99, April 15, 1988, 160 SCRA 70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of the


Intermediate Appellate Court dated July 29, 1983 and its resolution dated
November 28, 1983 are SET ASIDE. The decision of the Court of First Instance
dated December 27, 1978 is REINSTATED MODIFICATION that only Isidro
Mangune, Guillerma Carreon and Filriters Guaranty Assurance Corporation,
Inc. are liable to the victims or their heirs and that the amount of indemnity
for loss of life is increased to thirty thousand pesos (P30,000.00).

SO ORDERED.

Narvasa (Chairman), Cruz, Gancayco and Grio-Aquino JJ., concur.


5.

[G.R. No. L-8937. November 29, 1957.]

OLEGARIO BRITO SY, Plaintiff-Appellee, v. MALATE TAXICAB & GARAGE, INC.,


Defendant-Appellant; MALATE TAXICAB & GARAGE, INC., third-party plaintiffappellant, v. JESUS DEQUITO Y DUPY, third-party Defendant-Appellee.

Paredes, Gaw & Acevedo for Appellee.

Diaz & Baizas for Appellant.

SYLLABUS

1. PLEADING AND PRACTICE; PRE-JUDICIAL QUESTION, CONSTRUED; CASE AT


BAR. Pre-judicial is understood in law to be that which precedes the
criminal action, or that which requires a decision before final judgment is
rendered in the principal action which said question is closely connected. Not
all previous questions are pre-judicial, although all pre-judicial questions are
necessarily previous. (Berbari v. Concepcion, 40 Phil. 837.) In the present
case, the third-party complaint is not a pre-judicial question, as the issue in
the main action is not entirely dependent upon those in the third-party
complaint; on the contrary, it is the third-party complaint that is dependent
upon the main case in the amount of damages which defendant-appellant
seeks to be reimbursed in its third-party complaint. Furthermore, the
complaint is based on contractual obligation of transportation of passenger
which defendant-appellant failed to carry out, and the action is entirely
different and independent from that in third-party complaint which is based
on alleged tortious act committed by the third-party defendant. The main
case, therefore, is entirely severable and may be litigated independently.
Moreover, whatever the outcome of the third-party complaint might be would
not in any way affect or alter the contractual liability of the appellant to
plaintiff. If the collision was due to the negligence of the third-party
defendant as alleged, then defendant-appellant may file a separate civil
action for damages based on tort ex-delicto or upon quasi-delict, as the case
may be.

2. COMMON CARRIERS; OBLIGATION TO TRANSPORT PASSENGER SAFELY


CARRIER PRESUMED NEGLIGENT WHEN PASSENGER IS INJURED; HOW TO
OVERCOME PRESUMPTION. In an action based on a contract of carriage,
the court need not make an express finding of fault or negligence on the part
of the carrier in order to hold it responsible to pay the damages sought for by
the passenger. By the contract of carriage, the carrier assumes the express
obligation to transport the passenger to his destination safely and to observe
extraordinary diligence with a due regard for all the circumstances, and any
injury that might be suffered by the passenger is right away attributable to
the fault or negligence of the carrier (Article 1756, new Civil Code). This is an
exception to the general rule that negligence must be proved, and it is
therefore incumbent upon the carrier to prove that it has exercised
extraordinary diligence as prescribed i Article 1733 and 1755 of the new Civil

Code. In the case at bar, however, the defendant carrier failed to present any
evidence at all to overcome and overwhelm the presumption of negligence
imposed upon it by law; hence , there was no need for the lower court to
make an express finding that the carrier was responsible to the collision, in
view of the provision of the aforementioned Article 1756 of the new Civil
Code.

DECISION

ENDENCIA, J.:

On June 26, 1952, at Dewey Boulevard in front of the Selecta Restaurant,


Olegario Brito Sy engaged a taxicab bearing plate No. Taxi-1130, owned and
operated by the Malate Taxicab and Garage, Inc. and driven by Catalino
Ermino, to take him to his place of business at Dencias Restaurant on the
Escolta where he was the general manager. Upon reaching the Rizal
Monument, he told the driver to turn to the right, but the latter did not heed
him and instead countered that they better pass along Katigbak Drive. At the
intersection of Dewey Boulevard and Katigbak Drive, the taxi collided with an
army wagon with plate No. TPI-695 driven by Sgt. Jesus Dequito, as a result of
which Olegario Brito Sy was jarred, jammed and jolted. He was taken to the
Santa Isabel Hospital suffering from bruises and contusions as well as a
fractured right leg. Thereafter he was transferred to the Gonzales Orthopedic
Clinic and was accordingly operated on. He spent some P2,266.45 for medical
bills and hospitalization.

On September 30, 1952, Sy filed action against the Malate Taxicab & Garage,
Inc., based upon a contract of carriage, to recover the sums of P7,200 as
actual or compensatory damages, P20,000 as moral damages, P15,000 as
nominal and exemplary damages, and P3,000 a attorneys fees. On October
2, 1952, a copy of the complaint was served on and received by the
defendant, but the latter filed its answer only on October 20, 1952, wherein it
alleged that the collision subject of the complaint was not due to the

negligence of its driver but to that of Sgt. Jesus Dequito, the driver of the
army wagon; and, by way of counterclaim, sought to recover the sum of
P1,000 as damages caused by the alleged malicious and frivolous action filed
against it.

The record reveals that upon plaintiffs motion filed on October 23, 1952, the
lower court ordered on October 25, 1952 that the answer which was filed by
defendant out of time be stricken out, and declared the Malate Taxicab &
Garage, Inc. in default. Thereafter, on October 30, 1952, plaintiff presented
his evidence, and on November 20, 1952 judgment was rendered awarding
plaintiff the sum of P14,000 as actual, compensatory, moral, nominal and
exemplary damages including attorneys fees and costs, with interest at the
legal rate from the filing of the action. Defendant then filed a motion on
December 17, 1952, for relief from the order of default and for new trial,
which was granted. Hence, plaintiff filed his reply to defendants answer and
counterclaim, and by leave of court, the latter filed on February 24, 1953 a
third-party complaint against Sgt. Jesus Dequito alleging that the cause of the
collision between the taxicab and the army wagon was the negligence of the
army sergeant, and praying that whatever amount the court may assess
against it in the action filed by plaintiff, be paid to said third-party plaintiff,
plus an additional amount of P1,000 representing attorneys fees. It appears,
however, that the summons and copy of the third-party complaint were never
served upon third-party defendant Dequito in view of his continued
assignment from place to place in connection with his army duties, and for
this reason the main case was set for trial on May 10, 1953, obviously for the
sole purpose of disposing of the issue arising from plaintiffs complaint. On
the day of the trial, defendant failed to appear, whereupon plaintiff presented
his evidence, and judgment was rendered against the defendant in the total
sum of P4,200 representing actual, compensatory and moral damages, as
well as attorneys fees, with interest at the legal rate from the filing of the
action, plus costs of suit. Against said judgment defendant appealed to the
Court of Appeals and assigned in its brief two errors of the lower court,
namely:jgc:chanrobles.com.ph

"1. The trial court erred in not finding that the third-party complaint involves
a prejudicial question, and therefore, the main complaint cannot be decided
until the third-party complaint is decided.

2. The trial court erred in not deciding or making an express finding as to


whether the defendant-appellant Malate Taxicab & Garage, Inc. was

responsible for the collision, and hence, civilly responsible to the plaintiffappellee."cralaw virtua1aw library

Finding the quoted assignment of errors as involving a purely question of law,


the Court of Appeals, by virtue of the provisions of section 17, paragraph 6 of
the Judiciary Act of 1948, as amended, certified the case to this Court for
adjudication, in its Resolution of February 7, 1955.

We find no merit in the first assignment of error that the third- party
complaint is a pre-judicial question. As enunciated by this Court in Berbari v.
Concepcion, 40 Phil. 837, "Pre-judicial question is understood in law to be that
which precedes the criminal action, or that which requires a decision before
final judgment is rendered in the principal action with which said question is
closely connected. Not all previous questions are pre-judicial, although all
pre-judicial questions are necessarily previous." In the present case, the thirdparty complaint is not a pre-judicial question, as the issue in the main action
is not entirely dependent upon those in the third-party complaint; on the
contrary, it is the third-party complaint that is dependent upon the main case
at least in the amount of damages which defendant-appellant seeks to be
reimbursed in its third-party complaint. Furthermore, the complaint is based
on a contractual obligation of transportation of passenger which defendantappellant failed to carry out, and the action is entirely different and
independent from that in the third-party complaint which is based on alleged
tortious act committed by the third-party defendant Sgt. Dequito. The main
case, therefore, is entirely severable and may be litigated independently.
Moreover, whatever the outcome of the third- party complaint might be
would not in any way affect or alter the contractual liability of the appellant
to plaintiff. If the collision was due to the negligence of the third-party
defendant, as alleged, then defendant-appellant may file a separate civil
action for damages based on tort ex-delicto or upon quasi-delict, as the case
may be.

Coming to the second assignment of error that the lower court erred in not
making an express finding as to whether defendant- appellant was
responsible for the collision, we find the same to be unjustified. The pertinent
provisions of the new Civil Code under the heading Common Carriers, are the
following:jgc:chanrobles.com.ph

"ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further


expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the passengers is further set forth in
articles 1755 and 1756.

"ART. 1755. A common carrier is bound to carry the passengers to safety as


far as human cars and foresight can provide, using the utmost diligence of
very cautious persons, with a due regard for all the circumstances.

"ART. 1756. In case of death of or injuries to passengers, common carriers are


presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755." (Italics supplied.)

Evidently, under these provisions of law, the court need not make an express
finding of fault or negligence on the part of the defendant-appellant in order
to hold it responsible to pay the damages sought for by the plaintiff, for the
action initiated therefor is based on a contract of carriage and not on tort.
When plaintiff rode on defendant-appellants taxicab, the latter assumed the
express obligation to transport him to his destination safely, and to observe
extraordinary diligence with a due regard for all the circumstances, and any
injury that might be suffered by the passenger is right away attributable to
the fault or negligence of the carrier (Article 1756, supra). This is an
exception to the general rule that negligence must be proved, and it was
therefore incumbent upon the carrier to prove that it has exercised
extraordinary diligence as prescribed in Articles 1733 and 1755 of the new
Civil Code. It is noteworthy, however, that at the hearing in the lower court
defendant-appellant failed to appear and has not presented any evidence at
all to overcome and overwhelm the presumption of negligence imposed upon
it by law; hence, there was no need for the lower court to make an express
finding thereon in view of the provisions of the aforequoted Article 1756 of
the new Civil Code.

Wherefore, the decision of the lower court is hereby affirmed with cost
against the Appellant.

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador and Concepcion,


JJ., concur.

Separate Opinions

REYES, J. B. L., J., concurring:chanrob1es virtual 1aw library

I concur for the additional reason that the concurrent negligence of a third
person will not exempt the appellant from responsibility; in other words, if the
driver of the taxicab was negligent and thereby caused the collision, the fact
that another drivers negligence also contributed thereto will not exempt the
taxicab company. Hence, the negligence of the other driver is not a
prejudicial question to the present action.
6.
CONRADA VDA. DE ABETO, CARME0000LO ABETO, CECILIA ABETO,
CONCEPCION ABETO, MARIA ABETO, ESTELA ABETO, PERLA ABETO, PATRIA
ABETO and ALBERTO ABETO, plaintiffs-appellees,
vs.
PHILIPPINE AIR LINES, INCORPORATED, defendant-appellant.

Quijano, Arroyo & Padilla Law Offices for plaintiffs-appellees.

Siguion Reyna, Montecillo & Ongsiako, Belo and Associates for defendantappellant.

RELOVA, J..

Appeal from the decision of the Court of First Instance of Iloilo finding that
defendant-appellant "did not exercise extraordinary diligence or prudence as
far as human foresight can provide ... but on the contrary showed negligence
and indifference for the safety of the passengers that it was bound to
transport, " and for the death of Judge Quirico Abeto, defendant- appellant
was ordered to pay plaintiffs, the heirs of Judge Abeto, the following:

1st For the death of Judge Quirico Abeto, the amount of P6,000.00;

2nd For the loss of his earning capacity, for 4.75 (4 ) years at the rate of
P7,200.00 per annum in the amount of P34,200.00;

3rd For moral damages in favor of the plaintiffs in the sum of P10,000.00;

4th For actual damages in the sum of P2,000.00 minus P400.00 received
under Voucher Exhibit 'H' the amount of Pl,600.00;

5th For attorney's fees, the sum of P6,000.00 and/or the total sum of
P57,800.00 and; To pay the costs of this proceedings.

Plaintiff's evidence shows that about 5:30 in the afternoon of November 23,
1960, Judge Quirico Abeto, with the necessary tickets, boarded the Philippine
Air Lines' PI-C133 plane at the Mandurriao Airport, Iloilo City for Manila. He
was listed as the No. 18 passenger in its Load Manifest (Exhibit A). The plane
which would then take two hours from Iloilo to Manila did not reach its
destination and the next day there was news that the plane was missing.
After three weeks, it was ascertained that the plane crashed at Mt. Baco,

Province of Mindoro. All the passengers, including Judge Abeto, must have
been killed instantly and their remains were scattered all over the area.
Among the articles recovered on the site of the crash was a leather bag with
the name "Judge Quirico Abeto. " (Exhibit C.)

Judge Abeto, prior to the plane crash, was a Technical Assistant in the Office
of the President receiving an annual compensation of P7,200.00; and before
that, has held the various positions in the government, namely: Municipal
President of Iloilo; Provincial Fiscal of Antique, Negros Occidental and Cebu;
Judge of the Court of First Instance of Manila, and Secretary of Justice. He was
in good health before the incident even if he was already 79 years old at that
time.

Plaintiff-appellee Conrada Vda. de Abeto was appointed administratrix of the


estate of Judge Abeto. The other plaintiffs-appellees are the children of the
deceased. When they received the news of the plane crash, Mrs. Abeto was
shocked and until it was ascertained that the plane had crashed three weeks
after, she could not sleep and eat. She felt sick and was miserable after that.
The members of the family also suffered.

Personal belongings which were lost amounted to P300.00. Burial expenses of


the late judge was P1,700.00.

When defendant-appellant would not hear demands for settlement of


damages, plaintiffs-appellees were compelled to hire counsel for the
institution and prosecution of this case.

Defendant-appellant tried to prove that the plane crash at Mt. Baco was
beyond the control of the pilot. The plane at the time of the crash was
airworthy for the purpose of conveying passengers across the country as
shown by the certificate of airworthiness issued by the Civil Aeronautics
Administration (CAA). There was navigational error but no negligence or
malfeasance on the part of the pilot. The plane had undergone 1,822 preflight checks, 364 thorough checks, 957 terminating checks and 501 after
maintenance checks. These checks were part of the quality control operation
of defendant airline Further, deviation from its prescribed route was due to
the bad weather conditions between Mt. Baco and Romblon and strong winds

which caused the plane to drift to Mt. Baco. Under the circumstances,
appellant argues that the crash was a fortuitous event and, therefore,
defendant-appellant cannot be held liable under the provisions of Article 1174
of the New Civil Code. Besides, appellant tried to prove that it had exercised
all the cares, skill and diligence required by law on that particular flight in
question.

The trial court, finding for the plaintiffs, said:

The Court after a thorough perusal of the evidences, testimonial and


documentaries submitted by both parties has come into the conclusion that
the evidence introduced by the plaintiffs have established the following
significant facts which proved the negligence of the defendant's pilot of the
plane on that flight- in question.

1st That the Pilot of the plane disobeyed instruction given in not following
the route of Amber 1 prescribed by the CAA in Violation of Standard
Regulation.

Second The defendant failed to perform the pre-flight test on plane PIC133 before the same took off from Mandurriao Airport to Manila in order to
find out a possible defect of the plane.

Third When the defendant allowed during the flight in question, student
Officer Rodriguez on training as proved when his body was found on the
plane's cockpit with its microphone hanging still on his left leg.

Fourth When the Pilot during the flight in question failed or did not report
his position over or abeam Romblon which is a compulsory reporting point.

These facts as established by the evidence of the plaintiff lead to the


inevitable conclusion that the defendant did not exercise extraordinary
diligence or prudence as far as human foresight can provide imposed upon by
the Law, but on the contrary showed negligence and indifference for the

safety of the passengers that it was bound to transport. By the very evidence
of the defendant, as shown by the deposition of one Jose Abanilla, dated
December 13, 1963, Section Chief of the Actuarial Department of the Insular
Life Insurance Company regarding life expectancy through American
experience, the late Judge Abeto at the age of 79 would still live or have a life
expectancy of 4.75 years.

Appealing to this Court, defendant claimed that the trial court erred:

... in finding, contrary to the evidence, that the appellant was negligent;

III

... in not finding that the appellant, in the conduct and operation of PI-C133,
exercised its statutory obligation over the passengers of PI C133 of
extraordinary diligence as far as human care and foresight can provide, using
the utmost diligence of a very cautious person with due regard for all the
circumstances and in not finding that the crash of PI-C133 was caused by
fortuitous events;

... in awarding damages to the appellees; and

IV

... in not finding that appellant acted in good faith and exerted efforts to
minimize damages.

The issue before Us in this appeal is whether or not the defendant is liable for
violation of its contract of carriage.

The provisions of the Civil Code on this question of liability are clear and
explicit. Article 1733 binds common carriers, "from the nature of their
business and by reasons of public policy, ... to observe extraordinary
diligence in the vigilance ... for the safety of the passengers transported by
them according to all the circumstances of each case." Article 1755
establishes the standard of care required of a common carrier, which is, "to
carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all
the circumstances." Article 1756 fixes the burden of proof by providing that
"in case of death of or injuries to passengers, common carriers are presumed
to have been at fault or to have acted negligently, unless they prove that
they observed extra-ordinary diligence as prescribed in Articles 1733 and
1755." Lastly, Article 1757 states that "the responsibility of a common carrier
for the safety of passengers ... cannot be dispensed with or lessened by
stipulation, by the posting of notices, by statements on tickets, or otherwise."

The prescribed airway of plane PI-C133 that afternoon of November 23, 1960,
with Capt. de Mesa, as the pilot, was Iloilo-Romblon-Manila, denominated as
airway "Amber l," and the prescribed elevation of the flight was 6,000 ft. The
fact is, the plane did not take the designated route because it was some 30
miles to the west when it crashed at Mt. Baco. According to defendant's
witness, Ramon A. Pedroza, Administrative Assistant of the Philippine Air
Lines, Inc., this tragic crash would have not happened had the pilot continued
on the route indicated. Hereunder is Mr. Pedroza's testimony on this point:

Q Had the pilot continued on the route indicated, Amber A-1 there would
have been no crash, obviously?

A Yes, Your Honor

ATTY. HILADO:

(To the witness)

Q Because Mt. Baco is 30 miles from Amber I?

A Yes,sir.(TSN,p.75,Oct.22,1963 hearing)

xxx

xxx

xxx

And, Assistant Director Cesar Mijares of the Civil Aeronautics Administration


testified that the pilot of said plane was "off course."

Q But the fact is that you found him out, that he was off course?

A Yes, sir.

Q And off course, you mean that he did not follow the route prescribed for
him?

A Yes, sir.

Q And the route for him to follow was Amber A-l?

A Yes, sir.

Q And the route for Iloilo direct to Manila, is passing Romblon to Manila?

A Yes, passing Romblon to Manila.

Q And you found that he was not at all following the route to Romblon to

Manila?

A Yes, sir.

Q You know Mr. Witness that a disregard or, violation, or disregard of


instruction is punishable by law?

A Yes,sir. (TSN,pp.247-248,Dec. 20, 1963)

xxx

xxx

xxx

It is clear that the pilot did not follow the designated route for his flight
between Romblon and Manila. The weather was clear and he was supposed
to cross airway "Amber I" over Romblon; instead, he made a straight flight to
Manila in violation of air traffic rules.

At any rate, in the absence of a satisfactory explanation by appellant as to


how the accident occurred, the presumption is, it is at fault.

In an action based on a contract of carriage, the court need not make an


express finding of fault or negligence on the part of the carrier in order to
hold it responsible to pay the damages sought for by the passenger. By the
contract of carriage, the carrier assumes the express obligation to transport
the passenger to his destination safely and to observe extraordinary diligence
with a due regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault or negligence
of the carrier (Art. 1756, New Civil Code). This is an exception to the general
rule that negligence must be proved. (Batangas Transportation Company vs.
Caguimbal, 22 SCRA 171.)

The total of the different items which the lower court adjudged herein
appellant to pay the plaintiffs is P57,800.00. The judgment of the court a quo
is modified in the sense that the defendant is hereby ordered to pay the said

amount to the plaintiffs, with legal interest thereon from the finality of this
judgment. With costs against defendant-appellant.
7.
PHILIPPINE AIRLINES vs. NLRC et al
JULY 11, 2010 ~ VBDIAZ
PHILIPPINE AIRLINES vs. NLRC et al

G.R. No. 132805

Feb. 2, 1999

FACTS: Private respondent Dr. Fabros was employed as flight surgeon at


petitioner company. He was assigned at the PAL Medical Clinic and was on
duty from 4:00 in the afternoon until 12:00 midnight.

On Feb.17, 1994, at around 7:00 in the evening, Dr. FAbros left the clinic to
have his dinner at his residence, which was abou t5-minute drive away. A few
minutes later, the clinic received an emergency call from the PAL Cargo
Services. One of its employeeshad suffered a heart attack. The nurse on duty,
Mr. Eusebio, called private respondent at home to inform him of the
emergency. The patient arrived at the clinic at 7:50 in the evening and Mr.
Eusebio immediately rushed him to the hospital. When Dr. Fabros reached the
clinic at around 7:51 in the evening, Mr. Eusebio had already left with the
patient to the hospital. The patient died the following day.

Upon learning about the incident, PAL Medical Director ordered the Chief
Flight Surgeon to conduct an investigation. In his explanation, Dr. Fabros
asserted that he was entitled to a thirty-minute meal break; that he
immediately left his residence upon being informed by Mr. Eusebio about the
emergency and he arrived at the clinic a few minutes later; that Mr. Eusebio
panicked and brought the patient to the hospital without waiting for him.

Finding private respondents explanation unacceptable, the management


charged private respondent with abandonment of post while on duty. He
denied that he abandoned his post on February 17, 1994. He said that he
only left the clinic to have his dinner at home. In fact, he returned to the clinic
at 7:51 in the evening upon being informed of the emergency.

After evaluating the charge as well as the answer of private respondent, he


was given a suspension for three months effective December 16, 1994.

Private respondent filed a complaint for illegal suspension against petitioner.

On July 16, 1996, the Labor Arbiter rendered a decision declaring the
suspension of private respondent illegal. It also ordered petitioner to pay
private respondent the amount equivalent to all the benefits he should have
received during his period of suspension plus P500,000.00 moral damages.

Petitioner appealed to the NLRC.

The NLRC, however, dismissed the appeal after finding that the decision of
the Labor Arbiter is supported by the facts on record and the law on the
matter. The NLRC likewise denied petitioners motion for reconsideration.

Hence, this petition.

ISSUE:

1.

WON the nullifying of the 3-month suspension by the NLRC erroneous.

2.

WON the awarding of moral damages is proper.

HELD: The petition is PARTIALLY GRANTED. The portion of the assailed


decision awarding moral damages to private respondent is DELETED. All other
aspects of the decision are AFFIRMED

1.
The legality of private respondents suspension: Dr. Fabros left the
clinic that night only to have his dinner at his house, which was only a few
minutes drive away from the clinic. His whereabouts were known to the
nurse on duty so that he could be easily reached in case of emergency. Upon
being informed of Mr. Acostas condition, private respondent immediately left
his home and returned to the clinic. These facts belie petitioners claim of
abandonment. Petitioner argues that being a full-time employee, private
respondent is obliged to stay in the company premises for not less than eight
(8) hours. Hence, he may not leave the company premises during such time,
even to take his meals. We are not impressed. Art. 83 and 85 of the Labor
Code read: Art. 83. Normal hours of work. The normal hours of work of any
employee shall not exceed eight (8) hours a day. Health personnel in cities
and municipalities with a population of at least one million (1,000,000) or in
hospitals and clinics with a bed capacity of at least one hundred (100) shall
hold regular office hours for eight (8) hours a day, for five (5) days a week,
exclusive of time for meals, except where the exigencies of the service
require that such personnel work for six (6) days or forty-eight (48) hours, in
which case they shall be entitled to an additional compensation of at least
thirty per cent (30%) of their regular wage for work on the sixth day. For
purposes of this Article, health personnel shall include: resident physicians,
nurses, nutritionists, dieticians, pharmacists, social workers, laboratory
technicians, paramedical technicians, psychologists, midwives, attendants
and all other hospital or clinic personnel. (emphasis supplied) Art. 85. Meal
periods. Subject to such regulations as the Secretary of Labor may
prescribe, it shall be the duty of every employer to give his employees not
less than sixty (60) minutes time-off for their regular meals. Sec. 7, Rule I,
Book III of the Omnibus Rules Implementing the Labor Code further states:
Sec. 7. Meal and Rest Periods. Every employer shall give his employees,
regardless of sex, not less than one (1) hour time-off for regular meals,
except in the following cases when a meal period of not less than twenty (20)
minutes may be given by the employer provided that such shorter meal
period is credited as compensable hours worked of the employee; (a) Where
the work is non-manual work in nature or does not involve strenuous physical
exertion; (b) Where the establishment regularly operates not less than
sixteen hours a day; (c) In cases of actual or impending emergencies or there
is urgent work to be performed on machineries, equipment or installations to
avoid serious loss which the employer would otherwise suffer; and (d) Where

the work is necessary to prevent serious loss of perishable goods. Rest


periods or coffee breaks running from five (5) to twenty (20) minutes shall be
considered as compensable working time. Thus, the eight-hour work period
does not include the meal break. Nowhere in the law may it be inferred that
employees must take their meals within the company premises. Employees
are not prohibited from going out of the premises as long as they return to
their posts on time. Private respondents act, therefore, of going home to take
his dinner does not constitute abandonment. 2. The award of moral damages:
Not every employee who is illegally dismissed or suspended is entitled to
damages. As a rule, moral damages are recoverable only where the dismissal
or suspension of the employee was attended by bad faith or fraud, or
constituted an act oppressive to labor, or was done in a manner contrary to
morals, good customs or public policy In the case at bar, there is no showing
that the management of petitioner company was moved by some evil motive
in suspending private respondent. It suspended private respondent on an
honest, albeit erroneous, belief that private respondents act of leaving the
company premises to take his meal at home constituted abandonment of
post which warrants the penalty of suspension. Under the circumstances, we
hold that private respondent is not entitled to moral damages.
8.
9.
Title: G.R. No. L-22272 Maranan v. Perez Case

Link: http://www.lawphil.net/judjuris/juri1967/jun1967/gr_l-22272_1967.html

Facts of the Case:


The carrier was charged for damages due to the case where his former
employee executed homicide.

According the Civil code of the Philippines, made a point that the common
carrier is "liable for the damages done by his employees to their
passengers" by the wording of Art. 1759 which states that:

"Common carriers are liable for the death or of injuries to passengers


through negligence or willful acts of the former's employers, although

such employees may have acted beyond the scope of their authority or
in violation of the Common carriers."

Antonia Maranan, the mother of the victim filed an action in the court of
First Instance of Batangas to recover damages from Perez who is the carrier
and Valenzuela, who is the suspect found guilty of homicide for the death of
Rogelio Corachea, her son. In defense of Perez claimed that deceased was
killed in self-defense because he was the first who assaulted the driver. In
addition to that, the defendant claimed that the death was caso foruito which
means Perez, the carrier is not liable for the damages done. In the end, the
lower court adjudged the defendant carrier liable pursuant to Article 1759 of
the Civil Code

Issues:

Whether the carrier did not partake on the crime scene, is responsible for
the protection of the passengers?
Whether the carrier is not involve in that event, is responsible for the
action of his employees?
Whether it is not the fault of the carrier committing the crime, is liable due
to the fact that he hired the employee who
failed transporting the passenger to safety?
Whether it's the employee's fault, the carrier will bear the risk of wrongful
acts or negligence of the carrier's employees against
passengers?

Decisions:

The court's decision is yes, the carrier is liable for the damages due to Art.
1759 of the Civil Code proves his guilt.

The three very least reasons to which the remaining issues are also 'yesy',
explained in Texas Midland R.R. v. Monroe, 110 Tex. 97, 216 S.W. 388, 389390, and Haver v. Central Railroad Co., 43 LRA 84, 85: (1) the special
undertaking of the carrier requires that it furnish its passenger that full
measure of protection afforded by the exercise of the high degree of care
prescribed by the law, inter alia from violence and insults at the hands of
strangers and other passengers, but above all, from the acts of the carrier's
own servants charged with the passenger's safety; (2) said liability of the
carrier for the servant's violation of duty to passengers, is the result of the
formers confiding in the servant's hands the performance of his contract to
safely transport the passenger, delegating therewith the duty of protecting
the passenger with the utmost care prescribed by law; and (3) as between
the carrier and the passenger, the former must bear the risk of wrongful acts
or negligence of the carrier's employees against passengers, since it, and not
the passengers, has power t o select and remove them
10.
G.R. No. L-28014-15

May 29, 1970

SPOUSES MARCELO LANDINGIN and RACQUEL BOCASAS, plaintiffs-appellees,


vs.
PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN, defendantsappellants.

SPOUSES PEDRO GARCIA and EUFRACIA LANDINGIN, plaintiffs-appellees,


vs.
PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN, defendantsappellants.

Gabriel A. Zabala for plaintiffs-appellees.

Vicente M. Erfe Law Office for defendants-appellants.

VILLAMOR, J.:

Direct appeal on a question of law from the portion of the judgment of the
Court of First Instance of Manila ordering the defendants Pangasinan
Transportation Co. (PANTRANCO) and Marcelo Oligan to pay the plaintiffs in
Civil Case No. D-1468
(L-28014) the sum of P6,500.00, and the plaintiffs in Civil Case No. 1470 (L28015) the sum of P3,500.00.

The complaints in said Civil Cases Nos. D-1468 and D-1470 were filed by the
spouses Marcelo Landingin and Racquel Bocasas, and the spouses Pedro
Garcia and Eufracia Landingin, respectively, for damages allegedly suffered
by them in connection with the death of their respective daughter, Leonila
Landingin and Estrella Garcia, due to the alleged negligence of the
defendants and/or breach of contract of carriage. In their complaints,
plaintiffs averred, among others, that in the morning of April 20, 1963, their
above-mentioned daughters were among the passengers in the bus driven by
defendant Marcelo Oligan and owned and operated by defendant PANTRANCO
on an excursion trip from Dagupan City to Baguio City and back, that the bus
was open on one side and enclosed on the other, in gross violation of the
rules of the Public Service Commission; that defendant PANTRANCO acted
with negligence, fraud and bad faith in pretending to have previously secured
a special permit for the trip when in truth it had not done so; that upon
reaching an uphill point at Camp 8, Kennon Road, Baguio City, on the onward
trip, defendant driver, through utter lack of foresight, experience and driving
knowledge, caused the bus to stall and stop for a few moments; that through
the said defendant's fault and mishandling, the motor ceased to function,
causing the bus to slide back unchecked; that when the said defendant
suddenly swerved and steered the bus toward the mountainside, Leonila and
Estrella, together with several other passengers, were thrown out of the bus
through its open side unto the road, suffering serious injuries as a result of
which Leonila and Estrella died at the hospital and the same day; and that in
connection with the incident, defendant driver had been charged with and
convicted of multiple homicide and multiple slight physical injuries on
account of the death of Leonila and Estrella and of the injuries suffered by
four others, although it may be said, by way of parenthesis, that this case is
now pending appeal in a higher court. The plaintiffs prayed for awards of
moral, actual and exemplary damages in the total sum of P40,000.00 in Civil
Case No. D-1468, and in the total sum of P25,000.00 in Civil Case No. D-1470

as well as attorney's fees in the amounts of P5,000.00 and P4,000.00,


respectively.

Defendants filed a joint answer to each of the two complaints alleging, among
others, that at the time of the accident, defendant driver was driving the bus
at, the slow speed of about 10 kilometers per hour; that while the said
defendant was steering his bus toward the mountainside after hearing a
sound coming from under the rear end of the bus, Leonila and Estrella
recklessly, and in disobedience to his shouted warnings and advice, jumped
out of the bus causing their heads to hit the road or pavement; that the bus
was then being driven with extraordinary care, prudence and diligence; that
defendant PANTRANCO observed the care and diligence of a good father of a
family to prevent the accident as well as in the selection and supervision of
its employees, particularly of defendant driver; and that the decision
convicting the said defendant was not yet final, the same having been
appealed to the Court of Appeals where it was still pending.

By agreement of the parties, the two cases were tried jointly. On October 17,
1966, the court a quo rendered its decision therein in which it made the
following findings; that upon reaching the fatal spot at Camp 8, a sudden
snapping or breaking of metal below the floor of the bus was heard, and the
bus abruptly stopped, rolling back a few moments later; that as a result,
some of the passengers jumped out of the bus, while others stepped down;
that defendant driver maneuvered the bus safely to and against the side of
the mountain where its rear end was made to rest, ensuring the safety of the
many passengers still inside the bus; that while defendant driver as steering
the bus towards the mountainside, he advised the passengers not to jump,
but to remain seated; that Leonila and Estrella were not thrown out of the
bus, but that they panicked and jumped out; that the malfunctioning of the
motor resulted from the breakage of the cross-joint; that there was no
negligence on the part of either of the defendants; that only the day before,
the said cross-joint was duly inspected and found to be in order; and that
defendant PANTRANCO had exercised the requisite care in the selection and
supervision of its employees, including the defendant driver. The court
concluded that "the accident was caused by a fortuitous event or an act of
God brought about by some extra-ordinary circumstances independent of the
will of the Pantranco or its employees."

One would wonder why in the face of such factual findings and conclusion of
the trial court, the defendants, instead of the plaintiffs, should come to this

Court on appeal. The answer lies in the dispositive portion of the decision, to
wit:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders


judgment: (a) Absolving the defendants from any liability on account of
negligence on their part and therefore dismissing the complaints in these two
cases; (b) However, as stated above, the Court hereby orders the defendant
Pantranco to pay to the plaintiffs spouses Marcelo Tandingin and Racquel
Bocasas in Civil Case No. D-1468 the amount of P6,500.00; and the amount
of P3,500.00 to the spouses Pedro Garcia and Eufracia Landingin in Civil Case
No. D-1470, not in payment of liability because of any negligence on the part
of the defendants but as an expression of sympathy and goodwill. (Emphasis
supplied.)

As to what impelled the court below to include item (b) in the dispositive
portion of its decision, can be gathered from the penultimate paragraph of
the decision, which reads:

However, there is evidence to the effect that an offer of P8,500.00 in the


instant cases without any admission of fault or negligence had been made by
the defendant Pantranco and that actually in Civil Case No. D-1469 for the
death of Pacita Descalso, the other deceased passenger of the bus in
question, the heirs of the decease received P3,000.00 in addition to hospital
and medical bills and the coffin of the deceased for the dismissal of the said
case without Pantranco accepting liability. There was as a matter of fact
during the pre-trial of these two cases a continuing offer of settlement on the
part of the defendant Pantranco without accepting any liability for such
damages, and the Court understood that the Pantranco would be willing still
to pay said amounts even if these cases were to be tried on the merits. It is
well-known that the defendant Pantranco is zealous in the preservation of its
public relations. In the spirit therefore of the offer of the defendant Pantranco
aforesaid, to assuage the feelings of the herein plaintiffs an award of
P6,500.00 for the spouses Marcelo Landingin and Racquel Bocasas in Civil
Case No. D-1468 whose daughter Leonila was, when she died, a third-year
Commerce student at the Far Eastern University, and P3,500.00 for the
spouses Pedro Garcia and Eufracia Landingin in Civil Case No. D-1470 whose
daughter Estrella was in the fourth year High at the Dagupan Colleges when
she died, is hereby made in their favor. This award is in addition to what
Pantranco might have spent to help the parents of both deceased after the
accident.

Defendants-appellants complain that having found them to be absolutely free


from fault or negligence, and having in fact dismissed the complaints against
them, the court should not have ordered them to assume any pecuniary
liability. There would be merit in his argument but for the fact that defendantappellant PANTRANCO was guilty of breach of contract of carriage. It will be
noted that in each of the two complaints it is averred that two buses
including the one in which the two deceased girls were riding, were hired to
transport the excursionist passengers from Dagupan City to Baguio City, and
return, and that the said two passengers did not reach destination safely.

As a common carrier, defendant-appellant PANTRANCO was duty bound to


carry its passengers "safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with a due regard for all
the circumstances." (Article 1755, Civil Code.) Did defendant-appellant
PANTRANCO measure up to the degree of care and foresight required it under
the circumstances? We think not. The court below found that the cross-joint
of the bus in which the deceased were riding broke, which caused the
malfunctioning of the motor, which in turn resulted in panic among some of
the passengers. This is a finding of fact which this Court may not disturb. We
are of the opinion, however, that the lower court's conclusion drawn from that
fact, i.e., that "the accident was caused by a fortuitous event or an act of God
brought about by some extraordinary circumstances independent of the will
of the Pantranco or its employees," is in large measure conjectural and
speculative, and was arrived at without due regard to all the circumstances,
as required by Article 1755. In Lasam vs. Smith (45 Phil. 660), this Court held
that an accident caused by defects in the automobile is not a caso fortuito.
The rationale of the carrier's liability is the fact that "the passenger has
neither the choice nor control over the carrier in the selection and use of the
equipment and appliances in use by the carrier." (Necesito, et al. vs. Paras, et
al., 104 Phil. 75.)

When a passenger dies or is injured, the presumption is that the common


carrier is at fault or that it acted negligently (Article 1756). This presumption
is only rebutted by proof on the carrier's part that it observed the
"extraordinary diligence" required in Article 1733 and the "utmost diligence of
very cautious persons" required in Article 1755 (Article 1756). In the instant
case it appears that the court below considered the presumption rebutted on
the strength of defendants-appellants' evidence that only the day before the
incident, the crossjoint in question was duly inspected and found to be in

order. It does not appear, however, that the carrier gave due regard for all the
circumstances in connection with the said inspection. The bus in which the
deceased were riding was heavily laden with passengers, and it would be
traversing mountainous, circuitous and ascending roads. Thus the entire bus,
including its mechanical parts, would naturally be taxed more heavily than it
would be under ordinary circumstances. The mere fact that the bus was
inspected only recently and found to be in order would not exempt the carrier
from liability unless it is shown that the particular circumstances under which
the bus would travel were also considered.

In the premises, it was error for the trial court to dismiss the complaints. The
awards made by the court should be considered in the concept of damages
for breach of contracts of carriage.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from


is modified as indicated above, and defendant-appellant PANTRANCO is
ordered to pay to plaintiffs-appellees the amounts stated in the judgment
appealed from, as damages for breach of contracts, with interest thereon at
the legal rate from the date of the filing of the complaints. Costs against
defendant-appellant PANTRANCO.
11.
PHILIPPINE RABBIT BUS LINES, INC. and FELIX PANGALANGAN, plaintiffsappellants,
vs.
PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO
PINEDA, defendants-appellees.

Angel A. Sison for plaintiffs-appellants.

Fidel Zosimo U. Canilao for defendants-appellees.

AQUINO, J.:+.wph!1

Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure
questions of law from the order of the Court of First Instance of Tarlac,
dismissing their complaint against Archimedes J. Balingit.

The dismissal was based on the ground that Balingit as the manager of PhilAmerican Forwarders, Inc., which together with Fernando Pineda and Balingit,
was sued for damages in an action based on quasi-delict or culpa aquiliana, is
not the manager of an establishment contemplated in article 2180 of the Civil
Code (Civil Case No. 3865).

In the complaint for damages filed by the bus company and Pangalangan
against Phil-American Forwarders, Inc., Balingit and Pineda, it was alleged
that on November 24, 1962, Pineda drove recklessly a freight truck, owned by
Phil-American Forwarders, Inc., along the national highway at Sto. Tomas,
Pampanga. The truck bumped the bus driven by Pangalangan, which was
owned by Philippine Rabbit Bus Lines, Inc. As a result of the bumping,
Pangalangan suffered injuries and the bus was damaged and could not be
used for seventy-nine days, thus depriving the company of earnings
amounting to P8,665.51. Balingit was the manager of Phil-American
Forwarders, Inc.

Among the defenses interposed by the defendants in their answer was that
Balingit was not Pineda's employer.

Balingit moved that the complaint against him be dismissed on the ground
that the bus company and the bus driver had no cause of action against him.
As already stated, the lower court dismissed the action as to Balingit. The bus
company and its driver appealed.

The Civil Code provides:t.hqw

ART. 2176.

Whoever by act or omission causes damage to another, there

being fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

ART. 2180. 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.

xxx

xxx

xxx

The owners and managers of an establishment or enterprise are likewise


responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.

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.

xxx

xxx

xxx

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. (1903a)

The novel and unprecedented legal issue in this appeal is whether the terms
"employers" and "owners and managers of an establishment or enterprise"
(dueos o directores de un establicimiento o empresa) used in article 2180 of
the Civil Code, formerly article 1903 of the old Code, embrace the manager of
a corporation owning a truck, the reckless operation of which allegedly
resulted in the vehicular accident from which the damage arose.

We are of the opinion that those terms do not include the manager of a
corporation. It may be gathered from the context of article 2180 that the
term "manager" ("director" in the Spanish version) is used in the sense of
"employer".

Hence, under the allegations of the complaint, no tortious or quasi-delictual


liability can be fastened on Balingit as manager of Phil-American Forwarders,
Inc., in connection with the vehicular accident already mentioned because he
himself may be regarded as an employee or dependiente of his employer,
Phil-American Forwarders, Inc.

Thus, it was held "que es dependiente, a los efectos de la responsabilidad


subsidiaria establecida en el num 3.0 del (art.) 1903, el director de un
periodico explotado por una sociedad, porque cualquiera que sea su jerarquia
y aunque Ileve la direccion de determinadas convicciones politicas no por eso
deja de estar subordinado a la superior autoridad de la Empresa" (Decision of
Spanish Supreme Court dated December 6, 1912 cited in 12 Manresa, Codigo
Civil Espaol 5th Ed. 662; 1913 Enciclopedia Juridica Espaola 992).

The bus company and its driver, in their appellants' brief, injected a new
factual issue which was not alleged in their complaint. They argue that PhilAmerican Forwarders, Inc. is merely a business conduit of Balingit because
out of its capital stock with a par value of P41,200, Balingit and his wife had
subscribed P40,000 and they paid P10,000 on their subscription, while the
other incorporators, namely, Rodolfo Limjuco, Ponciano Caparas and Rafael
Suntay paid P250.25 and P25, respectively.

That argument implies that the veil of corporate fiction should be pierced and
that Phil-American Forwarders, Inc. and Balingit and his wife should be
treated as one and the same civil personality.

We cannot countenance that argument in this appeal. It was not raised in the
lower court. The case has to be decided on the basis of the pleadings filed in
the trial court where it was assumed that Phil-American Forwarders, Inc. has a
personality separate and distinct from that of the Balingit spouses.

The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is
one which was raised in the lower court and which is within the issues framed
by the parties (Sec. 18, Rule 46, Rules of Court).

When a party deliberately adopts a certain theory and the case is decided
upon that theory in the court below, he will not be permitted to change his
theory on appeal because, to permit him to do so, could be unfair to the
adverse party (2 Moran's Comments on the Rules of Court, 1970 Ed. p. 505).

WHEREFORE, the lower court's order of dismissal is affirmed. Costs against


the plaintiffs-appellants.

SO ORDERED.
12.
[G.R. No. 111127. July 26, 1996]

MR. & MRS. ENGRACIO FABRE, JR.* and PORFIRIO CABIL, petitioners, vs.
COURT OF APPEALS, THE WORD FOR THE WORLD CHRISTIAN FELLOWSHIP,
INC., AMYLINE ANTONIO, JOHN RICHARDS, GONZALO GONZALES, VICENTE V.
QUE, JR., ICLI CORDOVA, ARLENE GOJOCCO, ALBERTO ROXAS CORDERO,
RICHARD BAUTISTA, JOCELYN GARCIA, YOLANDA CORDOVA, NOEL ROQUE,
EDWARD TAN, ERNESTO NARCISO, ENRIQUETA LOCSIN, FRANCIS NORMAN O.
LOPEZ, JULIUS CAESAR GARCIA, ROSARIO MA. V. ORTIZ, MARIETTA C. CLAVO,
ELVIE SENIEL, ROSARIO MARA-MARA, TERESITA REGALA, MELINDA TORRES,
MARELLA MIJARES, JOSEFA CABATINGAN, MARA NADOC, DIANE MAYO, TESS
PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ, LIZA MAYO, CARLOS RANARIO,
ROSAMARIA T. RADOC and BERNADETTE FERRER, respondents.
DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision of the Court of


Appeals[1] in CA-GR No. 28245, dated September 30, 1992, which affirmed
with modification the decision of the Regional Trial Court of Makati, Branch
58, ordering petitioners jointly and severally to pay damages to private

respondent Amyline Antonio, and its resolution which denied petitioners


motion for reconsideration for lack of merit.

Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model
Mazda minibus. They used the bus principally in connection with a bus
service for school children which they operated in Manila. The couple had a
driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out for two
weeks. His job was to take school children to and from the St. Scholasticas
College in Malate, Manila.

On November 2, 1984 private respondent Word for the World Christian


Fellowship Inc. (WWCF) arranged with petitioners for the transportation of 33
members of its Young Adults Ministry from Manila to La Union and back in
consideration of which private respondent paid petitioners the amount of
P3,000.00.

The group was scheduled to leave on November 2, 1984, at 5:00 oclock in the
afternoon. However, as several members of the party were late, the bus did
not leave the Tropical Hut at the corner of Ortigas Avenue and EDSA until
8:00 oclock in the evening. Petitioner Porfirio Cabil drove the minibus.

The usual route to Caba, La Union was through Carmen, Pangasinan.


However, the bridge at Carmen was under repair, so that petitioner Cabil,
who was unfamiliar with the area (it being his first trip to La Union), was
forced to take a detour through the town of Ba-ay in Lingayen, Pangasinan. At
11:30 that night, petitioner Cabil came upon a sharp curve on the highway,
running on a south to east direction, which he described as siete. The road
was slippery because it was raining, causing the bus, which was running at
the speed of 50 kilometers per hour, to skid to the left road shoulder. The bus
hit the left traffic steel brace and sign along the road and rammed the fence
of one Jesus Escano, then turned over and landed on its left side, coming to a
full stop only after a series of impacts. The bus came to rest off the road. A
coconut tree which it had hit fell on it and smashed its front portion.

Several passengers were injured. Private respondent Amyline Antonio was


thrown on the floor of the bus and pinned down by a wooden seat which
came off after being unscrewed. It took three persons to safely remove her

from this position. She was in great pain and could not move.

The driver, petitioner Cabil, claimed he did not see the curve until it was too
late. He said he was not familiar with the area and he could not have seen
the curve despite the care he took in driving the bus, because it was dark and
there was no sign on the road. He said that he saw the curve when he was
already within 15 to 30 meters of it. He allegedly slowed down to 30
kilometers per hour, but it was too late.

The Lingayen police investigated the incident the next day, November 3,
1984. On the basis of their finding they filed a criminal complaint against the
driver, Porfirio Cabil. The case was later filed with the Lingayen Regional Trial
Court. Petitioners Fabre paid Jesus Escano P1,500.00 for the damage to the
latters fence. On the basis of Escanos affidavit of desistance the case against
petitioners Fabre was dismissed.

Amyline Antonio, who was seriously injured, brought this case in the RTC of
Makati, Metro Manila. As a result of the accident, she is now suffering from
paraplegia and is permanently paralyzed from the waist down. During the
trial she described the operations she underwent and adduced evidence
regarding the cost of her treatment and therapy. Immediately after the
accident, she was taken to the Nazareth Hospital in Ba-ay, Lingayen. As this
hospital was not adequately equipped, she was transferred to the Sto. Nio
Hospital, also in the town of Ba-ay, where she was given sedatives. An x-ray
was taken and the damage to her spine was determined to be too severe to
be treated there. She was therefore brought to Manila, first to the Philippine
General Hospital and later to the Makati Medical Center where she underwent
an operation to correct the dislocation of her spine.

In its decision dated April 17, 1989, the trial court found that:

No convincing evidence was shown that the minibus was properly checked for
travel to a long distance trip and that the driver was properly screened and
tested before being admitted for employment. Indeed, all the evidence
presented have shown the negligent act of the defendants which ultimately
resulted to the accident subject of this case.

Accordingly, it gave judgment for private respondents holding:

Considering that plaintiffs Word for the World Christian Fellowship, Inc. and
Ms. Amyline Antonio were the only ones who adduced evidence in support of
their claim for damages, the Court is therefore not in a position to award
damages to the other plaintiffs.

WHEREFORE, premises considered, the Court hereby renders judgment


against defendants Mr. & Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil
pursuant to articles 2176 and 2180 of the Civil Code of the Philippines and
said defendants are ordered to pay jointly and severally to the plaintiffs the
following amount:

1) P93,657.11 as compensatory and actual damages;

2) P500,000.00 as the reasonable amount of loss of earning capacity of


plaintiff Amyline Antonio;

3) P20,000.00 as moral damages;

4) P20,000.00 as exemplary damages; and

5) 25% of the recoverable amount as attorneys fees;

6) Costs of suit.

SO ORDERED.

The Court of Appeals affirmed the decision of the trial court with respect to
Amyline Antonio but dismissed it with respect to the other plaintiffs on the
ground that they failed to prove their respective claims. The Court of Appeals
modified the award of damages as follows:

1) P93,657.11 as actual damages;

2) P600,000.00 as compensatory damages;

3) P50,000.00 as moral damages;

4) P20,000.00 as exemplary damages;

5) P10,000.00 as attorneys fees; and

6) Costs of suit.

The Court of Appeals sustained the trial courts finding that petitioner Cabil
failed to exercise due care and precaution in the operation of his vehicle
considering the time and the place of the accident. The Court of Appeals held
that the Fabres were themselves presumptively negligent. Hence, this
petition. Petitioners raise the following issues:

I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.

II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES


SUFFERED BY PRIVATE RESPONDENTS.

III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP


TO WHAT EXTENT.

Petitioners challenge the propriety of the award of compensatory damages in


the amount of P600,000.00. It is insisted that, on the assumption that
petitioners are liable, an award of P600,000.00 is unconscionable and highly
speculative. Amyline Antonio testified that she was a casual employee of a
company called Suaco, earning P1,650.00 a month, and a dealer of Avon
products, earning an average of P1,000.00 monthly. Petitioners contend that
as casual employees do not have security of tenure, the award of
P600,000.00, considering Amyline Antonios earnings, is without factual basis
as there is no assurance that she would be regularly earning these amounts.

With the exception of the award of damages, the petition is devoid of merit.

First, it is unnecessary for our purpose to determine whether to decide this


case on the theory that petitioners are liable for breach of contract of
carriage or culpa contractual or on the theory of quasi delict or culpa
aquiliana as both the Regional Trial Court and the Court of Appeals held, for
although the relation of passenger and carrier is contractual both in origin
and nature, nevertheless the act that breaks the contract may be also a tort.
[2] In either case, the question is whether the bus driver, petitioner Porfirio
Cabil, was negligent.

The finding that Cabil drove his bus negligently, while his employer, the
Fabres, who owned the bus, failed to exercise the diligence of a good father
of the family in the selection and supervision of their employee is fully
supported by the evidence on record. These factual findings of the two courts
we regard as final and conclusive, supported as they are by the evidence.
Indeed, it was admitted by Cabil that on the night in question, it was raining,
and, as a consequence, the road was slippery, and it was dark. He averred
these facts to justify his failure to see that there lay a sharp curve ahead.
However, it is undisputed that Cabil drove his bus at the speed of 50
kilometers per hour and only slowed down when he noticed the curve some
15 to 30 meters ahead.[3] By then it was too late for him to avoid falling off
the road. Given the conditions of the road and considering that the trip was
Cabils first one outside of Manila, Cabil should have driven his vehicle at a
moderate speed. There is testimony[4] that the vehicles passing on that
portion of the road should only be running 20 kilometers per hour, so that at
50 kilometers per hour, Cabil was running at a very high speed.

Considering the foregoing the fact that it was raining and the road was
slippery, that it was dark, that he drove his bus at 50 kilometers an hour
when even on a good day the normal speed was only 20 kilometers an hour,
and that he was unfamiliar with the terrain, Cabil was grossly negligent and
should be held liable for the injuries suffered by private respondent Amyline
Antonio.

Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to
the presumption that his employers, the Fabres, were themselves negligent in
the selection and supervision of their employee.

Due diligence in selection of employees is not satisfied by finding that the


applicant possessed a professional drivers license. The employer should also
examine the applicant for his qualifications, experience and record of service.
[5] Due diligence in supervision, on the other hand, requires the formulation
of rules and regulations for the guidance of employees and the issuance of
proper instructions as well as actual implementation and monitoring of
consistent compliance with the rules.[6]

In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union,
apparently did not consider the fact that Cabil had been driving for school
children only, from their homes to the St. Scholasticas College in Metro
Manila.[7] They had hired him only after a two-week apprenticeship. They
had tested him for certain matters, such as whether he could remember the
names of the children he would be taking to school, which were irrelevant to
his qualification to drive on a long distance travel, especially considering that
the trip to La Union was his first. The existence of hiring procedures and
supervisory policies cannot be casually invoked to overturn the presumption
of negligence on the part of an employer.[8]

Petitioners argue that they are not liable because (1) an earlier departure
(made impossible by the congregations delayed meeting) could have averted
the mishap and (2) under the contract, the WWCF was directly responsible for
the conduct of the trip. Neither of these contentions hold water. The hour of
departure had not been fixed. Even if it had been, the delay did not bear
directly on the cause of the accident. With respect to the second contention,
it was held in an early case that:

[A] person who hires a public automobile and gives the driver directions as to
the place to which he wishes to be conveyed, but exercises no other control
over the conduct of the driver, is not responsible for acts of negligence of the
latter or prevented from recovering for injuries suffered from a collision
between the automobile and a train, caused by the negligence either of the
locomotive engineer or the automobile driver.[9]

As already stated, this case actually involves a contract of carriage.


Petitioners, the Fabres, did not have to be engaged in the business of public
transportation for the provisions of the Civil Code on common carriers to
apply to them. As this Court has held:[10]

Art. 1732. Common carriers are persons, corporations, firms or associations


engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air for compensation, offering their services to the
public.

The above article makes no distinction between one whose principal business
activity is the carrying of persons or goods or both, and one who does such
carrying only as an ancillary activity (in local idiom, as a sideline). Article
1732 also carefully avoids making any distinction between a person or
enterprise offering transportation service on a regular or scheduled basis and
one offering such service on an occasional, episodic or unscheduled basis.
Neither does Article 1732 distinguish between a carrier offering its services to
the general public, i.e., the general community or population, and one who
offers services or solicits business only from a narrow segment of the general
population. We think that Article 1732 deliberately refrained from making
such distinctions.

As common carriers, the Fabres were bound to exercise extraordinary


diligence for the safe transportation of the passengers to their destination.
This duty of care is not excused by proof that they exercised the diligence of
a good father of the family in the selection and supervision of their employee.
As Art. 1759 of the Code provides:

Common carriers are liable for the death of or injuries to passengers through
the negligence or wilful acts of the formers employees, although such
employees may have acted beyond the scope of their authority or in violation
of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees.

The same circumstances detailed above, supporting the finding of the trial
court and of the appellate court that petitioners are liable under Arts. 2176
and 2180 for quasi delict, fully justify finding them guilty of breach of contract
of carriage under Arts. 1733, 1755 and 1759 of the Civil Code.

Secondly, we sustain the award of damages in favor of Amyline Antonio.


However, we think the Court of Appeals erred in increasing the amount of
compensatory damages because private respondents did not question this
award as inadequate.[11] To the contrary, the award of P500,000.00 for
compensatory damages which the Regional Trial Court made is reasonable
considering the contingent nature of her income as a casual employee of a
company and as distributor of beauty products and the fact that the
possibility that she might be able to work again has not been foreclosed. In
fact she testified that one of her previous employers had expressed
willingness to employ her again.

With respect to the other awards, while the decisions of the trial court and
the Court of Appeals do not sufficiently indicate the factual and legal basis for
them, we find that they are nevertheless supported by evidence in the
records of this case. Viewed as an action for quasi delict, this case falls
squarely within the purview of Art. 2219(2) providing for the payment of
moral damages in cases of quasi delict. On the theory that petitioners are
liable for breach of contract of carriage, the award of moral damages is
authorized by Art. 1764, in relation to Art. 2220, since Cabils gross negligence
amounted to bad faith.[12] Amyline Antonios testimony, as well as the
testimonies of her father and co-passengers, fully establish the physical
suffering and mental anguish she endured as a result of the injuries caused
by petitioners negligence.

The award of exemplary damages and attorneys fees was also properly
made. However, for the same reason that it was error for the appellate court
to increase the award of compensatory damages, we hold that it was also
error for it to increase the award of moral damages and reduce the award of
attorneys fees, inasmuch as private respondents, in whose favor the awards
were made, have not appealed.[13]

As above stated, the decision of the Court of Appeals can be sustained either
on the theory of quasi delict or on that of breach of contract. The question is
whether, as the two courts below held, petitioners, who are the owners and
driver of the bus, may be made to respond jointly and severally to private
respondent. We hold that they may be. In Dangwa Trans. Co. Inc. v. Court of
Appeals,[14] on facts similar to those in this case, this Court held the bus
company and the driver jointly and severally liable for damages for injuries
suffered by a passenger. Again, in Bachelor Express, Inc. v. Court of
Appeals[15] a driver found negligent in failing to stop the bus in order to let
off passengers when a fellow passenger ran amuck, as a result of which the
passengers jumped out of the speeding bus and suffered injuries, was held
also jointly and severally liable with the bus company to the injured
passengers.

The same rule of liability was applied in situations where the negligence of
the driver of the bus on which plaintiff was riding concurred with the
negligence of a third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buo,[16] Batangas Laguna Tayabas Bus Co.
v. Intermediate Appellate Court,[17] and Metro Manila Transit Corporation v.
Court of Appeals,[18] the bus company, its driver, the operator of the other
vehicle and the driver of the vehicle were jointly and severally held liable to
the injured passenger or the latters heirs. The basis of this allocation of
liability was explained in Viluan v. Court of Appeals,[19] thus:

Nor should it make any difference that the liability of petitioner [bus owner]
springs from contract while that of respondents [owner and driver of other
vehicle] arises from quasi-delict. As early as 1913, we already ruled in
Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due
to the negligence of the driver of the bus on which he was riding and of the
driver of another vehicle, the drivers as well as the owners of the two
vehicles are jointly and severally liable for damages. Some members of the
Court, though, are of the view that under the circumstances they are liable on
quasi-delict.[20]

It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals[21] this
Court exonerated the jeepney driver from liability to the injured passengers
and their families while holding the owners of the jeepney jointly and
severally liable, but that is because that case was expressly tried and decided
exclusively on the theory of culpa contractual. As
this Court there explained:

The trial court was therefore right in finding that Manalo [the driver] and
spouses Mangune and Carreon [the jeepney owners] were negligent.
However, its ruling that spouses Mangune and Carreon are jointly and
severally liable with Manalo is erroneous. The driver cannot be held jointly
and severally liable with the carrier in case of breach of the contract of
carriage. The rationale behind this is readily discernible. Firstly, the contract
of carriage is between the carrier and the passenger, and in the event of
contractual liability, the carrier is exclusively responsible therefore to the
passenger, even if such breach be due to the negligence of his driver (see
Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16
SCRA 742) . . .[22]

As in the case of BLTB, private respondents in this case and her co-plaintiffs
did not stake out their claim against the carrier and the driver exclusively on
one theory, much less on that of breach of contract alone. After all, it was
permitted for them to allege alternative causes of action and join as many
parties as may be liable on such causes of action[23] so long as private
respondent and her co-plaintiffs do not recover twice for the same injury.
What is clear from the cases is the intent of the plaintiff there to recover from
both the carrier and the driver, thus justifying the holding that the carrier and
the driver were jointly and severally liable because their separate and distinct
acts concurred to produce the same injury.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with


MODIFICATION as to the award of damages. Petitioners are ORDERED to PAY
jointly and severally the private respondent Amyline Antonio the following
amounts:

1) P93,657.11 as actual damages;

2) P500,000.00 as the reasonable amount of loss of earning capacity of


plaintiff Amyline Antonio;

3) P20,000.00 as moral damages;

4) P20,000.00 as exemplary damages;

5) 25% of the recoverable amount as attorneys fees; and

6) costs of suit.

SO ORDERED.

Regalado, (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.


13.
[G.R. No. 93291. March 29, 1999]

SULPICIO LINES, INC. and CRESENCIO G. CASTANEDA, petitioners, vs. COURT


OF APPEALS and AQUARIUS FISHING CO., INC., respondents.
D E C I S I ON
PURISIMA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules
of Court seeking the reversal of the Decision, dated November 29, 1989, of
the Court of Appeals[1] in CA GR No. 15081, and the Resolution, dated April
24, 1990, denying petitioners Motion for Reconsideration.

The facts that matter are as follows:

The case stemmed from a complaint for damages of Aquarius Fishing Co., Inc.
against Sulpicio Lines, Inc. and Cresencio G. Castaneda, docketed as Civil
Case No. 14510 before Branch 44 of Regional Trial Court in Bacolod City. In
due time, said defendants submitted their Answer with counterclaim.

On May 31, 1986, the trial court came out with its Decision in favor of plaintiff
Aquarius Fishing Co., Inc. ratiocinating and disposing thus:

The question to be determined is whether the collision between M/V Don


Sulpicio and F/B Aquarius 'G' was due to the negligence of the defendants or
of the plaintiff. It is admitted in the evidence that at a distance of about 4
miles M/V Don Sulpicio has sighted 2 fishing boats, namely: F/B Aquarius 'C'
and F/B Aquarius G although defendants maintained it was F/B Aquarius 'B'.
From the evidence it appears that the 2 fishing boats had a speed of about
7.5 to 8 knots per hour while M/V Don Sulpicio was running about 15.5 knots
per hour. It would appear that the speed of M/V Don Sulpicio was more than
twice as fast as the speed of the two fishing boats. The weather at that time
the accident happened was clear and visibility was good. In other words, from
the distance of about four miles at sea, the men of Don Sulpicio could clearly
see the 2 fishing boats which were ahead about 4 miles and likewise, the men
of the 2 fishing boats could clearly see M/V Don Sulpicio following. The
plaintiff claims that they continued on their speed in their course and while
maintaining their speed they were rammed by M/V Don Sulpicio.

Defendants claim that plaintiff was negligent and that the collision was due to
the negligence of the men manning F/B Aquarius 'B' and submit that
considering that F/B Aquarius 'B' had no lookout and that the fishing boat was
ahead, F/B Aquarius 'B' should have given way to M/V Don Sulpicio who was
following in order to avoid collision. And considering that F/B Aquarius 'B' was
at fault, it should suffer its own damage.

xxx xxx xxx

It appears in the theory of defendants that simply because a vessel had no

lookout and that the vessel was ahead, if it is rammed by another vessel that
is following, the fault would be on the vessel that is ahead because the vessel
that is ahead should always give way to the vessel that is following.

xxx xxx xxx

From this argument, it would appear that whether actual negligence was
committed by the vessel ahead or not, but as long as the vessel had no
lookout and has not given way to the vessel following, the vessel following, if
it ram the vessel ahead, has no fault.

It should be noted that F/B Aquarius G is a fishing vessel with a speed of only
7.5 or 8 knots per hour and according to the master of the vessel, they are
not required by law to have a lookout because the vessel is small. M/V Don
Sulpicio is a passenger boat with a speed of about 15.5 knots an hour and
being a passenger boat, it is bigger boat and a faster boat. It is incumbent
upon its master to see to it that the direction to which they are proceeding is
clear. Having seen for the first time the 2 vessels, F/B Aquarius C and F/B
Aquarius G about 4 miles ahead and that they were almost parallel to each
other or in the same line with each other, as M/V Don Sulpicio was following,
M/V Don Sulpicio should have used sufficient diligence to avoid collision. It
appears from the evidence that during the incident, the weather was clear
and visibility was very good. The M/V Don Sulpicio had a clear opportunity to
avoid collision, but it failed to do so. M/V Don Sulpicio believed, that
considering that it was a following vessel, it can just go thru and proceed
irrespective of danger. The Court believes that the evidence is abundant to
show negligence on the part of the master of the defendants and as such,
defendants should be held responsible for all the damages suffered by F/B
Aquarius G.

Defendants claim that the vessel involved was F/B Aquarius B. However, the
evidence show that the fishing vessel that sunk was F/B Aquarius G and not
F/B Aquarius B. And as shown by the evidence, the total loss of F/B Aquarius
G together with its articles and provisions was P564,448.80.[2]

WHEREFORE, the Court finds the complaint duly supported by evidence and
judgment is hereby rendered in favor of the plaintiff and against the

defendants, who are hereby ordered to pay, jointly and severally, the plaintiff
the sum of P564,448.80 for the actual loss of F/B Aquarius G including its
articles and provisions; the sum of P10,000.00 per month from the date of the
accident representing deprivation of the use and services of F/B Aquarius G
and another sum of P10,000.00 for actual expenses and costs of litigation,
another sum of P10,000.00 by way of exemplary damages, another sum
equivalent to 15% of the total claim of plaintiff as attorneys fees plus P300.00
per court appearance, and to pay legal rate of interest of all the amounts so
adjudged from November 18, 1978 until the entire amount is fully paid, and
to pay the costs. Counterclaim is dismissed.[3]

The defendants appealed to the Court of Appeals, assigning seven (7) errors
which the appellate court summed up and treated as two pivotal issues, to
wit:

1. THE COURT A QUO ERRED IN DISREGARDING THE REGULATION FOR


PREVENTING COLLISION AT SEA, MORE POPULARLY KNOWN AS THE RULE OF
THE ROAD IN DETERMINING WHICH OF THE TWO VESSELS WAS NEGLIGENT
AND LIABLE, CONSIDERING THAT M/V DON SULPICIO COMPLIED WITH THEIR
PROVISIONS, WHILE F/B AQUARIUS G DID NOT; AND

2. THE COURT A QUO ERRED IN AWARDING DAMAGES, ATTORNEYS FEES,


ACTUAL EXPENSES AND COSTS OF LITIGATION, LEGAL RATE OF INTEREST OF
ALL THE AWARDS FROM NOVEMBER 18, 1978 UNTIL ALL THE AMOUNTS ARE
FULLY PAID.[4]

On November 29, 1989, the Court of Appeals affirmed the Decision of the trial
court of origin. The Motion for Reconsideration interposed on December 23,
1989 by appellants met the same fate. It was denied on April 24, 1990.

Undaunted, petitioners found their way to this Court via the present Petition
for Review on Certiorari, contending that:

THE LOWER COURT ERRED IN EXONERATING THE VESSEL F/B AQUARIUS B


AND HER MASTER FROM NEGLIGENCE DESPITE THE ADMISSION BY AGAPITO
GERBOLINGA, PATRON OF SAID VESSEL THAT THEY HAD NO LOOKOUT
DURING THE COLLISION.

II

THE LOWER COURT ERRED IN DISREGARDING THE REGULATION FOR


PREVENTING COLLISION AT SEA, MORE POPULARLY KNOWN AS THE RULES OF
THE ROAD IN DETERMINING WHICH OF THE TWO VESSELS WAS NEGLIGENT
AND LIABLE.

III

THE LOWER COURT ERRED IN IMPUTING NEGLIGENCE ON THE VESSEL M/V


DON SULPICIO, THE PRIVILEGED VESSEL WHICH COMPLIED WITH RULES 19
AND 21, RULES OF THE ROAD.

IV

THE LOWER COURT ERRED IN AWARDING TO PLAINTIFF-APPELLEE THE


AMOUNT OF P564,448.80 AS ACTUAL LOSS PLUS P10,000.00 PER MONTH
FROM THE PERIOD OF NOVEMBER 18, 1978 REPRESENTING DEPRIVATION OF
USE AND SERVICES OF F/B AQUARIUS B AND ANOTHER SUM OF P10,000.00
FOR ACTUAL EXPENSES AND COST OF LITIGATION.

THE LOWER COURT ERRED IN AWARDING PLAINTIFF AND AGAINST


DEFENDANTS THE SUM OF P10,000.00 AS EXEMPLARY DAMAGES.

VI

THE LOWER COURT ERRED IN AWARDING PLAINTIFF AND AGAINST THE


DEFENDANT-APPELLEE THE SUM EQUIVALENT TO 15% OF THE TOTAL CLAIM
AS ATTORNEYS FEES PLUS P300.00 PER COURT APPEARANCE.

VII

THE LOWER COURT ERRED IN AWARDING LEGAL RATE OF INTEREST OF ALL


THE AWARDS TO PLAINTIFF-APPELLEE FROM NOVEMBER 18, 1978 UNTIL ALL
THE AMOUNTS ARE FULLY PAID.[5]

Placing reliance on the Rules of the Road and Regulations on the Prevention
of Collision, petitioners maintain:

xxx that respondent Court of Appeals completely disregarded the rule of


admission in matters adverse to ones interest. It is very clear that the F/B
Aquarius B, her patron and crew were negligent in this case. The Rules of the
Road which is Annex A' of the Philippine Merchant Rules and Regulations
requires that all vessels must have a lookout (Rule 29, Rules of the Road). All
vessels irrespective of size and make must keep a lookout. There is no
exception to this rule.

xxx xxx xxx

It was clearly established by the positive testimony of second mate, Aurelio


Villacampa, Jr. on July 14, 1981 and the sketch prepared by said witness
(Exhibit 2) that the two vessels were in a crossing situation. The vessel M/V
Don Sulpicio was approaching on the starboard or right side of the crossing
vessel F/B Aquarius B. The applicable rules in such a crossing situation are
Rules 19, 21, 22 and 23. We quote the above Rules as follows:

Rule 19. When two power driven vessels are crossing, so as to involve risk of

collision, the vessel which has the other on her starboard side shall keep out
of the way of the other.

Rule 21. Where, by any of the Rules, one of two vessels is to keep out of the
way, the other shall keep her course and speed.

Rule 22. Every vessel which is directed by these Rules to keep out of the way
of another vessel, so far as possible, take positive early action to comply with
this obligation, and shall, if the circumstance of the case admit, avoid
crossing ahead of the other.

Rule 23. Every power-driven vessel which is directed by these Rules to keep
out of the way of another vessel shall, on approaching her, if necessary,
slacken her speed or stop or reverse.

The M/V DON SULPICIO was the privileged vessel and the F/B Aquarius B was
the burdened vessel in the crossing situation (Exhibits 2, 3, 4, 9, 10).
However, the F/B Aquarius B violated the rules, did not keep out of the way,
did not slacken speed but instead went full ahead and crossed the bow of M/V
DON SULPICIO. xxx

xxx xxx xxx

In the case at bar F/B Aquarius B by failure to keep out of the way and
slacken her speed has allowed herself to come to close proximity to the
vessel M/V DON SULPICIO bringing about the collision.

The award to private respondent of the sum of P564,448.80 as actual loss is


based on surmises and conjectures. No appraisal of the value of the vessel
F/B Aquarius B was presented to support said claim of total loss. The claim of
P564,448.80 was derived after summarizing up invoices and receipts of
alleged purchases of materials, provisions dating back since 1972 and even
after November 18, 1978 the date of the collision (Exhibits CC to KK). This
award is exaggerated (sic) and speculative.[6]

On October 24, 1990, respondent Aquarius Fishing Co., Inc. sent in its
Comment, stating:

Granting for the sake of argument that any or all of the petitioners witnesses
can be classified as lookouts for M/V Don Sulpicio, their negligence is made
much clearer because they could not determine risk of collision, speed was
not slackened, no warning sign was made and the course of M/V Don Sulpicio
was not changed to avoid the collision.

At any rate, the office of the Coast Guard Judge Advocate which we believed
is the proper authority and has the technical competence to determine who is
at fault in maritime cases has this to say on the look out defense put up by
the petitioners:

It is clear that the M/V Don Sulpicio was the overtaking vessel and, under the
Rules on the Road, was the burdened vessel which had the duty to take all
the necessary actions to keep clear of the overtaken vessel. It was also
shown that M/V Don Sulpicio did not alter her course to reduce her speed and
being at close range with F/B Aquarius G, did not even give a warning signal.
It was likewise shown that the Aquarius Fishing Co., Inc. did not own a vessel
named F/B Aquarius B ( as identified by Chief Mate Oro), but it did own a
vessel named Aquarius G at the time of the incident. The fact that F/B
'Aquarius G' had no lookout at the time of the collision does not excuse M/V
Don Sulpicio from observing her duty to keep clear of the overtaken vessel
especially so when there was sufficient room for her to do so.[7]

The Petition is not impressed with merit.

Well-settled to the point of being elementary is the doctrine that the findings
by the trial court are binding on the appellate court and will not be disturbed
on appeal, unless the trial court has overlooked or ignored some fact or
circumstance of sufficient weight or significance which, if considered, would
alter the situation.[8]

"Factual findings of the appellate court deemed conclusive. (Estonina v. Court


of Appeals, 266 SCRA 627)"

It is a fundamental rule in criminal as well as in civil cases that in the matter


of credibility of witnesses, the findings of the trial court are given great
weight and highest degree of respect by the appellate court. (Lee Eng Hong
v. Court of Appeals, 241 SCRA 392 citing Pagsuyuin v. Intermediate Appellate
Court, 193 SCRA 547)

xxx It is not the function of this Court to assess and evaluate all over again
the evidence, testimonial and evidentiary, adduced by the parties particularly
where, such as here, the findings of both the trial court and the appellate
court on the matter coincide. (South Sea Surety and Insurance Company, Inc.
v. Court of Appeals, 244 SCRA 744)

It is a settled principle of civil procedure that the conclusions of the trial court
regarding the credibility of witnesses are entitled to great respect from the
appellate court xxx" (Limketkai Sons Milling, Inc. vs. Court of Appeals, 250
SCRA 253, citing Serrano vs. Court of Appeals, 196 SCRA 107)

After a thorough review and examination of the evidence on hand, we discern


no ground or basis for disregarding the findings and conclusion arrived at
below.

Petitioners asserted that private respondent, through its patron, admitted


that the vessel had no lookout during the collision despite the absolute rule
provided in Rule 9 of the Rules of Road. To bolster its stance, it contended
that it was a privileged vessel pursuant to Rules 19, 21, 22, 23 of the
Regulations for the Prevention of Collisions at Sea.

Both the trial court and the respondent court found that M/V Don Sulpicio was
crossing at 15.5 knots per hour while F/B Aquarius G was obeying a speed
limit of 7.5 knots per hour. The weather was clear and visibility was good. M/V
Don Sulpicio was four (4) miles away when it first sighted F/B Aquarius G. All
the time up to the collision, M/V Don Sulpicio maintained its speed of 16
knots. It was only two (2) minutes before the collision when M/V Don Sulpicio

changed its course.

Whether or not the collision sued upon occurred in a crossing situation is


immaterial as the Court of Appeals, relying on Rule 24-C, Regulations for
Preventing Collisions at the Sea, rules that the duty to keep out of the way
remained even if the overtaking vessel cannot determine with certainty
whether she is forward of or abaft more than 2 points from the vessel. It is
beyond cavil that M/V Don Sulpicio must assume responsibility as it was in a
better position to avoid the collision. It should have blown its horn or give
signs to warn the other vessel that it was to overtake it.

Assuming argumenti ex gratia that F/B Aquarius G had no lookout during the
collision, the omission does not suffice to exculpate Sulpicio Lines from
Liability. M/V Don Sulpicio cannot claim that it was a privileged vessel being in
the portside which can maintain its course and speed during the collision.
When it overtook F/B Aquarius G, it was duty bound during the collision.
When it overtook F/B Aquarius G, it was duty bound to slacken its speed and
keep away from other vessel, which it failed to do. The stance of petitioners
that F/B Aquarius G is a burdened vessel which should have kept out of the
way of M/V Don Sulpicio is not supported by facts.

Anent the award of actual damage in the amount of P564,448.80, petitioners


mere allegation that the award of actual damages is exaggerated and
speculative, without controverting the receipts and invoices when the boat
was constructed and which were bases of accounting entries in the books of
accounts presented by the private respondent, are unavailing to defeat the
award. To be sure, the private respondent amply established the
compensatory damages it suffered by reason of the collision.

The award of fifteen (15%) percent of the total claim sued upon as attorneys
fees and the legal rate of interest adjudged are proper. However, the
P10,000.00 a month awarded by the trial court and the respondent court for
earnings that would have derived from F/B Aquarius G, without indicating the
material period is too uncertain and onerous to deserve serious
consideration.

In awarding P10,000.00 per month, representing the supposed profits F/B

Aquarius G could have netted, the trial court relied on the sole testimony of
Mr. Johnny L. Chua, who is in the employ of private respondent.

The arguments of petitioners that the earnings of F/B Aquarius G must be


shown is not applicable in this case. F/B Aquarius G is just a carrier to its
mother boat Aquarius G. Its role was to carry the catch from the fishing
ground to the port and it was serving not only its mother boat, but other
boats owned by respondent Aquarius. The income of F/B Aquarius G is
therefore impossible to really determine. The only reasonable basis is only its
rental value compared with similar boats.[9]

As regards the reckoning period, there is tenability in petitioners submission


that a fishing boat deteriorates quite quickly due to exposure to the
elements. To hold Sulpicio Lines to pay the profits that would have been
realized by the private respondents for an unlimited period of time is to
burden it indefinitely, which cannot be countenanced.

xxx The decision awarding P10,000.00 per month reckoned from November
1978 up to the present implies unlimited existence of the fishing vessel F/B
Aquarius G which is not the case as any common man will experience. The
Honorable Court can take judicial notice of the deterioration of the wood in a
fishing boat that is always exposed to the elements. Surely, said existence
will not last for more than ten years. Considering that the fishing vessel is
already six years old, then it has a lifespan of not more than four more years.
[10]

Failure of Aquarius Fishing Co., Inc. to come forward with controverting


evidence to the allegation of Sulpicio Lines that the ordinary lifespan of a
fishing vessel is more than ten (10) years, amounted to an admission of such
allegation. The vessel was constructed in 1972 while the collision occurred in
1978. The remaining life span of F/B Aquarius G was therefore four (4) years.
Conformably, computed at P10,000.00 per month for a period of four (4)
years, the unrealized profits/earnings involved, amounted to at most
P480,000.00.

As regards the attorneys fees equivalent to 15% of all the awards granted by
the Regional Trial Court, the propriety thereof cannot be questioned. Gross

and evident bad faith on the part of petitioner in refusing to pay the claim
sued upon constrained the private respondent to enlist the services of a
lawyer to litigate.

Petitioner must have placed reliance on the general rule that attorneys fees
cannot be recovered as part of damages because of the policy that no
premium should be placed on the right to litigate. (Philtranco Service
Enterprises, Inc. v. Court of Appeals, 273 SCRA 562; Morales v. Court of
Appeals, 274 SCRA 282). But the aforecited rule is inapplicable here in the
face of the stubborn refusal of petitioner to respect the valid claim of the
private respondent.

The payment of legal interest is also in order. But it should be computed from
November 18, 1978, not from March 30, 1986, when the Regional Trial Court
a quo came out with its Decision. It was from the time of the collision
complained of that the private respondent began to be deprived of subject
vessel.

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals
in CA GR CV No. 15081 AFFIRMED, with the MODIFICATION that the award for
exemplary damages is deleted for want of legal basis, and the amount of
unrealized profits awarded is fixed at P480,000.00. No pronouncement as to
cost.

SO ORDERED.
14.
ALFREDO MALLARI SR. and ALFREDO MALLARI JR., petitioners, vs. COURT OF
APPEALS and BULLETIN PUBLISHING CORPORATION, respondents.

DECISION

BELLOSILLO, J.:

ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review on
certiorari seek to set aside the Decision of the Court of Appeals[1] which
reversed the court a quo and adjudged petitioners to be liable for damages
due to negligence as a common carrier resulting in the death of a passenger.

On 14 October 1987, at about 5:00 o'clock in the morning, the passenger


jeepney driven by petitioner Alfredo Mallari Jr. and owned by his co-petitioner
Alfredo Mallari Sr. collided with the delivery van of respondent Bulletin
Publishing Corp. (BULLETIN, for brevity) along the National Highway in
Barangay San Pablo, Dinalupihan, Bataan. Petitioner Mallari Jr. testified that
he went to the left lane of the highway and overtook a Fiera which had
stopped on the right lane. Before he passed by the Fiera, he saw the van of
respondent BULLETIN coming from the opposite direction. It was driven by
one Felix Angeles. The sketch of the accident showed that the collision
occurred after Mallari Jr. overtook the Fiera while negotiating a curve in the
highway. The points of collision were the left rear portion of the passenger
jeepney and the left front side of the delivery van of BULLETIN. The two (2)
right wheels of the delivery van were on the right shoulder of the road and
pieces of debris from the accident were found scattered along the shoulder of
the road up to a certain portion of the lane travelled by the passenger
jeepney. The impact caused the jeepney to turn around and fall on its left side
resulting in injuries to its passengers one of whom was Israel Reyes who
eventually died due to the gravity of his injuries. Manikan

On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a


complaint for damages with the Regional Trial Court of Olongapo City against
Alfredo Mallari Sr. and Alfredo Mallari Jr., and also against BULLETIN, its driver
Felix Angeles, and the N.V. Netherlands Insurance Company. The complaint
alleged that the collision which resulted in the death of Israel Reyes was
caused by the fault and negligence of both drivers of the passenger jeepney
and the Bulletin Isuzu delivery van. The complaint also prayed that the
defendants be ordered jointly and severally to pay plaintiff P1,006,777.40 in
compensatory damages, P40,000.00 for hospital and medical expenses,
P18,270.00 for burial expenses plus such amounts as may be fixed by the
trial court for exemplary damages and attorneys fees.

The trial court found that the proximate cause of the collision was the
negligence of Felix Angeles, driver of the Bulletin delivery van, considering
the fact that the left front portion of the delivery truck driven by Felix Angeles
hit and bumped the left rear portion of the passenger jeepney driven by

Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN and Felix Angeles to
pay jointly and severally Claudia G. Reyes, widow of the deceased victim, the
sums of P42,106.93 for medical expenses; P8,600.00 for funeral and burial
expenses; P1,006,777.40 for loss of earning capacity; P5,000.00 for moral
damages and P10,000.00 for attorneys fees. The trial court also ordered N.V.
Netherlands Insurance Company to indemnify Claudia G. Reyes P12,000.00 as
death indemnity and P2,500.00 for funeral expenses which when paid should
be deducted from the liabilities of respondent BULLETIN and its driver Felix
Angeles to the plaintiff. It also dismissed the complaint against the other
defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.

On appeal the Court of Appeals modified the decision of the trial court and
found no negligence on the part of Angeles and consequently of his
employer, respondent BULLETIN. Instead, the appellate court ruled that the
collision was caused by the sole negligence of petitioner Alfredo Mallari Jr.
who admitted that immediately before the collision and after he rounded a
curve on the highway, he overtook a Fiera which had stopped on his lane and
that he had seen the van driven by Angeles before overtaking the Fiera. The
Court of Appeals ordered petitioners Mallari Jr. and Mallari Sr. to compensate
Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as
indemnity for death and P10,000.00 for attorneys fees. It absolved from any
liability respondent BULLETIN, Felix Angeles and N.V. Netherlands Insurance
Company. Hence this petition. Oldmis o

Petitioners contend that there is no evidence to show that petitioner Mallari Jr.
overtook a vehicle at a curve on the road at the time of the accident and that
the testimony of Angeles on the overtaking made by Mallari Jr. was not
credible and unreliable. Petitioner also submits that the trial court was in a
better position than the Court of Appeals to assess the evidence and observe
the witnesses as well as determine their credibility; hence, its finding that the
proximate cause of the collision was the negligence of respondent Angeles,
driver of the delivery van owned by respondent BULLETIN, should be given
more weight and consideration.

We cannot sustain petitioners. Contrary to their allegation that there was no


evidence whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve
on the road at the time of or before the accident, the same petitioner himself
testified that such fact indeed did occur -

Q:.......And what was that accident all about?

A:.......Well, what happened, sir, is that at about that time 5:00 oclock in that
morning of October 14 while I was negotiating on the highway at San Pablo,
Dinalupihan, Bataan, I was then following a blue Ford Fierra and my distance
behind was about twenty (20) feet and then I passed that blue Ford Fierra. I
overtook and when I was almost on the right lane of the highway towards
Olongapo City there was an oncoming delivery van of the Bulletin Publishing
Corporation which bumped the left rear portion of the jeepney which I was
driving and as a result of which the jeepney x x x turned around and fell on
its left side and as a result of which some of my passengers including me
were injured, sir x x x x

Q:.......Before you overtook the Ford Fierra jeepney did you look x x x whether
there was any vehicle coming towards you?

A:.......Yes, sir.

Q:.......Did you see the Bulletin van or the Press van coming towards you?

A:.......Yes, sir.

Q:.......At the moment the Ford Fierra xxx stop(ped) and in overtaking the
Fierra, did you not have an option to stop and not to overtake the Ford Fierra?

A:.......Well, at the time when the Ford Fierra stopped in front of me I slowed
down with the intention of applying the brake, however, when I saw the
oncoming vehicle which is the Press van is very far x x x which is 100 feet
distance, x x x it is sufficient to overtake the Ford Fierra so I overt(ook) it x x x
x

Q:.......You said that you took into consideration the speed of the oncoming
Press van but you also could not estimate the speed of the press van because

it was dark at that time, which of these statements are true? Ncm

A:.......What I wanted to say, I took into consideration the speed of the


oncoming vehicle, the Press van, although at the moment I could not
estimate the speed of the oncoming vehicle x x x x[2]

The Court of Appeals correctly found, based on the sketch and spot report of
the police authorities which were not disputed by petitioners, that the
collision occurred immediately after petitioner Mallari Jr. overtook a vehicle in
front of it while traversing a curve on the highway.[3] This act of overtaking
was in clear violation of Sec. 41, pars. (a) and (b), of RA 4136 as amended,
otherwise known as The Land Transportation and Traffic Code which provides:

Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle
shall not drive to the left side of the center line of a highway in overtaking or
passing another vehicle proceeding in the same direction, unless such left
side is clearly visible and is free of oncoming traffic for a sufficient distance
ahead to permit such overtaking or passing to be made in safety.

(b) The driver of a vehicle shall not overtake or pass another vehicle
proceeding in the same direction when approaching the crest of a grade, nor
upon a curve in the highway, where the drivers view along the highway is
obstructed within a distance of five hundred feet ahead except on a highway
having two or more lanes for movement of traffic in one direction where the
driver of a vehicle may overtake or pass another vehicle:

Provided That on a highway, within a business or residential district, having


two or more lanes for movement of traffic in one direction, the driver of a
vehicle may overtake or pass another vehicle on the right.

The rule is settled that a driver abandoning his proper lane for the purpose of
overtaking another vehicle in an ordinary situation has the duty to see to it
that the road is clear and not to proceed if he cannot do so in safety.[4] When
a motor vehicle is approaching or rounding a curve, there is special necessity
for keeping to the right side of the road and the driver does not have the right
to drive on the left hand side relying upon having time to turn to the right if a

car approaching from the opposite direction comes into view.[5] Ncmmis

In the instant case, by his own admission, petitioner Mallari Jr. already saw
that the BULLETIN delivery van was coming from the opposite direction and
failing to consider the speed thereof since it was still dark at 5:00 o'clock in
the morning mindlessly occupied the left lane and overtook two (2) vehicles
in front of it at a curve in the highway. Clearly, the proximate cause of the
collision resulting in the death of Israel Reyes, a passenger of the jeepney,
was the sole negligence of the driver of the passenger jeepney, petitioner
Alfredo Mallari Jr., who recklessly operated and drove his jeepney in a lane
where overtaking was not allowed by traffic rules. Under Art. 2185 of the Civil
Code, unless there is proof to the contrary, it is presumed that a person
driving a motor vehicle has been negligent if at the time of the mishap he
was violating a traffic regulation. As found by the appellate court, petitioners
failed to present satisfactory evidence to overcome this legal presumption.

The negligence and recklessness of the driver of the passenger jeepney is


binding against petitioner Mallari Sr., who admittedly was the owner of the
passenger jeepney engaged as a common carrier, considering the fact that in
an action based on contract of carriage, the court need not make an express
finding of fault or negligence on the part of the carrier in order to hold it
responsible for the payment of damages sought by the passenger. Under Art.
1755 of the Civil Code, a common carrier is bound to carry the passengers
safely as far as human care and foresight can provide using the utmost
diligence of very cautious persons with due regard for all the circumstances.
Moreover, under Art. 1756 of the Civil Code, in case of death or injuries to
passengers, a common carrier is presumed to have been at fault or to have
acted negligently, unless it proves that it observed extraordinary diligence.
Further, pursuant to Art. 1759 of the same Code, it is liable for the death of or
injuries to passengers through the negligence or willful acts of the formers
employees. This liability of the common carrier does not cease upon proof
that it exercised all the diligence of a good father of a family in the selection
of its employees. Clearly, by the contract of carriage, the carrier jeepney
owned by Mallari Sr. assumed the express obligation to transport the
passengers to their destination safely and to observe extraordinary diligence
with due regard for all the circumstances, and any injury or death that might
be suffered by its passengers is right away attributable to the fault or
negligence of the carrier. Scnc m

The monetary award ordered by the appellate court to be paid by petitioners

to the widow of the deceased passenger Israel M. Reyes of P1,006,777.50 for


loss of earning capacity, P50,000.00 as civil indemnity for death, and
P10,000.00 for attorneys fees, all of which were not disputed by petitioners,
is a factual matter binding and conclusive upon this Court.

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals
dated 20 September 1995 reversing the decision of the trial court being in
accord with law and evidence is AFFIRMED. Consequently, petitioners are
ordered jointly and severally to pay Claudia G. Reyes P1,006,777.50 for loss
of earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00
for attorneys fees. Costs against petitioners.

SO ORDERED.

Mendoza, Quisumbing, Buena and De Leon, Jr., concur.2/22/00 9:44 AM


15.
FORTUNE EXPRESS, INC., petitioner, vs. COURT OF APPEALS, PAULIE U.
CAORONG, and minor children YASSER KING CAORONG, ROSE HEINNI and
PRINCE ALEXANDER, all surnamed CAORONG, and represented by their
mother PAULIE U. CAORONG, respondents.
DECISION
MENDOZA, J.:

This is an appeal by petition for review on certiorari of the decision, dated July
29, 1994, of the Court of Appeals, which reversed the decision of the Regional
Trial Court, Branch VI, Iligan City. The aforesaid decision of the trial court
dismissed the complaint of private respondents against petitioner for
damages for breach of contract of carriage filed on the ground that petitioner
had not exercised the required degree of diligence in the operation of one of
its buses. Atty. Talib Caorong, whose heirs are private respondents herein,
was a passenger of the bus and was killed in the ambush involving said bus.

The facts of the instant case are as follows:

Petitioner is a bus company in northern Mindanao. Private respondent Paulie


Caorong is the widow of Atty. Caorong, while private respondents Yasser King,
Rose Heinni, and Prince Alexander are their minor children.

On November 18, 1989, a bus of petitioner figured in an accident with a


jeepney in Kauswagan, Lanao del Norte, resulting in the death of several
passengers of the jeepney, including two Maranaos. Crisanto Generalao, a
volunteer field agent of the Constabulary Regional Security Unit No. X,
conducted an investigation of the accident. He found that the owner of the
jeepney was a Maranao residing in Delabayan, Lanao del Norte and that
certain Maranaos were planning to take revenge on the petitioner by burning
some of its buses. Generalao rendered a report on his findings to Sgt.
Reynaldo Bastasa of the Philippine Constabulary Regional Hearquarters at
Cagayan de Oro. Upon the instruction of Sgt. Bastasa, he went to see
Diosdado Bravo, operations manager of petitioner, at its main office in
Cagayan de Oro City. Bravo assured him that the necessary precautions to
insure the safety of lives and property would be taken.[1]

At about 6:45 P.M. on November 22, 1989, three armed Maranaos who
pretended to be passengers, seized a bus of petitioner at Linamon, Lanao del
Norte while on its way to Iligan City. Among the passengers of the bus was
Atty. Caorong. The leader of the Maranaos, identified as one Bashier
Mananggolo, ordered the driver, Godofredo Cabatuan, to stop the bus on the
side of the highway. Mananggolo then shot Cabatuan on the arm, which
caused him to slump on the steering wheel. Then one of the companions of
Mananggolo started pouring gasoline inside the bus, as the other held the
passengers at bay with a handgun. Mananggolo then ordered the passengers
to get off the bus. The passengers, including Atty. Caorong, stepped out of
the bus and went behind the bushes in a field some distance from the
highway.[2]

However, Atty. Caorong returned to the bus to retrieve something from the
overhead rack. At that time, one of the armed men was pouring gasoline on
the head of the driver. Cabatuan, who had meantime regained consciousness,
heard Atty. Caorong pleading with the armed men to spare the driver as he
was innocent of any wrong doing and was only trying to make a living. The
armed men were, however, adamant as they repeated their warning that
they were going to burn the bus along with its driver. During this exchange
between Atty. Caorong and the assailants, Cabatuan climbed out of the left
window of the bus and crawled to the canal on the opposite side of the

highway. He heard shots from inside the bus. Larry de la Cruz, one of the
passengers, saw that Atty. Caorong was hit. Then the bus was set on fire.
Some of the passengers were able to pull Atty. Caorong out of the burning
bus and rush him to the Mercy Community Hospital in Iligan City, but he died
while undergoing operation.[3]

The private respondents brought this suit for breach of contract of carriage in
the Regional Trial Court, Branch VI, Iligan City. In his decision, dated
December 28, 1990, the trial court dismissed the complaint, holding as
follows:

The fact that defendant, through Operations Manager Diosdado Bravo, was
informed of the rumors that the Moslems intended to take revenge by
burning five buses of defendant is established since the latter also utilized
Crisanto Generalaos as a witness. Yet despite this information, the plaintiffs
charge, defendant did not take proper precautions. . . . Consequently,
plaintiffs now fault the defendant for ignoring the report. Their position is that
the defendant should have provided its buses with security guards. Does the
law require common carriers to install security guards in its buses for the
protection and safety of its passengers? Is the failure to post guards an
omission of the duty to exercise the diligence of a good father of the family
which could have prevented the killing of Atty. Caorong? To our mind, the
diligence demanded by law does not include the posting of security guards in
buses. It is an obligation that properly belongs to the State. Besides, will the
presence of one or two security guards suffice to deter a determined assault
of the lawless and thus prevent the injury complained of? Maybe so, but
again, perhaps not. In other words, the presence of a security guard is not a
guarantee that the killing of Atty. Caorong would have been definitely
avoided.

Accordingly, the failure of defendant to accord faith and credit to the report of
Mr. Generalao and the fact that it did not provide security to its buses cannot,
in the light of the circumstances, be characterized as negligence.

Finally, the evidence clearly shows that the assailants did not have the least

intention of harming any of the passengers. They ordered all the passengers
to alight and set fire on the bus only after all the passengers were out of
danger. The death of Atty. Caorong was an unexpected and unforseen
occurrence over which defendant had no control. Atty. Caorong performed an
act of charity and heroism in coming to the succor of the driver even in the
face of danger. He deserves the undying gratitude of the driver whose life he
saved. No one should blame him for an act of extraordinary charity and
altruism which cost his life. But neither should any blame be laid on the
doorstep of defendant. His death was solely due to the willful acts of the
lawless which defendant could neither prevent nor stop.

WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For


lack of merit, the counter-claim is likewise dismissed. No cost.[4]

On appeal, however, the Court of Appeals reversed. It held:

In the case at bench, how did defendant-appellee react to the tip or


information that certain Maranao hotheads were planning to burn five of its
buses out of revenge for the deaths of two Maranaos in an earlier collision
involving appellees bus? Except for the remarks of appellees operations
manager that we will have our action . . . . and Ill be the one to settle it
personally, nothing concrete whatsoever was taken by appellee or its
employees to prevent the execution of the threat. Defendant-appellee never
adopted even a single safety measure for the protection of its paying
passengers. Were there available safeguards? Of course, there were: one was
frisking passengers particularly those en route to the area where the threats
were likely to be carried out such as where the earlier accident occurred or
the place of influence of the victims or their locality. If frisking was resorted
to, even temporarily, . . . . appellee might be legally excused from liability.
Frisking of passengers picked up along the route could have been
implemented by the bus conductor; for those boarding at the bus terminal,
frisking could have been conducted by him and perhaps by additional
personnel of defendant-appellee. On hindsight, the handguns and especially
the gallon of gasoline used by the felons all of which were brought inside the
bus would have been discovered, thus preventing the burning of the bus and
the fatal shooting of the victim.

Appellees argument that there is no law requiring it to provide guards on its


buses and that the safety of citizens is the duty of the government, is not well
taken. To be sure, appellee is not expected to assign security guards on all of
its buses; if at all, it has the duty to post guards only on its buses plying
predominantly Maranao areas. As discussed in the next preceding paragraph,
the least appellee could have done in response to the report was to adopt a
system of verification such as frisking of passengers boarding its buses.
Nothing, and to repeat, nothing at all, was done by defendant-appellee to
protect its innocent passengers from the danger arising from the Maranao
threats. It must be observed that frisking is not a novelty as a safety measure
in our society. Sensitive places in fact, nearly all important places have
applied this method of security enhancement. Gadgets and devices are
available in the market for this purpose. It would not have weighed much
against the budget of the bus company if such items were made available to
its personnel to cope up with situations such as the Maranao threats.

In view of the constitutional right to personal privacy, our pronouncement in


this decision should not be construed as an advocacy of mandatory frisking in
all public conveyances. What we are saying is that given the circumstances
obtaining in the case at bench that: (a) two Maranaos died because of a
vehicular collision involving one of appellees vehicles; (b) appellee received a
written report from a member of the Regional Security Unit, Constabulary
Security Group, that the tribal/ethnic group of the two deceased were
planning to burn five buses of appellee out of revenge; and (c) appellee did
nothing absolutely nothing for the safety of its passengers travelling in the
area of influence of the victims, appellee has failed to exercise the degree of
diligence required of common carriers. Hence, appellee must be adjudged
liable.

WHEREFORE, the decision appealed from is hereby REVERSED and another


rendered ordering defendant-appellee to pay plaintiffs-appellants the
following:

1) P3,399,649.20 as death indemnity;

2) P50,000.00 and P500.00 per appearance as attorneys fees; and

Costs against defendant-appellee.[5]

Hence, this appeal. Petitioner contends:

(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE DECISION OF THE


REGIONAL TRIAL COURT DATED DECEMBER 28, 1990 DISMISSING THE
COMPLAINT AS WELL AS THE COUNTERCLAIM, AND FINDING FOR PRIVATE
RESPONDENTS BY ORDERING PETITIONER TO PAY THE GARGANTUAN SUM OF
P3,449,649.20 PLUS P500.00 PER APPEARANCE AS ATTORNEYS FEES, AS
WELL AS DENYING PETITIONERS MOTION FOR RECONSIDERATION AND THE
SUPPLEMENT TO SAID MOTION, WHILE HOLDING, AMONG OTHERS, THAT
PETITIONER BREACHED THE CONTRACT OF CARIAGE BY ITS FAILURE TO
EXERCISE THE REQUIRED DEGREE OF DILIGENCE;

(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO GRAVE,


IRRESISTIBLE, VIOLENT, AND FORCEFUL, AS TO BE REGARDED AS CASO
FORTUITO; AND

(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN


HOLDING THAT PETITIONER COULD HAVE PROVIDED ADEQUATE SECURITY IN
PREDOMINANTLY MUSLIM AREAS AS PART OF ITS DUTY TO OBSERVE EXTRAORDINARY DILIGENCE AS A COMMON CARRIER.

The instant petition has no merit.

First. Petitioners Breach of the Contract of Carriage

Art. 1763 of the Civil Code provides that a common carrier is responsible for
injuries suffered by a passenger on account of the wilful acts of other

passengers, if the employees of the common carrier could have prevented


the act the exercise of the diligence of a good father of a family. In the
present case, it is clear that because of the negligence of petitioners
employees, the seizure of the bus by Mananggolo and his men was made
possible.

Despite warning by the Philippine Constabulary at Cagayan de Oro that the


Maranaos were planning to take revenge on the petitioner by burning some of
its buses and the assurance of petitioners operation manager, Diosdado
Bravo, that the necessary precautions would be taken, petitioner did nothing
to protect the safety of its passengers.

Had petitioner and its employees been vigilant they would not have failed to
see that the malefactors had a large quantity of gasoline with them. Under
the circumstances, simple precautionary measures to protect the safety of
passengers, such as frisking passengers and inspecting their baggages,
preferably with non-intrusive gadgets such as metal detectors, before
allowing them on board could have been employed without violating the
passengers constitutional rights. As this Court intimated in Gacal v. Philippine
Air Lines, Inc.,[6] a common carrier can be held liable for failing to prevent a
hijacking by frisking passengers and inspecting their baggages.

From the foregoing, it is evident that petitioners employees failed to prevent


the attack on one of petitioners buses because they did not exercise the
diligence of a good father of a family. Hence, petitioner should be held liable
for the death of Atty. Caorong.

Second. Seizure of Petitioners Bus not a Case of Force Majeure

The petitioner contends that the seizure of its bus by the armed assailants
was a fortuitous event for which it could not be held liable.

Art. 1174 of the Civil Code defines a fortuitous even as an occurrence which
could not be foreseen or which though foreseen, is inevitable. In Yobido v.
Court of Appeals,[7] we held that to be considered as force majeure, it is
necessary that: (1) the cause of the breach of the obligation must be

independent of the human will; (2) the event must be either unforeseeable or
unavoidable; (3) the occurrence must be such as to render it impossible for
the debtor to fulfill the obligation in a normal manner; and (4) the obligor
must be free of participation in, or aggravation of, the injury to the creditor.
The absence of any of the requisites mentioned above would prevent the
obligor from being excused from liability.

Thus, in Vasquez v. Court of Appeals,[8] it was held that the common carrier
was liable for its failure to take the necessary precautions against an
approaching typhoon, of which it was warned, resulting in the loss of the lives
of several passengers. The event was foreseeable, and, thus, the second
requisite mentioned above was not fulfilled. This ruling applies by analogy to
the present case. Despite the report of PC agent Generalao that the
Maranaos were going to attack its buses, petitioner took no steps to
safeguard the lives and properties of its passengers. The seizure of the bus of
the petitioner was foreseeable and, therefore, was not a fortuitous event
which would exempt petitioner from liability.

Petitioner invokes the ruling in Pilapil v. Court of Appeals[9] and De Guzman


v. Court of Appeals[10] in support of its contention that the seizure of its bus
by the assailants constitutes force majeure. In Pilapil v. Court of Appeals,[11]
it was held that a common carrier is not liable for failing to install window
grills on its buses to protect passengers from injuries caused by rocks hurled
at the bus by lawless elements. On the other hand, in De Guzman v. Court of
Appeals,[12] it was ruled that a common carrier is not responsible for goods
lost as a result of a robbery which is attended by grave or irresistible threat,
violence, or force.

It is clear that the cases of Pilapil and De Guzman do not apply to the present
case. Art. 1755 of the Civil Code provides that a common carrier is bound to
carry the passengers as far as human care and foresight can provide, using
the utmost diligence of very cautious person, with due regard for all the
circumstances. Thus, we held in Pilapil and De Guzman that the respondents
therein were not negligent in failing to take special precautions against
threats to the safety of passengers which could not be foreseen, such as
tortious or criminal acts of third persons. In the present case, this factor of
unforeseeablility (the second requisite for an event to be considered force
majeure) is lacking. As already stated, despite the report of PC agent
Generalao that the Maranaos were planning to burn some of petitioners
buses and the assurance of petitioners operations manager (Diosdado Bravo)

that the necessary precautions would be taken, nothing was really done by
petitioner to protect the safety of passengers.

Third. Deceased not Guilty of Contributory Negligence

The petitioner contends that Atty. Caorong was guilty of contributory


negligence in returning to the bus to retrieve something. But Atty. Caorong
did not act recklessly. It should be pointed out that the intended targets of
the violence were petitioner and its employees, not its passengers. The
assailants motive was to retaliate for the loss of life of two Maranaos as a
result of the collision between petitioners bus and the jeepney in which the
two Maranaos were riding. Mananggolo, the leader of the group which had
hijacked the bus, ordered the passengers to get off the bus as they intended
to burn it and its driver. The armed men actually allowed Atty. Caorong to
retrieve something from the bus. What apparently angered them was his
attempt to help the driver of the bus by pleading for his life. He was playing
the role of the good Samaritan. Certainly, this act cannot be considered an
act of negligence, let alone recklessness.

Fourth. Petitioner Liable to Private Respondents for Damages

We now consider the question of damages that the heirs of Atty. Caorong,
private respondents herein, are entitled to recover from the petitioner.

Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides for the payment of indemnity for the death of passengers
caused by the breached of contract of carriage by a common carrier. Initially
fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death
has through the years been gradually increased in view of the declining value
of the peso. It is presently fixed at P50,000.00.[13] Private respondents are
entitled to this amount.

Actual damages. Art. 2199 provides that Except as provided by law or by


stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. The trial court found
that the private respondents spent P30,000.00 for the wake and burial of Atty.

Caorong.[14] Since petitioner does not question this finding of the trial court,
it is liable to private respondents in the said amount as actual damages.

Moral Damages. Under Art. 2206, the spouse, legitimate and illegitimate
descendants and ascendants of the deceased may demand moral damages
for mental anguish by reason of the death of the deceased. The trial court
found that private respondent Paulie Caorong suffered pain from the death of
her husband and worry on how to provide support for their minor children,
private respondents Yasser King, Rose Heinni, and Prince Alexander.[15] The
petitioner likewise does not question this finding of the trial court. Thus, in
accordance with recent decisions of this Court,[16] we hold that the petitioner
is liable to the private respondents in the amount of P100,000.00 as moral
damages for the death of Atty. Caorong.

Exemplary Damages. Art. 2232 provides that in contracts and quasicontracts, the court may award exemplary damages if the defendant acted in
a wanton, fraudulent, reckless, oppressive, or malevolent manner. In the
present case, the petitioner acted in a wanton and reckless manner. Despite
warning that the Maranaos were planning to take revenge against the
petitioner by burning some of its buses, and contrary to the assurance made
by its operations manager that the necessary precautions would be taken,
the petitioner and its employees did nothing to protect the safety of
passengers. Under the circumstances, we deem it reasonable to award
private respondents exemplary damages in the amount of P100,000.00.[17]

Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered


when, as in the instant case, exemplary damages are awarded. In the recent
case of Sulpicio Lines, Inc. v. Court of Appeals,[18] we held an award of
P50,000.00 as attorneys fees to be reasonable. Hence, the private
respondents are entitled to attorneys fees in that amount.

Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in
relation to Art. 2206 thereof, provides that in addition to the indemnity for
death arising from the breach of contract of carriage by a common carrier,
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. The
formula established in decided cases for computing net earning capacity is as
follows:[19]

Gross Necessary
Net earning = Life x Annual - Living
Capacity Expectancy Income Expenses
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference
of eighty (80) and the age of the deceased.[20] Since Atty. Caorong was 37
years old at the time of his death,[21] he had a life expectancy of 28 2/3
more years.[22] His projected gross annual income, computed based on his
monthly salary of P11,385.00[23] as a lawyer in the Department of Agrarian
Reform at the time of his death, was P148,005.00.[24] allowing for necessary
living expenses of fifty percent (50%)[25]of his projected gross annual
income, his total earning capacity amounts to P2,121,404.90.[26] Hence, the
petitioner is liable to the private respondents in the said amount as
compensation for loss of earning capacity.

WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is
hereby AFFIRMED with the MODIFICATION that petitioner Fortune Express,
Inc. is ordered to pay the following amounts to private respondents Paulie,
Yasser King, Rose Heinni, and Prince Alexander Caorong:

1. death indemnity in the amount of fifty thousand pesos (P50,000.00);

2. actual damages in the amount of thirty thousand pesos (P30,000.00);

3. moral damages in the amount of one hundred thousand


pesos(P100,000.00);

4. exemplary damages in the amount of one hundred thousand pesos


(P100,000.00);

5. attorneys fees in the amount of fifty thousand pesos (P50,000.00);

6. compensation for loss of earning capacity in the amount of two million one
hundred twenty-one thousand four hundred four pesos and ninety centavos
(P2,121,404.90); and

7) costs of suits.

SO ORDERED.

Bellosillo, (Chairman), Puno, and Buena, JJ., concur.


Quisumbing, J., on official business abroad.
16.
G.R. No. 85691

July 31, 1990

BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners,


vs.
THE HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER,
SERGIA BETER, TEOFILO RAUTRAUT and ZOETERA RAUTRAUT, respondents.

Aquino W. Gambe for petitioners.

Tranquilino O. Calo, Jr. for private respondents.

GUTIERREZ, JR., J.:

This is a petition for review of the decision of the Court of Appeals which
reversed and set aside the order of the Regional Trial Court, Branch I, Butuan

City dismissing the private respondents' complaint for collection of "a sum of
money" and finding the petitioners solidarily liable for damages in the total
amount of One Hundred Twenty Thousand Pesos (P120,000.00). The
petitioners also question the appellate court's resolution denying a motion for
reconsideration.

On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven
by Cresencio Rivera was the situs of a stampede which resulted in the death
of passengers Ornominio Beter and Narcisa Rautraut.

The evidence shows that the bus came from Davao City on its way to
Cagayan de Oro City passing Butuan City; that while at Tabon-Tabon, Butuan
City, the bus picked up a passenger; that about fifteen (15) minutes later, a
passenger at the rear portion suddenly stabbed a PC soldier which caused
commotion and panic among the passengers; that when the bus stopped,
passengers Ornominio Beter and Narcisa Rautraut were found lying down the
road, the former already dead as a result of head injuries and the latter also
suffering from severe injuries which caused her death later. The passenger
assailant alighted from the bus and ran toward the bushes but was killed by
the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut,
private respondents herein (Ricardo Beter and Sergia Beter are the parents of
Ornominio while Teofilo Rautraut and Zoetera [should be Zotera] Rautraut are
the parents of Narcisa) filed a complaint for "sum of money" against Bachelor
Express, Inc. its alleged owner Samson Yasay and the driver Rivera.

In their answer, the petitioners denied liability for the death of Ornominio
Beter and Narcisa Rautraut. They alleged that ... the driver was able to
transport his passengers safely to their respective places of destination
except Ornominio Beter and Narcisa Rautraut who jumped off the bus without
the knowledge and consent, much less, the fault of the driver and conductor
and the defendants in this case; the defendant corporation had exercised due
diligence in the choice of its employees to avoid as much as possible
accidents; the incident on August 1, 1980 was not a traffic accident or
vehicular accident; it was an incident or event very much beyond the control
of the defendants; defendants were not parties to the incident complained of
as it was an act of a third party who is not in any way connected with the
defendants and of which the latter have no control and supervision; ..." (Rollo,
pp. 112-113).itc-asl

After due trial, the trial court issued an order dated August 8, 1985 dismissing
the complaint.

Upon appeal however, the trial court's decision was reversed and set aside.
The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a
new one entered finding the appellees jointly and solidarily liable to pay the
plaintiffs-appellants the following amounts:

1)
To the heirs of Ornominio Beter, the amount of Seventy Five Thousand
Pesos (P75,000.00) in loss of earnings and support, moral damages, straight
death indemnity and attorney's fees; and,

2)
To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand
Pesos (P45,000.00) for straight death indemnity, moral damages and
attorney's fees. Costs against appellees. (Rollo, pp. 71-72)

The petitioners now pose the following questions

What was the proximate cause of the whole incident? Why were the
passengers on board the bus panicked (sic) and why were they shoving one
another? Why did Narcisa Rautraut and Ornominio Beter jump off from the
running bus?

The petitioners opine that answers to these questions are material to arrive
at "a fair, just and equitable judgment." (Rollo, p. 5) They claim that the
assailed decision is based on a misapprehension of facts and its conclusion is
grounded on speculation, surmises or conjectures.

As regards the proximate cause of the death of Ornominio Beter and Narcisa
Rautraut, the petitioners maintain that it was the act of the passenger who
ran amuck and stabbed another passenger of the bus. They contend that the

stabbing incident triggered off the commotion and panic among the
passengers who pushed one another and that presumably out of fear and
moved by that human instinct of self-preservation Beter and Rautraut jumped
off the bus while the bus was still running resulting in their untimely death."
(Rollo, p. 6) Under these circumstances, the petitioners asseverate that they
were not negligent in the performance of their duties and that the incident
was completely and absolutely attributable to a third person, the passenger
who ran amuck, for without his criminal act, Beter and Rautraut could not
have been subjected to fear and shock which compelled them to jump off the
running bus. They argue that they should not be made liable for damages
arising from acts of third persons over whom they have no control or
supervision.

Furthermore, the petitioners maintain that the driver of the bus, before,
during and after the incident was driving cautiously giving due regard to
traffic rules, laws and regulations. The petitioners also argue that they are not
insurers of their passengers as ruled by the trial court.

The liability, if any, of the petitioners is anchored on culpa contractual or


breach of contract of carriage. The applicable provisions of law under the New
Civil Code are as follows:

ART. 1732. Common carriers are persons, corporations, firms or associations


engaged in the business of carrying or transporting passengers or goods or
both by land, water, or air, for compensation, offering their services to the
public.

ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.

xxx

xxx

xxx

ART. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very

cautious persons, with a due regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are


presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed in Articles
1733 and 1755.

There is no question that Bachelor Express, Inc. is a common carrier. Hence,


from the nature of its business and for reasons of public policy Bachelor
Express, Inc. is bound to carry its passengers safely as far as human care and
foresight can provide using the utmost diligence of very cautious persons,
with a due regard for all the circumstances.

In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of
a bus belonging to petitioner Bachelor Express, Inc. and, while passengers of
the bus, suffered injuries which caused their death. Consequently, pursuant
to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is
presumed to have acted negligently unless it can prove that it had observed
extraordinary diligence in accordance with Articles 1733 and 1755 of the New
Civil Code.

Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on
its posture that the death of the said passengers was caused by a third
person who was beyond its control and supervision. In effect, the petitioner,
in order to overcome the presumption of fault or negligence under the law,
states that the vehicular incident resulting in the death of passengers Beter
and Rautraut was caused by force majeure or caso fortuito over which the
common carrier did not have any control.

Article 1174 of the present Civil Code states:

Except in cases expressly specified by law, or when it is otherwise declared


by stipulations, or when the nature of the obligation requires the assumption
of risk, no person shall be responsible for those events which could not be
foreseen, or which though foreseen, were inevitable.

The above-mentioned provision was substantially copied from Article 1105 of


the old Civil Code which states"

No one shall be liable for events which could not be foreseen or which, even if
foreseen, were inevitable, with the exception of the cases in which the law
expressly provides otherwise and those in which the obligation itself imposes
liability.

In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events"
which cannot be foreseen and which, having been foreseen, are inevitable in
the following manner:

... The Spanish authorities regard the language employed as an effort to


define the term 'caso fortuito' and hold that the two expressions are
synonymous. (Manresa Comentarios al Codigo Civil Espaol, vol. 8, pp. 88 et
seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which
defines caso fortuito as 'occasion que acaese por aventura de que non se
puede ante ver. E son estos, derrivamientos de casas e fuego que enciende a
so ora, e quebrantamiento de navio, fuerca de ladrones' (An event that takes
place by incident and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robbers ...)

Escriche defines caso fortuito as an unexpected event or act of God which


could neither be foreseen nor resisted, such as floods, torrents, shipwrecks,
conflagrations, lightning, compulsion, insurrections, destruction of buildings
by unforeseen accidents and other occurrences of a similar nature.

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica
Espaola says: 'In a legal sense and, consequently, also in relation to
contracts, a caso fortuito presents the following essential characteristics: (1)
The cause of the unforeseen and unexpected occurrence, or of the failure of
the debtor to comply with his obligation, must be independent of the human

will. (2) It must be impossible to foresee the event which constitutes the caso
fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The
occurrence must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner. And (4) the obligor (debtor) must be free from
any participation in the aggravation of the injury resulting to the creditor. (5)
Enciclopedia Juridica Espaola, 309)

As will be seen, these authorities agree that some extraordinary circumstance


independent of the will of the obligor or of his employees, is an essential
element of a caso fortuito. ...

The running amuck of the passenger was the proximate cause of the incident
as it triggered off a commotion and panic among the passengers such that
the passengers started running to the sole exit shoving each other resulting
in the falling off the bus by passengers Beter and Rautraut causing them fatal
injuries. The sudden act of the passenger who stabbed another passenger in
the bus is within the context of force majeure.

However, in order that a common carrier may be absolved from liability in


case of force majeure, it is not enough that the accident was caused by force
majeure. The common carrier must still prove that it was not negligent in
causing the injuries resulting from such accident. Thus, as early as 1912, we
ruled:

From all the foregoing, it is concluded that the defendant is not liable for the
loss and damage of the goods shipped on the lorcha Pilar by the Chinaman,
Ong Bien Sip, inasmuch as such loss and damage were the result of a
fortuitous event or force majeure, and there was no negligence or lack of care
and diligence on the part of the defendant company or its agents. (Tan
Chiong Sian v. Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied).

This principle was reiterated in a more recent case, Batangas Laguna Tayabas
Co. v. Intermediate Appellate Court (167 SCRA 379 [1988]), wherein we ruled:

... [F]or their defense of force majeure or act of God to prosper the accident
must be due to natural causes and exclusively without human intervention.

(Emphasis supplied)

Therefore, the next question to be determined is whether or not the


petitioner's common carrier observed extraordinary diligence to safeguard
the lives of its passengers.

In this regard the trial court and the appellate court arrived at conflicting
factual findings.

The trial court found the following facts:

The parties presented conflicting evidence as to how the two deceased


Narcisa Rautruat and Ornominio Beter met their deaths.

However, from the evidence adduced by the plaintiffs, the Court could not
see why the two deceased could have fallen off the bus when their own
witnesses testified that when the commotion ensued inside the bus, the
passengers pushed and shoved each other towards the door apparently in
order to get off from the bus through the door. But the passengers also could
not pass through the door because according to the evidence the door was
locked.

On the other hand, the Court is inclined to give credence to the evidence
adduced by the defendants that when the commotion ensued inside the bus,
the two deceased panicked and, in state of shock and fear, they jumped off
from the bus by passing through the window.

It is the prevailing rule and settled jurisprudence that transportation


companies are not insurers of their passengers. The evidence on record does
not show that defendants' personnel were negligent in their duties. The
defendants' personnel have every right to accept passengers absent any
manifestation of violence or drunkenness. If and when such passengers harm
other passengers without the knowledge of the transportation company's
personnel, the latter should not be faulted. (Rollo, pp. 46-47)

A thorough examination of the records, however, show that there are material
facts ignored by the trial court which were discussed by the appellate court to
arrive at a different conclusion. These circumstances show that the petitioner
common carrier was negligent in the provision of safety precautions so that
its passengers may be transported safely to their destinations. The appellate
court states:

A critical eye must be accorded the lower court's conclusions of fact in its
tersely written ratio decidendi. The lower court concluded that the door of the
bus was closed; secondly, the passengers, specifically the two deceased,
jumped out of the window. The lower court therefore concluded that the
defendant common carrier is not liable for the death of the said passengers
which it implicitly attributed to the unforeseen acts of the unidentified
passenger who went amuck.

There is nothing in the record to support the conclusion that the solitary door
of the bus was locked as to prevent the passengers from passing through.
Leonila Cullano, testifying for the defense, clearly stated that the conductor
opened the door when the passengers were shouting that the bus stop while
they were in a state of panic. Sergia Beter categorically stated that she
actually saw her son fall from the bus as the door was forced open by the
force of the onrushing passengers.

Pedro Collango, on the other hand, testified that he shut the door after the
last passenger had boarded the bus. But he had quite conveniently neglected
to say that when the passengers had panicked, he himself panicked and had
gone to open the door. Portions of the testimony of Leonila Cullano, quoted
below, are illuminating:

xxx

xxx

xxx

Q
When you said the conductor opened the door, the door at the front or
rear portion of the bus?

Front door.

Q And these two persons whom you said alighted, where did they pass, the
fron(t) door or rear door?

Front door.

xxx

xxx

xxx

(Tsn., p. 4, Aug. 8, 1984)

xxx

xxx

xxx

Q What happened after there was a commotion at the rear portion of the
bus?

A
When the commotion occurred, I stood up and I noticed that there was
a passenger who was sounded (sic). The conductor panicked because the
passengers were shouting 'stop, stop'. The conductor opened the bus.'

(Tsn. p. 3, August 8, 1984).

Accordingly, there is no reason to believe that the deceased passengers


jumped from the window when it was entirely possible for them to have
alighted through the door. The lower court's reliance on the testimony of
Pedro Collango, as the conductor and employee of the common carrier, is
unjustified, in the light of the clear testimony of Leonila Cullano as the sole
uninterested eyewitness of the entire episode. Instead we find Pedro
Collango's testimony to be infused by bias and fraught with inconsistencies, if
not notably unreliable for lack of veracity. On direct examination, he testified:

xxx

xxx

xxx

Q So what happened to the passengers inside your bus?

A Some of the passengers jumped out of the window.

COURT:

Q While the bus was in motion?

A Yes, your Honor, but the speed was slow because we have just picked up a
passenger.

Atty. Gambe:

Q You said that at the time of the incident the bus was running slow because
you have just picked up a passenger. Can you estimate what was your speed
at that time?

Atty. Calo:

No basis, your Honor, he is neither a driver nor a conductor.

COURT:

Let the witness answer. Estimate only, the conductor experienced.

Witness:

Not less than 30 to 40 miles.

COURT:

Kilometers or miles?

A Miles.

Atty. Gambe:

Q That is only your estimate by your experience?

A Yes, sir, estimate.

(Tsn., pp. 4-5, Oct. 17, 1983).

At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers


per hour, the speed of the bus could scarcely be considered slow considering
that according to Collango himself, the bus had just come from a full stop
after picking a passenger (Tsn, p. 4, Id.) and that the bus was still on its
second or third gear (Tsn., p. 12, Id.).

In the light of the foregoing, the negligence of the common carrier, through
its employees, consisted of the lack of extraordinary diligence required of
common carriers, in exercising vigilance and utmost care of the safety of its
passengers, exemplified by the driver's belated stop and the reckless opening
of the doors of the bus while the same was travelling at an appreciably fast
speed. At the same time, the common carrier itself acknowledged, through its

administrative officer, Benjamin Granada, that the bus was commissioned to


travel and take on passengers and the public at large, while equipped with
only a solitary door for a bus its size and loading capacity, in contravention of
rules and regulations provided for under the Land Transportation and Traffic
Code (RA 4136 as amended.) (Rollo, pp. 23-26)

Considering the factual findings of the Court of Appeals-the bus driver did not
immediately stop the bus at the height of the commotion; the bus was
speeding from a full stop; the victims fell from the bus door when it was
opened or gave way while the bus was still running; the conductor panicked
and blew his whistle after people had already fallen off the bus; and the bus
was not properly equipped with doors in accordance with law-it is clear that
the petitioners have failed to overcome the presumption of fault and
negligence found in the law governing common carriers.

The petitioners' argument that the petitioners "are not insurers of their
passengers" deserves no merit in view of the failure of the petitioners to
prove that the deaths of the two passengers were exclusively due to force
majeure and not to the failure of the petitioners to observe extraordinary
diligence in transporting safely the passengers to their destinations as
warranted by law. (See Batangas Laguna Tayabas Co. v. Intermediate
Appellate Court, supra).

The petitioners also contend that the private respondents failed to show to
the court that they are the parents of Ornominio Beter and Narcisa Rautraut
respectively and therefore have no legal personality to sue the petitioners.
This argument deserves scant consideration. We find this argument a belated
attempt on the part of the petitioners to avoid liability for the deaths of Beter
and Rautraut. The private respondents were Identified as the parents of the
victims by witnesses during the trial and the trial court recognized them as
such. The trial court dismissed the complaint solely on the ground that the
petitioners were not negligent.

Finally, the amount of damages awarded to the heirs of Beter and Rautraut
by the appellate court is supported by the evidence. The appellate court
stated:

Ornominio Beter was 32 years of age at the time of his death, single, in good
health and rendering support and service to his mother. As far as Narcisa
Rautraut is concerned, the only evidence adduced is to the effect that at her
death, she was 23 years of age, in good health and without visible means of
support.

In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code,
and established jurisprudence, several factors may be considered in
determining the award of damages, namely: 1) life expectancy (considering
the state of health of the deceased and the mortality tables are deemed
conclusive) and loss of earning capacity; (2) pecuniary loss, loss of support
and service; and (3) moral and mental suffering (Alcantara, et al. v. Surro, et
al., 93 Phil. 470).

In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at
page 104), the High Tribunal, reiterating the rule in Villa Rey Transit, Inc. v.
Court of Appeals (31 SCRA 511), stated that the amount of loss of earring
capacity is based mainly on two factors, namely, (1) the number of years on
the basis of which the damages shall be computed; and (2) the rate at which
the losses sustained by the heirs should be fixed.

As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA
497, at the age of 30 one's normal life expectancy is 33-1/3 years based on
the American Expectancy Table of Mortality (2/3 x 80-32).itc-asl By taking
into account the pace and nature of the life of a carpenter, it is reasonable to
make allowances for these circumstances and reduce the life expectancy of
the deceased Ornominio Beter to 25 years (People v. Daniel, supra). To fix the
rate of losses it must be noted that Art. 2206 refers to gross earnings less
necessary living expenses of the deceased, in other words, only net earnings
are to be considered (People v. Daniel, supra; Villa Rey Transit, Inc. v. Court of
Appeals, supra).

Applying the foregoing rules with respect to Ornominio Beter, it is both just
and reasonable, considering his social standing and position, to fix the
deductible, living and incidental expenses at the sum of Four Hundred Pesos
(P400.00) a month, or Four Thousand Eight Hundred Pesos (P4,800.00)
annually. As to his income, considering the irregular nature of the work of a
daily wage carpenter which is seasonal, it is safe to assume that he shall

have work for twenty (20) days a month at Twenty Five Pesos (P150,000.00)
for twenty five years. Deducting therefrom his necessary expenses, his heirs
would be entitled to Thirty Thousand Pesos (P30,000.00) representing loss of
support and service (P150,000.00 less P120,000.00). In addition, his heirs are
entitled to Thirty Thousand Pesos (P30,000.00) as straight death indemnity
pursuant to Article 2206 (People v. Daniel, supra). For damages for their
moral and mental anguish, his heirs are entitled to the reasonable sum of
P10,000.00 as an exception to the general rule against moral damages in
case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75). As
attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiffappellants Ricardo and Sergia Beter as heirs of their son Ornominio are
entitled to an indemnity of Seventy Five Thousand Pesos (P75,000.00).

In the case of Narcisa Rautraut, her heirs are entitled to a straight death
indemnity of Thirty Thousand Pesos (P30,000.00), to moral damages in the
amount of Ten Thousand Pesos (P10,000.00) and Five Thousand Pesos
(P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos
(P45,000.00) as total indemnity for her death in the absence of any evidence
that she had visible means of support. (Rollo, pp. 30-31)

WHEREFORE, the instant petition is DISMISSED. The questioned decision


dated May 19, 1988 and the resolution dated August 1, 1988 of the Court of
Appeals are AFFIRMED.

SO ORDERED.
17.
CASE DIGEST (Transportation Law): Bacarro vs. Castano
Bacarro vs. Castano
(GR L-34597, 5 November 1982)

FACTS:

Respondent Castano boarded a jeep driven by Petitioner Montefalcon who


thereafter drove it at around 40 kilometers per hour. While approaching

Sumasap Bridge at the said speed, a cargo truck coming from behind,
blowing its horn to signal its intention to overtake the jeep. The jeep, without
changing its speed, gave way by swerving to the right, such that both
vehicles ran side by side for a distance of around 20 meters. Thereafter as
the jeep was left behind, its driver was unable to return it to its former lane
and instead it obliquely or diagonally ran down an inclined terrain towards
the right until it fell into a ditch pinning down and crushing Castanos right
leg in the process.

Castano filed a case for damages against Rosita Bacarro, William Sevilla, and
Felario Montefalcon. Defendants alleged that the jeepney was sideswiped by
the overtaking cargo truck. After trial, the CFI of Misamis Oriental ordered
Bacarro, et.al. to jointly and severally pay Castano. It was affirmed by the CA
upon appeal.

ISSUES:

1. Whether or not there was a contributory negligence on the part of the


jeepney driver.
2. Whether or not extraordinary diligence is required of the jeepney driver.
3. Whether or not the sideswiping is a fortuitous event.

HELD:

1.) Yes. X x x. The fact is, petitioner-driver Montefalcon did not slacken his
speed but instead continued to run the jeep at about forty (40) kilometers per
hour even at the time the overtaking cargo truck was running side by side for
about twenty (20) meters and at which time he even shouted to the driver of
the truck.

Thus, had Montefalcon slackened the speed of the jeep at the time the truck
was overtaking it, instead of running side by side with the cargo truck, there
would have been no contact and accident. He should have foreseen that at
the speed he was running, the vehicles were getting nearer the bridge and as

the road was getting narrower the truck would be to close to the jeep and
would eventually sideswiped it. Otherwise stated, he should have slackened
his jeep when he swerved it to the right to give way to the truck because the
two vehicles could not cross the bridge at the same time.

2.) Yes. x x x [T]he fact is, there was a contract of carriage between the
private respondent and the herein petitioners in which case the Court of
Appeals correctly applied Articles 1733, 1755 and 1766 of the Civil Code
which require the exercise of extraordinary diligence on the part of petitioner
Montefalcon.

Indeed, the hazards of modern transportation demand extraordinary


diligence. A common carrier is vested with public interest. Under the new
Civil Code, instead of being required to exercise mere ordinary diligence a
common carrier is exhorted to carry the passengers safely as far as human
care and foresight can provide "using the utmost diligence of very cautious
persons." (Article 1755). Once a passenger in the course of travel is injured,
or does not reach his destination safely, the carrier and driver are presumed
to be at fault.

3.) The third assigned error of the petitioners would find fault upon
respondent court in not freeing petitioners from any liability, since the
accident was due to a fortuitous event. But, We repeat that the alleged
fortuitous event in this case - the sideswiping of the jeepney by the cargo
truck, was something which could have been avoided considering the
narrowness of the Sumasap Bridge which was not wide enough to admit two
vehicles. As found by the Court of Appeals, Montefalcon contributed to the
occurrence of the mishap
18.
G.R. No. L-55300

March 15, 1990

FRANKLIN G. GACAL and CORAZON M. GACAL, the latter assisted by her


husband, FRANKLIN G. GACAL, petitioners,
vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE PEDRO SAMSON C. ANIMAS,
in his capacity as PRESIDING JUDGE of the COURT OF FIRST INSTANCE OF

SOUTH COTABATO, BRANCH I, respondents.

Vicente A. Mirabueno for petitioners.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

PARAS, J.:

This is a, petition for review on certiorari of the decision of the Court of First
Instance of South Cotabato, Branch 1, * promulgated on August 26, 1980
dismissing three (3) consolidated cases for damages: Civil Case No. 1701,
Civil Case No. 1773 and Civil Case No. 1797 (Rollo, p. 35).

The facts, as found by respondent court, are as follows:

Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S.


Anislag and his wife, Mansueta L. Anislag, and the late Elma de Guzman,
were then passengers boarding defendant's BAC 1-11 at Davao Airport for a
flight to Manila, not knowing that on the same flight, Macalinog, Taurac
Pendatum known as Commander Zapata, Nasser Omar, Liling Pusuan Radia,
Dimantong Dimarosing and Mike Randa, all of Marawi City and members of
the Moro National Liberation Front (MNLF), were their co-passengers, three
(3) armed with grenades, two (2) with .45 caliber pistols, and one with a .22
caliber pistol. Ten (10) minutes after take off at about 2:30 in the afternoon,
the hijackers brandishing their respective firearms announced the hijacking of
the aircraft and directed its pilot to fly to Libya. With the pilot explaining to
them especially to its leader, Commander Zapata, of the inherent fuel
limitations of the plane and that they are not rated for international flights,
the hijackers directed the pilot to fly to Sabah. With the same explanation,
they relented and directed the aircraft to land at Zamboanga Airport,
Zamboanga City for refueling. The aircraft landed at 3:00 o'clock in the
afternoon of May 21, 1976 at Zamboanga Airport. When the plane began to

taxi at the runway, it was met by two armored cars of the military with
machine guns pointed at the plane, and it stopped there. The rebels thru its
commander demanded that a DC-aircraft take them to Libya with the
President of the defendant company as hostage and that they be given
$375,000 and six (6) armalites, otherwise they will blow up the plane if their
demands will not be met by the government and Philippine Air Lines.
Meanwhile, the passengers were not served any food nor water and it was
only on May 23, a Sunday, at about 1:00 o'clock in the afternoon that they
were served 1/4 slice of a sandwich and 1/10 cup of PAL water. After that,
relatives of the hijackers were allowed to board the plane but immediately
after they alighted therefrom, an armored car bumped the stairs. That
commenced the battle between the military and the hijackers which led
ultimately to the liberation of the surviving crew and the passengers, with the
final score of ten (10) passengers and three (3) hijackers dead on the spot
and three (3) hijackers captured.

City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon M. Gacal suffered
injuries in the course of her jumping out of the plane when it was peppered
with bullets by the army and after two (2) hand grenades exploded inside the
plane. She was hospitalized at General Santos Doctors Hospital, General
Santos City, for two (2) days, spending P245.60 for hospital and medical
expenses, Assistant City Fiscal Bonifacio S. Anislag also escaped unhurt but
Mrs. Anislag suffered a fracture at the radial bone of her left elbow for which
she was hospitalized and operated on at the San Pedro Hospital, Davao City,
and therefore, at Davao Regional Hospital, Davao City, spending P4,500.00.
Elma de Guzman died because of that battle. Hence, the action of damages
instituted by the plaintiffs demanding the following damages, to wit:

Civil Case No. 1701

City Fiscal Franklin G. Gacal and Mrs. Corazon M. Gacal actual damages:
P245.60 for hospital and medical expenses of Mrs Gacal; P8,995.00 for their
personal belongings which were lost and not recovered; P50,000.00 each for
moral damages; and P5,000.00 for attorney's fees, apart from the prayer for
an award of exemplary damages (Record, pp. 4-6, Civil Case No. 1701).

Civil Case No. 1773

xxx

xxx

xxx

Civil Case No. 1797

xxx

xxx

xxx

The trial court, on August 26, 1980, dismissed the complaints finding that all
the damages sustained in the premises were attributed to force majeure.

On September 12, 1980 the spouses Franklin G. Gacal and Corazon M. Gacal,
plaintiffs in Civil Case No. 1701, filed a notice of appeal with the lower court
on pure questions of law (Rollo, p. 55) and the petition for review on certiorari
was filed with this Court on October 20, 1980 (Rollo, p. 30).

The Court gave due course to the petition (Rollo, p. 147) and both parties
filed their respective briefs but petitioner failed to file reply brief which was
noted by the Court in the resolution dated May 3, 1982 (Rollo, p. 183).

Petitioners alleged that the main cause of the unfortunate incident is the
gross, wanton and inexcusable negligence of respondent Airline personnel in
their failure to frisk the passengers adequately in order to discover hidden
weapons in the bodies of the six (6) hijackers. They claimed that despite the
prevalence of skyjacking, PAL did not use a metal detector which is the most
effective means of discovering potential skyjackers among the passengers
(Rollo, pp. 6-7).

Respondent Airline averred that in the performance of its obligation to safely


transport passengers as far as human care and foresight can provide, it has
exercised the utmost diligence of a very cautious person with due regard to
all circumstances, but the security checks and measures and surveillance
precautions in all flights, including the inspection of baggages and cargo and
frisking of passengers at the Davao Airport were performed and rendered
solely by military personnel who under appropriate authority had assumed
exclusive jurisdiction over the same in all airports in the Philippines.

Similarly, the negotiations with the hijackers were a purely government


matter and a military operation, handled by and subject to the absolute and
exclusive jurisdiction of the military authorities. Hence, it concluded that the
accident that befell RP-C1161 was caused by fortuitous event, force majeure
and other causes beyond the control of the respondent Airline.

The determinative issue in this case is whether or not hijacking or air piracy
during martial law and under the circumstances obtaining herein, is a caso
fortuito or force majeure which would exempt an aircraft from payment of
damages to its passengers whose lives were put in jeopardy and whose
personal belongings were lost during the incident.

Under the Civil Code, common carriers are required to exercise extraordinary
diligence in their vigilance over the goods and for the safety of passengers
transported by them, according to all the circumstances of each case (Article
1733). They are presumed at fault or to have acted negligently whenever a
passenger dies or is injured (Philippine Airlines, Inc. v. National Labor
Relations Commission, 124 SCRA 583 [1983]) or for the loss, destruction or
deterioration of goods in cases other than those enumerated in Article 1734
of the Civil Code (Eastern Shipping Lines, Inc. v. Intermediate Appellate Court,
150 SCRA 463 [1987]).

The source of a common carrier's legal liability is the contract of carriage, and
by entering into said contract, it binds itself to carry the passengers safely as
far as human care and foresight can provide. There is breach of this
obligation if it fails to exert extraordinary diligence according to all the
circumstances of the case in exercise of the utmost diligence of a very
cautious person (Isaac v. Ammen Transportation Co., 101 Phil. 1046 [1957];
Juntilla v. Fontanar, 136 SCRA 624 [1985]).

It is the duty of a common carrier to overcome the presumption of negligence


(Philippine National Railways v. Court of Appeals, 139 SCRA 87 [1985]) and it
must be shown that the carrier had observed the required extraordinary
diligence of a very cautious person as far as human care and foresight can
provide or that the accident was caused by a fortuitous event (Estrada v.
Consolacion, 71 SCRA 523 [1976]). Thus, as ruled by this Court, no person
shall be responsible for those "events which could not be foreseen or which

though foreseen were inevitable. (Article 1174, Civil Code). The term is
synonymous with caso fortuito (Lasam v. Smith, 45 Phil. 657 [1924]) which is
of the same sense as "force majeure" (Words and Phrases Permanent Edition,
Vol. 17, p. 362).

In order to constitute a caso fortuito or force majeure that would exempt a


person from liability under Article 1174 of the Civil Code, it is necessary that
the following elements must concur: (a) the cause of the breach of the
obligation must be independent of the human will (the will of the debtor or
the obligor); (b) the event must be either unforeseeable or unavoidable; (c)
the event must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (d) the debtor must be free from any
participation in, or aggravation of the injury to the creditor (Lasam v. Smith,
45 Phil. 657 [1924]; Austria v. Court of Appeals, 39 SCRA 527 [1971]; Estrada
v. Consolacion, supra; Vasquez v. Court of Appeals, 138 SCRA 553 [1985];
Juan F. Nakpil & Sons v. Court of Appeals, 144 SCRA 596 [1986]). Caso fortuito
or force majeure, by definition, are extraordinary events not foreseeable or
avoidable, events that could not be foreseen, or which, though foreseen, are
inevitable. It is, therefore, not enough that the event should not have been
foreseen or anticipated, as is commonly believed, but it must be one
impossible to foresee or to avoid. The mere difficulty to foresee the
happening is not impossibility to foresee the same (Republic v. Luzon
Stevedoring Corporation, 21 SCRA 279 [1967]).

Applying the above guidelines to the case at bar, the failure to transport
petitioners safely from Davao to Manila was due to the skyjacking incident
staged by six (6) passengers of the same plane, all members of the Moro
National Liberation Front (MNLF), without any connection with private
respondent, hence, independent of the will of either the PAL or of its
passengers.

Under normal circumstances, PAL might have foreseen the skyjacking


incident which could have been avoided had there been a more thorough
frisking of passengers and inspection of baggages as authorized by R.A. No.
6235. But the incident in question occurred during Martial Law where there
was a military take-over of airport security including the frisking of
passengers and the inspection of their luggage preparatory to boarding
domestic and international flights. In fact military take-over was specifically
announced on October 20, 1973 by General Jose L. Rancudo, Commanding
General of the Philippine Air Force in a letter to Brig. Gen. Jesus Singson, then

Director of the Civil Aeronautics Administration (Rollo, pp. 71-72) later


confirmed shortly before the hijacking incident of May 21, 1976 by Letter of
Instruction No. 399 issued on April 28, 1976 (Rollo, p. 72).

Otherwise stated, these events rendered it impossible for PAL to perform its
obligations in a nominal manner and obviously it cannot be faulted with
negligence in the performance of duty taken over by the Armed Forces of the
Philippines to the exclusion of the former.

Finally, there is no dispute that the fourth element has also been satisfied.
Consequently the existence of force majeure has been established exempting
respondent PAL from the payment of damages to its passengers who suffered
death or injuries in their persons and for loss of their baggages.

PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit


and the decision of the Court of First Instance of South Cotabato, Branch I is
hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

19.
G.R. No. 95582

October 7, 1991

DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y


MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY,
FERNANDO CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE
CUDIAMAT, SAMUEL CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late
Pedrito Cudiamat represented by Inocencia Cudiamat, respondents.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:p

On May 13, 1985, private respondents filed a complaint 1 for damages


against petitioners for the death of Pedrito Cudiamat as a result of a vehicular
accident which occurred on March 25, 1985 at Marivic, Sapid, Mankayan,
Benguet. Among others, it was alleged that on said date, while petitioner
Theodore M. Lardizabal was driving a passenger bus belonging to petitioner
corporation in a reckless and imprudent manner and without due regard to
traffic rules and regulations and safety to persons and property, it ran over its
passenger, Pedrito Cudiamat. However, instead of bringing Pedrito
immediately to the nearest hospital, the said driver, in utter bad faith and
without regard to the welfare of the victim, first brought his other passengers
and cargo to their respective destinations before banging said victim to the
Lepanto Hospital where he expired.

On the other hand, petitioners alleged that they had observed and continued
to observe the extraordinary diligence required in the operation of the
transportation company and the supervision of the employees, even as they
add that they are not absolute insurers of the safety of the public at large.
Further, it was alleged that it was the victim's own carelessness and
negligence which gave rise to the subject incident, hence they prayed for the
dismissal of the complaint plus an award of damages in their favor by way of
a counterclaim.

On July 29, 1988, the trial court rendered a decision, effectively in favor of
petitioners, with this decretal portion:

IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito


Cudiamat was negligent, which negligence was the proximate cause of his
death. Nonetheless, defendants in equity, are hereby ordered to pay the heirs
of Pedrito Cudiamat the sum of P10,000.00 which approximates the amount
defendants initially offered said heirs for the amicable settlement of the case.
No costs.

SO ORDERED. 2

Not satisfied therewith, private respondents appealed to the Court of Appeals


which, in a decision 3 in CA-G.R. CV No. 19504 promulgated on August 14,
1990, set aside the decision of the lower court, and ordered petitioners to pay
private respondents:

1.
The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity
for death of the victim Pedrito Cudiamat;

2.

The sum of Twenty Thousand (P20,000.00) by way of moral damages;

3.
The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos
as actual and compensatory damages;

4.

The costs of this suit. 4

Petitioners' motion for reconsideration was denied by the Court of Appeals in


its resolution dated October 4, 1990, 5 hence this petition with the central
issue herein being whether respondent court erred in reversing the decision
of the trial court and in finding petitioners negligent and liable for the
damages claimed.

It is an established principle that the factual findings of the Court of Appeals


as a rule are final and may not be reviewed by this Court on appeal. However,
this is subject to settled exceptions, one of which is when the findings of the

appellate court are contrary to those of the trial court, in which case a
reexamination of the facts and evidence may be undertaken. 6

In the case at bar, the trial court and the Court of Appeal have discordant
positions as to who between the petitioners an the victim is guilty of
negligence. Perforce, we have had to conduct an evaluation of the evidence
in this case for the prope calibration of their conflicting factual findings and
legal conclusions.

The lower court, in declaring that the victim was negligent, made the
following findings:

This Court is satisfied that Pedrito Cudiamat was negligent in trying to board
a moving vehicle, especially with one of his hands holding an umbrella. And,
without having given the driver or the conductor any indication that he
wishes to board the bus. But defendants can also be found wanting of the
necessary diligence. In this connection, it is safe to assume that when the
deceased Cudiamat attempted to board defendants' bus, the vehicle's door
was open instead of being closed. This should be so, for it is hard to believe
that one would even attempt to board a vehicle (i)n motion if the door of said
vehicle is closed. Here lies the defendant's lack of diligence. Under such
circumstances, equity demands that there must be something given to the
heirs of the victim to assuage their feelings. This, also considering that
initially, defendant common carrier had made overtures to amicably settle
the case. It did offer a certain monetary consideration to the victim's heirs. 7

However, respondent court, in arriving at a different opinion, declares that:

From the testimony of appellees'own witness in the person of Vitaliano


Safarita, it is evident that the subject bus was at full stop when the victim
Pedrito Cudiamat boarded the same as it was precisely on this instance
where a certain Miss Abenoja alighted from the bus. Moreover, contrary to
the assertion of the appellees, the victim did indicate his intention to board
the bus as can be seen from the testimony of the said witness when he
declared that Pedrito Cudiamat was no longer walking and made a sign to
board the bus when the latter was still at a distance from him. It was at the
instance when Pedrito Cudiamat was closing his umbrella at the platform of

the bus when the latter made a sudden jerk movement (as) the driver
commenced to accelerate the bus.

Evidently, the incident took place due to the gross negligence of the
appellee-driver in prematurely stepping on the accelerator and in not waiting
for the passenger to first secure his seat especially so when we take into
account that the platform of the bus was at the time slippery and wet
because of a drizzle. The defendants-appellees utterly failed to observe their
duty and obligation as common carrier to the end that they should observe
extra-ordinary diligence in the vigilance over the goods and for the safety of
the passengers transported by them according to the circumstances of each
case (Article 1733, New Civil Code). 8

After a careful review of the evidence on record, we find no reason to disturb


the above holding of the Court of Appeals. Its aforesaid findings are
supported by the testimony of petitioners' own witnesses. One of them,
Virginia Abalos, testified on cross-examination as follows:

Q It is not a fact Madam witness, that at bunkhouse 54, that is before the
place of the incident, there is a crossing?

A The way going to the mines but it is not being pass(ed) by the bus.

Q And the incident happened before bunkhouse 56, is that not correct?

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please inform this
Honorable Court if there was anv unusual incident that occurred?

A When we delivered a baggage at Marivic because a person alighted there


between Bunkhouse 53 and 54.

Q What happened when you delivered this passenger at this particular place
in Lepanto?

A When we reached the place, a passenger alighted and I signalled my driver.


When we stopped we went out because I saw an umbrella about a split
second and I signalled again the driver, so the driver stopped and we went
down and we saw Pedrito Cudiamat asking for help because he was lying
down.

Q How far away was this certain person, Pedrito Cudiamat, when you saw him
lying down from the bus how far was he?

A It is about two to three meters.

Q On what direction of the bus was he found about three meters from the
bus, was it at the front or at the back?

A At the back, sir. 10 (Emphasis supplied.)

The foregoing testimonies show that the place of the accident and the place
where one of the passengers alighted were both between Bunkhouses 53 and
54, hence the finding of the Court of Appeals that the bus was at full stop
when the victim boarded the same is correct. They further confirm the
conclusion that the victim fell from the platform of the bus when it suddenly
accelerated forward and was run over by the rear right tires of the vehicle, as
shown by the physical evidence on where he was thereafter found in relation
to the bus when it stopped. Under such circumstances, it cannot be said that
the deceased was guilty of negligence.

The contention of petitioners that the driver and the conductor had no

knowledge that the victim would ride on the bus, since the latter had
supposedly not manifested his intention to board the same, does not merit
consideration. When the bus is not in motion there is no necessity for a
person who wants to ride the same to signal his intention to board. A public
utility bus, once it stops, is in effect making a continuous offer to bus riders.
Hence, it becomes the duty of the driver and the conductor, every time the
bus stops, to do no act that would have the effect of increasing the peril to a
passenger while he was attempting to board the same. The premature
acceleration of the bus in this case was a breach of such duty. 11

It is the duty of common carriers of passengers, including common carriers by


railroad train, streetcar, or motorbus, to stop their conveyances a reasonable
length of time in order to afford passengers an opportunity to board and
enter, and they are liable for injuries suffered by boarding passengers
resulting from the sudden starting up or jerking of their conveyances while
they are doing so. 12

Further, even assuming that the bus was moving, the act of the victim in
boarding the same cannot be considered negligent under the circumstances.
As clearly explained in the testimony of the aforestated witness for
petitioners, Virginia Abalos, th bus had "just started" and "was still in slow
motion" at the point where the victim had boarded and was on its platform.
13

It is not negligence per se, or as a matter of law, for one attempt to board a
train or streetcar which is moving slowly. 14 An ordinarily prudent person
would have made the attempt board the moving conveyance under the same
or similar circumstances. The fact that passengers board and alight from
slowly moving vehicle is a matter of common experience both the driver and
conductor in this case could not have been unaware of such an ordinary
practice.

The victim herein, by stepping and standing on the platform of the bus, is
already considered a passenger and is entitled all the rights and protection
pertaining to such a contractual relation. Hence, it has been held that the
duty which the carrier passengers owes to its patrons extends to persons
boarding cars as well as to those alighting therefrom. 15

Common carriers, from the nature of their business and reasons of public
policy, are bound to observe extraordina diligence for the safety of the
passengers transported by the according to all the circumstances of each
case. 16 A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence very
cautious persons, with a due regard for all the circumstances. 17

It has also been repeatedly held that in an action based on a contract of


carriage, the court need not make an express finding of fault or negligence on
the part of the carrier in order to hold it responsible to pay the damages
sought by the passenger. By contract of carriage, the carrier assumes the
express obligation to transport the passenger to his destination safely and
observe extraordinary diligence with a due regard for all the circumstances,
and any injury that might be suffered by the passenger is right away
attributable to the fault or negligence of the carrier. This is an exception to
the general rule that negligence must be proved, and it is therefore
incumbent upon the carrier to prove that it has exercised extraordinary
diligence as prescribed in Articles 1733 and 1755 of the Civil Code. 18

Moreover, the circumstances under which the driver and the conductor failed
to bring the gravely injured victim immediately to the hospital for medical
treatment is a patent and incontrovertible proof of their negligence. It defies
understanding and can even be stigmatized as callous indifference. The
evidence shows that after the accident the bus could have forthwith turned at
Bunk 56 and thence to the hospital, but its driver instead opted to first
proceed to Bunk 70 to allow a passenger to alight and to deliver a
refrigerator, despite the serious condition of the victim. The vacuous reason
given by petitioners that it was the wife of the deceased who caused the
delay was tersely and correctly confuted by respondent court:

... The pretension of the appellees that the delay was due to the fact that
they had to wait for about twenty minutes for Inocencia Cudiamat to get
dressed deserves scant consideration. It is rather scandalous and deplorable
for a wife whose husband is at the verge of dying to have the luxury of
dressing herself up for about twenty minutes before attending to help her
distressed and helpless husband. 19

Further, it cannot be said that the main intention of petitioner Lardizabal in

going to Bunk 70 was to inform the victim's family of the mishap, since it was
not said bus driver nor the conductor but the companion of the victim who
informed his family thereof. 20 In fact, it was only after the refrigerator was
unloaded that one of the passengers thought of sending somebody to the
house of the victim, as shown by the testimony of Virginia Abalos again, to
wit:

Why, what happened to your refrigerator at that particular time?

A
I asked them to bring it down because that is the nearest place to our
house and when I went down and asked somebody to bring down the
refrigerator, I also asked somebody to call the family of Mr. Cudiamat.

COURT:

Why did you ask somebody to call the family of Mr. Cudiamat?

A
Because Mr. Cudiamat met an accident, so I ask somebody to call for
the family of Mr. Cudiamat.

But nobody ask(ed) you to call for the family of Mr. Cudiamat?

No sir. 21

With respect to the award of damages, an oversight was, however,


committed by respondent Court of Appeals in computing the actual damages
based on the gross income of the victim. The rule is that the amount
recoverable by the heirs of a victim of a tort is not the loss of the entire
earnings, but rather the loss of that portion of the earnings which the
beneficiary would have received. In other words, only net earnings, not gross
earnings, are to be considered, that is, the total of the earnings less expenses
necessary in the creation of such earnings or income and minus living and
other incidental expenses. 22

We are of the opinion that the deductible living and other expense of the
deceased may fairly and reasonably be fixed at P500.00 a month or
P6,000.00 a year. In adjudicating the actual or compensatory damages,
respondent court found that the deceased was 48 years old, in good health
with a remaining productive life expectancy of 12 years, and then earning
P24,000.00 a year. Using the gross annual income as the basis, and
multiplying the same by 12 years, it accordingly awarded P288,000. Applying
the aforestated rule on computation based on the net earnings, said award
must be, as it hereby is, rectified and reduced to P216,000.00. However, in
accordance with prevailing jurisprudence, the death indemnity is hereby
increased to P50,000.00. 23

WHEREFORE, subject to the above modifications, the challenged judgment


and resolution of respondent Court of Appeals are hereby AFFIRMED in all
other respects.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.


Dangwa Transco. Co. Inc. v. CA
Facts:

Private respondents filed a complaint for damages against petitioners for the
death of Pedrito Cudiamat. The deceased was attempting to board a bus, but
it suddenly accelerated forward. He fell off and the bus ran over him,
resulting to his death.

Issue:

Whether the bus is liable as a common carrier to the deceased who was still
attempting to board

Held:

It is the duty of common carriers of passengers to stop their conveyances a


reasonable length of time in order to afford passengers an opportunity to
board and enter, and they are liable for injuries suffered by boarding
passengers resulting from the sudden starting up or jerking of their
conveyances while they are doing so.
20.
G.R. Nos. L-21477-81

April 29, 1966

FRANCISCA VILUAN, petitioner,


vs.
THE COURT OF APPEALS, PATRICIO HUFANA and GREGORIO HUFANA,
respondents.

Jose A. Solomon, for petitioner.


Lourdes M. Garcia, for respondents.

REGALA, J.:

Seven persons were killed and thirteen others were injured in Bangar, La
Union, on February 16, 1958, when a passenger bus on which they were
riding caught fire after hitting a post and crashing against a tree. The bus,
owned by petitioner and driven by Hermenegildo Aquino, came from San
Fernando, La Union and was on its way to Candon, Ilocos Sur.

It appears that, as the bus neared the gate of the Gabaldon school building in
the municipality of Bangar, another passenger bus owned by Patricio Hufana
and driven by Gregorio Hufana tried to overtake it but that instead of giving
way, Aquino increased the speed of his bus and raced with the overtaking
bus. Aquino lost control of his bus as a result of which it hit a post, crashed
against a tree and then burst into flames.

Among those who perished were Timoteo Mapanao, Francisca Lacsamana,


Narcisa Mendoza and Gregorio Sibayan, whose heirs sued petitioner and the
latter's driver, Hermenegildo Aquino, for damages for breach of contract of
carriage. Carolina Sabado, one of those injured, also sued petitioner and the
driver for damages. The complaints were filed in the Court of First Instance of
La Union.

In their answer, petitioner and her driver blamed respondent Gregorio Hufana
for the accident. With leave of court, they filed third party complaints against
Hufana and the latter's employer, Patricio Hufana.

After trial, the court found that the accident was due to the concurrent
negligence of the drivers of the two buses and held both, together with their
respective employers, jointly and severally liable for damages.

The dispositive portion of its decision reads:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered, declaring the


plaintiff's entitled to damages to be paid jointly and severally by the
defendants and third-party defendants as follows:

(1) For plaintiff Juliana C. Vda. de Mapanao for the death of her son Timoteo
Mapanao, the sum of P5,000.00 for actual damages, P1,000.00 as moral
damages and P250.00 as attorney's fees;

(2) For plaintiff Leon Lacsamana for the death of his daughter Francisca
Lacsamana, the sum of P4,000.00 as actual damages, P1,000.00 as moral
damages and P250.00 as attorney's fees;

(3) For plaintiffs Juan Mendoza and Magdalena Mendoza for the death of their
mother Narcisa Mendoza, the sum of P4,000.00 for actual damages,
P1,000.00 for moral damages and P250.00 as attorney's fees;

(4) For plaintiffs Agustina Sabado, Quintin Sibayan, Julita Sibayan, Primitivo
Sibayan and Avelina Sibayan, the sum of P4,000.00 for actual damages,
P1,500.00 for moral damages and P250.00 as attorney's fees;

(5) For the injured passenger Carolina Sabado, P649.00 for actual damages,
P1,000.00 for moral damages and P250.00 for attorney's fees.

All such amounts awarded as damages shall bear interest at the legal rate of
six per cent (6%) per annum from the date of this decision until the same
shall have been duly paid in full.

Defendants and third-party defendants are further ordered to pay


proportionate costs."

Both petitioner and her driver and the respondents herein appealed to the
Court of Appeals. While affirming the finding that the accident was due to the
concurrent negligence of the drivers of both the Viluan and the Hufana buses,
the Court of Appeals differed with the trial court in the assessment of
liabilities of the parties. In its view only petitioner Francisca Viluan, as
operator of the bus, is liable for breach of contract of carriage. The driver,
Hermenegildo Aquino, cannot be made jointly and severally liable with
petitioner because he is merely the latter's employee and is in no way a party
to the contract of carriage. The court added, however

Hermenegildo Aquino is not entirely free from liability. He may be held liable,
criminally and civilly, under the Revised Penal Code (Articles 100 and 103),
but not in a civil suit for damages predicated upon a breach of contract, such
as this one (Aguas, et al. vs. Vargas, et al., CA-G.R. No. 27161-R, Jan. 22,
1963). Furthermore, the common carrier, Francisca Viluan could recover from
Aquino any damages that she might have suffered by reason of the latter's
negligence.

Neither may respondents Patricio Hufana and Gregorio Hufana be held liable
in the opinion of the appellate court because the plaintiffs did not amend

complaints in the main action so as to assert a claim against the respondents


as third party defendants.

The appellate court likewise disallowed the award of moral damages for
P1,000.00 to Carolina Sabado, there being no showing that the common
carrier was guilty of fraud or bad faith in the performance of her obligation.
Accordingly, it rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, we hereby find defendant-appellant


Francisca Viluan solely liable to the plaintiffs-appellees for the damages and
attorney's fees awarded to them by the court below and further declare null
and void the lower court's award of moral damages in the amount of
P1,000.00 in favor of plaintiff Carolina Sabado. Thus modified, the judgment
appealed from is affirmed in all other respects, with costs in this instance
against defendant-appellant Francisca Viluan.

From this judgment petitioner brought this appeal. In brief, her position is that
since the proximate cause of the accident was found to be the concurrent
negligence of the drivers of the two buses, then she and respondent Patricio
and Gregorio Hufana should have been held equally liable to the plaintiffs in
the damage suits. The fact that the respondents were not sued as principal
defendants but were brought into the cases as third party defendants should
not preclude a finding of their liability.

We agree with petitioner's contention. To begin with, the Court of Appeals'


ruling is based on section 5 of Rule 12 of the former Rules of Court, 1 which
was adopted from Rule 14-a of the Federal Rules of Civil Procedure. While the
latter provision has indeed been held to preclude a judgment in favor of a
plaintiff and against a third party defendant where the plaintiff has not
amended his complaint to assert a claim against a third party defendant, 2
yet, as held in subsequent decisions, this rule applies only to cases where the
third party defendant is brought in on an allegation of liability to the
defendants. The rule does not apply where a third-party defendant is
impleaded on the ground of direct liability to the plaintiffs, in which case no
amendment of the plaintiffs complaint is necessary. 3 As explained in the
Atlantic Coast Line R. Co. vs. U. S. Fidelity & Guaranty Co., 52 F. Supp. 177
(1943):

From the sources of Rule 14 and the decisions herein cited, it is clear that this
rule, like the admiralty rule, "covers two distinct subjects, the addition of
parties defendant to the main cause of action, and the bringing in of a third
party for a defendant's remedy over." x x x

If the third party complaint alleges facts showing a third party's direct liability
to plaintiff on the claim set out in plaintiff's petition, then third party "shall"
make his defenses as provided in Rule 12 and his counterclaims against
plaintiff as provided in Rule 13. In the case of alleged direct liability, no
amendment is necessary or required. The subject-matter of the claim is
contained in plaintiff's complaint, the ground of third party's liability on that
claim is alleged in third party complaint, and third party's defense to set up in
his an to plaintiff's complaint. At that point and without amendment, the
plaintiff and third party are at issue as to their rights respecting the claim.

The provision in the rule that, "The third-party defendant may assert any
defenses which the third-party plaintiff may assert to the plaintiff's claim,"
applies to the other subject, namely, the alleged liability of third party
defendant. The next sentence in the rule, "The third-party defendant is bound
by the adjudication of the third party plaintiff's liability to the plaintiff, as well
as of his own to the plaintiff or to the third-party plaintiff," applies to both
subjects. If third party is brought in as liable only to defendant and judgment
is rendered adjudicating plaintiff's right to recover against defendant and
defendant's rights to recover against third party, he is bound by both
adjudications. That part of the sentence refers to the second subject. If third
party is brought in as liable to plaintiff, then third party is bound by the
adjudication as between him and plaintiff. That refers to the first subject. If
third party is brought in as liable to plaintiff and also over to defendant, then
third party is bound by both adjudications. The next sentence in the rule,
"The plaintiff may amend his pleadings to assert against the third-party
defendant any claim which the plaintiff might have asserted against the thirdparty defendant had he been joined originally as a defendant," refers to the
second subject, that is, to briging in third party as liable to defendant only,
and does not apply to the alleged liability of third party directly to plaintiff."

In this case the third-party complaints filed by petitioner and her driver
charged respondents with direct liability to the plaintiffs. It was contended
that the accident was due "to the fault, negligence, carelessness and
imprudence of the third party defendant Gregorio Hufana" and, in petitioner's
motion for leave to file a third party complaint, it was stated that "Patricio

Hufana and Gregorio Hufana were not made parties to this action, although
the defendants are entitled to indemnity and/or subrogation against them in
respect of plaintiff's claim."

It should make no difference therefore whether the respondents were brought


in as principal defendants or as third-party defendants. As Chief Justice Moran
points out, since the liability of the third-party defendant is already asserted
in the third-party complaint, the amendment of the complaint to assert such
liability is merely a matter of form, to insist on which would not be in keeping
with the liberal spirit of the Rules of Court. 4

Nor should it make any difference that the liability of petitioner springs from
contract while that of respondents arises from quasi-delict. As early as 1913,
we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177,5 that in case of
injury to a passenger due to the negligence of the driver of the bus on which
he was riding and of the driver of another vehicle, the drivers as well as the
owners of the two vehicles are jointly and severally liable for damages. Some
members of the Court, though, are of the view that under the circumstances
they are liable on quasi-delict.

Wherefore, the decision appealed from is hereby modified in the sense that
petitioner as well as respondents Patricio Hufana and Gregorio Hufana are
jointly and severally liable for the damages awarded by the trial court. The
disallowance of moral damages in the amount of P1,000.00 is correct and
should be affirmed. No costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Makalintal, Zaldivar and


Sanchez, JJ., concur.
Reyes, J.B.L., and Barrera, JJ., took no part.

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