fractured arm.
After the first operation, respondent demanded from petitioner, through its
G.R. No. 162104 September 15, 2009
R TRANSPORT CORPORATION, represented by its owner/President
RIZALINA LAMZON, Petitioner,
vs.
EDUARDO PANTE, Respondent.
DECISION
PERALTA, J.:
This is a petition for review on certiorari 1 of the Decision dated October 7, 2003 of
the Court of Appeals in CA-G.R. CV No. 76170, and its Resolution dated February 5,
2004, denying petitioners motion for reconsideration. The Court of Appeals
affirmed the Decision of the Regional Trial Court (RTC) of Gapan City, Branch 35,
dated January 26, 2002, holding petitioner liable to respondent for damages for
physical injuries sustained by respondent due to a vehicular accident.
The facts2 are as follows:
Petitioner R Transport Corporation, represented by its owner and president, Rizalina
Lamzon,3 is a common carrier engaged in operating a bus line transporting
passengers to Gapan, Nueva Ecija from Cubao, Quezon City and back.
At about 3:00 a.m. of January 27, 1995, respondent Eduardo Pante rode petitioners
R. L. Bus Liner with Plate Number CVW-635 and Body Number 94810 in Cubao,
Quezon City bound for Gapan, Nueva Ecija. Respondent paid the sum of P48.00 for
his fare, and he was issued bus ticket number 555401.4
While traveling along the Doa Remedios Trinidad Highway in Baliuag, Bulacan, the
bus hit a tree and a house due to the fast and reckless driving of the bus driver,
Johnny Merdiquia. Respondent sustained physical injuries as a result of the
vehicular accident. He was brought by an unidentified employee of petitioner to
the Baliuag District Hospital, where respondent was diagnosed to have sustained a
"laceration frontal area, with fracture of the right humerus," 5 or the bone that
extends from the shoulder to the elbow of the right arm. Respondent underwent an
operation for the fracture of the right humerus per Certification dated February 17,
1995 issued by Dr. Virginia C. Cabling of the Baliuag District Hospital.
The hospital's Statement of Account showed that respondents operation and
confinement cost P22,870.00.7 Respondent also spent P8,072.60 for his
medication. He was informed that he had to undergo a second operation after two
years of rest.8 He was unemployed for almost a year after his first operation
because Goldilocks, where he worked as a production crew, refused to accept him
with his disability as he could not perform his usual job.
By way of initial assistance, petitioner gave respondent's wife, Analiza P. Pante, the
sum of P7,000.00, which was spent for the stainless steel instrument used in his
manager, Michael Cando, the full payment or reimbursement of his medical and
hospitalization expenses, but petitioner refused payment.
Four years later, respondent underwent a second operation. He spent P15,170.00
for medical and hospitalization expenses.
On March 14, 1995, respondent filed a Complaint 13 for damages against petitioner
with the RTC of Gapan City, Branch 35 (trial court) for the injuries he sustained as a
result of the vehicular accident.
In its Answer,14 petitioner put up the defense that it had always exercised the
diligence of a good father of a family in the selection and supervision of its
employees, and that the accident was a force majeure for which it should not be
held liable.
At the pre-trial on October 4, 1995, petitioner was declared in default, 15 which was
reconsidered by the trial court on December 12, 1995 16 upon finding that petitioner
had earlier filed a Motion to Transfer Date of Hearing. Trial was first set on February
26, 1996, and from then on trial was postponed several times on motion of
petitioner.
Six years later, on October 24, 2001, respondents direct examination was
concluded. His cross-examination was reset to December 5, 2001 due to the
absence of petitioner and its counsel.17 It was again reset to January 23, 200218
upon petitioners motion. On January 23, 2002, petitioner, through its new counsel,
asked for another postponement on the ground that he was not ready. Hence, the
cross-examination of respondent was reset to March 13, 2002.
On March 13, 2002, petitioner was declared to have waived its right to cross-
examine respondent due to the absence of petitioner and its counsel, and
respondent was allowed to offer his exhibits within five days.20 Petitioners motion
for reconsideration dated April 4, 200221 was denied on May 7, 2002.
In the hearing of June 19, 2002, petitioner was declared to have waived its right to
present evidence on motion of respondents counsel in view of the unexplained
absence of petitioner and its counsel despite prior notice. The case was declared
submitted for decision.
On June 26, 2002, the trial court rendered a Decision, the dispositive portion of
which reads:
WHEREFORE, premises considered, judgment is hereby rendered finding the
plaintiffs to be entitled to damages and ordering defendants to [pay]:
1.) P39,112.60 as actual damages;
2.) P50,000.00 as moral damages;
3.) P50,000.00 as exemplary damages;
4.) Twenty-five percent (25%) of the total of which shall
constitute a lien as contingent fee of plaintiffs counsel.
SO ORDERED.
The trial court held that the provisions of the Civil Code on common carriers govern
this case. Article 1756 of the Civil Code states that "[i]n 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 by Articles 1733 and 1755." The trial court ruled that since petitioner
failed to dispute said presumption despite the many opportunities given to it, such
presumption of negligence stands.
Petitioner appealed the decision of the trial court to the Court of Appeals.
In its Decision dated October 7, 2003, the Court of Appeals affirmed the decision of
the trial court, the dispositive portion of which reads:
WHEREFORE, for lack of merit, the appeal is DENIED and the Decision appealed
from is AFFIRMED in toto. With double costs against the appellant.
Petitioners motion for reconsideration was denied for lack of merit in the
Resolution of the Court of Appeals dated February 5, 2004.
Hence, petitioner filed this petition raising the following issues:
I failure to attend the hearing scheduled for reception of its evidence on June 19,
THE HONORABLE COURT OF APPEALS, TENTH DIVISION GRAVELY ERRED IN NOT
GIVING DUE COURSE TO THE DEFENDANT-APPELLANT'S MOTION FOR
RECONSIDERATION OF THE DECISION PROMULGATED ON OCTOBER 7, 2003,
THEREBY DEPRIVING PETITIONER'S FUNDAMENTAL RIGHT TO DUE PROCESS.
II
THE HONORABLE COURT OF APPEALS, TENTH DIVISION FURTHER GRAVELY ERRED
IN AFFIRMING IN TOTO THE DECISION OF THE REGIONAL TRIAL COURT OF GAPAN
CITY, BRANCH 35, PARTICULARLY IN AWARDING DAMAGES TO THE RESPONDENT
WITHOUT PRESENTING ANY SUBSTANTIAL EVIDENCE.
III
THE HONORABLE COURT OF APPEALS, TENTH DIVISION, IN AFFIRMING IN TOTO THE
DECISION OF THE REGIONAL TRIAL COURT OF GAPAN CITY, BRANCH 35, HAS
COMMITTED GRAVE AND REVERSIBLE ERROR IN ITS FINDING OF FACTS AND
APPLICATION OF [THE] LAW.
The main issue is whether or not petitioner is liable to respondent for damages.
The Court affirms the decision of the Court of Appeals that petitioner is liable for
damages.
Under the Civil Code, common carriers, like petitioner bus company, from the
nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence for the safety of the passengers transported by them,
according to all the circumstances of each case.28 They are 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.
Article 1756 of the Civil Code states that "[i]n 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 by Articles 1733 and 1755."
Further, Article 1759 of the Civil Code provides that "[c]ommon carriers are liable
for the death or injury to passengers through the negligence or willful acts of the
former's 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."
In this case, the testimonial evidence of respondent showed that petitioner,
through its bus driver, failed to observe extraordinary diligence, and was,
therefore, negligent in transporting the passengers of the bus safely to Gapan,
Nueva Ecija on January 27, 1995, since the bus bumped a tree and a house, and
caused physical injuries to respondent. Article 1759 of the Civil Code explicitly
states that the common carrier is liable for the death or injury to passengers
through the negligence or willful acts of its employees, and that such liability does
not cease upon proof that the common carrier exercised all the diligence of a good
father of a family in the selection and supervision of its employees. Hence, even if
petitioner was able to prove that it exercised the diligence of a good father of the
family in the selection and supervision of its bus driver, it is still liable to
respondent for the physical injuries he sustained due to the vehicular accident.
Petitioner cannot complain that it was denied due process when the trial court
waived its right to present evidence, because it only had itself to blame for its
2002. The trial court stated, thus:
It is noteworthy to state that during the course of the proceeding of this case,
defendant (petitioner) and its counsel hardly appeared in court and only made
innumerable motions to reset the hearings to the point that this case x x x dragged
[on] for seven years from its filing up to the time that it has been submitted for
decision. And for the unexplained absence of counsel for defendant in the hearing
set last June 19, 2002 despite repeated resetting, upon motion of the counsel for
plaintiff (respondent), Atty. Ireneo Romano, its right to present its evidence was
considered waived.
In Silverio, Sr. v. Court of Appeals,33 the Court held that petitioner therein was not
denied due process when the records of the case showed that he was amply given
the opportunity to present his evidence, which he, however, waived. There is no
denial of due process where a party was given an opportunity to be heard.
Next, petitioner contends that the Court of Appeals erred in denying its motion for
reconsideration of the appellate courts Decision dated October 7, 2003.
The contention is unmeritorious.
The Court of Appeals has the discretion to deny petitioners motion for
reconsideration since it found that there was no cogent reason to warrant
reconsideration of its Decision dated October 7, 2003. According to the appellate
court, it had already considered, if not squarely ruled upon, the arguments raised
in petitioners motion for reconsideration.
Moreover, petitioner contends that the Court of Appeals erred in affirming the
decision of the trial court, which awarded actual damages in the amount of
P22,870.00 based on the statement of account issued by the Baliuag District
Hospital and not based on an official receipt. Petitioner argues that the statement
of account is not the best evidence.
The contention is without merit.
As cited by the Court of Appeals in its Decision, Jarco Marketing Corporation v.
Court of Appeals36 awarded actual damages for hospitalization expenses that was
evidenced by a statement of account issued by the Makati Medical Center. Hence,
the statement of account is admissible evidence of hospital expenses incurred by
respondent.
Petitioner also contends that the award of moral damages is not proper, because it certificate is admissible since petitioner failed to object to the presentation of the
is not recoverable in actions for damages predicated on breach of the contract of evidence.
transportation under Articles 2219 and 2220 of the Civil Code.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-
The Court is not persuaded. G.R. CV No. 76170, dated October 7, 2003, and its Resolution dated February 5,
2004, are hereby AFFIRMED. Petitioner R Transport Corporation is ordered to pay
The Court of Appeals correctly sustained the award of moral damages, citing respondent Eduardo Pante P39,112.60 as actual damages; P50,000.00 as moral
Spouses Ong v. Court of Appeals,38 which awarded moral damages to paying damages; and P50,000.00 as exemplary damages. Twenty-five percent (25%) of
passengers, who suffered physical injuries on board a bus that figured in an the total amount shall constitute a lien as contingent fee of respondents counsel.
accident. Spouses Ong held that a person is entitled to the integrity of his body and
if that integrity is violated, damages are due and assessable. Thus, the usual Costs against petitioner.
practice is to award moral damages for physical injuries sustained. In Spouses Ong, SO ORDERED.
the Court awarded moral damages in the amount of P50,000.00 to a passenger
who was deemed to have suffered mental anguish and anxiety because her right
arm could not function in a normal manner. Another passenger, who suffered
injuries on his left chest, right knee, right arm and left eye, was awarded moral
damages in the amount of P30,000.00 for the mental anxiety and anguish he
suffered from the accident.

In this case, respondent sustained a "laceration frontal area, with fracture of the
right humerus" due to the vehicular accident. He underwent an operation for the
fracture of the bone extending from the shoulder to the elbow of his right arm.
After a few years of rest, he had to undergo a second operation. Respondent,
therefore, suffered physical pain, mental anguish and anxiety as a result of the
vehicular accident. Hence, the award of moral damages in the amount of
P50,000.00 is proper.

Petitioner likewise contends that the award of exemplary damages is improper,

because it did not act in a wanton, fraudulent, reckless, oppressive or malevolent
manner.

The contention is without merit.

Article 2232 of the Civil Code states that "[i]n contracts and quasi-contracts, the
court may award exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner. In this case, respondents
testimonial evidence showed that the bus driver, Johnny Merdiquia, was driving the
bus very fast in a reckless, negligent and imprudent manner; hence, the bus hit a
tree and a house along the highway in Baliuag, Bulacan. The award of exemplary
damages is, therefore, proper. The award of exemplary damages is justified to
serve as an example or as a correction for the public good.

Further, the Court affirms the award of attorneys fees to respondents counsel. The
Court notes that respondent filed his Complaint for damages on March 14, 1995 as
pauper-litigant. The award of legal fees by the trial court to respondents counsel
was a contingent fee of 25 percent of the total amount of damages, which shall
constitute a lien on the total amount awarded. The said award was affirmed by the
Court of Appeals. Twenty-five percent of the total damages is equivalent to
P34,778.15. The award of legal fees is commensurate to the effort of respondents
counsel, who attended to the case in the trial court for seven years, and who finally
helped secure redress for the injury sustained by respondent after 14 years.

Lastly, petitioner contends that the medical certificate presented in evidence is

without probative value since respondent failed to present as witness Dr. Virginia
Cabling to affirm the content of said medical certificate.

The contention lacks merit. The Court of Appeals correctly held that the medical

PHILIPPINE AIRLINES, INCORPORATED, Petitioner,
- versus
COURT OF APPEALS and SPOUSES MANUEL S. BUNCIO and AURORA R.
BUNCIO, Minors DEANNA R. BUNCIO and NIKOLAI R. BUNCIO, assisted by
their Father, MANUEL S. BUNCIO, and JOSEFA REGALADO, represented by
her Attorney-in-Fact, MANUEL S. BUNCIO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review1 on Certiorari under Rule 45 of the Rules of Court
seeking to set aside the Decision,2 dated 20 December 1995, of the Court of
Appeals in CA-G.R. CV No. 26921 which affirmed in toto the Decision, 3 dated 2 April
1990, of the Quezon City Regional Trial Court (RTC), Branch 90, in Civil Case No. Q-
33893.
The undisputed facts are as follows:
Sometime before 2 May 1980, private respondents spouses Manuel S. Buncio and
Aurora R. Buncio purchased from petitioner Philippine Airlines, Incorporated, two
plane tickets4 for their two minor children, Deanna R. Buncio (Deanna), then 9
years of age, and Nikolai R. Buncio (Nikolai), then 8 years old. Since Deanna and
Nikolai will travel as unaccompanied minors, petitioner required private
respondents to accomplish, sign and submit to it an indemnity bond. 5 Private
respondents complied with this requirement. For the purchase of the said two plane
tickets, petitioner agreed to transport Deanna and Nikolai on 2 May 1980 from
Manila to San Francisco, California, United States of America (USA), through one of
its planes, Flight 106. Petitioner also agreed that upon the arrival of Deanna and
Nikolai in San Francisco Airport on 3 May 1980, it would again transport the two on
that same day through a connecting flight from San Francisco, California, USA, to
Los Angeles, California, USA, via another airline, United Airways 996. Deanna and
Nikolai then will be met by their grandmother, Mrs. Josefa Regalado (Mrs.
Regalado), at the Los Angeles Airport on their scheduled arrival on 3 May 1980.
On 2 May 1980, Deanna and Nikolai boarded Flight 106 in Manila.
On 3 May 1980, Deanna and Nikolai arrived at the San Francisco Airport. However,
the staff of United Airways 996 refused to take aboard Deanna and Nikolai for their
connecting flight to Los Angeles because petitioners personnel in San Francisco
could not produce the indemnity bond accomplished and submitted by private
respondents. The said indemnity bond was lost by petitioners personnel during the
previous stop-over of Flight 106 in Honolulu, Hawaii. Deanna and Nikolai were then
left stranded at the San Francisco Airport. Subsequently, Mr. Edwin Strigl (Strigl),
then the Lead Traffic Agent of petitioner in San Francisco, California, USA, took
Deanna and Nikolai to his residence in San Francisco where they stayed overnight.
Meanwhile, Mrs. Regalado and several relatives waited for the arrival of Deanna
and Nikolai at the Los Angeles Airport. When United Airways 996 landed at the Los
Angeles Airport and its passengers disembarked, Mrs. Regalado sought Deanna
and Nikolai but she failed to find them. Mrs. Regalado asked a stewardess of the
United Airways 996 if Deanna and Nikolai were on board but the stewardess told
her that they had no minor passengers. Mrs. Regalado called private respondents
and informed them that Deanna and Nikolai did not arrive at the Los Angeles
Airport. Private respondents inquired about the location of Deanna and Nikolai from
petitioners personnel, but the latter replied that they were still verifying their
whereabouts.
On the morning of 4 May 1980, Strigl took Deanna and Nikolai to San Francisco
Airport where the two boarded a Western Airlines plane bound for Los Angeles.
Later that day, Deanna and Nikolai arrived at the Los Angeles Airport where they
were met by Mrs. Regalado. Petitioners personnel had previously informed Mrs.
Regalado of the late arrival of Deanna and Nikolai on 4 May 1980.
On 17 July 1980, private respondents, through their lawyer, sent a letter 6 to
petitioner demanding payment of 1 million pesos as damages for the gross
negligence and inefficiency of its employees in transporting Deanna and Nikolai.
Petitioner did not heed the demand.
On 20 November 1981, private respondents filed a complaint 7 for damages against
petitioner before the RTC. Private respondents impleaded Deanna, Nikolai and Mrs.
Regalado as their co-plaintiffs. Private respondents alleged that Deanna and Nikolai
were not able to take their connecting flight from San Francisco to Los Angeles as
scheduled because the required indemnity bond was lost on account of the gross
negligence and malevolent conduct of petitioners personnel. As a consequence
thereof, Deanna and Nikolai were stranded in San Francisco overnight, thereby
exposing them to grave danger. This dilemma caused Deanna, Nikolai, Mrs.
Regalado and private respondents to suffer serious anxiety, mental anguish,
wounded feelings, and sleepless nights. Private respondents prayed the RTC to
render judgment ordering petitioner: (1) to pay Deanna and Nikolai P100,000.00
each, or a total of P200,000.00, as moral damages; (2) to pay private respondents
P500,000.00 each, or a total of P1,000,000,00, as moral damages; (3) to pay Mrs.
Regalado P100,000.00 as moral damages; (4) to pay Deanna, Nikolai, Mrs.
Regalado and private respondents P50,000.00 each, or a total of P250,000.00 as
exemplary damages; and (5) to pay attorneys fees equivalent to 25% of the total
amount of damages mentioned plus costs of suit.
In its answer8 to the complaint, petitioner admitted that Deanna and Nikolai were
not allowed to take their connecting flight to Los Angeles and that they were
stranded in San Francisco. Petitioner, however, denied that the loss of the
indemnity bond was caused by the gross negligence and malevolent conduct of its
personnel. Petitioner averred that it always exercised the diligence of a good father
of the family in the selection, supervision and control of its employees. In addition,
Deanna and Nikolai were personally escorted by Strigl, and the latter exerted
efforts to make the connecting flight of Deanna and Nikolai to Los Angeles possible.
Further, Deanna and Nikolai were not left unattended from the time they were
stranded in San Francisco until they boarded Western Airlines for a connecting
flight to Los Angeles. Petitioner asked the RTC to dismiss the complaint based on
the foregoing averments.
After trial, the RTC rendered a Decision on 2 April 1990 holding petitioner liable for
damages for breach of contract of carriage. It ruled that petitioner should pay
moral damages for its inattention and lack of care for the welfare of Deanna and
Nikolai which, in effect, amounted to bad faith, and for the agony brought by the
incident to private respondents and Mrs. Regalado. It also held that petitioner
should pay exemplary damages by way of example or correction for the public
good under Article 2229 and 2232 of the Civil Code, plus attorneys fees and costs
of suit. In sum, the RTC ordered petitioner: (1) to pay Deanna and Nikolai
P50,000.00 each as moral damages and P25,000.00 each as exemplary damages;
(2) to pay private respondent Aurora R. Buncio, as mother of Deanna and Nikolai,
P75,000.00 as moral damages; (3) to pay Mrs. Regalado, as grandmother of
Deanna and Nikolai, P30,000.00 as moral damages; and (4) to pay an amount of
P38,250.00 as attorneys fees and the costs of suit. Private respondent Manuel S.
Buncio was not awarded damages because his court testimony was disregarded, as
he failed to appear during his scheduled cross-examination. The dispositive portion
of the RTC Decision reads:
ACCORDINGLY, judgment is hereby rendered:
1. Ordering defendant Philippines Airlines, Inc. to pay Deanna R. Buncio and Nikolai
R. Buncio the amount of P50,000.00 each as moral damages; and the amount of
P25,000.00 each as exemplary damages;
2. Ordering said defendant to pay the amount of P75,000.00 to Aurora R. Buncio,
mother of Deanna and Nikolai, as moral damages; and the amount of P30,000.00
to Josefa Regalado, grandmother of Deanna and Nikolai, as moral damages; and
3. Ordering said defendant to pay P38,250.00 as attorneys fees and also the costs
of the suit.
Petitioner appealed to the Court of Appeals. On 20 December 1995, the appellate
court promulgated its Decision affirming in toto the RTC Decision, thus:
WHEREFORE, the decision appealed is hereby AFFIRMED in toto and the instant
appeal DISMISSED.10
Petitioner filed the instant petition before us assigning the following errors 11 :
I.
THE COURT OF APPEALS ERRED IN SUSTAINING THE RTC AWARD OF MORAL
DAMAGES.
II.
THE COURT OF APPEALS ERRED IN SUSTAINING THE RTC AWARD OF EXEMPLARY
DAMAGES.
III.
THE COURT OF APPEALS ERRED IN SUSTAINING THE RTC AWARD OF ATTORNEYS
FEES AND ORDER FOR PAYMENT OF COSTS.
Anent the first assigned error, petitioner maintains that moral damages may be
awarded in a breach of contract of air carriage only if the mishap results in death of
a passenger or if the carrier acted fraudulently or in bad faith, that is, by breach of
a known duty through some motive of interest or ill will, some dishonest purpose or
conscious doing of wrong; if there was no finding of fraud or bad faith on its part; if,
although it lost the indemnity bond, there was no finding that such loss was
attended by ill will, or some motive of interest, or any dishonest purpose; and if
there was no finding that the loss was deliberate, intentional or consciously done.
Petitioner also claims that it cannot be entirely blamed for the loss of the indemnity
bond; that during the stop-over of Flight 106 in Honolulu, Hawaii, USA, it gave the
indemnity bond to the immigration office therein as a matter of procedure; that the
indemnity bond was in the custody of the said immigration office when Flight 106
left Honolulu, Hawaii, USA; that the said immigration office failed to return the
indemnity bond to petitioners personnel before Flight 106 left Honolulu, Hawaii,
USA; and that even though it was negligent in overlooking the indemnity bond,
there was still no liability on its part because mere carelessness of the carrier does
not per se constitute or justify an inference of malice or bad faith.
When an airline issues a ticket to a passenger, confirmed for a particular flight on a
certain date, a contract of carriage arises. The passenger has every right to expect
that he be transported on that flight and on that date, and it becomes the airlines
obligation to carry him and his luggage safely to the agreed destination without
delay. If the passenger is not so transported or if in the process of transporting, he
dies or is injured, the carrier may be held liable for a breach of contract of carriage.
Private respondents and petitioner entered into a contract of air carriage when the
former purchased two plane tickets from the latter. Under this contract, petitioner
obliged itself (1) to transport Deanna and Nikolai, as unaccompanied minors, on 2
May 1980 from Manila to San Francisco through one of its planes, Flight 106; and
(2) upon the arrival of Deanna and Nikolai in San Francisco Airport on 3 May 1980,
to transport them on that same day from San Francisco to Los Angeles via a
connecting flight on United Airways 996. As it was, petitioner failed to transport
Deanna and Nikolai from San Francisco to Los Angeles on the day of their arrival at
San Francisco. The staff of United Airways 996 refused to take aboard Deanna and
Nikolai for their connecting flight to Los Angeles because petitioners personnel in
San Francisco could not produce the indemnity bond accomplished and submitted
by private respondents. Thus, Deanna and Nikolai were stranded in San Francisco
and were forced to stay there overnight. It was only on the following day that
Deanna and Nikolai were able to leave San Francisco and arrive at Los Angeles via
another airline, Western Airlines. Clearly then, petitioner breached its contract of
carriage with private respondents.
In breach of contract of air carriage, moral damages may be recovered where (1)
the mishap results in the death of a passenger; or (2) where the carrier is guilty of
fraud or bad faith; or (3) where the negligence of the carrier is so gross and
reckless as to virtually amount to bad faith.
Gross negligence implies a want or absence of or failure to exercise even slight
care or diligence, or the entire absence of care. It evinces a thoughtless disregard
of consequences without exerting any effort to avoid them.
In Singson v. Court of Appeals,17 we ruled that a carriers utter lack of care for and
sensitivity to the needs of its passengers constitutes gross negligence and is no
different from fraud, malice or bad faith. Likewise, in Philippine Airlines, Inc. v.
Court of Appeals,18 we held that a carriers inattention to, and lack of care for, the
interest of its passengers who are entitled to its utmost consideration, particularly
as to their convenience, amount to bad faith and entitles the passenger to an
award of moral damages.
It was established in the instant case that since Deanna and Nikolai would travel as
unaccompanied minors, petitioner required private respondents to accomplish, sign
and submit to it an indemnity bond. Private respondents complied with this
requirement. Petitioner gave a copy of the indemnity bond to one of its personnel
on Flight 106, since it was required for the San Francisco-Los Angeles connecting
flight of Deanna and Nikolai. Petitioners personnel lost the indemnity bond during
the stop-over of Flight 106 in Honolulu, Hawaii. Thus, Deanna and Nikolai were not
allowed to take their connecting flight.
Evidently, petitioner was fully aware that Deanna and Nikolai would travel as
unaccompanied minors and, therefore, should be specially taken care of
considering their tender age and delicate situation. Petitioner also knew well that
the indemnity bond was required for Deanna and Nikolai to make a connecting
flight from San Francisco to Los Angeles, and that it was its duty to produce the
indemnity bond to the staff of United Airways 996 so that Deanna and Nikolai could
board the connecting flight. Yet, despite knowledge of the foregoing, it did not
exercise utmost care in handling the indemnity bond resulting in its loss in
Honolulu, Hawaii. This was the proximate cause why Deanna and Nikolai were not
allowed to take the connecting flight and were thus stranded overnight in San
Francisco. Further, petitioner discovered that the indemnity bond was lost only
when Flight 106 had already landed in San Francisco Airport and when the staff of
United Airways 996 demanded the indemnity bond. This only manifests that
petitioner did not check or verify if the indemnity bond was in its custody before
leaving Honolulu, Hawaii for San Francisco.
The foregoing circumstances reflect petitioners utter lack of care for and
inattention to the welfare of Deanna and Nikolai as unaccompanied minor
passengers. They also indicate petitioners failure to exercise even slight care and
diligence in handling the indemnity bond. Clearly, the negligence of petitioner was
so gross and reckless that it amounted to bad faith.
It is worth emphasizing that petitioner, as a common carrier, is bound by law to
exercise extraordinary diligence and utmost care in ensuring for the safety and
welfare of its passengers with due regard for all the circumstances. 19 The negligent
acts of petitioner signified more than inadvertence or inattention and thus
constituted a radical departure from the extraordinary standard of care required of
common carriers.
Petitioners claim that it cannot be entirely blamed for the loss of the indemnity
bond because it gave the indemnity bond to the immigration office of Honolulu,
Hawaii, as a matter of procedure during the stop-over, and the said immigration
office failed to return the indemnity bond to petitioners personnel before Flight
106 left Honolulu, Hawaii, deserves scant consideration. It was petitioners
obligation to ensure that it had the indemnity bond in its custody before leaving
Honolulu, Hawaii for San Francisco. Petitioner should have asked for the indemnity
bond from the immigration office during the stop-over instead of partly blaming the
said office later on for the loss of the indemnity bond.
Petitioners insensitivity on this matter indicates that it fell short of the
extraordinary care that the law requires of common carriers.
Petitioner, nonetheless, insists that the following circumstances negate gross
negligence on its part: (1) Strigl requested the staff of United Airways 996 to allow
Deanna and Nikolai to board the plane even without the indemnity bond; (2) Strigl
took care of the two and brought them to his house upon refusal of the staff of the
United Airways 996 to board Deanna and Nikolai; (3) private respondent Aurora R.
Buncio and Mrs. Regalado were duly informed of Deanna and Nikolais
predicament; and (4) Deanna and Nikolai were able to make a connecting flight via
an alternative airline, Western Airlines.20 We do not agree. It was petitioners duty
to provide assistance to Deanna and Nikolai for the inconveniences of delay in their
transportation. These actions are deemed part of their obligation as a common
carrier, and are hardly anything to rave about.
Apropos the second and third assigned error, petitioner argues that it was not liable
for exemplary damages because there was no wanton, fraudulent, reckless,
oppressive, or malevolent manner on its part. Further, exemplary damages may be
awarded only if it is proven that the plaintiff is entitled to moral damages.
Petitioner contends that since there was no proof that private respondents were
entitled to moral damages, then they are also not entitled to exemplary damages.
Petitioner also contends that no premium should be placed on the right to litigate;
that an award of attorneys fees and order of payment of costs must be justified in
the text of the decision; that such award cannot be imposed by mere conclusion
without supporting explanation; and that the RTC decision does not provide any
justification for the award of attorneys fees and order of payment of costs.
Article 2232 of the Civil Code provides that exemplary damages may be awarded in
a breach of contract if the defendant acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner. In addition, Article 2234 thereof states that the
plaintiff must show that he is entitled to moral damages before he can be awarded
exemplary damages.
As we have earlier found, petitioner breached its contract of carriage with private
respondents, and it acted recklessly and malevolently in transporting Deanna and
Nikolai as unaccompanied minors and in handling their indemnity bond. We have
also ascertained that private respondents are entitled to moral damages because
they have sufficiently established petitioners gross negligence which amounted to
bad faith. This being the case, the award of exemplary damages is warranted.
Current jurisprudence24 instructs that in awarding attorneys fees, the trial court
must state the factual, legal, or equitable justification for awarding the same,
bearing in mind that the award of attorneys fees is the exception, not the general
rule, and it is not sound public policy to place a penalty on the right to litigate; nor
should attorneys fees be awarded every time a party wins a lawsuit. The matter of
attorneys fees cannot be dealt with only in the dispositive portion of the decision.
The text of the decision must state the reason behind the award of attorneys fees.
Otherwise, its award is totally unjustified.
In the instant case, the award of attorneys fees was merely cited in the dispositive
portion of the RTC decision without the RTC stating any legal or factual basis for
said award. Hence, the Court of Appeals erred in sustaining the RTCs award of
attorneys fees.
Since we have already resolved that the RTC and Court of Appeals were correct in
awarding moral and exemplary damages, we shall now determine whether their
corresponding amounts were proper.
The purpose of awarding moral damages is to enable the injured party to obtain
means, diversion or amusement that will serve to alleviate the moral suffering he
has undergone by reason of defendants culpable action.26 On the other hand, the
aim of awarding exemplary damages is to deter serious wrongdoings.
Article 2216 of the Civil Code provides that assessment of damages is left to the
discretion of the court according to the circumstances of each case. This discretion
is limited by the principle that the amount awarded should not be palpably
excessive as to indicate that it was the result of prejudice or corruption on the part
of the trial court.28 Simply put, the amount of damages must be fair, reasonable
and proportionate to the injury suffered.
The RTC and the Court of Appeals ordered petitioner to pay Deanna and Nikolai
P50,000.00 each as moral damages. This amount is reasonable considering the
harrowing experience they underwent at their tender age and the danger they
were exposed to when they were stranded in San Francisco. Both of them testified
that they were afraid and were not able to eat and sleep during the time they were
stranded in San Francisco.
Likewise, the award of P25,000.00 each to Deanna and Nikolai as exemplary
damages is fair so as to deter petitioner and other common carriers from
committing similar or other serious wrongdoings.
Both courts also directed petitioner to pay private respondent Aurora R. Buncio
P75,000.00 as moral damages. This is equitable and proportionate considering the
serious anxiety and mental anguish she experienced as a mother when Deanna
and Nikolai were not allowed to take the connecting flight as scheduled and the
fact that they were stranded in a foreign country and in the company of strangers.
Private respondent Aurora R. Buncio testified that she was very fearful for the lives
of Deanna and Nikolai when they were stranded in San Francisco, and that by
reason thereof she suffered emotional stress and experienced upset stomach. 30
Also, the award of P30,000.00 as moral damages to Mrs. Regalado is appropriate
because of the serious anxiety and wounded feelings she felt as a grandmother
when Deanna and Nikolai, whom she was to meet for the first time, did not arrive
at the Los Angeles Airport. Mrs. Regalado testified that she was seriously worried
when Deanna and Nikolai did not arrive in Los Angeles on 3 May 1980, and she was
hurt when she saw the two crying upon arriving in Los Angeles on 4 May 1980. 31
The omission of award of damages to private respondent Manuel S. Buncio was
proper for lack of basis. His court testimony was rightly disregarded by the RTC
because he failed to appear in his scheduled cross-examination.
On another point, we held in Eastern Shipping Lines, Inc. v. Court of Appeals, 33 that
when an obligation, not constituting a loan or forbearance of money is breached,
an interest on the amount of damages awarded may be imposed at the rate of 6%
per annum. We further declared that when the judgment of the court awarding a
sum of money becomes final and executory, the rate of legal interest, whether it is
a loan/forbearance of money or not, shall be 12% per annum from such finality
until its satisfaction, this interim period being deemed to be then equivalent to a
forbearance of credit.
In the instant case, petitioners obligation arose from a contract of carriage and not
from a loan or forbearance of money. Thus, an interest of 6% per annum should be
imposed on the damages awarded, to be computed from the time of the extra-
judicial demand on 17 July 1980 up to the finality of this Decision. In addition, the
interest shall become 12% per annum from the finality of this Decision up to its
satisfaction.
Finally, the records34 show that Mrs. Regalado died on 1 March 1995 at the age of
74, while Deanna passed away on 8 December 2003 at the age of 32. This being
the case, the foregoing award of damages plus interests in their favor should be
given to their respective heirs.
WHEREFORE, the Petition is PARTLY GRANTED. The Decision of the Court of
Appeals, dated 20 December 1995, in CA-G.R. CV No. 26921, is hereby AFFIRMED
with the following MODIFICATIONS: (1) the award of attorneys fees is deleted; (2)
an interest of 6% per annum is imposed on the damages awarded, to be computed
from 17 July 1980 up to the finality of this Decision; and (3) an interest of 12% per
annum is also imposed from the finality of this Decision up to its satisfaction. The
damages and interests granted in favor of deceased Mrs. Regalado and deceased
Deanna are hereby awarded to their respective heirs. Costs against petitioner.
SO ORDERED.
G.R. No. 122039 May 31, 2000
VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA,
respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals,
dated March 31, 1991, reversing the contrary decision of the Regional Trial Court,
Branch 36, Dumaguete City, and awarding damages instead to private respondent
Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche
G. Sunga, then a college freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and operated by petitioner Vicente
Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the back of the door
at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear portion of the jeepney.
As a result, Sunga was injured. She sustained a fracture of the "distal third of the
left tibia-fibula with severe necrosis of the underlying skin."
Closed reduction of the fracture, long leg circular casting, and case wedging were
done under sedation. Her confinement in the hospital lasted from August 23 to
September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic
surgeon, certified she would remain on a cast for a period of three months and
would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the diligence
required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant and
absolved Calalas of liability, holding that it was the driver of the Isuzu truck who
was responsible for the accident. It took cognizance of another case (Civil Case No.
3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch
37 of the same court held Salva and his driver Verena jointly liable to Calalas for
the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on
the ground that Sunga's cause of action was based on a contract of carriage, not
quasi-delict, and that the common carrier failed to exercise the diligence required
under the Civil Code. The appellate court dismissed the third-party complaint
against Salva and adjudged Calalas liable for damages to Sunga. The dispositive
portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and
another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-
appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that
the negligence of Verena was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make the common carrier an insurer
of the safety of its passengers. He contends that the bumping of the jeepney by
the truck owned by Salva was a caso fortuito. Petitioner further assails the award of
moral damages to Sunga on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the
driver and the owner of the truck liable for quasi-delict ignores the fact that she
was never a party to that case and, therefore, the principle of res judicata does not
apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The
issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for
quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the
issue in this case is whether petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its
source the negligence of the tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the performance of a contractual
obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract, the action can
be prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to
his destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil
Code provides that common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed extraordinary diligence as
defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490,
finding Salva and his driver Verena liable for the damage to petitioner's jeepney,
should be binding on Sunga. It is immaterial that the proximate cause of the
collision between the jeepney and the truck was the negligence of the truck driver.
The doctrine of proximate cause is applicable only in actions for quasi-delict, not in
actions involving breach of contract. The doctrine is a device for imputing liability
to a person where there is no relation between him and another party. In such a
case, the obligation is created by law itself. But, where there is a pre-existing
contractual relation between the parties, it is the parties themselves who create
the obligation, and the function of the law is merely to regulate the relation thus
created. Insofar as contracts of carriage are concerned, some aspects regulated by
the Civil Code are those respecting the diligence required of common carriers with
regard to the safety of passengers as well as the presumption of negligence in
cases of death or injury to passengers. It provides:
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 1746, 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 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.
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 by articles 1733 and
1755.
In the case at bar, upon the happening of the accident, the presumption of
negligence at once arose, and it became the duty of petitioner to prove that he had
to observe extraordinary diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances" as required by Art. 1755? We do not think so.
Several factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its
rear portion being exposed about two meters from the broad shoulders of the
highway, and facing the middle of the highway in a diagonal angle. This is a
violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic
Code, which provides:
Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such a
manner as to obstruct or impede the passage of any vehicle, nor, while discharging
or taking on passengers or loading or unloading freight, obstruct the free passage
of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the
allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It
provides:
Exceeding registered capacity. No person operating any motor vehicle shall
allow more passengers or more freight or cargo in his vehicle than its registered
capacity.
 that petitioner was utterly indifferent to the plight of his injured passenger. If at all,
The fact that Sunga was seated in an "extension seat" placed her in a peril greater it is merely implied recognition by Verena that he was the one at fault for the
than that to which the other passengers were exposed. Therefore, not only was accident.
petitioner unable to overcome the presumption of negligence imposed on him for
the injury sustained by Sunga, but also, the evidence shows he was actually WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its
negligent in transporting passengers. resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that
the award of moral damages is DELETED.
We find it hard to give serious thought to petitioner's contention that Sunga's
taking an "extension seat" amounted to an implied assumption of risk. It is akin to SO ORDERED.
arguing that the injuries to the many victims of the tragedies in our seas should not
be compensated merely because those passengers assumed a greater risk of
drowning by boarding an overloaded ferry. This is also true of petitioner's
contention that the jeepney being bumped while it was improperly parked
constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or
which, though foreseen, was inevitable.3 This requires that the following
requirements be present: (a) the cause of the breach is independent of the debtor's
will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill his obligation in a normal manner, and
(d) the debtor did not take part in causing the injury to the creditor. 4 Petitioner
should have foreseen the danger of parking his jeepney with its body protruding
two meters into the highway.

Finally, petitioner challenges the award of moral damages alleging that it is

excessive and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in
that school year 1989-1990 at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to enroll in the second semester
of that school year. She testified that she had no more intention of continuing with
her schooling, because she could not walk and decided not to pursue her degree,
major in Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement,
she cried in pain because of her injured left foot. As a result of her injury, the
Orthopedic Surgeon also certified that she has "residual bowing of the fracture
side." She likewise decided not to further pursue Physical Education as her major
subject, because "my left leg . . . has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of the
injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled to
recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable.
As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated under
Art. 2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in
cases in which the mishap results in the death of a passenger, as provided in Art.
1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the
carrier is guilty of fraud or bad faith, as provided in Art. 2220.
In this case, there is no legal basis for awarding moral damages since there was no
factual finding by the appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sunga's contention that petitioner's
admission in open court that the driver of the jeepney failed to assist her in going
to a nearby hospital cannot be construed as an admission of bad faith. The fact
that it was the driver of the Isuzu truck who took her to the hospital does not imply
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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:
Q 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:
Q 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.
Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?
A No sir.
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.
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.

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.

G.R. No. 84458 November 6, 1989

ABOITIZ SHIPPING CORPORATION, petitioner,

vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. VIANA, SPS.
 ANTONIO VIANA and GORGONIA VIANA, and PIONEER STEVEDORING
CORPORATION, respondents.
Herenio E. Martinez for petitioner.
M.R. Villaluz Law Office for private respondent.
REGALADO, J.:
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review
of the decision 1 of respondent Court of Appeals, dated July 29, 1988, the decretal
portion of which reads:
WHEREFORE, the judgment appealed from as modified by the order of October 27,
1982, is hereby affirmed with the modification that appellant Aboitiz Shipping is
hereby ordered to pay plaintiff-appellees the amount of P30,000.00 for the death of
Anacleto Viana; actual damages of P9,800.00; P150,000.00 for unearned income;
P7,200.00 as support for deceased's parents; P20,000.00 as moral damages;
P10,000.00 as attorney's fees; and to pay the costs.
The undisputed facts of the case, as found by the court a quo and adopted by
respondent court, are as follows: .
The evidence disclosed that on May 11, 1975, Anacleto Viana boarded the vessel
M/V Antonia, owned by defendant, at the port at San Jose, Occidental Mindoro,
bound for Manila, having purchased a ticket (No. 117392) in the sum of P23.10
(Exh. 'B'). On May 12, 1975, said vessel arrived at Pier 4, North Harbor, Manila, and
the passengers therein disembarked, a gangplank having been provided
connecting the side of the vessel to the pier. Instead of using said gangplank
Anacleto Viana disembarked on the third deck which was on the level with the pier.
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 dated July 26, 1975 (Exh. '2') between the third party
defendant Pioneer Stevedoring Corporation and defendant Aboitiz Shipping
Corporation.
The crane owned by the third party defendant and operated by its crane operator
Alejo Figueroa 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, on May 15, 1975, the cause of his death according to the Death
Certificate (Exh. "C") being "hypostatic pneumonia secondary to traumatic fracture
of the pubic bone lacerating the urinary bladder" (See also Exh. "B"). For his
hospitalization, medical, burial and other miscellaneous expenses, Anacleto's wife,
herein plaintiff, spent a total of P9,800.00 (Exhibits "E", "E-1", to "E-5"). Anacleto
Viana who was only forty (40) years old when he met said fateful accident (Exh. 'E')
was in good health. His average annual income as a farmer or a farm supervisor
was 400 cavans of palay annually. His parents, herein plaintiffs Antonio and
Gorgonia Viana, prior to his death had been recipient of twenty (20) cavans of
palay as support or P120.00 monthly. Because of Anacleto's death, plaintiffs
suffered mental anguish and extreme worry or moral damages. For the filing of the
instant case, they had to hire a lawyer for an agreed fee of ten thousand
(P10,000.00) pesos.
Private respondents Vianas filed a complaint 3 for damages against petitioner
corporation (Aboitiz, for brevity) for breach of contract of carriage.
In its answer. 4 Aboitiz denied responsibility contending that at the time of the
accident, the vessel was completely under the control of respondent Pioneer
Stevedoring Corporation (Pioneer, for short) as the exclusive stevedoring
contractor of Aboitiz, which handled the unloading of cargoes from the vessel of
Aboitiz. It is also averred that since the crane operator was not an employee of
Aboitiz, the latter cannot be held liable under the fellow-servant rule.
Thereafter, Aboitiz, as third-party plaintiff, filed a third-party complaint 5 against
Pioneer imputing liability thereto for Anacleto Viana's death as having been
allegedly caused by the negligence of the crane operator who was an employee of
Pioneer under its exclusive control and supervision.
Pioneer, in its answer to the third-party complaint, 6 raised the defenses that
Aboitiz had no cause of action against Pioneer considering that Aboitiz is being
sued by the Vianas for breach of contract of carriage to which Pioneer is not a
party; that Pioneer had observed the diligence of a good father of a family both in
the selection and supervision of its employees as well as in the prevention of
damage or injury to anyone including the victim Anacleto Viana; that Anacleto
Viana's gross negligence was the direct and proximate cause of his death; and that
the filing of the third-party complaint was premature by reason of the pendency of
the criminal case for homicide through reckless imprudence filed against the crane
operator, Alejo Figueroa.
In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was ordered to
pay the Vianas for damages incurred, and Pioneer was ordered to reimburse Aboitiz
for whatever amount the latter paid the Vianas. The dispositive portion of said
decision provides:
WHEREFORE, judgment is hereby rendered in favor of the plantiffs:
(1) ordering defendant Aboitiz Shipping Corporation to pay to plaintiffs the sum of
P12,000.00 for the death of Anacleto Viana P9,800.00 as actual damages;
P533,200.00 value of the 10,664 cavans of palay computed at P50.00 per cavan;
P10,000.00 as attorney's fees; F 5,000.00, value of the 100 cavans of palay as
support for five (5) years for deceased (sic) parents, herein plaintiffs Antonio and
Gorgonia Viana computed at P50.00 per cavan; P7,200.00 as support for
deceased's parents computed at P120.00 a month for five years pursuant to Art.
2206, Par. 2, of the Civil Code; P20,000.00 as moral damages, and costs; and
(2) ordering the third party defendant Pioneer Stevedoring Corporation to
reimburse defendant and third party plaintiff Aboitiz Shipping Corporation the said
amounts that it is ordered to pay to herein plaintiffs.
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein they
similarly raised the trial court's failure to declare that Anacleto Viana acted with
gross negligence despite the overwhelming evidence presented in support thereof.
In addition, Aboitiz alleged, in opposition to Pioneer's motion, that under the
memorandum of agreement the liability of Pioneer as contractor is automatic for
any damages or losses whatsoever occasioned by and arising from the operation of
its arrastre and stevedoring service.
In an order dated October 27, 1982, 8 the trial court absolved Pioneer from liability
for failure of the Vianas and Aboitiz to preponderantly establish a case of
negligence against the crane operator which the court a quo ruled is never
presumed, aside from the fact that the memorandum of agreement supposedly
refers only to Pioneer's liability in case of loss or damage to goods handled by it
but not in the case of personal injuries, and, finally that Aboitiz cannot properly
 invoke the fellow-servant rule simply because its liability stems from a breach of
contract of carriage. The dispositive portion of said order reads:
WHEREFORE, judgment is hereby modified insofar as third party defendant Pioneer
Stevedoring Corporation is concerned rendered in favor of the plaintiffs-,:
(1) Ordering defendant Aboitiz Shipping Corporation to pay the plaintiffs the
sum of P12,000.00 for the death of Anacleto Viana; P9,000.00 (sic) as actual
damages; P533,200.00 value of the 10,664 cavans of palay computed at P50.00
per cavan; P10,000.00 as attorney's fees; P5,000.00 value of the 100 cavans of
palay as support for five (5) years for deceased's parents, herein plaintiffs Antonio
and Gorgonia Viana,computed at P50.00 per cavan; P7,200.00 as support for
deceased's parents computed at P120.00 a month for five years pursuant to Art.
2206, Par. 2, of the Civil Code; P20,000.00 as moral damages, and costs; and
(2) Absolving third-party defendant Pioneer Stevedoring Corporation for (sic)
any liability for the death of Anacleto Viana the passenger of M/V Antonia owned by
defendant third party plaintiff Aboitiz Shipping Corporation it appearing that the
negligence of its crane operator has not been established therein.
Not satisfied with the modified judgment of the trial court, Aboitiz appealed the
same to respondent Court of Appeals which affirmed the findings of of the trial
court except as to the amount of damages awarded to the Vianas.
Hence, this petition wherein petitioner Aboitiz postulates that respondent court
erred:
(A) In holding that the doctrine laid down by this honorable Court in La Mallorca vs.
Court of Appeals, et al. (17 SCRA 739, July 27, 1966) is applicable to the case in the
face of the undisputable fact that the factual situation under the La Mallorca case is
radically different from the facts obtaining in this case;
(B) In holding petitioner liable for damages in the face of the finding of the court a
quo and confirmed by the Honorable respondent court of Appeals that the
deceased, Anacleto Viana was guilty of contributory negligence, which, We
respectfully submit contributory negligence was the proximate cause of his death;
specifically the honorable respondent Court of Appeals failed to apply Art. 1762 of
the New Civil Code;
(C) In the alternative assuming the holding of the Honorable respondent Court of
Appears that petitioner may be legally condemned to pay damages to the private
respondents we respectfully submit that it committed a reversible error when it
dismissed petitioner's third party complaint against private respondent Pioneer
Stevedoring Corporation instead of compelling the latter to reimburse the
petitioner for whatever damages it may be compelled to pay to the private
respondents Vianas. 9
At threshold, it is to be observed that both the trial court and respondent Court of
Appeals found the victim Anacleto Viana guilty of contributory negligence, but
holding that 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.
I. Petitioner contends that since one (1) hour had already elapsed from the
time Anacleto Viana disembarked from the vessel and that he was given more than
ample opportunity to unload his cargoes prior to the operation of the crane, his
presence on the vessel was no longer reasonable e and he consequently ceased to
be a passenger. Corollarily, it insists that the doctrine in La Mallorca vs. Court of
Appeals, et al. 10 is not applicable to the case at bar.
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 was in accordance with this rationale that the doctrine in the aforesaid case of La
Mallorca was enunciated, to wit:
It has been recognized as a rule that the relation of carrier and passenger does not
cease at the moment the passenger alights from the carrier's vehicle at a place
selected by the carrier at the point of destination, but continues until the
passenger has had a reasonable time or a reasonable opportunity to leave the
carrier's premises. And, what is a reasonable time or a reasonable delay within this
rule is to be determined from all the circumstances. Thus, a person who, after
alighting from a train, walks along the station platform is considered still a
passenger. So also, where a passenger has alighted at his destination and is
proceeding by the usual way to leave the company's premises, but before actually
doing so is halted by the report that his brother, a fellow passenger, has been shot,
and he in good faith and without intent of engaging in the difficulty, returns to
relieve his brother, he is deemed reasonably and necessarily delayed and thus
continues to be a passenger entitled as such to the protection of the railroad
company and its agents.
In the present case, the father returned to the bus to get one of his baggages
which was not unloaded when they alighted from the bus. Racquel, the child that
she was, must have followed the father. However, although the father was still on
the running board of the bus waiting for the conductor to hand him the bag or
bayong, the bus started to run, so that even he (the father) had to jump down from
the moving vehicle. It was at this instance that the child, who must be near the
bus, was run over and killed. In the circumstances, it cannot be claimed that the
carrier's agent had exercised the 'utmost diligence' of a 'very cautious person'
required by Article 1755 of the Civil Code to be observed by a common carrier in
the discharge of its obligation to transport safely its passengers. ... The presence of
said passengers near the bus was not unreasonable and they are, therefore, to be
considered still as passengers of the carrier, entitled to the protection under their
contract of carriage.
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.
It is not definitely shown that one (1) hour prior to the incident, the victim had
already disembarked from the vessel. Petitioner failed to prove this. What is clear
to us is that at the time the victim was taking his cargoes, the vessel had already
docked an hour earlier. In consonance with common shipping procedure as to the
minimum time of one (1) hour allowed for the passengers to disembark, it may be
presumed that the victim had just gotten off the vessel when he went to retrieve
his baggage. Yet, even if he had already disembarked an hour earlier, his presence
in petitioner's premises was not without cause. The victim had to claim his
baggage which was possible only one (1) hour after the vessel arrived since it was
admittedly standard procedure in the case of petitioner's vessels that the
unloading operations shall start only after that time.
Consequently, under the foregoing circumstances, the victim Anacleto Viana is still
deemed a passenger of said carrier at the time of his tragic death.
Under the law, common carriers are, from the nature of their business and for
reasons of public policy, 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. 15
More particularly, 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. 16 Thus, where a
passenger dies or is injured, the common carrier is presumed to have been at fault
or to have acted negligently. 17 This gives rise to an action for breach of contract of
carriage where all that is required of plaintiff is to prove the existence of the
contract of carriage and its non-performance by the carrier, that is, the failure of
the carrier to carry the passenger safely to his destination, 18 which, in the instant
case, necessarily includes its failure to safeguard its passenger with extraordinary
diligence while such relation subsists.
The presumption is, therefore, established by law that in case of a passenger's
death or injury the operator of the vessel was at fault or negligent, having failed to
exercise extraordinary diligence, and it is incumbent upon it to rebut the same.
This is in consonance with the avowed policy of the State to afford full protection to
the passengers of common carriers which can be carried out only by imposing a
stringent statutory obligation upon the latter.
Concomitantly, this Court has likewise adopted a rigid posture in the application of
the law by exacting the highest degree of care and diligence from common
carriers, bearing utmost in mind the welfare of the passengers who often become
hapless victims of indifferent and profit-oriented carriers. We cannot in reason deny
that petitioner failed to rebut the presumption against it. Under the facts obtaining
in the present case, it cannot be gainsaid that petitioner had inadequately
complied with the required degree of diligence to prevent the accident from
happening.
As found by the Court of Appeals, the evidence does not show that there was a
cordon of drums around the perimeter of the crane, as claimed by petitioner.
It also adverted to the fact that the alleged presence of visible warning signs in the
vicinity was disputable and not indubitably established. Thus, we are not inclined to
accept petitioner's explanation that the victim and other passengers were
sufficiently warned that merely venturing into the area in question was fraught with
serious peril. Definitely, even assuming the existence of the supposed cordon of
drums loosely placed around the unloading area and the guard's admonitions
against entry therein, these were at most insufficient precautions which pale into
insignificance if considered vis-a-vis the gravity of the danger to which the
deceased was exposed. There is no showing that petitioner was extraordinarily
diligent in requiring or seeing to it that said precautionary measures were strictly
and actually enforced to subserve their purpose of preventing entry into the
forbidden area. By no stretch of liberal evaluation can such perfunctory acts
approximate the "utmost diligence of very cautious persons" to be exercised "as far
as human care and foresight can provide" which is required by law of common
carriers with respect to their passengers.
While the victim was admittedly contributorily negligent, still petitioner's aforesaid
failure to exercise extraordinary diligence was the proximate and direct cause of,
because it could definitely have prevented, the former's death. Moreover, in
paragraph 5.6 of its petition, at bar, 19 petitioner has expressly conceded the
factual finding of respondent Court of Appeals that petitioner did not present
sufficient evidence in support of its submission that the deceased Anacleto Viana
was guilty of gross negligence. Petitioner cannot now be heard to claim otherwise.
No excepting circumstance being present, we are likewise bound by respondent
court's declaration that there was no negligence on the part of Pioneer Stevedoring
Corporation, a confirmation of the trial court's finding to that effect, hence our
conformity to Pioneer's being absolved of any liability.
As correctly observed by both courts, Aboitiz joined Pioneer in proving the alleged
gross negligence of the victim, hence its present contention that the death of the
passenger was due to the negligence of the crane operator cannot be sustained
both on grounds, of estoppel and for lack of evidence on its present theory. Even in
its answer filed in the court below it readily alleged that Pioneer had taken the
necessary safeguards insofar as its unloading operations were concerned, a fact
which appears to have been accepted by the plaintiff therein by not impleading
Pioneer as a defendant, and likewise inceptively by Aboitiz by filing its third-party
complaint only after ten (10) months from the institution of the suit against it.
Parenthetically, Pioneer is not within the ambit of the rule on extraordinary
diligence required of, and the corresponding presumption of negligence foisted on,
common carriers like Aboitiz. This, of course, does not detract from what we have
said that no negligence can be imputed to Pioneer but, that on the contrary, the
failure of Aboitiz to exercise extraordinary diligence for the safety of its passenger
is the rationale for our finding on its liability.
 old, and Fe, over 2 years old, boarded the Pambusco Bus No. 352, bearing plate
WHEREFORE, the petition is DENIED and the judgment appealed from is hereby TPU No. 757 (1953 Pampanga), owned and operated by the defendant, at San
AFFIRMED in toto. Fernando, Pampanga, bound for Anao, Mexico, Pampanga. At the time, they were
carrying with them four pieces of baggages containing their personal belonging.
SO ORDERED. The conductor of the bus, who happened to be a half-brother of plaintiff Mariano
Beltran, issued three tickets (Exhs. A, B, & C) covering the full fares of the plaintiff
and their eldest child, Milagros. No fare was charged on Raquel and Fe, since both
were below the height at which fare is charged in accordance with the appellant's
rules and regulations.

After about an hour's trip, the bus reached Anao whereat it stopped to allow the
passengers bound therefor, among whom were the plaintiffs and their children to
get off. With respect to the group of the plaintiffs, Mariano Beltran, then carrying
some of their baggages, was the first to get down the bus, followed by his wife and
his children. Mariano led his companions to a shaded spot on the left pedestrians
side of the road about four or five meters away from the vehicle. Afterwards, he
returned to the bus in controversy to get his other bayong, which he had left
behind, but in so doing, his daughter Raquel followed him, unnoticed by her father.
While said Mariano Beltran was on the running board of the bus waiting for the
conductor to hand him his bayong which he left under one of its seats near the
door, the bus, whose motor was not shut off while unloading, suddenly started
moving forward, evidently to resume its trip, notwithstanding the fact that the
conductor has not given the driver the customary signal to start, since said
conductor was still attending to the baggage left behind by Mariano Beltran.
Incidentally, when the bus was again placed into a complete stop, it had travelled
about ten meters from the point where the plaintiffs had gotten off.

Sensing that the bus was again in motion, Mariano Beltran immediately jumped
from the running board without getting his bayong from the conductor. He landed
on the side of the road almost in front of the shaded place where he left his wife
and children. At that precise time, he saw people beginning to gather around the
body of a child lying prostrate on the ground, her skull crushed, and without life.
The child was none other than his daughter Raquel, who was run over by the bus in
which she rode earlier together with her parents.

For the death of their said child, the plaintiffs commenced the present suit against
the defendant seeking to recover from the latter an aggregate amount of P16,000
to cover moral damages and actual damages sustained as a result thereof and
attorney's fees. After trial on the merits, the court below rendered the judgment in
G.R. No. L-20761 July 27, 1966 question.
On the basis of these facts, the trial court found defendant liable for breach of
LA MALLORCA, petitioner, contract of carriage and sentenced it to pay P3,000.00 for the death of the child
vs. and P400.00 as compensatory damages representing burial expenses and costs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET AL., respondents.
On appeal to the Court of Appeals, La Mallorca claimed that there could not be a
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.Ahmed Garcia for breach of contract in the case, for the reason that when the child met her death,
respondents. she was no longer a passenger of the bus involved in the incident and, therefore,
BARRERA, J.: the contract of carriage had already terminated. Although the Court of Appeals
sustained this theory, it nevertheless found the defendant-appellant guilty of
La Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R. No. quasi-delict and held the latter liable for damages, for the negligence of its driver,
23267-R, holding it liable for quasi-delict and ordering it to pay to respondents in accordance with Article 2180 of the Civil Code. And, the Court of Appeals did not
Mariano Beltran, et al., P6,000.00 for the death of his minor daughter Raquel only find the petitioner liable, but increased the damages awarded the plaintiffs-
Beltran, plus P400.00 as actual damages. appellees to P6,000.00, instead of P3,000.00 granted by the trial court.

The facts of the case as found by the Court of Appeals, briefly are: In its brief before us, La Mallorca contends that the Court of Appeals erred (1) in
On December 20, 1953, at about noontime, plaintiffs, husband and wife, together holding it liable for quasi-delict, considering that respondents complaint was one
with their minor daughters, namely, Milagros, 13 years old, Raquel, about 4 years for breach of contract, and (2) in raising the award of damages from P3,000.00 to
P6,000.00 although respondents did not appeal from the decision of the lower
court.
Under the facts as found by the Court of Appeals, we have to sustain the
judgement holding petitioner liable for damages for the death of the child, Raquel
Beltran. It may be pointed out that although it is true that respondent Mariano
Beltran, his wife, and their children (including the deceased child) had alighted
from the bus at a place designated for disembarking or unloading of passengers, it
was also established that the father had to return to the vehicle (which was still at
a stop) to get one of his bags or bayong that was left under one of the seats of the
bus. There can be no controversy that as far as the father is concerned, when he
returned to the bus for his bayong which was not unloaded, the relation of
passenger and carrier between him and the petitioner remained subsisting. For, the
relation of carrier and passenger does not necessarily cease where the latter, after
alighting from the car, aids the carrier's servant or employee in removing his
baggage from the car.1 The issue to be determined here is whether as to the child,
who was already led by the father to a place about 5 meters away from the bus,
the liability of the carrier for her safety under the contract of carriage also
persisted.
It has been recognized as a rule that the relation of carrier and passenger does not
cease at the moment the passenger alights from the carrier's vehicle at a place
selected by the carrier at the point of destination, but continues until the
passenger has had a reasonable time or a reasonable opportunity to leave the
carrier's premises. And, what is a reasonable time or a reasonable delay within this
rule is to be determined from all the circumstances. Thus, a person who, after
alighting from a train, walks along the station platform is considered still a
passenger.2 So also, where a passenger has alighted at his destination and is
proceeding by the usual way to leave the company's premises, but before actually
doing so is halted by the report that his brother, a fellow passenger, has been shot,
and he in good faith and without intent of engaging in the difficulty, returns to
relieve his brother, he is deemed reasonably and necessarily delayed and thus
continues to be a passenger entitled as such to the protection of the railroad and
company and its agents.
In the present case, the father returned to the bus to get one of his baggages
which was not unloaded when they alighted from the bus. Raquel, the child that
she was, must have followed the father. However, although the father was still on
the running board of the bus awaiting for the conductor to hand him the bag or
bayong, the bus started to run, so that even he (the father) had to jump down from
the moving vehicle. It was at this instance that the child, who must be near the
bus, was run over and killed. In the circumstances, it cannot be claimed that the
carrier's agent had exercised the "utmost diligence" of a "very cautions person"
required by Article 1755 of the Civil Code to be observed by a common carrier in
the discharge of its obligation to transport safely its passengers. In the first place,
the driver, although stopping the bus, nevertheless did not put off the engine.
Secondly, he started to run the bus even before the bus conductor gave him the
signal to go and while the latter was still unloading part of the baggages of the
passengers Mariano Beltran and family. The presence of said passengers near the
bus was not unreasonable and they are, therefore, to be considered still as
passengers of the carrier, entitled to the protection under their contract of
carriage.
But even assuming arguendo that the contract of carriage has already terminated,
herein petitioner can be held liable for the negligence of its driver, as ruled by the
Court of Appeals, pursuant to Article 2180 of the Civil Code. Paragraph 7 of the
complaint, which reads
That aside from the aforesaid breach of contract, the death of Raquel Beltran,
plaintiffs' daughter, was caused by the negligence and want of exercise of the
utmost diligence of a very cautious person on the part of the defendants and their
agent, necessary to transport plaintiffs and their daughter safely as far as human
care and foresight can provide in the operation of their vehicle.
is clearly an allegation for quasi-delict. The inclusion of this averment for quasi-
delict, while incompatible with the other claim under the contract of carriage, is
permissible under Section 2 of Rule 8 of the New Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they compatible with each
other or not, to the end that the real matter in controversy may be resolved and
determined.
The plaintiffs sufficiently pleaded the culpa or negligence upon which the claim was
predicated when it was alleged in the complaint that "the death of Raquel Beltran,
plaintiffs' daughter, was caused by the negligence and want of exercise of the
utmost diligence of a very cautious person on the part of the defendants and their
agent." This allegation was also proved when it was established during the trial
that the driver, even before receiving the proper signal from the conductor, and
while there were still persons on the running board of the bus and near it, started
to run off the vehicle. The presentation of proof of the negligence of its employee
gave rise to the presumption that the defendant employer did not exercise the
diligence of a good father of the family in the selection and supervision of its
employees. And this presumption, as the Court of Appeals found, petitioner had
failed to overcome. Consequently, petitioner must be adjudged peculiarily liable for
the death of the child Raquel Beltran.
The increase of the award of damages from P3,000.00 to P6,000.00 by the Court of
Appeals, however, cannot be sustained. Generally, the appellate court can only
pass upon and consider questions or issues raised and argued in appellant's brief.
Plaintiffs did not appeal from that portion of the judgment of the trial court
awarding them on P3,000.00 damages for the death of their daughter. Neither does
it appear that, as appellees in the Court of Appeals, plaintiffs have pointed out in
their brief the inadequacy of the award, or that the inclusion of the figure
P3,000.00 was merely a clerical error, in order that the matter may be treated as
an exception to the general rule.
Herein petitioner's contention, therefore, that the Court of Appeals committed error
in raising the amount of the award for damages is, evidently,
meritorious.1wph1.t
Wherefore, the decision of the Court of Appeals is hereby modified by sentencing,
the petitioner to pay to the respondents Mariano Beltran, et al., the sum of
P3,000.00 for the death of the child, Raquel Beltran, and the amount of P400.00 as
actual damages. No costs in this instance.
So ordered.
 VICTORY LINER, INC., petitioner,
vs.
ROSALITO GAMMAD, APRIL ROSSAN P. GAMMAD, ROI ROZANO P. GAMMAD and
DIANA FRANCES P. GAMMAD, respondents.

DECISION
YNARES-SANTIAGO, J.:

Assailed in this petition for review on certiorari is the April 11, 2003 decision[1] of
the Court of Appeals in CA-G.R. CV No. 63290 which affirmed with modification the
November 6, 1998 decision[2] of the Regional Trial Court of Tuguegarao, Cagayan,
Branch 5 finding petitioner Victory Liner, Inc. liable for breach of contract of
carriage in Civil Case No. 5023.

The facts as testified by respondent Rosalito Gammad show that on March 14,
1996, his wife Marie Grace Pagulayan-Gammad, [3] was on board an air-conditioned
Victory Liner bus bound for Tuguegarao, Cagayan from Manila. At about 3:00 a.m.,
the bus while running at a high speed fell on a ravine somewhere in Barangay
Baliling, Sta. Fe, Nueva Vizcaya, which resulted in the death of Marie Grace and
physical injuries to other passengers.

On May 14, 1996, respondent heirs of the deceased filed a complaint [5] for
damages arising from culpa contractual against petitioner. In its answer,[6] the
petitioner claimed that the incident was purely accidental and that it has always
exercised extraordinary diligence in its 50 years of operation.

After several re-settings,[7] pre-trial was set on April 10, 1997.[8] For failure to
appear on the said date, petitioner was declared as in default.[9] However, on
petitioners motion[10] to lift the order of default, the same was granted by the trial
court.

At the pre-trial on May 6, 1997, petitioner did not want to admit the proposed
stipulation that the deceased was a passenger of the Victory Liner Bus which fell on
the ravine and that she was issued Passenger Ticket No. 977785.

Respondents, for their part, did not accept petitioners proposal to pay P50,000.00.

After respondent Rosalito Gammad completed his direct testimony, cross-

examination was scheduled for November 17, 1997[13] but moved to December 8,
1997,[14] because the parties and the counsel failed to appear. On December 8,
1997, counsel of petitioner was absent despite due notice and was deemed to have
waived right to cross-examine respondent Rosalito.

Petitioners motion to reset the presentation of its evidence to March 25, 1998 [16]
was granted. However, on March 24, 1998, the counsel of petitioner sent the court
a telegram[17] requesting postponement but the telegram was received by the trial
court on March 25, 1998, after it had issued an order considering the case
submitted for decision for failure of petitioner and counsel to appear.

On November 6, 1998, the trial court rendered its decision in favor of respondents,
the dispositive portion of which reads:
WHEREFORE, premises considered and in the interest of justice, judgment is
hereby rendered in favor of the plaintiffs and against the defendant Victory Liner,
Incorporated, ordering the latter to pay the following:
1. Actual Damages -------------------- P 122,000.00
[G.R. No. 159636. November 25, 2004]
2. Death Indemnity --------------------- 50,000.00
3. Exemplary and Moral Damages----- 400,000.00
4. Compensatory Damages ---------- 1,500,000.00
5. Attorneys Fees ------------ 10% of the total amount granted
6. Cost of the Suit.
SO ORDERED.
On appeal by petitioner, the Court of Appeals affirmed the decision of the trial
court with modification as follows:
[T]he Decision dated 06 November 1998 is hereby MODIFIED to reflect that the
following are hereby adjudged in favor of plaintiffs-appellees:
1. Actual Damages in the amount of P88,270.00;
2. Compensatory Damages in the amount of P1,135,536,10;
3. Moral and Exemplary Damages in the amount of P400,000.00; and
4. Attorneys fees equivalent to 10% of the sum of the actual, compensatory, moral,
and exemplary damages herein adjudged.
The court a quos judgment of the cost of the suit against defendant-appellant is
hereby AFFIRMED.
SO ORDERED.
Represented by a new counsel, petitioner on May 21, 2003 filed a motion for
reconsideration praying that the case be remanded to the trial court for cross-
examination of respondents witness and for the presentation of its evidence; or in
the alternative, dismiss the respondents complaint. [21] Invoking APEX Mining, Inc. v.
Court of Appeals,[22] petitioner argues, inter alia, that the decision of the trial court
should be set aside because the negligence of its former counsel, Atty. Antonio B.
Paguirigan, in failing to appear at the scheduled hearings and move for
reconsideration of the orders declaring petitioner to have waived the right to cross-
examine respondents witness and right to present evidence, deprived petitioner of
its day in court.
On August 21, 2003, the Court of Appeals denied petitioners motion for
reconsideration.
Hence, this petition for review principally based on the fact that the mistake or
gross negligence of its counsel deprived petitioner of due process of law. Petitioner
also argues that the trial courts award of damages were without basis and should
be deleted.
The issues for resolution are: (1) whether petitioners counsel was guilty of gross
negligence; (2) whether petitioner should be held liable for breach of contract of
carriage; and (3) whether the award of damages was proper.
It is settled that the negligence of counsel binds the client. This is based on the rule
that any act performed by a counsel within the scope of his general or implied
authority is regarded as an act of his client. Consequently, the mistake or
negligence of counsel may result in the rendition of an unfavorable judgment
against the client. However, the application of the general rule to a given case
should be looked into and adopted according to the surrounding circumstances
obtaining. Thus, exceptions to the foregoing have been recognized by the court in
cases where reckless or gross negligence of counsel deprives the client of due
process of law, or when its application will result in outright deprivation of the
clients liberty or property or where the interests of justice so require, and accord
relief to the client who suffered by reason of the lawyers gross or palpable mistake
or negligence.
The exceptions, however, are not present in this case. The record shows that Atty.
Paguirigan filed an Answer and Pre-trial Brief for petitioner. Although initially
declared as in default, Atty. Paguirigan successfully moved for the setting aside of
the order of default. In fact, petitioner was represented by Atty. Paguirigan at the
pre-trial who proposed settlement for P50,000.00. Although Atty. Paguirigan failed
to file motions for reconsideration of the orders declaring petitioner to have waived
the right to cross-examine respondents witness and to present evidence, he
nevertheless, filed a timely appeal with the Court of Appeals assailing the decision
of the trial court. Hence, petitioners claim that it was denied due process lacks
basis.
Petitioner too is not entirely blameless. Prior to the issuance of the order declaring
it as in default for not appearing at the pre-trial, three notices (dated October 23,
1996,[25] January 30, 1997,[26] and March 26, 1997,[27]) requiring attendance at the
pre-trial were sent and duly received by petitioner.
However, it was only on April 27, 1997, after the issuance of the April 10, 1997
order of default for failure to appear at the pre-trial when petitioner, through its
finance and administrative manager, executed a special power of attorney [28]
authorizing Atty. Paguirigan or any member of his law firm to represent petitioner
at the pre-trial. Petitioner is guilty, at the least, of contributory negligence and fault
cannot be imputed solely on previous counsel.
The case of APEX Mining, Inc., invoked by petitioner is not on all fours with the case
at bar. In APEX, the negligent counsel not only allowed the adverse decision
against his client to become final and executory, but deliberately misrepresented in
the progress report that the case was still pending with the Court of Appeals when
the same was dismissed 16 months ago. [29] These circumstances are absent in this
case because Atty. Paguirigan timely filed an appeal from the decision of the trial
court with the Court of Appeals.
In Gold Line Transit, Inc. v. Ramos,[30] the Court was similarly confronted with the
issue of whether or not the client should bear the adverse consequences of its
counsels negligence. In that case, Gold Line Transit, Inc. (Gold Line) and its lawyer
failed to appear at the pre-trial despite notice and was declared as in default. After
the plaintiffs presentation of evidence ex parte, the trial court rendered decision
ordering Gold Line to pay damages to the heirs of its deceased passenger. The
decision became final and executory because counsel of Gold Line did not file any
appeal. Finding that Goldline was not denied due process of law and is thus bound
by the negligence of its lawyer, the Court held as follows
This leads us to the question of whether the negligence of counsel was so gross
and reckless that petitioner was deprived of its right to due process of law. We do
not believe so. It cannot be denied that the requirements of due process were
observed in the instant case. Petitioner was never deprived of its day in court, as in
fact it was afforded every opportunity to be heard. Thus, it is of record that notices
were sent to petitioner and that its counsel was able to file a motion to dismiss the
complaint, an answer to the complaint, and even a pre-trial brief. What was
irretrievably lost by petitioner was its opportunity to participate in the trial of the
case and to adduce evidence in its behalf because of negligence.
In the application of the principle of due process, what is sought to be safeguarded
against is not the lack of previous notice but the denial of the opportunity to be
heard. The question is not whether petitioner succeeded in defending its rights and
interests, but simply, whether it had the opportunity to present its side of the
controversy. Verily, as petitioner retained the services of counsel of its choice, it
should, as far as this suit is concerned, bear the consequences of its choice of a
faulty option. Its plea that it was deprived of due process echoes on hollow ground
and certainly cannot elicit approval nor sympathy.
To cater to petitioners arguments and reinstate its petition for relief from judgment
would put a premium on the negligence of its former counsel and encourage the
non-termination of this case by reason thereof. This is one case where petitioner
has to bear the adverse consequences of its counsels act, for a client is bound by
the action of his counsel in the conduct of a case and he cannot thereafter be
heard to complain that the result might have been different had his counsel
proceeded differently. The rationale for the rule is easily discernible. If the
negligence of counsel be admitted as a reason for opening cases, there would
never be an end to a suit so long as a new counsel could be hired every time it is
shown that the prior counsel had not been sufficiently diligent, experienced or
learned.
Similarly, in Macalalag v. Ombudsman,[32] a Philippine Postal Corporation employee
charged with dishonesty was not able to file an answer and position paper. He was
found guilty solely on the basis of complainants evidence and was dismissed with
forfeiture of all benefits and disqualification from government service. Challenging
the decision of the Ombudsman, the employee contended that the gross
negligence of his counsel deprived him of due process of law. In debunking his
contention, the Court said
Neither can he claim that he is not bound by his lawyers actions; it is only in case
of gross or palpable negligence of counsel when the courts can step in and accord
relief to a client who would have suffered thereby. If every perceived mistake,
failure of diligence, lack of experience or insufficient legal knowledge of the lawyer
would be admitted as a reason for the reopening of a case, there would be no end
to controversy. Fundamental to our judicial system is the principle that every
litigation must come to an end. It would be a clear mockery if it were otherwise.
Access to the courts is guaranteed, but there must be a limit to it.
Viewed vis--vis the foregoing jurisprudence, to sustain petitioners argument that it
was denied due process of law due to negligence of its counsel would set a
dangerous precedent. It would enable every party to render inutile any adverse
order or decision through the simple expedient of alleging gross negligence on the
part of its counsel. The Court will not countenance such a farce which contradicts
long-settled doctrines of trial and procedure.
Anent the second issue, petitioner was correctly found liable for breach of contract
of carriage. A common carrier 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 due regard to all the circumstances. In a contract of carriage, it is
presumed that the common carrier was at fault or was negligent when a passenger
dies or is injured. Unless the presumption is rebutted, the court need not
even make an express finding of fault or negligence on the part of the
common carrier. This statutory presumption may only be overcome by evidence
that the carrier exercised extraordinary diligence.
In the instant case, there is no evidence to rebut the statutory presumption that
the proximate cause of Marie Graces death was the negligence of petitioner.
Hence, the courts below correctly ruled that petitioner was guilty of breach of
contract of carriage.
Nevertheless, the award of damages should be modified.
Article 1764[35] in relation to Article 2206[36] of the Civil Code, holds the common
carrier in breach of its contract of carriage that results in the death of a passenger
liable to pay the following: (1) indemnity for death, (2) indemnity for loss of earning
capacity, and (3) moral damages.
In the present case, respondent heirs of the deceased are entitled to indemnity for
the death of Marie Grace which under current jurisprudence is fixed at P50,000.00.
[37]
The award of compensatory damages for the loss of the deceaseds earning
capacity should be deleted for lack of basis. As a rule, documentary evidence
should be presented to substantiate the claim for damages for loss of earning
capacity. By way of exception, damages for loss of earning capacity may be
awarded despite the absence of documentary evidence when (1) the deceased is
self-employed earning less than the minimum wage under current labor laws, and
judicial notice may be taken of the fact that in the deceaseds line of work no
documentary evidence is available; or (2) the deceased is employed as a daily
wage worker earning less than the minimum wage under current labor laws.
In People v. Oco,[39] the evidence presented by the prosecution to recover damages
for loss of earning capacity was the bare testimony of the deceaseds wife that her
husband was earning P8,000.00 monthly as a legal researcher of a private
corporation. Finding that the deceased was neither self-employed nor employed as
a daily-wage worker earning less than the minimum wage under the labor laws
existing at the time of his death, the Court held that testimonial evidence alone is
insufficient to justify an award for loss of earning capacity.
Likewise, in People v. Caraig,[40] damages for loss of earning capacity was not
awarded because the circumstances of the 3 deceased did not fall within the
recognized exceptions, and except for the testimony of their wives, no
documentary proof about their income was presented by the prosecution. Thus
The testimonial evidence shows that Placido Agustin, Roberto Raagas, and
Melencio Castro Jr. were not self-employed or employed as daily-wage workers
earning less than the minimum wage under the labor laws existing at the time of
their death. Placido Agustin was a Social Security System employee who
received a monthly salary of P5,000. Roberto Raagas was the President of
Sinclair Security and Allied Services, a family owned corporation, with a
monthly compensation of P30,000. Melencio Castro Jr. was a taxi driver of
New Rocalex with an average daily earning of P500 or a monthly earning
of P7,500.
Clearly, these cases do not fall under the exceptions where indemnity for loss of
earning capacity can be given despite lack of documentary evidence. Therefore, for
lack of documentary proof, no indemnity for loss of earning capacity can be given
in these cases. (Emphasis supplied)
Here, the trial court and the Court of Appeals computed the award of
compensatory damages for loss of earning capacity only on the basis of the
testimony of respondent Rosalito that the deceased was 39 years of age and a
Section Chief of the Bureau of Internal Revenue, Tuguergarao District Office with a
salary of P83,088.00 per annum when she died. [41] No other evidence was
presented. The award is clearly erroneous because the deceaseds earnings does
not fall within the exceptions.
However, the fact of loss having been established, temperate damages in the
amount of P500,000.00 should be awarded to respondents. Under Article 2224 of
the Civil Code, temperate or moderate damages, which are more than nominal but
less than compensatory damages, may be recovered when the court finds that
some pecuniary loss has been suffered but its amount can not, from the nature of
the case, be proved with certainty.

In Pleno v. Court of Appeals,[42] the Court sustained the trial courts award of
P200,000.00 as temperate damages in lieu of actual damages for loss of earning
capacity because the income of the victim was not sufficiently proven, thus
The trial court based the amounts of damages awarded to the petitioner on the
following circumstances:
As to the loss or impairment of earning capacity, there is no doubt that Pleno is an
ent[re]preneur and the founder of his own corporation, the Mayon Ceramics
Corporation. It appears also that he is an industrious and resourceful person with
several projects in line, and were it not for the incident, might have pushed them
through. On the day of the incident, Pleno was driving homeward with geologist
Longley after an ocular inspection of the site of the Mayon Ceramics Corporation.
His actual income however has not been sufficiently established so that this Court
cannot award actual damages, but, an award of temperate or moderate damages
may still be made on loss or impairment of earning capacity. That Pleno sustained a
permanent deformity due to a shortened left leg and that he also suffers from
double vision in his left eye is also established. Because of this, he suffers from
some inferiority complex and is no longer active in business as well as in social life.
In similar cases as in Borromeo v. Manila Electric Railroad Co., 44 Phil 165; Coriage,
et al. v. LTB Co., et al., L-11037, Dec. 29, 1960, and in Araneta, et al. v. Arreglado,
et al., L-11394, Sept. 9, 1958, the proper award of damages were given.
We rule that the lower courts awards of damages are more consonant with the
factual circumstances of the instant case. The trial courts findings of facts are clear
and well-developed. Each item of damages is adequately supported by evidence on
record.
Article 2224 of the Civil Code was likewise applied in the recent cases of People v.
Singh[43] and People v. Almedilla,[44] to justify the award of temperate damages in
lieu of damages for loss of earning capacity which was not substantiated by the
required documentary proof.
Anent the award of moral damages, the same cannot be lumped with exemplary
damages because they are based on different jural foundations.[45] These damages
are different in nature and require separate determination.[46] In culpa contractual
or breach of contract, moral damages may be recovered when the defendant acted
in bad faith or was guilty of gross negligence (amounting to bad faith) or in wanton
disregard of contractual obligations and, as in this case, when the act of breach of
contract itself constitutes the tort that results in physical injuries. By special rule in
Article 1764 in relation to Article 2206 of the Civil Code, moral damages may also
be awarded in case the death of a passenger results from a breach of carriage. [47]
On the other hand, exemplary damages, which are awarded by way of example or
correction for the public good may be recovered in contractual obligations if the
defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent manner.
Respondents in the instant case should be awarded moral damages to compensate
for the grief caused by the death of the deceased resulting from the petitioners
breach of contract of carriage. Furthermore, the petitioner failed to prove that it
exercised the extraordinary diligence required for common carriers, it is presumed
to have acted recklessly.[49] Thus, the award of exemplary damages is proper. Under
the circumstances, we find it reasonable to award respondents the amount of
P100,000.00 as moral damages and P100,000.00 as exemplary damages. These
amounts are not excessive.
The actual damages awarded by the trial court reduced by the Court of Appeals
should be further reduced. In People v. Duban,[51] it was held that only
substantiated and proven expenses or those that appear to have been genuinely
incurred in connection with the death, wake or burial of the victim will be
recognized. A list of expenses (Exhibit J), [52] and the contract/receipt for the
construction of the tomb (Exhibit F)[53] in this case, cannot be considered
competent proof and cannot replace the official receipts necessary to justify the
award. Hence, actual damages should be further reduced to P78,160.00, [54] which
was the amount supported by official receipts.
Pursuant to Article 2208[55] of the Civil Code, attorneys fees may also be recovered
in the case at bar where exemplary damages are awarded. The Court finds the
award of attorneys fees equivalent to 10% of the total amount adjudged against
petitioner reasonable.
Finally, in Eastern Shipping Lines, Inc. v. Court of Appeals,[56] it was held that when
an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts
or quasi-delicts is breached, the contravenor can be held liable for payment of
interest in the concept of actual and compensatory damages, subject to the
following rules, to wit
1. When the obligation is breached, and it consists in the payment of a sum of
money, i.e., a loan or forbearance of money, the interest due should be that which
may have been stipulated in writing. Furthermore, the interest due shall itself earn
legal interest from the time it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 12% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the provisions of Article 1169
of the Civil Code.
2. When an obligation, not constituting a loan or forbearance of money, is
breached, an interest on the amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum. No interest, however, shall be
adjudged on unliquidated claims or damages except when or until the demand can
be established with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to run from the time
the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such
certainty cannot be so reasonably established at the time the demand is made, the
interest shall begin to run only from the date the judgment of the court is made (at
which time the quantification of damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal interest shall, in any
case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes
final and executory, the rate of legal interest, whether the case falls
under paragraph 1 or paragraph 2, above, shall be 12% per annum from
such finality until its satisfaction, this interim period being deemed to be by
then an equivalent to a forbearance of credit. (Emphasis supplied).
In the instant case, petitioner should be held liable for payment of interest as
damages for breach of contract of carriage. Considering that the amounts payable
by petitioner has been determined with certainty only in the instant petition, the
interest due shall be computed upon the finality of this decision at the rate of 12%
per annum until satisfaction, per paragraph 3 of the aforecited rule
WHEREFORE, in view of all the foregoing, the petition is PARTIALLY
GRANTED. The April 11, 2003 decision of the Court of Appeals in CA-G.R. CV No.
63290, which modified the decision of the Regional Trial Court of Tuguegarao,
Cagayan in Civil Case No. 5023, is AFFIRMED with MODIFICATION. As modified,
petitioner Victory Liner, Inc., is ordered to pay respondents the following: (1)
P50,000.00 as indemnity for the death of Marie Grace Pagulayan-Gammad; (2)
P100,000.00 as moral damages; (3) P100,000.00 as exemplary damages; (4)
P78,160.00 as actual damages; (5) P500,000.00 as temperate damages; (6) 10% of
the total amount as attorneys fees; and the costs of suit.

Furthermore, the total amount adjudged against petitioner shall earn

interest at the rate of 12% per annum computed from the finality of this decision
until fully paid.
SO ORDERED.

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

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 plaintiff-appellants Ricardo and Sergia Beter as heirs of their son
Ornominio are entitled to an indemnity of Seventy Five Thousand Pesos
(P75,000.00).

G.R. No. 145804 February 6, 2003
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT
SECURITY AGENCY, respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the
Court of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively,
in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and Heirs of the Late Nicanor
Navidad vs. Rodolfo Roman, et. al.," which has modified the decision of 11 August
1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent
Security Agency (Prudent) from liability and finding Light Rail Transit Authority
(LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor
Navidad.
On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor
Navidad, then drunk, entered the EDSA LRT station after purchasing a "token"
(representing payment of the fare). While Navidad was standing on the platform
near the LRT tracks, Junelito Escartin, the security guard assigned to the area
approached Navidad. A misunderstanding or an altercation between the two
apparently ensued that led to a fist fight. No evidence, however, was adduced to
indicate how the fight started or who, between the two, delivered the first blow or
how Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an
LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was
struck by the moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad,
along with her children, filed a complaint for damages against Junelito Escartin,
Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and
Prudent for the death of her husband. LRTA and Roman filed a counterclaim against
Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer,
denied liability and averred that it had exercised due diligence in the selection and
supervision of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead
of presenting evidence, filed a demurrer contending that Navidad had failed to
prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial
court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against
the defendants Prudent Security and Junelito Escartin ordering the latter to pay
jointly and severally the plaintiffs the following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorneys fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack
of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed."
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court
promulgated its now assailed decision exonerating Prudent from any liability for the
death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and
severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the
appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees
Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his
death and are hereby directed to pay jointly and severally to the plaintiffs-
appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorneys fees."
The appellate court ratiocinated that while the deceased might not have then as
yet boarded the train, a contract of carriage theretofore had already existed when
the victim entered the place where passengers were supposed to be after paying
the fare and getting the corresponding token therefor. In exempting Prudent from
liability, the court stressed that there was nothing to link the security agency to the
death of Navidad. It said that Navidad failed to show that Escartin inflicted fist
blows upon the victim and the evidence merely established the fact of death of
Navidad by reason of his having been hit by the train owned and managed by the
LRTA and operated at the time by Roman. The appellate court faulted petitioners
for their failure to present expert evidence to establish the fact that the application
of emergency brakes could not have stopped the train.
The appellate court denied petitioners motion for reconsideration in its resolution
of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the
appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE
FINDINGS OF FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO
ROMAN IS AN EMPLOYEE OF LRTA."
Petitioners would contend that the appellate court ignored the evidence and the
factual findings of the trial court by holding them liable on the basis of a sweeping
conclusion that the presumption of negligence on the part of a common carrier was
not overcome. Petitioners would insist that Escartins assault upon Navidad, which
caused the latter to fall on the tracks, was an act of a stranger that could not have
been foreseen or prevented. The LRTA would add that the appellate courts
conclusion on the existence of an employer-employee relationship between Roman
and LRTA lacked basis because Roman himself had testified being an employee of
Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a
contract of carriage was deemed created from the moment Navidad paid the fare
at the LRT station and entered the premises of the latter, entitling Navidad to all
the rights and protection under a contractual relation, and that the appellate court
had correctly held LRTA and Roman liable for the death of Navidad in failing to
exercise extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its
business and for reasons of public policy, is burdened with the duty of exercising
utmost diligence in ensuring the safety of passengers. 4 The Civil Code, governing
the liability of a common carrier for death of or injury to its passengers, provides:
"Article 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.
"Article 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."
"Article 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or willful 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."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger
on account of the willful acts or negligence of other passengers or of strangers, if
the common carriers employees through the exercise of the diligence of a good
father of a family could have prevented or stopped the act or omission."
The law requires common carriers to carry passengers safely using the utmost
diligence of very cautious persons with due regard for all circumstances. 5 Such
duty of a common carrier to provide safety to its passengers so obligates it not
only during the course of the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to the contract of carriage. 6 The
statutory provisions render a common carrier liable for death of or injury to
passengers (a) through the negligence or wilful acts of its employees or b) on
account of wilful acts or negligence of other passengers or of strangers if the
common carriers employees through the exercise of due diligence could have
prevented or stopped the act or omission. 7 In case of such death or injury, a carrier
is presumed to have been at fault or been negligent, and 8 by simple proof of injury,
the passenger is relieved of the duty to still establish the fault or negligence of the
carrier or of its employees and the burden shifts upon the carrier to prove that the
injury is due to an unforeseen event or to force majeure. 9 In the absence of
satisfactory explanation by the carrier on how the accident occurred, which
petitioners, according to the appellate court, have failed to show, the presumption
would be that it has been at fault,10 an exception from the general rule that
negligence must be proved.
The foundation of LRTAs liability is the contract of carriage and its obligation to
indemnify the victim arises from the breach of that contract by reason of its failure
to exercise the high diligence required of the common carrier. In the discharge of
its commitment to ensure the safety of passengers, a carrier may choose to hire its
own employees or avail itself of the services of an outsider or an independent firm
to undertake the task. In either case, the common carrier is not relieved of its
responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort
under the provisions of Article 217612 and related provisions, in conjunction with
Article 2180,13 of the Civil Code. The premise, however, for the employers liability
is negligence or fault on the part of the employee. Once such fault is established,
the employer can then be made liable on the basis of the presumption juris tantum
that the employer failed to exercise diligentissimi patris families in the selection
and supervision of its employees. The liability is primary and can only be negated
by showing due diligence in the selection and supervision of the employee, a
factual matter that has not been shown. Absent such a showing, one might ask
further, how then must the liability of the common carrier, on the one hand, and an
independent contractor, on the other hand, be described? It would be solidary. A
contractual obligation can be breached by tort and when the same act or omission
causes the injury, one resulting in culpa contractual and the other in culpa
aquiliana, Article 219414 of the Civil Code can well apply.15 In fine, a liability for tort
may arise even under a contract, where tort is that which breaches the contract. 16
Stated differently, when an act which constitutes a breach of contract would have
itself constituted the source of a quasi-delictual liability had no contract existed
between the parties, the contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late
Nicanor Navidad, this Court is concluded by the factual finding of the Court of
Appeals that "there is nothing to link (Prudent) to the death of Nicanor (Navidad),
for the reason that the negligence of its employee, Escartin, has not been duly
proven x x x." This finding of the appellate court is not without substantial
justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of
any culpable act or omission, he must also be absolved from liability. Needless to
say, the contractual tie between the LRT and Navidad is not itself a juridical
relation between the latter and Roman; thus, Roman can be made liable only for
his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable.
Nominal damages are adjudicated in order that a right of the plaintiff, which has
been violated or invaded by the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any loss suffered by him. 18 It is
an established rule that nominal damages cannot co-exist with compensatory
damages.
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with
MODIFICATION but only in that (a) the award of nominal damages is DELETED and
(b) petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.
G.R. No. 116110 May 15, 1996
BALIWAG TRANSIT, INC., petitioner,
vs.
COURT OF APPEALS, SPOUSES ANTONIO GARCIA & LETICIA GARCIA, A & J
TRADING, AND JULIO RECONTIQUE, respondents.
PUNO, J.:p
This is a petition for certiorari to review the Decision 1 of the Court of Appeals in
CA-G.R. CV-31246 awarding damages in favor of the spouses Antonio and Leticia
Garcia for breach of contract of carriage.
The records show that on July 31, 1980, Leticia Garcia, and her five-year old son,
Allan Garcia, boarded Baliwag Transit Bus No. 2036 bound for Cabanatuan City
driven by Jaime Santiago. They took the seat behind the driver.
At about 7:30 in the evening, in Malimba, Gapan, Nueva Ecija, the bus passengers
saw a cargo truck parked at the shoulder of the national highway. Its left rear
portion jutted to the outer lane, as the shoulder of the road was too narrow to
accommodate the whole truck. A kerosene lamp appeared at the edge of the road
obviously to serve as a warning device. The truck driver, Julio Recontique, and his
helper, Arturo Escala, were then replacing a flat tire. The truck is owned by
respondent A & J Trading.
Bus driver Santiago was driving at an in ordinately fast speed and failed to notice
the truck and the kerosene lamp at the edge of the road. Santiago's passengers
urged him to slow down but he paid them no heed. Santiago even carried animated
conversations with his co-employees while driving. When the danger of collision
became imminent, the bus passengers shouted "Babangga tayo!". Santiago
stepped on the brake, but it was too late. His bus rammed into the stalled cargo
truck. It caused the instant death of Santiago and Escala, and injury to several
others. Leticia and Allan Garcia were among the injured passengers.
Leticia suffered a fracture in her pelvis and right leg. They rushed her to the
provincial hospital in Cabanatuan City where she treatment. After three days, she
was transferred to the National Orthopedic Hospital where she was confined for
more than a month. 3 She underwent an operation for partial hip prosthesis.
Allan, on the other hand, broke a leg. He was also given emergency treatment at
the provincial hospital.
Spouses Antonio and Leticia Garcia sued Baliwag Transit, Inc., A & J Trading and
Julio Recontique for damages in the Regional Trial Court of Bulacan. 5 Leticia sued
as an injured passenger of Baliwag and as mother of Allan. At the time of the
complaint, Allan was a minor, hence, the suit initiated by his parents in his favor.
Baliwag, A & J Trading and Recontique disclaimed responsibility for the mishap.
Baliwag alleged that the accident was caused solely by the fault and negligence of
A & J Trading and its driver, Recontique. Baliwag charged that Recontique failed to
place an early warning device at the corner of the disabled cargo truck to warn on
coming vehicles. 6 On the other hand, A & J Trading and Recontique alleged that the
accident was the result of the negligence and reckless driving of Santiago, bus
driver of Baliwag.
After hearing, the trial court found all the defendants liable, thus:
xxx xxx xxx
In view thereof, the Court holds that both defendants should be held liable; the
defendant Baliwag Transit, Inc. for having failed to deliver the plaintiff and her son
to their point of destination safely in violation of plaintiff's and defendant Baliwag
Transit's contractual relation.
The defendant A & J and Julio Recontique for failure to provide its cargo truck with
an early warning device in violation of the Motor Vehicle Law.

The trial court ordered Baliwag, A & J Trading and Recontique to pay jointly and
severally the Garcia spouses the following: (1) P25,000,00 hospitalization and
medication fee, (2) P450,000.00 loss of earnings in eight (8) years, (3) P2,000.00
for the hospitalization of their son Allan Garcia, (4) P50,000.00 moral damages, and
(5) P30,000.00 attorney's fee.
On appeal, the Court of Appeals modified the trial court's Decision by absolving A &
J Trading from liability and by reducing the award of attorney's fees to P10,000.00
and loss of earnings to P300,000.00, respectively.
Baliwag filed the present petition for review raising the following issues:
1. Did the Court of Appeals err in absolving A & J Trading from liability and holding
Baliwag solely liable for the injuries suffered by Leticia and Allan Garcia in the
accident?
2. Is the amount of damages awarded by the Court of Appeals to the Garcia
spouses correct?
We affirm the factual findings of the Court of Appeals.
I
As a common carrier, Baliwag breached its contract of carriage when it failed to
deliver its passengers, Leticia and Allan Garcia to their destination safe and sound.
A common carrier is bound to carry its passengers safely 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. 11 In a contract of carriage, it is presumed that
the common carrier was at fault or was negligent when a passenger dies or is
injured. Unless the presumption is rebutted, the court need not even make an
express finding of fault or negligence on the part of the common carrier. This
statutory presumption may only be overcome by evidence that the carrier
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the
Civil Code.
The records are bereft of any proof to show that Baliwag exercised extra ordinary
diligence. On the contrary, the evidence demonstrates its driver's recklessness.
Leticia Garcia testified that the bus was running at a very high speed despite the
drizzle and the darkness of the highway. The passengers pleaded for its driver to
slow down, but their plea was ignored. 13 Leticia also revealed that the driver was
smelling of liquor. 14 She could smell him as she was seated right behind the driver.
Another passenger, Felix Cruz testified that immediately before the collision, the
bus driver was conversing with a co-employee. 15 All these prove the bus driver's
wanton disregard for the physical safety of his passengers, which makes Baliwag
as a common carrier liable for damages under Article 1759 of the Civil Code:
Art. 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or willfull acts of the former's 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 do not cease upon proof that they exercised all
the diligence of a good father of a family in the selection or supervision of their
employees.
Baliwag cannot evade its liability by insisting that the accident was caused solely
by the negligence of A & J Trading and Julio Recontique. It harps on their alleged
non use of an early warning device as testified to by Col. Demetrio dela Cruz, the
station commander of Gapan, Nueva Ecija who investigated the incident, and
Francisco Romano, the bus conductor.
The records do not bear out Baliwag's contention. Col. dela Cruz and Romano
testified that they did not see any early warning device at the scene of the
accident. 16 They were referring to the triangular reflectorized plates in red and
yellow issued by the Land Transportation Office. However, the evidence shows that
Recontique and Ecala placed a kerosene lamp or torch at the edge of the road,
near the rear portion of the truck to serve as an early warning device. 17 This
substantially complies with Section 34 (g) of the Land Transportation and Traffic
Code, to wit:
(g) Lights and reflector when parked or disabled. Appropriate parking lights or
flares visible one hundred meters away shall be displayed at the corner of the
vehicle whenever such vehicle is parked on highways or in places that are not well-
lighted or, is placed in such manner as to endanger passing traffic. Furthermore,
every motor vehicle shall be provided at all times with built-in reflectors or other
similar warning devices either pasted, painted or attached at its front and back
which shall likewise be visible at night at least one hundred meters away. No
vehicle not provided with any of the requirements mentioned in this subsection
shall be registered.
(emphasis supplied)
Baliwag's argument that the kerosene lamp or torch does not substantially comply
with the law is untenable. The aforequoted law clearly allows the use not only of an
early warning device of the triangular reflectorized plates variety but also parking
lights or flares visible one hundred meters away. Indeed, Col. dela Cruz himself
admitted that a kerosene lamp is an acceptable substitute for the reflectorized
plates. 18 No negligence, therefore, may be imputed to A & J Trading and its driver,
Recontique.
Anent this factual issue, the analysis of evidence made by the Court of Appeals
deserves our concurrence, viz:
xxx xxx xxx
In the case at bar, both the injured passengers of the Baliwag involved in the
accident testified that they saw some sort of kerosene or a torch on the rear
portion of the truck before the accident. Baliwag Transit's conductor attempted to
defeat such testimony by declaring that he noticed no early warning device in front
of the truck.
Among the testimonies offered by the witnesses who were present at the scene of
the accident, we rule to uphold the affirmative testimonies given by the two injured
passengers and give less credence to the testimony of the bus conductor who
solely testified that no such early warning device exists.
The testimonies of injured passengers who may well be considered as disinterested
witness appear to be natural and more probable than the testimony given by;
Francisco Romano who is undoubtedly interested in the outcome of the case, being
the conductor of the defendant-appellant Baliwag Transit Inc.
It must be borne in mind that the situation then prevailing at the time of the
accident was admittedly drizzly and all dark. This being so, it would be improbable
and perhaps impossible on the part of the truck helper without the torch nor the
kerosene to remove the flat tires of the truck . Moreover, witness including the bus
conductor himself admitted that the passengers shouted, that they are going to
bump before the collision which consequently caused the bus driver to apply the
brake 3 to 4 meters away from the truck. Again, without the kerosene nor the torch
in front of the truck, it would be improbable for the driver, more so the passengers
to notice the truck to be bumped by the bus considering the darkness of the place
at the time of the accident.
xxx xxx xxx
While it is true that the investigating officer testified that he found no early warning
device at the time of his investigation, We rule to give less credence to such
testimony insofar as he himself admitted on cross examination that he did not
notice the presence of any kerosene lamp at the back of the truck because when
he arrived at the scene of the accident, there were already many people
surrounding the place (TSN, Aug. 22, 1989, p. 13). He further admitted that there
exists a probability that the lights of the truck may have been smashed by the bus
at the time of the accident considering the location of the truck where its rear
portion was connected with the front portion of the bus (TSN, March 29, 1985, pp.
Investigator's testimony therefore did not confirm nor deny the existence of such
warning device, making his testimony of little probative value.
We now review the amount of damages awarded to the Garcia spouses.
First, the propriety of the amount awarded as hospitalization and medical fees. The
award of P25,000.00 is not supported by the evidence on record. The Garcias
presented receipts marked as Exhibits "B-1" to "B-42" but their total amounted
only to P5,017.74. To be sure, Leticia testified as to the extra amount spent for her
medical needs but without more reliable evidence, her lone testimony cannot
justify the award of P25,000.00. To prove actual damages, the best evidence
available to the injured party must be presented. The court cannot rely on
uncorroborated testimony whose truth is suspect, but must depend upon
competent proof that damages have been actually suffered. 20 Thus, we reduce the
actual damages for medical and hospitalization expenses to P5,017.74.
Second, we find as reasonable the award of P300,000.00 representing Leticia's lost
earnings. Before the accident, Leticia was engaged in embroidery, earning
P5,000.00 per month. 21 Her injuries forced her to stop working. Considering the
nature and extent of her injuries and the length of time it would take her to
recover, 22 we find it proper that Baliwag should compensate her lost income for
five (5) years.
Third, the award of moral damages is in accord with law. In a breach of contract of
carriage, moral damages are recoverable if the carrier, through its agent, acted
fraudulently or in bad faith. 24 The evidence show the gross negligence of the driver
of Baliwag bus which amounted to bad faith. Without doubt, Leticia and Allan
experienced physical suffering, mental anguish and serious anxiety by reason of
the accident. Leticia underwent an operation to replace her broken hip bone with a
metal plate.
She was confined at the National Orthopedic Hospital for 45 days. The young Allan
was also confined in the hospital for his foot injury. Contrary to the contention of
Baliwag, the decision of the trial court as affirmed by, the Court of Appeals
awarded moral damages to Antonio and Leticia Garcia not in their capacity as
parents of Allan. Leticia was given moral damages as an injured party. Allan was
also granted moral damages as an injured party but because of his minority, the
award in his favor has to be given to his father who represented him in the suit.
Finally, we find the award of attorney's fees justified. The complaint for damages
was instituted by the Garcia spouses on December 15, 1982, following the
unjustified refusal of Baliwag to settle their claim. The Decision was promulgated
by the trial court only on January 29, 1991 or about nine years later. Numerous
pleadings were filed before the trial court, the appellate court and to this Court.
Given the complexity of the case and the amount of damages involved, 25 the
award of attorney's fee for P10,000.00 is just and reasonable.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals in CA-G.R. CV-
31246 is AFFIRMED with the MODIFICATION reducing the actual damages for
hospitalization and medical fees to P5,017.74. No costs.
SO ORDERED.