TRANSPO 88 IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby

G.R. No. L-28014-15 May 29, 1970
SPOUSES MARCELO LANDINGIN and RACQUEL BOCASAS, plaintiffs-
appellees,
vs.
PANGASINAN TRANSPORTATION CO. and MARCELO
OLIGAN, defendants-appellants.
SPOUSES PEDRO GARCIA and EUFRACIA LANDINGIN, plaintiffs-
appellees,
vs.
PANGASINAN TRANSPORTATION CO. and MARCELO
OLIGAN, defendants-appellants.
VILLAMOR, J.:
Direct appeal on a question of law from the portion of the judgment of the Court
of First Instance of Manila ordering the defendants Pangasinan Transportation Co.
(PANTRANCO) and Marcelo Oligan to pay the plaintiffs in Civil Case No. D-
1468
(L-28014) the sum of P6,500.00, and the plaintiffs in Civil Case No. 1470 (L-
28015) the sum of P3,500.00.
The complaints in said Civil Cases Nos. D-1468 and D-1470 were filed by the
spouses Marcelo Landingin and Racquel Bocasas, and the spouses Pedro Garcia
and Eufracia Landingin, respectively, for damages allegedly suffered by them in
connection with the death of their respective daughter, Leonila Landingin and
Estrella Garcia, due to the alleged negligence of the defendants and/or breach of
contract of carriage. In their complaints, plaintiffs averred, among others, that in
the morning of April 20, 1963, their above-mentioned daughters were among the
passengers in the bus driven by defendant Marcelo Oligan and owned and
operated by defendant PANTRANCO on an excursion trip from Dagupan City to
Baguio City and back, that the bus was open on one side and enclosed on the other,
in gross violation of the rules of the Public Service Commission; that defendant
PANTRANCO acted with negligence, fraud and bad faith in pretending to have
previously secured a special permit for the trip when in truth it had not done so;
that upon reaching an uphill point at Camp 8, Kennon Road, Baguio City, on the
onward trip, defendant driver, through utter lack of foresight, experience and
driving knowledge, caused the bus to stall and stop for a few moments; that
through the said defendant's fault and mishandling, the motor ceased to function,
causing the bus to slide back unchecked; that when the said defendant suddenly
swerved and steered the bus toward the mountainside, Leonila and Estrella,
together with several other passengers, were thrown out of the bus through its
open side unto the road, suffering serious injuries as a result of which Leonila and
Estrella died at the hospital and the same day; and that in connection with the
incident, defendant driver had been charged with and convicted of multiple
homicide and multiple slight physical injuries on account of the death of Leonila
and Estrella and of the injuries suffered by four others, although it may be said,
by way of parenthesis, that this case is now pending appeal in a higher court. The
plaintiffs prayed for awards of moral, actual and exemplary damages in the total
sum of P40,000.00 in Civil Case No. D-1468, and in the total sum of P25,000.00
in Civil Case No. D-1470 as well as attorney's fees in the amounts of P5,000.00
and P4,000.00, respectively.
Defendants filed a joint answer to each of the two complaints alleging, among
others, that at the time of the accident, defendant driver was driving the bus at, the
slow speed of about 10 kilometers per hour; that while the said defendant was
steering his bus toward the mountainside after hearing a sound coming from under
the rear end of the bus, Leonila and Estrella recklessly, and in disobedience to his
shouted warnings and advice, jumped out of the bus causing their heads to hit the
road or pavement; that the bus was then being driven with extraordinary care,
prudence and diligence; that defendant PANTRANCO observed the care and
diligence of a good father of a family to prevent the accident as well as in the
selection and supervision of its employees, particularly of defendant driver; and
that the decision convicting the said defendant was not yet final, the same having
been appealed to the Court of Appeals where it was still pending.
renders judgment: (a) Absolving the defendants from any liability on account
of negligence on their part and therefore dismissing the complaints in these
two cases; (b) However, as stated above, the Court hereby orders the
defendant Pantranco to pay to the plaintiffs spouses Marcelo Tandingin and
Racquel Bocasas in Civil Case No. D-1468 the amount of P6,500.00; and the
amount of P3,500.00 to the spouses Pedro Garcia and Eufracia Landingin in
Civil Case No. D-1470, not in payment of liability because of any negligence
on the part of the defendants but as an expression of sympathy and
goodwill. (Emphasis supplied.)
As to what impelled the court below to include item (b) in the dispositive portion
of its decision, can be gathered from the penultimate paragraph of the decision,
which reads:
However, there is evidence to the effect that an offer of P8,500.00 in the
instant cases without any admission of fault or negligence had been made by
the defendant Pantranco and that actually in Civil Case No. D-1469 for the
death of Pacita Descalso, the other deceased passenger of the bus in question,
the heirs of the decease received P3,000.00 in addition to hospital and medical
bills and the coffin of the deceased for the dismissal of the said case without
Pantranco accepting liability. There was as a matter of fact during the pre-
trial of these two cases a continuing offer of settlement on the part of the
defendant Pantranco without accepting any liability for such damages, and
the Court understood that the Pantranco would be willing still to pay said
amounts even if these cases were to be tried on the merits. It is well-known
that the defendant Pantranco is zealous in the preservation of its public
relations. In the spirit therefore of the offer of the defendant Pantranco
aforesaid, to assuage the feelings of the herein plaintiffs an award of
P6,500.00 for the spouses Marcelo Landingin and Racquel Bocasas in Civil
Case No. D-1468 whose daughter Leonila was, when she died, a third-year
Commerce student at the Far Eastern University, and P3,500.00 for the
spouses Pedro Garcia and Eufracia Landingin in Civil Case No. D-1470
whose daughter Estrella was in the fourth year High at the Dagupan Colleges
when she died, is hereby made in their favor. This award is in addition to what
Pantranco might have spent to help the parents of both deceased after the
accident.
Defendants-appellants complain that having found them to be absolutely free from
fault or negligence, and having in fact dismissed the complaints against them, the
court should not have ordered them to assume any pecuniary liability. There would
be merit in his argument but for the fact that defendant-appellant PANTRANCO
was guilty of breach of contract of carriage. It will be noted that in each of the two
complaints it is averred that two buses including the one in which the two deceased
girls were riding, were hired to transport the excursionist passengers from
Dagupan City to Baguio City, and return, and that the said two passengers did not
reach destination safely.
As a common carrier, defendant-appellant PANTRANCO was duty bound to
carry its passengers "safely as far as human care and foresight can provide, using
the utmost diligence of very cautious persons, with a due regard for all the
circumstances." (Article 1755, Civil Code.) Did defendant-appellant
PANTRANCO measure up to the degree of care and foresight required it under
the circumstances? We think not. The court below found that the cross-joint of the
bus in which the deceased were riding broke, which caused the malfunctioning of
the motor, which in turn resulted in panic among some of the passengers. This is
a finding of fact which this Court may not disturb. We are of the opinion, however,
that the lower court's conclusion drawn from that fact, i.e., that "the accident was
caused by a fortuitous event or an act of God brought about by some extraordinary
circumstances independent of the will of the Pantranco or its employees," is in
large measure conjectural and speculative, and was arrived at without due regard
to all the circumstances, as required by Article 1755. In Lasam vs. Smith (45 Phil.
660), this Court held that an accident caused by defects in the automobile is not
a caso fortuito. The rationale of the carrier's liability is the fact that "the passenger
has neither the choice nor control over the carrier in the selection and use of the
equipment and appliances in use by the carrier." (Necesito, et al. vs. Paras, et al.,
104 Phil. 75.)

By agreement of the parties, the two cases were tried jointly. On October 17, 1966,
When a passenger dies or is injured, the presumption is that the common carrier
the court a quo rendered its decision therein in which it made the following
is at fault or that it acted negligently (Article 1756). This presumption is only
findings; that upon reaching the fatal spot at Camp 8, a sudden snapping or
rebutted by proof on the carrier's part that it observed the "extraordinary diligence"
breaking of metal below the floor of the bus was heard, and the bus abruptly
required in Article 1733 and the "utmost diligence of very cautious persons"
stopped, rolling back a few moments later; that as a result, some of the passengers
required in Article 1755 (Article 1756). In the instant case it appears that the court
jumped out of the bus, while others stepped down; that defendant driver
below considered the presumption rebutted on the strength of defendants-
maneuvered the bus safely to and against the side of the mountain where its rear
appellants' evidence that only the day before the incident, the crossjoint in
end was made to rest, ensuring the safety of the many passengers still inside the
question was duly inspected and found to be in order. It does not appear, however,
bus; that while defendant driver as steering the bus towards the mountainside, he
that the carrier gave due regard for all the circumstances in connection with the
advised the passengers not to jump, but to remain seated; that Leonila and Estrella
said inspection. The bus in which the deceased were riding was heavily laden with
were not thrown out of the bus, but that they panicked and jumped out; that the
passengers, and it would be traversing mountainous, circuitous and ascending
malfunctioning of the motor resulted from the breakage of the cross-joint; that
roads. Thus the entire bus, including its mechanical parts, would naturally be taxed
there was no negligence on the part of either of the defendants; that only the day
more heavily than it would be under ordinary circumstances. The mere fact that
before, the said cross-joint was duly inspected and found to be in order; and that
the bus was inspected only recently and found to be in order would not exempt
defendant PANTRANCO had exercised the requisite care in the selection and
the carrier from liability unless it is shown that the particular circumstances under
supervision of its employees, including the defendant driver. The court concluded
which the bus would travel were also considered.
that "the accident was caused by a fortuitous event or an act of God brought about
by some extra-ordinary circumstances independent of the will of the Pantranco or
its employees." In the premises, it was error for the trial court to dismiss the complaints. The
awards made by the court should be considered in the concept of damages for
breach of contracts of carriage.
One would wonder why in the face of such factual findings and conclusion of the
trial court, the defendants, instead of the plaintiffs, should come to this Court on
appeal. The answer lies in the dispositive portion of the decision, to wit: IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed
from is modified as indicated above, and defendant-appellant PANTRANCO is
ordered to pay to plaintiffs-appellees the amounts stated in the judgment appealed
from, as damages for breach of contracts, with interest thereon at the legal rate
from the date of the filing of the complaints. Costs against defendant-appellant
PANTRANCO.
TRANSPO 89 – LANDICHO VS. BTC, 52 OG 7640
TRANSPO 90
G.R. No. L-10605 June 30, 1958
PRECILLANO NECESITO, ETC., plaintiff-appellant,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
x---------------------------------------------------------x
G.R. No. L-10606 June 30, 1958
GERMAN NECESITO, ET AL., plaintiffs-appellants,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
Tomas Besa and Federico Agrava for appellants.
Jose W. Diokno for appellees.
REYES, J. B. L., J.:
These cases involve ex contractu against the owners and operators of the common
carrier known as Philippine Rabbit Bus Lines, filed by one passenger, and the
heirs of another, who injured as a result of the fall into a river of the vehicle in
which they were riding.
In the morning of January 28, 1964, Severina Garces and her one-year old son,
Precillano Necesito, carrying vegetables, boarded passenger auto truck or bus No.
199 of the Philippine Rabbit Bus Lines at Agno, Pangasinan. The passenger truck,
driven by Francisco Bandonell, then proceeded on its regular run from Agno to
Manila. After passing Mangatarem, Pangasinan truck No. 199 entered a wooden
bridge, but the front wheels swerved to the right; the driver lost control, and after
wrecking the bridge's wooden rails, the truck fell on its right side into a creek
where water was breast deep. The mother, Severina Garces, was drowned; the son,
Precillano Necesito, was injured, suffering abrasions and fracture of the left femur.
He was brought to the Provincial Hospital at Dagupan, where the fracture was set
but with fragments one centimeter out of line. The money, wrist watch and cargo
of vegetables were lost.
Two actions for damages and attorney's fees totalling over P85,000 having been
filed in the Court of First Instance of Tarlac (Cases Nos. 908 and 909) against the
carrier, the latter pleaded that the accident was due to "engine or mechanical
trouble" independent or beyond the control of the defendants or of the driver
Bandonell.
After joint trial, the Court of First Instance found that the bus was proceeding
slowly due to the bad condition of the road; that the accident was caused by the
fracture of the right steering knuckle, which was defective in that its center or core
was not compact but "bubbled and cellulous", a condition that could not be known
or ascertained by the carrier despite the fact that regular thirty-day inspections
were made of the steering knuckle, since the steel exterior was smooth and shiny
to the depth of 3/16 of an inch all around; that the knuckles are designed and
manufactured for heavy duty and may last up to ten years; that the knuckle of bus
No. 199 that broke on January 28, 1954, was last inspected on January 5, 1954,
and was due to be inspected again on February 5th. Hence, the trial court, holding
that the accident was exclusively due to fortuitous event, dismissed both actions.
Plaintiffs appealed directly to this Court in view of the amount in controversy.
We are inclined to agree with the trial court that it is not likely that bus No. 199
of the Philippine Rabbit Lines was driven over the deeply rutted road leading to
the bridge at a speed of 50 miles per hour, as testified for the plaintiffs. Such
conduct on the part of the driver would have provoked instant and vehement
protest on the part of the passengers because of the attendant discomfort, and there
is no trace of any such complaint in the records. We are thus forced to assume that
the proximate cause of the accident was the reduced strength of the steering
knuckle of the vehicle caused by defects in casting it. While appellants hint that
the broken knuckle exhibited in court was not the real fitting attached to the truck
at the time of the accident, the records they registered no objection on that ground
at the trial below. The issue is thus reduced to the question whether or not the
carrier is liable for the manufacturing defect of the steering knuckle, and whether
the evidence discloses that in regard thereto the carrier exercised the diligence
required by law (Art. 1755, new Civil Code).
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 the all the circumstances.
It is clear that the carrier is not an insurer of the passengers' safety. His liability
rests upon negligence, his failure to exercise the "utmost" degree of diligence that
the law requires, and by Art. 1756, in case of a passenger's death or injury the
carrier bears the burden of satisfying the court that he has duly discharged the duty
of prudence required. In the American law, where the carrier is held to the same
degree of diligence as under the new Civil Code, the rule on the liability of carriers
for defects of equipment is thus expressed: "The preponderance of authority is in
favor of the doctrine that a passenger is entitled to recover damages from a carrier
for an injury resulting from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect would have been discovered by
the carrier if it had exercised the degree of care which under the circumstances
was incumbent upon it, with regard to inspection and application of the necessary
tests. For the purposes of this doctrine, the manufacturer is considered as being in
law the agent or servant of the carrier, as far as regards the work of constructing
the appliance. According to this theory, the good repute of the manufacturer will
not relieve the carrier from liability" (10 Am. Jur. 205, s, 1324; see also
Pennsylvania R. Co. vs. Roy, 102 U. S. 451; 20 L. Ed. 141; Southern R. Co. vs.
Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E
929).
The rationale of the carrier's liability is the fact that the passenger has neither
choice nor control over the carrier in the selection and use of the equipment and
appliances in use by the carrier. Having no privity whatever with the manufacturer
or vendor of the defective equipment, the passenger has no remedy against him,
while the carrier usually has. It is but logical, therefore, that the carrier, while not
in insurer of the safety of his passengers, should nevertheless be held to answer
for the flaws of his equipment if such flaws were at all discoverable. Thus Hannen,
J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the passenger does not know whether the
carrier has himself manufactured the means of carriage, or contracted with
someone else for its manufacture. If the carrier has contracted with someone
else the passenger does not usually know who that person is, and in no case
has he any share in the selection. The liability of the manufacturer must
depend on the terms of the contract between him and the carrier, of which the
passenger has no knowledge, and over which he can have no control, while
the carrier can introduce what stipulations and take what securities he may
think proper. For injury resulting to the carrier himself by the manufacturer's
want of care, the carrier has a remedy against the manufacturer; but the
passenger has no remedy against the manufacturer for damage arising from a
mere breach of contract with the carrier . . . . Unless, therefore, the presumed
intention of the parties be that the passenger should, in the event of his being
injured by the breach of the manufacturer's contract, of which he has no
knowledge, be without remedy, the only way in which effect can be given to
a different intention is by supposing that the carrier is to be responsible to the
passenger, and to look for his indemnity to the person whom he selected and
whose breach of contract has caused the mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS) 790,
16 Ann. Cas. 608, the Court, in holding the carrier responsible for damages caused
by the fracture of a car axle, due to a "sand hole" in the course of moulding the
axle, made the following observations.
The carrier, in consideration of certain well-known and highly valuable rights
granted to it by the public, undertakes certain duties toward the public, among
them being to provide itself with suitable and safe cars and vehicles in which
carry the traveling public. There is no such duty on the manufacturer of the
cars. There is no reciprocal legal relation between him and the public in this
respect. When the carrier elects to have another build its cars, it ought not to
be absolved by that facts from its duty to the public to furnish safe cars. The
carrier cannot lessen its responsibility by shifting its undertaking to another's
shoulders. Its duty to furnish safe cars is side by side with its duty to furnish
safe track, and to operate them in a safe manner. None of its duties in these
respects can be sublet so as to relieve it from the full measure primarily
exacted of it by law. The carrier selects the manufacturer of its cars, if it does
not itself construct them, precisely as it does those who grade its road, and lay
its tracks, and operate its trains. That it does not exercise control over the
former is because it elects to place that matter in the hands of the
manufacturer, instead of retaining the supervising control itself. The
manufacturer should be deemed the agent of the carrier as respects its duty to
select the material out of which its cars and locomotive are built, as well as in
inspecting each step of their construction. If there be tests known to the crafts
of car builders, or iron moulders, by which such defects might be discovered
before the part was incorporated into the car, then the failure of the
manufacturer to make the test will be deemed a failure by the carrier to make
it. This is not a vicarious responsibility. It extends, as the necessity of this
business demands, the rule of respondeat superior to a situation which falls
clearly within its scope and spirit. Where an injury is inflicted upon a
passenger by the breaking or wrecking of a part of the train on which he is
riding, it is presumably the result of negligence at some point by the carrier.
As stated by Judge Story, in Story on Bailments, sec. 601a: "When the injury
or damage happens to the passenger by the breaking down or overturning of
the coach, or by any other accident occurring on the ground, the presumption
prima facie is that it occurred by the negligence of the coachmen, and onus
probandi is on the proprietors of the coach to establish that there has been no
negligence whatever, and that the damage or injury has been occasioned by
inevitable casualty, or by some cause which human care and foresight could
not prevent; for the law will, in tenderness to human life and limb, hold the
proprietors liable for the slightest negligence, and will compel them to repel
by satisfactory proofs every imputation thereof." When the passenger has
proved his injury as the result of a breakage in the car or the wrecking of the
train on which he was being carried, whether the defect was in the particular
car in which he was riding or not, the burden is then cast upon the carrier to
show that it was due to a cause or causes which the exercise of the utmost
human skill and foresight could not prevent. And the carrier in this connection
must show, if the accident was due to a latent defect in the material or
construction of the car, that not only could it not have discovered the defect
 by the exercise of such care, but that the builders could not by the exercise of It can be seen that while the courts of the United States are at variance on the
the same care have discovered the defect or foreseen the result. This rule question of a carrier's liability for latent mechanical defects, the rule in this
applies the same whether the defective car belonged to the carrier or not. jurisdiction has been consistent in holding the carrier responsible. This Court has
quoted from American and English decisions, not because it felt bound to follow
the same, but merely in approval of the rationale of the rule as expressed therein,
In the case now before us, the record is to the effect that the only test applied to
since the previous Philippine cases did not enlarge on the ideas underlying the
the steering knuckle in question was a purely visual inspection every thirty days,
doctrine established thereby.
to see if any cracks developed. It nowhere appears that either the manufacturer or
the carrier at any time tested the steering knuckle to ascertain whether its strength
was up to standard, or that it had no hidden flaws would impair that strength. And The new evidence sought to be introduced do not warrant the grant of a new trial,
yet the carrier must have been aware of the critical importance of the knuckle's since the proposed proof available when the original trial was held. Said evidence
resistance; that its failure or breakage would result in loss of balance and steering is not newly discovered.
control of the bus, with disastrous effects upon the passengers. No argument is
required to establish that a visual inspection could not directly determine whether
(2) With regard to the indemnity awarded to the child Precilliano Necesito, the
the resistance of this critically important part was not impaired. Nor has it been
injuries suffered by him are incapable of accurate pecuniary estimation,
shown that the weakening of the knuckle was impossible to detect by any known
particularly because the full effect of the injury is not ascertainable immediately.
test; on the contrary, there is testimony that it could be detected. We are satisfied
This uncertainty, however, does not preclude the right to an indemnity, since the
that the periodical visual inspection of the steering knuckle as practiced by the
injury is patent and not denied (Civil Code, Art. 2224). The reasons behind this
carrier's agents did not measure up to the required legal standard of "utmost
award are expounded by the Code Commission in its report:
diligence of very cautious persons" — "as far as human care and foresight can
provide", and therefore that the knuckle's failure can not be considered a fortuitous
event that exempts the carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; There are cases where from the nature of the case, definite proof of
Son vs. Cebu Autobus Co., 94 Phil., 892.) pecuniary loss cannot be offered, although the court is convinced that
there has been such loss. For instance, injury to one's commercial
credit or to the goodwill of a business firm is often hard to show with
It may be impracticable, as appellee argues, to require of carriers to test the
certainty in terms of money. Should damages be denied for that
strength of each and every part of its vehicles before each trip; but we are of the
reason? The judge should be empowered to calculate moderate
opinion that a due regard for the carrier's obligations toward the traveling public
damages in such cases, rather than that the plaintiff should suffer,
demands adequate periodical tests to determine the condition and strength of those
without redress, from the defendant's wrongful act." (Report of the
vehicle portions the failure of which may endanger the safe of the passengers.
Code Commission, p. 75)

As to the damages suffered by the plaintiffs, we agree with appellee that no

In awarding to the heirs of the deceased Severina Garces an indemnity for the loss
allowance may be made for moral damages, since under Article 2220 of the new
of her "guidance, protection and company," although it is but moral damage, the
Civil Code, in case of suits for breach of contract, moral damages are recoverable
Court took into account that the case of a passenger who dies in the course of an
only where the defendant acted fraudulently or in bad faith, and there is none in
accident, due to the carrier's negligence constitutes an exception to the general
the case before us. As to exemplary damages, the carrier has not acted in a
rule. While, as pointed out in the main decision, under Article 2220 of the new
"wanton, fraudulent, reckless, oppressive or malevolent manner" to warrant their
Civil Code there can be no recovery of moral damages for a breach of contract in
award. Hence, we believe that for the minor Precillano Necesito (G. R. No. L-
the absence of fraud malice or bad faith, the case of a violation of the contract of
10605), an indemnity of P5,000 would be adequate for the abrasions and fracture
carriage leading to a passenger's death escapes this general rule, in view of Article
of the femur, including medical and hospitalization expenses, there being no
1764 in connection with Article 2206, No. 3 of the new Civil Code.
evidence that there would be any permanent impairment of his faculties or bodily
functions, beyond the lack of anatomical symmetry. As for the death of Severina
Garces (G. R. No. L-10606) who was 33 years old, with seven minor children ART. 1764. Damages in cases comprised in this Section shall be awarded in
when she died, her heirs are obviously entitled to indemnity not only for the accordance with Title XVIII of this Book, concerning Damages. Article 2206
incidental loses of property (cash, wrist watch and merchandise) worth P394 that shall also apply to the death of a passenger caused by the breach of contract
she carried at the time of the accident and for the burial expenses of P490, but also by a comman carrier. ART. 2206. . . .
for the loss of her earnings (shown to average P120 a month) and for the
deprivation of her protection, guidance and company. In our judgment, an award
(3) The spouse, legitimate and eligimate descendants and ascendants of the
of P15,000 would be adequate (cf Alcantara vs. Surro, 49 Off. Gaz. 2769; 93 Phil.,
472). deceased may demand moral damages for mental anguish by reason of the
death of the deceased.

The low income of the plaintiffs-appellants makes an award for attorney's fees just
and equitable (Civil Code, Art. 2208, par. 11). Considering that he two cases filed Being a special rule limited to cases of fatal injuries, these articles prevail over the
were tried jointly, a fee of P3,500 would be reasonable. general rule of Art. 2220. Special provisions control general ones (Lichauco &
Co. vs. Apostol, 44 Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).

In view of the foregoing, the decision appealed from is reversed, and the
defendants-appellees are sentenced to indemnify the plaintiffs-appellants in the
following amounts: P5,000 to Precillano Necesito, and P15,000 to the heirs of the
deceased Severina Garces, plus P3,500 by way of attorney's fees and litigation
expenses. Costs against defendants-appellees. So ordered.
RESOLUTION
September 11, 1958
REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion asking this Court to reconsider its
decision of June 30, 1958, and that the same be modified with respect to (1) its
holding the carrier liable for the breakage of the steering knuckle that caused the
autobus No. 199 to overturn, whereby the passengers riding in it were injured; (2)
the damages awarded, that appellees argue to be excessive; and (3) the award of
attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in previous decisions of
this Court, cited in our main opinion, is that a carrier is liable to its passengers for
damages caused by mechanical defects of the conveyance. As early as 1924,
in Lasam vs. Smith, 45 Phil. 659 this Court ruled:
As far as the record shows, the accident was caused either by defects
in the automobile or else through the negligence of its driver. That is
not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court held a common
carrier liable in damages to passenger for injuries cause by an accident due to the
breakage of a faulty drag-link spring.
It thus appears that under the new Civil Code, in case of accident due to a carrier's
negligence, the heirs of a deceased passenger may recover moral damages, even
though a passenger who is injured, but manages to survive, is not entitled to them.
There is, therefore, no conflict between our main decision in the instant case and
that of Cachero vs. Manila Yellow Taxi Cab Co., 101 Phil., 523, where the
passenger suffered injuries, but did not lose his life.
(3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiff
because the litigation arose out of his exaggerated and unreasonable deeds for an
indemnity that was out of proportion with the compensatory damages to which he
was solely entitled. But in the present case, plaintiffs' original claims can not be
deemed a priori wholly unreasonable, since they had a right to indemnity for
moral damages besides compensatory ones, and moral damages are not
determined by set and invariable bounds.
Neither does the fact that the contract between the passengers and their counsel
was on a contingent basis affect the former's right to counsel fees. As pointed out
for appellants, the Court's award is an party and not to counsel. A litigant who
improvidently stipulate higher counsel fees than those to which he is lawfully
entitled, does not for that reason earn the right to a larger indemnity; but, by parity
of reasoning, he should not be deprived of counsel fees if by law he is entitled to
recover them.
We find no reason to alter the main decision heretofore rendered. Ultimately, the
position taken by this Court is that a common carrier's contract is not to be
regarded as a game of chance wherein the passenger stakes his limb and life
against the carrier's property and profits.
Wherefore, the motion for reconsideration is hereby denied. So ordered.
TRANSPO 91
G.R. No. L-46558 July 31, 1981
PHILIPPINE AIR LINES, INC., Petitioner,
vs.
THE COURT OF APPEALS and JESUS V. SAMSON, Respondents.
DECISION
GUERRERO, J.:
This is a petition for review on Certiorari of the decision of the Court of Appeals
1 dated April 18, 1977, affirming with modification the decision of the Court of
First Instance of Albay in Civil Case No. 1279, entitled “Jesus V. Samson,
plaintiff, vs. Philippine Air Lines, Inc., defendant,” for damages.
The dispositive portion of the trial court’s decision reads:
“WHEREFORE, for all the foregoing considerations, judgment is hereby rendered
in favor of the plaintiff and against the defendant ordering the defendant to pay
the plaintiff, the following sums: P1988,000.00 as unearned income or damages;
P50,000.00 for moral damages; P20,000.00 as attorney’s fees and P5,000.00 as
expenses of litigation, or a total of P273,000.00. Costs against the defendant.”
The appellate court modified the above decision, to wit:
“However, Plaintiff-Appellee, who has been deprived of his job since 1954,
is entitled to the legal rate of interest on the P198,000.00 unearned income
from the filing of the complaint cranad(Sec. 8, Rule 51, Rules of Court).
WHEREFORE, with the modification indicated above, the judgment
appealed from is affirmed, with costs against defendant-appellant.”
The complaint filed on July 1, 1954 by plaintiff Jesus V. Samson, private
respondent herein, averred that on January 8, 1951, he flew as co-pilot on a regular
flight from Manila to Legaspi with stops at Daet, Camarines Norte and Pili,
Camarines Sur, with Captain Delfin Bustamante as commanding pilot of a C-47
plane belonging to defendant Philippine Air Lines, Inc., now the herein petitioner;
that on attempting to land the plane at Daet airport, Captain Delfin Bustamante
due to his very slow reaction and poor judgment overshot the airfield and as a
result, notwithstanding the diligent efforts of the plaintiff co-pilot to avert an
accident, the airplane crashlanded beyond the runway; that the jolt caused the head
of the plaintiff to hit and break through the thick front windshield of the airplane
causing him severe brain concussion, wounds and abrasions on the forehead with
intense pain and suffering cranad(par. 6, complaint).:onad
The complaint further alleged that instead of giving plaintiff expert and proper
medical treatment called for by the nature and severity of his injuries, defendant
simply referred him to a company physician, a general medical practitioner, who
limited the treatment to the exterior injuries without examining the severe brain
concussion of plaintiff cranad(par. 7, complaint); that several days after the
accident, defendant Philippine Air Lines called back the plaintiff to active duty as
co-pilot, and inspite of the latter’s repeated request for expert medical assistance,
defendant had not given him any cranad(par. 8, complaint); that as a consequence
of the brain injury sustained by plaintiff from the crash, he had been having
periodic dizzy spells and had been suffering from general debility and
nervousness cranad(par. 9, complaint); that defendant airline company instead of
submitting the plaintiff to expert medical treatment, discharged the latter from its
employ on December 21, 1953 on grounds of physical disability, thereby causing
plaintiff not only to lose his job but to become physically unfit to continue as
aviator due to defendant’s negligence in not giving him the proper medical
attention cranad(pars. 10-11, complaint). Plaintiff prayed for damages in the
amount of P180,000.00 representing his unearned income, P50,000.00 as moral
damages, P20,000.00 as attorney’s fees and P5,000.00 as expenses, or a total of
P255,000.00.
In its answer filed on July 28, 1954, defendant PAL denied the substantial
averments in the complaint, alleging among others, that the accident was due
solely and exclusively to inevitable unforeseen circumstances whereby plaintiff
sustained only superficial wounds and minor injuries which were promptly treated
by defendant’s medical personnel cranad(par. 5, answer); that plaintiff did not
sustain brain injury or cerebral concussion from the accident since he passed the
annual physical and medical examination given thereafter on April 24, 1951; that
the headaches and dizziness experienced by plaintiff were due to emotional
disturbance over his inability to pass the required up-grading or promotional
course given by defendant company cranad(par. 6, answer), and that, as confirmed
by an expert neuro-surgeon, plaintiff was suffering-from neurosis and in view of
this unfitness and disqualification from continuing as a pilot, defendant had to
terminate plaintiff’s employment cranad(pars. 7, 9, answer).
Further, defendant alleged that by the very nature of its business as a common
carrier, it is bound to employ only pilots who are proficient and in good mental,
emotional and physical condition; that the pilot, Captain Delfin Bustamante, was
a competent and proficient pilot, and although he was already afflicted with a
tumor of the nasopharynx even before the accident of January 8, 1951, the Civil
Aeronautics Administration, in passing upon the fitness of pilots, gave Capt.
Bustamante a waiver of physical standards to enable him to retain his first class
airman certificate since the affliction had not in the least affected his
proficiency cranad(pars. 16-17, answer). By way of counterclaim, defendant
prayed for P10,000.00 as expenses for the litigation.
On March 25, 1958, defendant filed a Motion to Dismiss on the ground that the
complaint is essentially a Workmen’s Compensation claim, stating a cause of
action not cognizable within the general jurisdiction of the court. The Motion to
Dismiss was denied in the order of April 14, 1958. After the reception of evidence,
the trial court rendered on January 15, 1973 the decision, the dispositive portion
of which has been earlier cited.
The defendant Philippine Air Lines, Inc. appealed the decision to the Court of
Appeals as being contrary to law and unsupported by the evidence. It raised as
errors of the trial court cranad(a) the holding that the damages allegedly suffered
by plaintiff are attributable to the accident of January 8, 1951 which was due to
the negligence of defendant in having allowed Capt. Delfin Bustamante to
continue flying despite his alleged slow reaction and poor judgment; cranad(b) the
finding that defendant was negligent in not having given plaintiff proper and
adequate expert medical treatment and assistance for the injuries allegedly
sustained in the accident of January 8, 1951; and cranad(c) in ordering defendant
to pay actual or compensatory damages, moral damages and attorney’s fees to the
plaintiff.
On April 18, 1977, the Court of Appeals rendered its decision affirming the
judgment of the lower court but modified the award of damages by imposing legal
rate of interest on the P198,000.00 unearned income from the filing of the
complaint, citing Sec. 8, Rule 51 of the Rules of Court.
Its motion for reconsideration of the above judgment having been denied,
Philippine Air Lines, Inc. filed this instant petition for Certiorari on the ground
that the decision is not in accord with law or with the applicable jurisprudence,
aside from its being replete with findings in the nature of speculation, surmises
and conjectures not borne out by the evidence on record thereby resulting to
misapprehension of facts and amounting to a grave abuse of discretion cranad(p.
7, Petition).
Petitioner raises the fundamental question in the case at bar as follows: Is there a
causal connection between the injuries suffered by private respondent during the
accident on 8 January 1951 and the subsequent “periodic dizzy spells, headache
and general debility” of which private respondent complained every now and then,
on the one hand, and such “periodic dizzy spells, headache and general debility”
allegedly caused by the accident and private respondent’s eventual discharge from
employment, on the other? PAL submits that respondent court’s award of damages
to private respondent is anchored on findings in the nature of speculations,
surmises and conjectures and not borne out by the evidence on record, thereby
resulting in a misapprehension of facts and amounting to a grave abuse of
discretion.
Petitioner’s submission is without merit.
As found by the respondent court, the following are the essential facts of the case:
“It appears that plaintiff, a licensee aviator, was employed by defendant a few
years prior to January 8, 1951 as a regular co-pilot on a guaranteed basic
salary of P750.00 a month. He was assigned to and/or paired with pilot Delfin
Bustamante.
Sometime in December 1950, he complained to defendant through its
authorized official about the slow reaction and poor judgment of pilot Delfin
Bustamante. Notwithstanding said complaint, defendant allowed the pilot to
continue flying.
On January 8, 1951, the two manned the regular afternoon flight of
defendant’s plane from Manila to Legaspi, with stops at Daet, Camarines
Norte, and Pili, Camarines Sur. Upon making a landing at Daet, the pilot, with
his slow reaction and poor judgment, overshot the airfield and, as a result of
and notwithstanding diligent efforts of plaintiff to avert an accident, the
airplane crash-landed beyond the runway into a mangrove. The jolt and
impact caused plaintiff to hit his head upon the front windshield of the plane
thereby causing his brain concussions and wounds on the forehead, with
concomittant intense pain.
Plaintiff was not given proper medical attention and treatment demanded by
the nature and severity of his injuries. Defendant merely referred him to its
clinic attended by general practitioners on his external injuries. His brain
injury was never examined, much less treated. On top of that negligence,
defendant recalled plaintiff to active duty as a co-pilot, completely ignoring
his plea for expert medical assistance.
Suffering periodic dizzy spells, headache and general debility, plaintiff every
now and then complained to defendant. To make matters worst for plaintiff,
defendant discharged him from his employment on December 21, 1953. In
consequence, plaintiff has been beset with additional worries, basically
financial. He is now a liability instead of a provider, of his family.
On July 1, 1954, plaintiff filed a complaint for damages. Defendant vainly
sought to dismiss the complaint after filing an answer. Then, the judgment
and this appeal.”
Continuing, the respondent Court of Appeals further held:
“There is no question about the employment of plaintiff by defendant, his age
and salary, the overshooting by pilot Bustamante of the airfield and
crashlanding in a mangrove, his hitting his head on the front windshield of
the plane, his intermittent dizzy spells, headache and general debility for
which he was discharged from his employment on December 21, 1953. As
the lower court aptly stated:
‘From the evidence adduced by the parties, the Court finds the following
facts to be uncontroverted: That the plaintiff Jesus V. Samson, on January
8, 1951 and a few years prior thereto, December 21, 1953, was a duly
licensed pilot employed as a regular co-pilot of the defendant with
assignment in its domestic air service in the Philippines; that on January
8, 1951, the defendant’s airplane met an accident in crashlanding at the
Daet Airport, Camarines Norte by overshooting the runway and reaching
 the mangroves at the edge of the landing strip; that the jolt caused
plaintiff’s head to hit the front windshield of the airplane causing him to
suffer wounds and abrasion on the forehead; that the defendant, instead
of giving the plaintiff expert and proper medical treatment called for by
the nature and severity of the injuries of the plaintiff, simply referred him
to the clinic of the defendant’s physicians who are only general medical
practitioners and not brain specialists; that the defendant’s physicians
limited their treatment to the exterior injuries on the forehead of the
plaintiff and made no examination of the severe concussion of the brain
of the plaintiff; that the Medical Director and Flight Surgeon of the
defendant were not able to definitely determine the cause of the
complaint of the plaintiff as to the periodic attack of dizziness, spells and
headache; that due to this laxity of the defendant’s physician and the
continuous suffering of the ailment of the plaintiff complained of, he
demanded for expert medical assistance for his brain injury and to send
him to the United States, which demand was turned down and in effect
denied by the defendant; that instead the defendant referred the plaintiff
to a neurologist, Dr. Victor Reyes; that from the time that said accident
occurred on January 21, 1953, he was ordered grounded on several
occasions because of his complaint of dizzy spells and headache; that
instead of submitting the plaintiff to expert medical treatment as
demanded by him and denied by the defendant, he was discharged from
its employment on December 21, 1953 on the ground of physical
disability, and that the plaintiff, at the time when the defendant’s plane
met the accident, up to the time he was discharged, was regularly
employed as a co-pilot and receiving a basic salary of P750.00 a month
plus extra pay for flying time, and bonuses amounting to P300.00 a
month.’
Even defendant-appellant itself admits as not controverted the following facts
which generally admit what have been stated above as not controverted.
“In the case at bar, the following facts are not the subject of controversy:
‘(1) First, that from July 1950 to 21 December 1953, plaintiff was
employed with defendant company as a first officer or co-pilot and served
in that capacity in defendant’s domestic services.
(2) Second, that on January 1951, plaintiff did fly on defendant’s PI-C
94, as first officer or co-pilot, with the late Capt. Delfin Bustamante in
command as pilot; that while making a landing at the Daet airport on that
date, PI-C 94 did meet an accident as stated above.
(3) Third, that at or about the time of the discharge from defendant
company, plaintiff had complained of “spells of dizziness,” “headaches”
and “nervousness”, by reason of which he was grounded from flight duty.
In short, that at that time, or approximately from November 1953 up to
the date of his discharge on 21 December 1953, plaintiff was actually
physically unfit to discharge his duties as pilot.
(4) Fourth, that plaintiff’s unfitness for flight duty was properly
established after a thorough medical examination by competent medical
experts.’cralawcranad(pp. 11-12, appellant’s brief)
hence, there can hardly be an issue, factual, legal or medical.”
Taking exception from “the rest of the essential facts of the case as found by the
respondent court” PAL claims said facts are not fully borne out by the evidence
on record and insists that the injuries suffered by private respondent during the
accident on January 8, 1951 were superficial in nature; that the “periodic spells,
headache, and general debility” complaint of every now and then by private
respondent subsequent to the Jan. 8, 1951 incident were due to emotional
disturbances and that no negligence can be attributed to Capt. Delfin Bustamante
much less to PAL for the occurrence on January 8, 1951, hence PAL cannot be
held liable for damages.
Petitioner claims absence of any causal connection between private respondent’s
superficial injuries and his alleged subsequent “periodic spells, headache and
general debility,” pointing out that these subsequent ailments were found by
competent physician, including an expert neuro-surgeon, to be due to emotional
disturbances insights the conclusions of Dr. Trajano V. Bernardo that respondent’s
complaints were “psychosomatic symptoms” on the basis of declarations made by
respondent himself, which conclusions are supported by similar diagnosis made
by Drs. Damaceno J. Ago and Villaraza stating that respondent Samson was
suffering from neurosis as well as the report of Dr. Victor Reyes, a neurological
specialist, indicating that the symptoms were probably, most probably due to
psychogenic factors and have no organic basis.
In claiming that there is no factual basis for the finding of the respondent court
that the crash-landing caused respondent’s “brain concussion . cra ., with
concomittant intense pain, for on the contrary, testimonial evidence establish the
superficiality of the injuries sustained by respondent during the accident of
January 8, 1951,” petitioner quotes portions of the testimony of Dr. Manuel S.
Sayas, who declared that he removed the band-aid on the forehead of respondent
and that he found out after removal that the latter had two contussed superficial
wounds over the supra orbiter regions or just above the eyes measuring one
centimeter long and one millimeter deep. He examined and found his blood
pressure normal, no discharges from the nose and ears. Dr. Trajano V. Bernardo
also testified that when he examined respondent Samson three days after the
accident, the wound was already healed and found nothing wrong with his ears,
nose and throat so that he was declared fit for duty after the sixth day.
Petitioner goes further. It contends that there is no causal connection between
respondent’s superficial injuries sustained during the accident on January 8, 1951
and plaintiff’s discharge from employment with PAL on December 21, 1953.
According to PAL, it was the repeated recurrence of respondent’s neurasthenic
symptoms cranad(dizzy spells, headache, nervousness) which prompted PAL’s
Flight Surgeon, Dr. Bernardo, to recommend that plaintiff be grounded
permanently as respondent was “psychologically unfit to resume his duties as
pilot.” PAL concludes that respondent’s eventual discharge from employment
with PAL was effected for absolutely valid reasons, and only after he was
thoroughly examined and found unfit to carry out his responsibilities and duties
as a pilot.:onad
We agree with the respondent court in finding that the dizzy spells, headache and
general debility of private respondent Samson was an after-effect of the crash-
landing and We find that such holding is supported by substantial evidence, which
We quote from the court’s decision, to wit:
“Defendant would imply that plaintiff suffered only superficial wounds which
were treated and not brain injury. It would, by the opinion of its company
doctors, Dr. Bernardo and Dr. Reyes, attribute the dizzy spells and headache
to organic or as phychosomatic, neurasthenic or psychogenic, which we find
outlandishly exaggerated.
That plaintiff’s condition as psychosomatic rather than organic in nature is
allegedly confirmed by the fact that on six cranad(6) separate occasions after
the accident he passed the required CAA physical examination for airman’s
certificate. cranad(Exhs. 78, 79, 80, 81, 83 and 92). We noticed, however, that
there were other similar physical examinations conducted by the CAA on the
person of plaintiff the report on which were not presented in evidence.
Obviously, only those which suited defendants cause were hand-picked and
offered in evidence.
We hesitate to accept the opinion of the defendant’s two physicians,
considering that Dr. Bernardo admittedly referred to Dr. Reyes because he
could not determine the cause of the dizzy spells and headache and the latter
admitted that ‘it is extremely hard to be certain of the cause of his dizzy
spells,’ and suggested a possibility that it ‘was due to postraumatic syndrome,
evidently due to the injuries suffered by the plaintiff in hitting the forehead
against the windshield of the plane during the accident.’ Judgment are not
based on possibilities.
The admitted difficulty of defendant’s doctors in determining the cause of the
dizzy spells and headache cannot be a sound basis for finding against the
plaintiff and in favor of defendant. Whatever it might be, the fact is that such
dizzy spells, headache and general debility was an after-effect of the crash-
landing. Be it brain injury or psychosomatic, neurasthenic or psychogenic,
there is no gainsaying the fact that it was caused by the crash-landing. As an
effect of the cause, not fabricated or concocted, plaintiff has to be
indemnified. The fact is that such effect caused his discharge.
We are prone to believe the testimony of the plaintiff’s doctors.
Dr. Morales, a surgeon, found that blood was coming from plaintiff’s ears and
nose. He testified that plaintiff was suffering from cerebral concussion as a
result of traumatic injury to the brain caused by his head hitting on the
windshield of the plane during the crash-landing cranad(Exhibit “G”).
Dr. Conrado Aramil, a neurologist and psychiatrist with experience in two
hospitals abroad, found abnormality reflected by the electroencephalogram
examination in the frontal area on both sides of plaintiff’s
head cranad(Exhibits “K”, “K-1”).
The opinion of these two specialist renders unnecessary that of plaintiff’s wife
who is a physician in her own right and because of her relation to the plaintiff,
her testimony and opinion may not be discussed here, although her testimony
is crystallized by the opinions of Dr. Ador Dionisio, Dr. Marquez, Dr. Jose
O. Chan, Dr. Yambao and Dr. Sandico.
Even the doctors presented by defendant admit vital facts about plaintiff’s
brain injury. Dr. Bernardo admits that due to the incident, the plaintiff
continuously complained of his fainting spells, dizziness and headache
everytime he flew as a co-pilot and everytime he went to defendant’s clinic
no less than 25 times cranad(Exhibits “15” to “36”), that he complained of
the same to Dr. Reyes; that he promised to help send plaintiff to the United
States for expert medical assistance provided that whatever finding thereat
should not be attributed to the crash-landing incident to which plaintiff did
not agree and that plaintiff was completely ignored by the defendant in his
plea for expert medical assistance. They admitted that they could not
determine definitely the cause of the fainting spells, dizziness and headache,
which justifies the demand for expert medical assistance.”
We also find the imputation of gross negligence by respondent court to PAL for
having allowed Capt. Delfin Bustamante to fly on that fateful day of the accident
on January 8, 1951 to be correct, and We affirm the same, duly supported as it is
by substantial evidence, clearly established and cited in the decision of said court
which states as follows:
“The pilot was sick. He admittedly had tumor of the
nasopharynx cranad(nose). He is now in the Great Beyond. The spot is very
near the brain and the eyes. Tumor on the spot will affect the sinus, the
breathing, the eyes which are very near it. No one will certify the fitness to
fly a plane of one suffering from the disease.
“. cra . The fact First Pilot Bustamante has a long standing tumor of the
Nasopharynx for which reason he was grounded since November 1947 is
admitted in the letter cranad(Exh. 69-A) of Dr. Bernardo to the Medical
Director of the CAA requesting waiver of physical standards. The request for
waiver of physical standards is itself a positive proof that the physical
condition of Capt. Bustamante is short of the standard set by the CAA. The
Deputy Administrator of the CAA granted the request relying on the
representation and recommendation made by Dr. Bernardo cranad(See Exh.
69). We noted, however, that the request cranad(Exh. 69-A) says that ‘it is
 believed that his continuing to fly as a co-pilot does not involve any
hazard.’cralawcranad(Italics supplied). Flying as a First Officer entails a very
different responsibility than flying as a mere co-pilot. Defendant requested
the CAA to allow Capt. Bustamante to fly merely as a co-pilot and it is safe
to conclude that the CAA approved the request thus allowing Bustamante to
fly only as a co-pilot. For having allowed Bustamante to fly as a First Officer
on January 8, 1951, defendant is guilty of gross negligence and therefore
should be made liable for the resulting accident.
As established by the evidence, the pilot used to get treatments from Dr. Sycangco.
He used to complain of pain in the face more particularly in the nose which caused
him to have sleepless nights. Plaintiff’s observation of the pilot was reported to
the Chief Pilot who did nothing about it. Captain Carbonel of the defendant
corroborated plaintiff of this matter. The complaint against the slow reaction of
the pilot at least proved the observation. The observation could be disregarded.
The fact that the complaint was not in writing does not detract anything from the
seriousness thereof, considering that a miscalculation would not only cause the
death of the crew but also of the passengers.
One month prior to the crash-landing, when the pilot was preparing to land in
Daet, plaintiff warned him that they were not in the vicinity of Daet but above the
town of Ligao. The plane hit outside the airstrip. In another instance, the pilot
would hit the Mayon Volcano had not plaintiff warned him. These more than
prove what plaintiff had complained of. Disregard thereof by defendant is
condemnable.
To bolster the claim that Capt. Bustamante has not suffered from any kind of
sickness which hampered his flying ability, appellant contends that for at least one
or more years following the accident of January 8, 1951, Capt. Bustamante
continued to fly for defendant company as a pilot, and did so with great skill and
proficiency, and without any further accident or mishap, citing tsn. pp. 756-765,
January 20, 1965. We have painstakingly perused the records, particularly the
transcript of stenographic notes cited, but found nothing therein to substantiate
appellant’s contention. Instead, We discovered that the citation covers the
testimony of Dr. Bernardo on the physical condition of Bustamante and nothing
about his skills or proficiency to fly nor on the mishaps or accidents, matters which
are beyond Dr. Bernardo’s competence anyway.
Assuming that the pilot was not sick or that the tumor did not affect the pilot in
managing the plane, the evidence shows that the overshooting of the runway and
crash-landing at the mangrove was caused by the pilot for which acts the defendant
must answer for damages caused thereby. And for this negligence of defendant’s
employee, it is liable cranad(Joaquin vs. Aniceto, 12 SCRA 308). At least, the law
presumes the employer negligent imposing upon it the burden of proving that it
exercised the diligence of a good father of a family in the supervision of its
employees.
Defendant would want to tie plaintiff to the report he signed about the crash-
landing. The report was prepared by his pilot and because the latter pleaded that
he had a family too and would have nowhere to go if he lost his job, plaintiff’s
compassion would not upturn the truth about the crash-landing. We are for the
truth not logic of any argumentation.
At any rate, it is incorrect to say that the Accident Report cranad(Exh. 12 & 12-
A), signed by plaintiff, exculpated Capt. Bustamante from any fault. We observed
that the Report does not categorically state that Capt. Bustamante was not at fault.
It merely relates in chronological sequence what Capt. Bustamante and plaintiff
did from the take-off from Manila to the landing in Daet which resulted in an
accident. On the contrary, we may infer the negligence of Bustamante from the
following portion of the Report, to wit:
“. cra . I felt his brakes strong but as we neared the intersection of the NE-SW
runway, the brakes were not as strong and I glanced at the system pressure
which indicated 900 lbs. per sq. m.”
It was during the above precise instance that Capt. Bustamante lost his bearing
and disposition. Had he maintained the pressure on the brakes the plane would not
have overshot the runway. Verily, Bustamante displayed slow reaction and poor
judgment. cranad(CA decision, pp. 8-12).
This Court is not impressed by, much less can We accept petitioner’s invocation
to calibrate once again the evidence testified to in detail and plucked from the
voluminous transcript to support petitioner’s own conclusion. It is not the task of
this Court to discharge the functions of a trier of facts much less to enter into a
calibration of the evidence, notwithstanding petitioner’s wail that the judgment of
the respondent court is based entirely on speculations, surmises and conjectures.
We are convinced that respondent court’s judgment is supported by strong, clear
and substantial evidence.:onad
Petitioner is a common carrier 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, as defined in Art. 1732, New Civil Code. The law is
clear in requiring a common carrier to exercise the highest degree of care in the
discharge of its duty and business of carriage and transportation under Arts. 1733,
1755 and 1756 of the New Civil Code. These Articles provide:
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, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for
the safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passenger 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.
The duty to exercise the utmost diligence on the part of common carriers is for the
safety of passengers as well as for the members of the crew or the complement
operating the carrier, the airplane in the case at bar. And this must be so for any
omission, lapse or neglect thereof will certainly result to the damage, prejudice,
nay injuries and even death to all aboard the plane, passengers and crew members
alike.
Now to the damages. The Court of Appeals affirmed the award of damages made
by the trial court, stating that “the damages awarded plaintiff by the lower court
are in accordance with the facts, law and jurisprudence.” The court further
observed that “defendant-appellant is still fortunate, considering that the unearned
income was reckoned with only up to 1968 and not up to the present as plaintiff-
appellee is still living. Whatever mathematical error defendant-appellant could
show by abstract argumentation, the same must be compensated by such
deficiency of the damages awarded to plaintiff-appellee.”
As awarded by the trial court, private respondent was entitled to P198,000.00 as
unearned income or compensatory damages; P50,000.00 for moral damages,
P20,000.00 as attorney’s fees and P5,000.00 as expenses of litigation, or a total of
P273,000.00.
The trial court arrived at the sum of P198,000.00 as unearned income or damages
by considering that respondent Samson “could have continued to work as airline
pilot for fifteen more years, he being only 38 years at the time the services were
terminated by the defendant cranad(PAL) and he would have earned P120,000.00
from 1954 to 1963 or a period of ten cranad(10) years at the rate of one thousand
per month cranad(P750.00 basic salary plus P300.00 extra pay for extra flying
time and bonuses; and considering further that in 1964 the basic pay of defendant’s
pilot was increased to P12,000.00 annually, the plaintiff could have earned from
1964 to 1968 the sum of P60,000.00 in the form of salaries and another P18,000.00
as bonuses and extra pay for extra flying time at the same rate of P300 a month,
or a grand total of P198,000.00 for the entire period. This claim of the plaintiff for
loss or impairment of earning capacity is based on the provision of Article 2205
of the New Civil Code of the Philippines which provides that “damages may be
recovered for loss or impairment of earning capacity in cases of temporary or
permanent personal injury.” This provision of law has been construed and
interpreted in the case of Aureliano Ropato, et al. vs. La Mallorca General
Partnership, 56 O.G., 7812, which rules that law allows the recovery of damages
for loss or impairment of earning capacity in cases of temporary or permanent
personal injury.” chanroblesvirtualawlibrary(Decision, CFI, pp. 98-99, Record
on Appeal)
The respondent appellate court modified the above award by ordering payment of
legal interest on the P198,000.00 unearned income from the filing of the claim,
citing Sec. 8, Rule 51 of the Rules of Court.
Petitioner assails the award of the total sum of P198,000.00 as unearned income
up to 1968 as being tenuous because firstly, the trial court’s finding affirmed by
the respondent court is allegedly based on pure speculation and conjecture and
secondly, the award of P300.00 a month as extra pay for extra flying time from
1954 to 1968 is likewise speculative. PAL likewise rejects the award of moral
damages in the amount of P50,000.00 on the ground that private respondent’s
action before the trial court does not fall under any of the cases enumerated in the
law cranad(Art. 2219 of the New Civil Code) for which moral damages are
recoverable and that although private respondent’s action gives the appearance
that it is covered under quasi-delict as provided in Art. 21 of the New Civil Code,
the definition of quasi-delict in Art. 2176 of the New Civil Code expressly
excludes cases where there is a pre-existing contractual relation between the
parties, as in the case under consideration, where an employer-employee
relationship existed between PAL and private respondent. It is further argued that
private respondent’s action cannot be deemed to be covered by Art. 21, inasmuch
as there is no evidence on record to show that PAL “wilfully cause(d) loss or injury
to cranad(private respondent) in a manner that is contrary to morals, good customs
or public policy . cra .” Nor can private respondent’s action be considered
“analogous” to either of the foregoing, for the reasons are obvious that it is
not.” chanroblesvirtualawlibrary(Memorandum of petitioner, pp. 418-421,
Records)
Having affirmed the gross negligence of PAL in allowing Capt. Delfin
Bustamante to fly the plane to Daet on January 8, 1951 whose slow reaction and
poor judgment was the cause of the crash-landing of the plane which resulted in
private respondent Samson hitting his head against the windshield and causing
him injuries for which reason PAL terminated his services and employment as
pilot after refusing to provide him with the necessary medical treatment of
respondent’s periodic spells, headache and general debility produced from said
injuries, We must necessarily affirm likewise the award of damages or
compensation under the provisions of Art. 1711 and Art. 1712 of the New Civil
Code which provide:
Art. 1711. Owners of enterprises and other employers are obliged to pay
compensation for the death or injuries to their laborers, workmen, mechanics or
other employees, even though the event may have been purely accidental or
entirely due to a fortuitous cause, if the death or personal injury arose out of and
in the course of the employment. The employer is also liable for compensation if
the employee contracts any illness or disease caused by such employment or as
the result of the nature of the employment. If the mishap was due to the
employee’s own notorious negligence, or voluntary act, or drunkenness, the
employer shall not be liable for compensation. When the employee’s lack of due
care contributed to his death or injury, the compensation shall be equitably legal interest from the time it is judicially demanded, although the obligation
reduced. may be silent upon this point.” chanroblesvirtualawlibrary(CA Resolution,
pp. 153-154, Records).
Art. 1712. If the death or injury is due to the negligence of a fellow-worker, the
latter and the employer shall be solidarily liable for compensation. If a fellow- The correct amount of compensatory damages upon which legal interest shall
worker’s intentional or malicious act is the only cause of the death or injury, the accrue from the filing of the complaint is P204,000.00 as herein computed and not
employer shall not be answerable, unless it should be shown that the latter did not P198,000.00.
exercise due diligence in the selection or supervision of the plaintiffs fellow-
worker. WHEREFORE, in view of all the foregoing, the judgment of the appellate court
is hereby affirmed with slight modification in that the correct amount of
The grant of compensatory damages to the private respondent made by the trial compensatory damages is P204,000.00. With costs against petitioner.
court and affirmed by the appellate court by computing his basic salary per annum
at P750.00 a month as basic salary and P300.00 a month for extra pay for extra SO ORDERED.
flying time including bonus given in December every year is justified. The correct
computation however should be P750 plus P300 x 12 months = P12,600 per
annum x 10 years = P126,000.00 cranad(not P120,000.00 as computed by the
court a quo). The further grant of increase in the basic pay of the pilots to P12,000
annually for 1964 to 1968 totalling P60,000.00 and another P18,000.00 as bonuses
and extra pay for extra flying time at the same rate of P300.00 a month totals
P78,000.00. Adding P126,000.00 cranad(1964 to 1968 compensation) makes a
grand total of P204,000.00 cranad(not P198,000.00 as originally computed).
As to the grant of moral damages in the sum of P50,000.00 We also approve the
same. We have noted and considered the holding of the appellate court in the
matter of bad faith on the part of PAL, stated hereunder, this wise:
“None of the essential facts material to the determination of the case have
been seriously assailed: the overshooting of runway and crash-landing into
the mangroves; the hitting of plaintiff’s head to the front windshield of the
plane; the oozing of blood out of his ears, nose and mouth; the intermittent
dizzy spells, headaches and general debility thereafter for which he was
discharged from his employment; the condition of not to attribute the cause
of the ailment to the crash-landing imposed in bad faith for a demanded
special medical service abroad; and the resultant brain injury which
defendant’s doctors could not understand nor diagnose.”
xxx
“The act of defendant-appellant in unjustly refusing plaintiff-appellee’s
demand for special medical service abroad for the reason that plaintiff-
appellee’s deteriorating physical condition was not due to the accident
violates the provisions of Article 19 of the Civil Code on human relations “to
act with justice, give everyone his due, and observe honesty and good
faith.” chanroblesvirtualawlibrary(CA Resolution, pp. 151-152, Records)
We reject the theory of petitioner that private respondent is not entitled to moral
damages. Under the facts found by the trial court and affirmed by the appellate
court and under the law and jurisprudence cited and applied, the grant of moral
damages in the amount of P50,000.00 is proper and justified.
The fact that private respondent suffered physical injuries in the head when the
plane crash-landed due to the negligence of Capt. Bustamante is undeniable. The
negligence of the latter is clearly a quasi-delict and therefore Article
2219, cranad(2) New Civil Code is applicable, justifying the recovery of moral
damages.
Even from the standpoint of the petitioner that there is an employer-employee
relationship between it and private respondent arising from the contract of
employment, private respondent is still entitled to moral damages in view of the
finding of bad faith or malice by the appellate court, which finding We hereby
affirm, applying the provisions of Art. 2220, New Civil Code which provides that
willful injury to property may be a legal ground for awarding moral damages if
the court should find that, under the circumstances, such damages are justly due.
The same rule applies to breaches of contract where the defendant acted
fraudulently or in bad faith.
The justification in the award of moral damages under Art. 19 of the New Civil
Code on Human Relations which requires that every person must, in the exercise
of his rights and in the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith, as applied by respondent court is also
well-taken and We hereby give Our affirmance thereto.
With respect to the award of attorney’s fees in the sum of P20,000.00 the same is
likewise correct. As pointed out in the decision of the Court of Appeals, “the
plaintiff is entitled to attorney’s fees because he was forced to litigate in order to
enforce his valid claim cranad(Ganaban vs. Bayle, 30 SCRA 365; De la Cruz vs.
De la Cruz, 22 SCRA 33; and many others); defendant acted in bad faith in
refusing plaintiff’s valid claim cranad(Filipino Pipe Foundry Corporation vs.
Central Bank, 23 SCRA 1044); and plaintiff was dismissed and was forced to go
to court to vindicate his right cranad(Nadura vs. Benguet Consolidated, Inc., 5
SCRA 879).”
We also agree with the modification made by the appellate court in ordering
payment of legal interest from the date judicial demand was made by Pilot Samson
against PAL with the filing of the complaint in the lower court. We affirm the
ruling of the respondent court which reads:
“Lastly, the defendant-appellant claims that the legal rate of interest on the
unearned compensation should be computed from the date of the judgment in
the lower court, not from the filing of the complaint, citing a case where the
issue raised in the Supreme Court was limited to when the judgment was
rendered in the lower court or in the appellate court, which does not mean that
it should not be computed from the filing of the complaint.
Articles 1169, 2209 and 2212 of the Civil Code govern when interest shall be
computed. Thereunder interest begins to accrue upon demand, extrajudicial
or judicial. A complaint is a judicial demand cranad(Cabarroguis vs. Vicente,
107 Phil. 340). Under Article 2212 of the Civil Code, interest due shall earn
TRANSPO 92
G.R. No. 113578 July 14, 1995
SULPICIO LINES, INC., Petitioner,
vs.
The Honorable COURT OF APPEALS and TITO DURAN TABUQUILDE
and ANGELINA DE PAZ TABUQUILDE, respondents.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of
Court of the decision of the Court of Appeals in CA-G.R. CV
No. 32864, which affirmed the decision of the Regional Trial Court, Branch 85,
Quezon City in Civil Case No. Q-89-3048.
I The Court of Appeals found:
On October 23, 1988, plaintiff Tito Duran Tabuquilde (hereinafter, "Tito")
and his three-year old daughter Jennifer Anne boarded the M/V Dona Marilyn
at North Harbor, Manila, bringing with them several pieces of luggage.
In the morning of October 24, 1988, the M/V Dona Marilyn, while in transit,
encountered inclement weather which caused huge waves due to Typhoon
Unsang.
Notwithstanding the fact that Storm Signal No. 2 had been raised by the PAG-
ASA authorities over Leyte as early as 5:30 P.M. of October 23, 1988 and
which signal was raised to Signal No. 3 by 10 P.M. of the same day, the ship
captain ordered the vessel to proceed to Tacloban when prudence dictated that
he should have taken it to the nearest port for shelter, thus violating his duty
to exercise extraordinary diligence in the carrying of passengers safely to their
destination.
At about the same time, plaintiff-appellee Angelina Tabuquilde (hereinafter,
"Angelina") mother of Jennifer Anne, contacted the Sulpicio Office to verify
radio reports that the vessel M/V Dona Marilyn was missing. Employees of
said Sulpicio Lines assured her that the ship was merely "hiding" thereby
assuaging her anxiety.
At around 2:00 P.M. of October 24, 1988, said vessel capsized, throwing
plaintiff-appellee Tito and Jennifer Anne, along with hundreds of passengers,
into the tumultuous sea.
Tito tried to keep himself and his daughter afloat but to no avail as the waves
got stronger and he was subsequently separated from his daughter despite his
efforts.
He found himself on Almagro Island in Samar the next day at round (sic)
11:00 A.M. and immediately searched for his daughter among the survivors
in the island, but the search proved fruitless.
In the meantime, Angelina tried to seek the assistance of the Sulpicio Lines
in Manila to no avail, the latter refusing to entertain her and hundreds of
relatives of the other passengers who waited long hours outside the Manila
Office. Angelina spent sleepless nights worrying about her husband Tito and
daughter Jennifer Anne in view of the refusal of Sulpicio Lines to release a
verification of the sinking of the ship.
On October 26, 1988, Tito and other survivors in the Almagro Island were
fetched and were brought to Tacloban Medical Center for treatment.
On October 31, 1988, Tito reported the loss of his daughter, was informed
that the corpse of a child with his daughter's description had been found.
Subsequently, Tito wrote a letter to his wife, reporting the sad fact that
Jennifer Anne was dead. Angelina suffered from shock and severe grief upon
receipt of the news.
On November 3, 1988, the coffin bearing the corpse of Jennifer Anne was
buried in Tanauan, Leyte.
On November 24, 1988, a claim for damages was filed by Tito with the
defendant Sulpicio Lines in connection with the death of the plaintiff-
appellee's daughter and the loss of Tito's belongings worth P27,580.00.
(Appellees' Brief, pp. 2-4) ( Rollo, pp. 52-54).
On January 3, 1991, the trial court rendered a decision in Civil Case No. Q-89-
3048 in favor of the plaintiffs Tito Duran Tabuquilde and Angelina de Paz
Tabuquilde (private respondents herein) and against defendant Sulpicio Lines,
Inc. (petitioner herein) ordering defendant to pay P27,580.00 as actual damages,
P30,000.00 for the death of Jennifer Tabuquilde, P100,000.00 as moral damages,
P50,000.00 as exemplary damages, and P50,000.00 as attorney's fees, and costs.
Petitioner appealed to the Court of Appeals which affirmed the decision of the
trial court. Petitioner then filed a motion for reconsideration which was denied.
Hence, this petition.
II Generally, the findings of fact of the trial court are entitled to great weight and
not disturbed except for cogent reasons (Gatmaitan v. Court of Appeals, 200
SCRA 37 [1991]). One of the accepted reasons is when the findings of fact are not
supported by the evidence (Sandoval Shipyard, Inc. v. Clave, 94 SCRA 472
[1979]). Corollary to this is the rule that actual or compensatory damages, to be
recovered, must be proved; otherwise, if the proof is flimsy, no damages will be
awarded (Dichoso v. Court of Appeals, 192 SCRA 169 [1990]).
In the case at bench, the trial court merely mentioned the fact of the loss and the
value of the contents of the pieces of baggage without stating the evidence on
which it based its findings. There is no showing that the value of the contents of
the lost pieces of baggage was based on the bill of lading or was previously
declared by respondent Tito D. Tabuquilde before he boarded the ship. Hence,
there can be no basis to award actual damages in the amount of P27,850.00.
The Court of Appeals was correct in confirming the award of damages for the
death of the daughter of private respondents, a passenger on board the stricken
vessel of petitioner. It is true that under Article 2206 of the Civil Code of the
Philippines, only deaths caused by a crime as quasi delict are entitled to actual and
compensatory damages without the need of proof of the said damages. Said Article
provides:
The amount of damages for death caused by a crime or quasi delict shall be
at least Three Thousand Pesos, even though there may have been mitigating
circumstances. . . .
Deducing alone from said provision, one can conclude that damages arising
from culpa contractual are not compensable without proof of special damages
sustained by the heirs of the victim.
However, the Civil Code, in Article 1764 thereof, expressly makes Article 2206
applicable "to the death of a passenger caused by the breach of contract by a
common carrier." Accordingly, a common carrier is liable for actual or
compensatory damages under Article 2206 in relation to Article 1764 of the Civil
Code for deaths of its passengers caused by the breach of the contract of
transportation.
The trial court awarded an indemnity of P30,000.00 for the death of the daughter
of private respondents. The award of damages under Article 2206 has been
increased to P50,000.00 (People v. Flores, 237 SCRA 653 [1994]).
With respect to the award of moral damages, the general rule is that said damages
are not recoverable in culpa contractual except when the presence of bad faith
was proven (Trans World Air Lines v. Court of Appeals, 165 SCRA 143 [1988]).
However, in breach of contract of carriage, moral damages may be recovered
when it results in the death of a passenger (Philippine Rabbit Bus Lines, Inc. v.
Esguerra, 117 SCRA 741 [1982]; Vasquez v. Court of Appeals, 138 SCRA 553
[1985]).
With respect to the award of exemplary damages, Article 2232 of the Civil Code
of the Philippines gives the Court the discretion to grant said damages in breach
of contract when the defendant acted in a wanton, fraudulent and reckless manner
(Air France v. Carrascoso, 18 SCRA 155 [1966]).
Furthermore, in the case of Mecenas v. Court of Appeals, 180 SCRA 83 (1989),
we ruled that:
. . . . The Court will take judicial notice of the dreadful regularity with which
grievous maritime disasters occur in our waters with massive loss of life. The
bulk of our population is too poor to afford domestic air transportation. So it
is that notwithstanding the frequent sinking of passenger in our waters,
crowds of people continue to travel by sea. This Court is prepared to use the
instruments given to it by the law for securing the ends of law and public
policy. One of those instruments is the institution of exemplary damages; one
of those ends, of special importance in an archipelagic state like the
Philippines, is the safe and reliable carriage of people and goods by sea. . . .
(at p. 100).
A common carrier is obliged to transport its passengers to their destinations with
the utmost diligence of a very cautious person (Laguna Tayabas Bus Co. v.
Tiongson, 16 SCRA 940 [1966]). The trial court found that petitioner failed to
exercise the extraordinary diligence required of a common carrier, which resulted
in the sinking of the M/V Dona Marilyn.
The trial court correctly concluded that the sinking of M/V Dona Marilyn was due
to gross negligence, thus:
. . . [i]t is undisputed that Typhoon Unsang entered the Philippine Area of
Responsibility on October 21, 1988. The rain in Metro Manila started after
lunch of October 23, 1988, and at about 5:00 p.m. Public Storm Signal No. 1
was hoisted over Metro Manila, Signal No. 2 in Leyte and Signal No. 3 in
 Samar. But at 10:00 o'clock (sic) in the morning of October 23, 1988, Public
Storm Signal No. 1 was already hoisted over the province of Leyte, which is
the destination of M/V Dona Marilyn. This was raised to Signal No. 2 at 4:00
p.m. and Signal No. 3 at 10:00 p.m. on the same date. The following day,
October 24, 1988, at 4:00 a.m. and 10:00 a.m., Storm Signal No. 3 remained
hoisted in Leyte. At 4 p.m. on October 24, 1988, Storm Signal No. 3 remained
hoisted in Leyte but was reduced to Storm Signal No. 2 (Exh. G). Signal No.
1 has maximum winds at 60 kph within 36 hours; Signal No. 2 has maximum
winds of from 60 kph to 100 kph within a period of 24 hours; and Signal No.
3 has maximum winds of 100 kph and above within a period of 12 hours.

Warnings of the storm signal are issued by PAG-ASA thru DZZA, Office of
Civil Defense, Philippine Navy, Coast Guard, Radio Stations, and other
offices, every six (6) hours as soon as a cyclone enters the Philippine Area of
Responsibility.

At 10:30 a.m. on October 24, 1988, the vessel was estimated to be between
Mindoro and Masbate, and the center of the typhoon then was around 130
degrees longitude with maximum winds of 65 kph (Exh. G-3), with a "radius
of rough to phenomenal sea at that time of 450 kms. North and 350 kms.
elsewhere; 350 kms. North center and all throughout the rest" (p. 12, TSN,
Lumalda, Feb. 19, 1990).

xxx xxx xxx

In the same manner, (referring to the negligence of the crew of the ship that
sank in Vasquez v. Court of Appeals, 138 SCRA 553 [1985]) the crew of the
vessel M/V Dona Marilyn took a calculated risk when it proceeded despite
the typhoon brewing somewhere in the general direction to which the vessel
was going. The crew assumed a greater risk when, instead of dropping anchor
in or at the periphery of the Port of Calapan, or returning to the port of Manila
which is nearer, proceeded on its voyage on the assumption that it will be able
to beat and race with the typhoon and reach its destination before it (Unsang)
passes ( Rollo, pp. 45-47).

The award of attorney's fees by the trial court to respondents is also assailed by
petitioner, citing Mirasol v. De la Cruz, 84 SCRA 337 (1978). In this case, the
petitioner filed before the Municipal Court an action for forcible entry against the
private respondent. The said court dismissed the complaint. On appeal, the Court
of First Instance of Camarines Sur sustained the decision of the lower court,
dismissed the appeal and awarded attorney's fees in the sum of not less than
P500.00 in favor of private respondent. Upon appeal to us, we deleted the award
of attorney's fees because the text of the appealed decision was bereft of any
findings of fact and law to justify such an award. Moreover, there was no proof,
other than the bare allegation of harassment that the adverse party had acted in
bad faith. The aforementioned decision is inapposite to the instant case where the
decision clearly mentions the facts and the law upon which the award of attorney's
fees were based.

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

MODIFICATION that the award of P27,580.00 as actual damages for the loss of
the contents of the pieces of baggage is deleted and that the award of P30,000.00
under Article 2206 in relation Article 1764 is increased to P50,000.00.

SO ORDERED.
TRANSPO 93
G.R. No. 161730 January 28, 2005
JAPAN AIRLINES, petitioner,
vs.
MICHAEL ASUNCION and JEANETTE ASUNCION, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse and set aside the October 9, 2002
decision1 of the Court of Appeals and its January 12, 2004 resolution, 2 which
affirmed in toto the June 10, 1997 decision of the Regional Trial Court of Makati
City, Branch 61 in Civil Case No. 92-3635.3
On March 27, 1992, respondents Michael and Jeanette Asuncion left Manila on
board Japan Airlines’ (JAL) Flight 742 bound for Los Angeles. Their itinerary
included a stop-over in Narita and an overnight stay at Hotel Nikko Narita. Upon
arrival at Narita, Mrs. Noriko Etou-Higuchi of JAL endorsed their applications for
shore pass and directed them to the Japanese immigration official. 4 A shore pass
is required of a foreigner aboard a vessel or aircraft who desires to stay in the
neighborhood of the port of call for not more than 72 hours.
During their interview, the Japanese immigration official noted that Michael
appeared shorter than his height as indicated in his passport. Because of this
inconsistency, respondents were denied shore pass entries and were brought
instead to the Narita Airport Rest House where they were billeted overnight.
The immigration official also handed Mrs. Higuchi a Notice5 where it was stated
that respondents were to be "watched so as not to escape".
Mr. Atsushi Takemoto of the International Service Center (ISC), the agency
tasked by Japan’s Immigration Department to handle passengers who were denied
shore pass entries, brought respondents to the Narita Airport Rest House where
they stayed overnight until their departure the following day for Los Angeles.
Respondents were charged US$400.00 each for their accommodation, security
service and meals.
On December 12, 1992, respondents filed a complaint for damages6 claiming that
JAL did not fully apprise them of their travel requirements and that they were
rudely and forcibly detained at Narita Airport.
JAL denied the allegations of respondents. It maintained that the refusal of the
Japanese immigration authorities to issue shore passes to respondents is an act of
state which JAL cannot interfere with or prevail upon. Consequently, it cannot
impose upon the immigration authorities that respondents be billeted at Hotel
Nikko instead of the airport resthouse.7
On June 10, 1997, the trial court rendered its decision, the dispositive portion of
which reads:
WHEREFORE PREMISES CONSIDERED, judgment is hereby rendered in
favor of plaintiffs ordering defendant JAL to pay plaintiffs as follows:
1. the sum of US$800.00 representing the expenses incurred at the Narita
Airport with interest at 12% per annum from March 27, 1992 until the sum is
fully paid;
2. the sum of P200,000.00 for each plaintiff as moral damages;
3. the amount of P100,000.00 for each plaintiff as exemplary damages;
4. the amount of P100,000.00 as attorney’s fees; and
5. costs of suit.
SO ORDERED.8
The trial court dismissed JAL’s counterclaim for litigation expenses, exemplary
damages and attorney’s fees.
On October 9, 2002, the Court of Appeals affirmed in toto the decision of the trial
court. Its motion for reconsideration having been denied,9 JAL now files the
instant petition.
The basic issue for resolution is whether JAL is guilty of breach of contract.
Under Article 1755 of the Civil Code, a common carrier such as JAL 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 for all the
circumstances. 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 carrier’s obligation to carry him and his luggage safely to the agreed
destination.10 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.11
We find that JAL did not breach its contract of carriage with respondents. It may
be true that JAL has the duty to inspect whether its passengers have the necessary
travel documents, however, such duty does not extend to checking the veracity of
every entry in these documents. JAL could not vouch for the authenticity of a
passport and the correctness of the entries therein. The power to admit or not an
alien into the country is a sovereign act which cannot be interfered with even by
JAL. This is not within the ambit of the contract of carriage entered into by JAL
and herein respondents. As such, JAL should not be faulted for the denial of
respondents’ shore pass applications.
Prior to their departure, respondents were aware that upon arrival in Narita, they
must secure shore pass entries for their overnight stay. Respondents’ mother, Mrs.
Imelda Asuncion, insisted though that Ms. Linda Villavicencio of JAL assured her
that her children would be granted the passes.12 This assertion was satisfactorily
refuted by Ms. Villavicencio’s testimony during the cross examination, to wit:
ATTY. GONZAGA:
Q I will show to you Exh. 9 which is the TIM and on page 184 hereof,
particularly number 10, and I quote, "Those holding tickets with confirmed
seats and other documents for their onward journey and continuing their
journey to a third country provided that they obtain an indorsement with an
application of shore pass or transit pass from the airline ground personnel
before clearing the immigration formality?"
WITNESS:
A Yes, Sir.
Q Did you tell this provision to Mrs. Asuncion?
A Yes, Sir. I did.
Q Are you sure?
A Yes, Sir.
Q Did you give a copy?
A No, Sir, I did not give a copy but verbally I explained to her the procedure
they have to undergo when they get to narita airport.
….
Q And you read the contents of this [TIM]?
A No, Sir, I did not read it to her but I explained to her the procedure that
each passenger has to go through before when they get to narita airport before
they line up in the immigration counter.
Q In other words, you told Mrs. Asuncion the responsibility of securing shore
passes bears solely on the passengers only?
A Yes, Sir.
Q That the airline has no responsibility whatsoever with regards (sic) to the
application for shore passes?
A Yes, Sir.13
Next, respondents claimed that petitioner breached its contract of carriage when it
failed to explain to the immigration authorities that they had overnight vouchers
at the Hotel Nikko Narita. They imputed that JAL did not exhaust all means to
prevent the denial of their shore pass entry applications.
To reiterate, JAL or any of its representatives have no authority to interfere with
or influence the immigration authorities. The most that could be expected of JAL
is to endorse respondents’ applications, which Mrs. Higuchi did immediately upon
their arrival in Narita.
As Mrs. Higuchi stated during her deposition:
ATTY. QUIMBO
Q: Madam Witness, what assistance did you give, if any, to the plaintiffs
during this interview?
A: No, I was not present during their interview. I cannot assist.
Q: Why not?
A: It is forbidden for a civilian personnel to interfere with the Immigration
agent’s duties.14
….
Q: During the time that you were in that room and you were given this notice
for you to sign, did you tell the immigration agent that Michael and Jeanette
Asuncion should be allowed to stay at the Hotel Nikko Narita because, as
passengers of JAL, and according to the plaintiff, they had vouchers to stay
in that hotel that night?
A: No, I couldn’t do so.
Q: Why not?
A: This notice is evidence which shows the decision of immigration
authorities. It shows there that the immigration inspector also designated
Room 304 of the Narita Airport Resthouse as the place where the passengers
were going to wait for their outbound flight.1awphi1.nét I cannot interfere
with that decision.15
Mrs. Higuchi did all she could to assist the respondents. Upon being notified of
the denial of respondents’ applications, Mrs. Higuchi immediately made
reservations for respondents at the Narita Airport Rest House which is really more
a hotel than a detention house as claimed by respondents. 16

More importantly, nowhere in respondent Michael’s testimony did he state

categorically that Mrs. Higuchi or any other employee of JAL treated them rudely
or exhibited improper behavior throughout their stay. We therefore find JAL not
remiss in its obligations as a common carrier.1awphi1.nét

Moral damages may be recovered in cases where one willfully causes injury to
property, or in cases of breach of contract where the other party acts fraudulently
or in bad faith. Exemplary damages are imposed by way of example or correction
for the public good, when the party to a contract acts in wanton, fraudulent,
oppressive or malevolent manner. Attorney’s fees are allowed when exemplary
damages are awarded and when the party to a suit is compelled to incur expenses
to protect his interest.17 There being no breach of contract nor proof that JAL acted
in wanton, fraudulent or malevolent manner, there is no basis for the award of any
form of damages.

Neither should JAL be held liable to reimburse respondents the amount of

US$800.00. It has been sufficiently proven that the amount pertained to ISC, an
agency separate and distinct from JAL, in payment for the accommodations
provided to respondents. The payments did not in any manner accrue to the benefit
of JAL.

However, we find that the Court of Appeals correctly dismissed JAL’s

counterclaim for litigation expenses, exemplary damages and attorney’s fees. The
action was filed by respondents in utmost good faith and not manifestly frivolous.
Respondents honestly believed that JAL breached its contract. A person’s right to
litigate should not be penalized by holding him liable for damages. This is
especially true when the filing of the case is to enforce what he believes to be his
rightful claim against another although found to be erroneous. 18

WHEREFORE, in view of the foregoing, the instant petition is PARTLY

GRANTED. The October 9, 2002 decision of the Court of Appeals and its January
12, 2004 resolution in CA-G.R. CV No. 57440, are REVERSED and SET ASIDE
insofar as the finding of breach on the part of petitioner and the award of damages,
attorney’s fees and costs of the suit in favor of respondents is concerned.
Accordingly, there being no breach of contract on the part of petitioner, the award
of actual, moral and exemplary damages, as well as attorney’s fees and costs of
the suit in favor of respondents Michael and Jeanette Asuncion, is DELETED for
lack of basis. However, the dismissal for lack of merit of petitioner’s counterclaim
for litigation expenses, exemplary damages and attorney’s fees, is SUSTAINED.
No pronouncement as to costs.

SO ORDERED.
TRANSPO 94 – CANGCO VS. MRR, Supra.
TRANSPO 95
G.R. No. L-29462 March 7, 1929
IGNACIO DEL PRADO, plaintiff-appellee,
vs.
MANILA ELECTRIC CO., defendant-appellant.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by Ignacio del
Prado to recover damages in the amount of P50,000 for personal injuries alleged
to have been caused by the negligence of te defendant, the Manila Electric
Company, in the operation of one of its street cars in the City of Manila. Upon
hearing the cause the trial court awarded to the plaintiff the sum of P10,000, as
damages, with costs of suit, and the defendant appealed.
The appellant, the Manila Electric Company, is engaged in operating street cars
in the City for the conveyance of passengers; and on the morning of November
18, 1925, one Teodorico Florenciano, as appellant's motorman, was in charge of
car No. 74 running from east to west on R. Hidalgo Street, the scene of the accident
being at a point near the intersection of said street and Mendoza Street. After the
car had stopped at its appointed place for taking on and letting off passengers, just
east of the intersection, it resumed its course at a moderate speed under the
guidance of the motorman. The car had proceeded only a short distance, however,
when the plaintiff, Ignacio del Prado, ran across the street to catch the car, his
approach being made from the left. The car was of the kind having entrance and
exist at either end, and the movement of the plaintiff was so timed that he arrived
at the front entrance of the car at the moment when the car was passing.
The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends
to shows that the plaintiff, upon approaching the car, raised his hand as an
indication to the motorman of his desire to board the car, in response to which the
motorman eased up a little, without stopping. Upon this the plaintiff seized, with
his hand, the front perpendicular handspot, at the same time placing his left foot
upon the platform. However, before the plaintiff's position had become secure,
and even before his raised right foot had reached the flatform, the motorman
applied the power, with the result that the car gave a slight lurch forward. This
sudden impulse to the car caused the plaintiff's foot to slip, and his hand was jerked
loose from the handpost, He therefore fell to the ground, and his right foot was
caught and crushed by the moving car. The next day the member had to be
amputated in the hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either side with both
right and left hand. The latter statement may possibly be incorrect as regards the
use of his right hand by the plaintiff, but we are of the opinion that the finding of
the trial court to the effect that the motorman slowed up slightly as the plaintiff
was boarding the car that the plaintiff's fall was due in part at lease to a sudden
forward movement at the moment when the plaintiff put his foot on the platform
is supported by the evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff attempting to board
the car; that he did not accelerate the speed of the car as claimed by the plaintiff's
witnesses; and that he in fact knew nothing of the incident until after the plaintiff
had been hurt and some one called to him to stop. We are not convinced of the
complete candor of this statement, for we are unable to see how a motorman
operating this car could have failed to see a person boarding the car under the
circumstances revealed in this case. It must be remembered that the front handpost
which, as all witness agree, was grasped by the plaintiff in attempting to board the
car, was immediately on the left side of the motorman.
With respect to the legal aspects of the case we may observe at the outset that there
is no obligation on the part of a street railway company to stop its cars to let on
intending passengers at other points than those appointed for stoppage. In fact it
would be impossible to operate a system of street cars if a company engage in this
business were required to stop any and everywhere to take on people who were
too indolent, or who imagine themselves to be in too great a hurry, to go to the
proper places for boarding the cars. Nevertheless, although the motorman of this
car was not bound to stop to let the plaintiff on, it was his duty to do act that would
have the effect of increasing the plaintiff's peril while he was attempting to board
the car. The premature acceleration of the car was, in our opinion, a breach of this
duty.
The relation between a carrier of passengers for hire and its patrons is of a
contractual nature; and in failure on the part of the carrier to use due care in
carrying its passengers safely is a breach of duty (culpa contructual) under articles
1101, 1103 and 1104 of the Civil Code. Furthermore, the duty that the carrier of
passengers owes to its patrons extends to persons boarding the cars as well as to
those alighting therefrom. The case of Cangco vs. Manila Railroad Co. (38 Phil.,
768), supplies an instance of the violation of this duty with respect to a passenger
who was getting off of a train. In that case the plaintiff stepped off of a moving
train, while it was slowing down in a station, and at the time when it was too dark
for him to see clearly where he was putting his feet. The employees of the
company had carelessly left watermelons on the platform at the place where the
plaintiff alighted, with the result that his feet slipped and he fell under the car,
where his right arm badly injured. This court held that the railroad company was
liable for breach positive duty (culpa contractual), and the plaintiff was awarded
damages in the amount of P2,500 for the loss of his arm. In the opinion in that
case the distinction is clearly drawn between a liability for negligence arising from
breach of contructual duty and that arising articles 1902 and 1903 of the Civil
Code (culpa aquiliana).
The distiction between these two sorts of negligence is important in this
jurisdiction, for the reason that where liability arises from a mere tort (culpa
aquiliana), not involving a breach of positive obligation, an employer, or master,
may exculpate himself, under the last paragraph of article 1903 of the Civil Code,
by providing that he had exercised due degligence to prevent the damage; whereas
this defense is not available if the liability of the master arises from a breach of
contrauctual duty (culpa contractual). In the case bfore us the company pleaded
as a special defense that it had used all the deligence of a good father of a family
to prevent the damage suffered by the plaintiff; and to establish this contention the
company introduced testimony showing that due care had been used in training
and instructing the motorman in charge of this car in his art. But this proof is
irrelevant in view of the fact that the liability involved was derived from a breach
of obligation under article 1101 of the Civil Code and related provisions. (Manila
Railroad Co. vs. Compana Transatlantica and Atlantic, Gulf & Pacific Co., 38
Phil., 875, 887; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706,
710.)
Another practical difference between liability for negligence arising under 1902
of the Civil Code and liability arising from negligence in the performance of a
positive duty, under article 1101 and related provisions of the Civil Code, is that,
in dealing with the latter form of negligence, the court is given a discretion to
mitigate liability according to the circumstances of the case (art 1103). No such
general discretion is given by the Code in dealing with liability arising under
article 1902; although possibly the same end is reached by courts in dealing with
the latter form of liability because of the latitude of the considerations pertinent to
cases arising under this article.
As to the contributory negligence of the plaintiff, we are of the opinion that it
should be treated, as in Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359), as
a mitigating circumstance under article 1103 of the Civil Code. It is obvious that
the plaintiff's negligence in attempting to board the moving car was not the
proximate cause of the injury. The direct and proximate cause of the injury was
the act of appellant's motorman in putting on the power prematurely. A person
boarding a moving car must be taken to assume the risk of injury from boarding
the car under the conditions open to his view, but he cannot fairly be held to
assume the risk that the motorman, having the situation in view, will increase his
peril by accelerating the speed of the car before he is planted safely on the
platform. Again, the situation before us is one where the negligent act of the
company's servant succeeded the negligent act of the plaintiff, and the negligence
of the company must be considered the proximate cause of the injury. The rule
here applicable seems to be analogous to, if not identical with that which is
sometimes referred to as the doctrine of "the last clear chance." In accordance with
this doctrine, the contributory negligence of the party injured will not defeat the
action if it be shown that the defendant might, by the exercise of reasonable care
and prudence, have avoided the consequences of the negligence of the injured
party (20 R. C. L., p. 139; Carr vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W.,
167). The negligence of the plaintiff was, however, contributory to the accident
and must be considered as a mitigating circumstance.
With respect to the effect of this injury upon the plaintiff's earning power, we note
that, although he lost his foot, he is able to use an artificial member without great
inconvenience and his earning capacity has probably not been reduced by more
than 30 per centum. In view of the precedents found in our decisions with respect
to the damages that ought to be awarded for the loss of limb, and more particularly
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359); Cangco vs. Manila Railroad
Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad and Light Co. (44
Phil., 165), and in view of all the circumstances connected with the case, we are
of the opinion that the plaintiff will be adequately compensated by an award of
P2,500.
It being understood, therefore, that the appealed judgment is modified by reducing
the recovery to the sum of P2,500, the judgment, as thus modified, is affirmed. So
ordered, with costs against the appellant.
TRANSPO 96
G.R. No. L-20761 July 27, 1966
LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET
AL., respondents.
BARRERA, J.:
La Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R. No.
23267-R, holding it liable for quasi-delict and ordering it to pay to respondents Mariano
Beltran, et al., P6,000.00 for the death of his minor daughter Raquel Beltran, plus
P400.00 as actual damages.
The facts of the case as found by the Court of Appeals, briefly are:
On December 20, 1953, at about noontime, plaintiffs, husband and wife,
together with their minor daughters, namely, Milagros, 13 years old, Raquel,
about 4½ years old, and Fe, over 2 years old, boarded the Pambusco Bus No.
352, bearing plate TPU No. 757 (1953 Pampanga), owned and operated by
the defendant, at San Fernando, Pampanga, bound for Anao, Mexico,
Pampanga. At the time, they were carrying with them four pieces of baggages
containing their personal belonging. 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 question.
On the basis of these facts, the trial court found defendant liable for breach of contract
of carriage and sentenced it to pay P3,000.00 for the death of the child and P400.00 as
compensatory damages representing burial expenses and costs.
On appeal to the Court of Appeals, La Mallorca claimed that there could not be a breach
of contract in the case, for the reason that when the child met her death, she was no
longer a passenger of the bus involved in the incident and, therefore, the contract of
carriage had already terminated. Although the Court of Appeals sustained this theory,
it nevertheless found the defendant-appellant guilty of quasi-delict and held the latter
liable for damages, for the negligence of its driver, in accordance with Article 2180 of
the Civil Code. And, the Court of Appeals did not only find the petitioner liable, but
increased the damages awarded the plaintiffs-appellees to P6,000.00, instead of
P3,000.00 granted by the trial court.
In its brief before us, La Mallorca contends that the Court of Appeals erred (1) in
holding it liable for quasi-delict, considering that respondents complaint was one 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 bayongwhich
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.3
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.4
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.5Herein petitioner's contention, therefore, that the Court of Appeals committed
error in raising the amount of the award for damages is, evidently, meritorious.
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.
TRANSPO 97
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN,
represented by their Natural guardian, SALUD VILLANUEVA VDA. DE
BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its way to
Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about
eighteen passengers, including the driver and conductor. Among the passengers
were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated
to the right of Bataclan, another passenger apparently from the Visayan Islands
whom the witnesses just called Visaya, apparently not knowing his name, seated
in the left side of the driver, and a woman named Natalia Villanueva, seated just
behind the four last mentioned. At about 2:00 o'clock that same morning, while
the bus was running within the jurisdiction of Imus, Cavite, one of the front tires
burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right
side of the road and turned turtle. Some of the passengers managed to leave the
bus the best way they could, others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan, Lara and the Visayan and
the woman behind them named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had clambered up to the road,
heard groans and moans from inside the bus, particularly, shouts for help from
Bataclan and Lara, who said they could not get out of the bus. There is nothing in
the evidence to show whether or not the passengers already free from the wreck,
including the driver and the conductor, made any attempt to pull out or extricate
and rescue the four passengers trapped inside the vehicle, but calls or shouts for
help were made to the houses in the neighborhood. After half an hour, came about
ten men, one of them carrying a lighted torch made of bamboo with a wick on one
end, evidently fueled with petroleum. These men presumably approach the
overturned bus, and almost immediately, a fierce fire started, burning and all but
consuming the bus, including the four passengers trapped inside it. It would appear
that as the bus overturned, gasoline began to leak and escape from the gasoline
tank on the side of the chassis, spreading over and permeating the body of the bus
and the ground under and around it, and that the lighted torch brought by one of
the men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers inside the bus
were removed and duly identified that of Juan Bataclan. By reason of his death,
his widow, Salud Villanueva, in her name and in behalf of her five minor children,
brought the present suit to recover from Mariano Medina compensatory, moral,
and exemplary damages and attorney's fees in the total amount of P87,150. After
trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus
P600 as attorney's fee, plus P100, the value of the merchandise being carried by
Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and
the defendants appealed the decision to the Court of Appeals, but the latter
endorsed the appeal to us because of the value involved in the claim in the
complaint.
Our new Civil Code amply provides for the responsibility of common carrier to
its passengers and their goods. For purposes of reference, we are reproducing the
pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra
ordinary 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 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
ART. 1759. Common carriers are liable for the death of or injuries 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 order 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.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other passengers or
of strangers, if the common carrier's employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act
or omission.
We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to carry
Bataclan safely to his destination, Pasay City. We also agree with the trial court
that there was negligence on the part of the defendant, through his agent, the driver
Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that
according to the testimony of the witnesses, including that of the defense, from
the point where one of the front tires burst up to the canal where the bus overturned
after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the
blow-out, must have applied the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is liable.
The only question is to what degree. The trial court was of the opinion that the
proximate cause of the death of Bataclan was not the overturning of the bus, but
rather, the fire that burned the bus, including himself and his co-passengers who
were unable to leave it; that at the time the fire started, Bataclan, though he must
have suffered physical injuries, perhaps serious, was still alive, and so damages
were awarded, not for his death, but for the physical injuries suffered by him. We
disagree. A satisfactory definition of proximate cause is found in Volume 38,
pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their
brief. It is as follows:
. . . 'that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result
would not have occurred.' And more comprehensively, 'the proximate legal
cause is that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and continuous chain
of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an
ordinary prudent and intelligent person, have reasonable ground to expect at
the moment of his act or default that an injury to some person might probably
result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down a
passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by lightning,
or if some highwaymen after looting the vehicle sets it on fire, and the passenger
is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under
the circumstances obtaining in the same, we do not hesitate to hold that the
proximate cause was the overturning of the bus, this for the reason that when the
vehicle turned not only on its side but completely on its back, the leaking of the
gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the
passengers, but most probably, by the driver and the conductor themselves, and
that because it was dark (about 2:30 in the morning), the rescuers had to carry a
light with them, and coming as they did from a rural area where lanterns and
flashlights were not available; and what was more natural than that said rescuers
should innocently approach the vehicle to extend the aid and effect the rescue
requested from them. In other words, the coming of the men with a torch was to
be expected and was a natural sequence of the overturning of the bus, the trapping
of some of its passengers and the call for outside help. What is more, the burning
of the bus can also in part be attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and
must have known that in the position in which the overturned bus was, gasoline
could and must have leaked from the gasoline tank and soaked the area in and
around the bus, this aside from the fact that gasoline when spilled, specially over
a large area, can be smelt and directed even from a distance, and yet neither the
driver nor the conductor would appear to have cautioned or taken steps to warn
the rescuers not to bring the lighted torch too near the bus. Said negligence on the
part of the agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the earning
capacity of the deceased, as well as the other elements entering into a damage
award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS
would constitute satisfactory compensation, this to include compensatory, moral,
and other damages. We also believe that plaintiffs are entitled to attorney's fees,
and assessing the legal services rendered by plaintiffs' attorneys not only in the
trial court, but also in the course of the appeal, and not losing sight of the able
briefs prepared by them, the attorney's fees may well be fixed at EIGHT
HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in
the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According
to the evidence, one of the passengers who, because of the injuries suffered by
her, was hospitalized, and while in the hospital, she was visited by the defendant
Mariano Medina, and in the course of his visit, she overheard him speaking to one
of his bus inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of fact, he had
been telling the driver to change the said tires, but that the driver did not follow
his instructions. If this be true, it goes to prove that the driver had not been diligent
and had not taken the necessary precautions to insure the safety of his passengers.
Had he changed the tires, specially those in front, with new ones, as he had been
instructed to do, probably, despite his speeding, as we have already stated, the
blow out would not have occurred. All in all, there is reason to believe that the
driver operated and drove his vehicle negligently, resulting in the death of four of
his passengers, physical injuries to others, and the complete loss and destruction
of their goods, and yet the criminal case against him, on motion of the fiscal and
with his consent, was provisionally dismissed, because according to the fiscal, the
witnesses on whose testimony he was banking to support the complaint, either
failed or appear or were reluctant to testify. But the record of the case before us
shows the several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the public interest
the prosecution of said erring driver should be pursued, this, not only as a matter
of justice, but for the promotion of the safety of passengers on public utility buses.
Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the
trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX
THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT
HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees,
respectively, the decision appealed is from hereby affirmed, with costs.
TRANSPO 98 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.
G.R. No. 84458 November 6, 1989

In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was ordered
ABOITIZ SHIPPING CORPORATION, petitioner,
to pay the Vianas for damages incurred, and Pioneer was ordered to reimburse
vs.
Aboitiz for whatever amount the latter paid the Vianas. The dispositive portion of
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C.
said decision provides:
VIANA, SPS. ANTONIO VIANA and GORGONIA VIANA, and PIONEER
STEVEDORING CORPORATION, respondents.
WHEREFORE, judgment is hereby rendered in favor of the plantiffs:
REGALADO, J.:
(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
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review
damages; P533,200.00 value of the 10,664 cavans of palay computed at
of the decision 1 of respondent Court of Appeals, dated July 29, 1988, the decretal
P50.00 per cavan; P10,000.00 as attorney's fees; F 5,000.00, value of the 100
portion of which reads:
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;
WHEREFORE, the judgment appealed from as modified by the order of P7,200.00 as support for deceased's parents computed at P120.00 a month for
October 27, 1982, is hereby affirmed with the modification that appellant five years pursuant to Art. 2206, Par. 2, of the Civil Code; P20,000.00 as
Aboitiz Shipping is hereby ordered to pay plaintiff-appellees the amount of moral damages, and costs; and
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
(2) ordering the third party defendant Pioneer Stevedoring Corporation to
parents; P20,000.00 as moral damages; P10,000.00 as attorney's fees; and to
reimburse defendant and third party plaintiff Aboitiz Shipping Corporation
pay the costs.
the said amounts that it is ordered to pay to herein plaintiffs.

The undisputed facts of the case, as found by the court a quo and adopted by
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein they
respondent court, are as follows: .
similarly raised the trial court's failure to declare that Anacleto Viana acted with
gross negligence despite the overwhelming evidence presented in support thereof.
The evidence disclosed that on May 11, 1975, Anacleto Viana boarded the In addition, Aboitiz alleged, in opposition to Pioneer's motion, that under the
vessel M/V Antonia, owned by defendant, at the port at San Jose, Occidental memorandum of agreement the liability of Pioneer as contractor is automatic for
Mindoro, bound for Manila, having purchased a ticket (No. 117392) in the any damages or losses whatsoever occasioned by and arising from the operation
sum of P23.10 (Exh. 'B'). On May 12, 1975, said vessel arrived at Pier 4, of its arrastre and stevedoring service.
North Harbor, Manila, and the passengers therein disembarked, a gangplank
having been provided connecting the side of the vessel to the pier. Instead of
In an order dated October 27, 1982, 8 the trial court absolved Pioneer from liability
using said gangplank Anacleto Viana disembarked on the third deck which
for failure of the Vianas and Aboitiz to preponderantly establish a case of
was on the level with the pier. After said vessel had landed, the Pioneer
negligence against the crane operator which the court a quo ruled is never
Stevedoring Corporation took over the exclusive control of the cargoes loaded
presumed, aside from the fact that the memorandum of agreement supposedly
on said vessel pursuant to the Memorandum of Agreement dated July 26,
refers only to Pioneer's liability in case of loss or damage to goods handled by it
1975 (Exh. '2') between the third party defendant Pioneer Stevedoring
but not in the case of personal injuries, and, finally that Aboitiz cannot properly
Corporation and defendant Aboitiz Shipping Corporation.
invoke the fellow-servant rule simply because its liability stems from a breach of
contract of carriage. The dispositive portion of said order reads:
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
WHEREFORE, judgment is hereby modified insofar as third party defendant
after the passengers of said vessel had disembarked, it started operation by
Pioneer Stevedoring Corporation is concerned rendered in favor of the
unloading the cargoes from said vessel. While the crane was being operated,
plaintiffs-,:
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 (1) Ordering defendant Aboitiz Shipping Corporation to pay the plaintiffs the
vessel to the place where his cargoes were loaded that the crane hit him, sum of P12,000.00 for the death of Anacleto Viana; P9,000.00 (sic) as actual
pinning him between the side of the vessel and the crane. He was thereafter damages; P533,200.00 value of the 10,664 cavans of palay computed at
brought to the hospital where he later expired three (3) days thereafter, on P50.00 per cavan; P10,000.00 as attorney's fees; P5,000.00 value of the 100
May 15, 1975, the cause of his death according to the Death Certificate (Exh. cavans of palay as support for five (5) years for deceased's parents, herein
"C") being "hypostatic pneumonia secondary to traumatic fracture of the plaintiffs Antonio and Gorgonia Viana,computed at P50.00 per cavan;
pubic bone lacerating the urinary bladder" (See also Exh. "B"). For his P7,200.00 as support for deceased's parents computed at P120.00 a month for
hospitalization, medical, burial and other miscellaneous expenses, Anacleto's five years pursuant to Art. 2206, Par. 2, of the Civil Code; P20,000.00 as
wife, herein plaintiff, spent a total of P9,800.00 (Exhibits "E", "E-1", to "E- moral damages, and costs; and
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
(2) Absolving third-party defendant Pioneer Stevedoring Corporation for (sic)
a farmer or a farm supervisor was 400 cavans of palay annually. His parents,
any liability for the death of Anacleto Viana the passenger of M/V Antonia
herein plaintiffs Antonio and Gorgonia Viana, prior to his death had been
owned by defendant third party plaintiff Aboitiz Shipping Corporation it
recipient of twenty (20) cavans of palay as support or P120.00 monthly.
appearing that the negligence of its crane operator has not been established
Because of Anacleto's death, plaintiffs suffered mental anguish and extreme
therein.
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. 2
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
Private respondents Vianas filed a complaint 3 for damages against petitioner
court except as to the amount of damages awarded to the Vianas.
corporation (Aboitiz, for brevity) for breach of contract of carriage.

Hence, this petition wherein petitioner Aboitiz postulates that respondent court
In its answer. 4 Aboitiz denied responsibility contending that at the time of the
erred:
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 (A) In holding that the doctrine laid down by this honorable Court in La
Aboitiz. It is also averred that since the crane operator was not an employee of Mallorca vs. Court of Appeals, et al. (17 SCRA 739, July 27, 1966) is
Aboitiz, the latter cannot be held liable under the fellow-servant rule. 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;
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 (B) In holding petitioner liable for damages in the face of the finding of the
Pioneer under its exclusive control and supervision. 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
Pioneer, in its answer to the third-party complaint, 6 raised the defenses that
his death; specifically the honorable respondent Court of Appeals failed to
Aboitiz had no cause of action against Pioneer considering that Aboitiz is being
apply Art. 1762 of the New Civil Code;
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 (C) In the alternative assuming the holding of the Honorable respondent Court
damage or injury to anyone including the victim Anacleto Viana; that Anacleto of Appears that petitioner may be legally condemned to pay damages to the
Viana's gross negligence was the direct and proximate cause of his death; and that 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.13
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. 14
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.
II. 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, 18which, 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.

WHEREFORE, the petition is DENIED and the judgment appealed from is hereby
AFFIRMED in toto.

SO ORDERED.
TRANSPO 99
G.R. No. L-82619 September 15, 1993
PHILIPPINE AIRLINES, INC., petitioner,
vs.
COURT OF APPEALS and PEDRO ZAPATOS, respondents.
BELLOSILLO, J.:
This petition for review in certiorari seeks to annul and set aside the decision of
the then Intermediate Appellant Court,1 now Court of Appeals, dated 28 February
1985, in AC-G.R. CV No. 69327 ("Pedro Zapatos v. Philippine Airlines, Inc.")
affirming the decision of the then Court of first Instance, now Regional Trial
Court, declaring Philippine Airlines, Inc., liable in damages for breach of contract.
On 25 November 1976, private respondent filed a complaint for damages for
breach of contract of carriage2 against Philippine Airlines, Inc. (PAL), before the
then Court of First Instance, now Regional Trial Court, of Misamis Occidental, at
Ozamiz City. According to him, on 2 August 1976, he was among the twenty-one
(21) passengers of PAL Flight 477 that took off from Cebu bound for Ozamiz
City. The routing of this flight was Cebu-Ozamiz-Cotabato. While on flight and
just about fifteen (15) minutes before landing at Ozamiz City, the pilot received a
radio message that the airport was closed due to heavy rains and inclement weather
and that he should proceed to Cotabato City instead.
Upon arrival at Cotabato City, the PAL Station Agent informed the passengers of
their options to return to Cebu on flight 560 of the same day and thence to Ozamiz
City on 4 August 1975, or take the next flight to Cebu the following day, or remain
at Cotabato and take the next available flight to Ozamiz City on 5 August
1975.3 The Station Agent likewise informed them that Flight 560 bound for
Manila would make a stop-over at Cebu to bring some of the diverted passengers;
that there were only six (6) seats available as there were already confirmed
passengers for Manila; and, that the basis for priority would be the check-in
sequence at Cebu.
Private respondent chose to return to Cebu but was not accommodated because he
checked-in as passenger No. 9 on Flight 477. He insisted on being given priority
over the confirmed passengers in the accommodation, but the Station Agent
refused private respondent's demand explaining that the latter's predicament was
not due to PAL's own doing but to be a force majeure.4
Private respondent tried to stop the departure of Flight 560 as his personal
belongings, including a package containing a camera which a certain Miwa from
Japan asked him to deliver to Mrs. Fe Obid of Gingoog City, were still on board.
His plea fell on deaf ears. PAL then issued to private respondent a free ticket to
Iligan city, which the latter received under protest.5 Private respondent was left at
the airport and could not even hitch a ride in the Ford Fiera loaded with PAL
personnel.6 PAL neither provided private respondent with transportation from the
airport to the city proper nor food and accommodation for his stay in Cotabato
City.
The following day, private respondent purchased a PAL ticket to Iligan City. He
informed PAL personnel that he would not use the free ticket because he was filing
a case against PAL.7 In Iligan City, private respondent hired a car from the airport
to Kolambugan, Lanao del Norte, reaching Ozamiz City by crossing the bay in a
launch.8 His personal effects including the camera, which were valued at
P2,000.00 were no longer recovered.
On 13 January 1977, PAL filed its answer denying that it unjustifiably refused to
accommodate private respondent.9It alleged that there was simply no more seat
for private respondent on Flight 560 since there were only six (6) seats available
and the priority of accommodation on Flight 560 was based on the check-in
sequence in Cebu; that the first six (6) priority passengers on Flight 477 chose to
take Flight 560; that its Station Agent explained in a courteous and polite manner
to all passengers the reason for PAL's inability to transport all of them back to
Cebu; that the stranded passengers agreed to avail of the options and had their
respective tickets exchanged for their onward trips; that it was
only the private respondent who insisted on being given priority in the
accommodation; that pieces of checked-in baggage and had carried items of the
Ozamiz City passengers were removed from the aircraft; that the reason for their
pilot's inability to land at Ozamis City airport was because the runway was wet
due to rains thus posing a threat to the safety of both passengers and aircraft; and,
that such reason of force majeure was a valid justification for the pilot to bypass
Ozamiz City and proceed directly to Cotabato City.
On 4 June 1981, the trial court rendered its decision 10 the dispositive portion of
which states:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendant Philippine AirLines, Inc. ordering the latter to pay:
(1) As actual damages, the sum of Two Hundred Pesos (P200.00)
representing plaintiff's expenses for transportation, food and accommodation
during his stranded stay at Cotabato City; the sum of Forty-Eight Pesos
(P48.00) representing his flight fare from Cotabato City to Iligan city; the sum
of Five Hundred Pesos (P500.00) representing plaintiff's transportation
expenses from Iligan City to Ozamiz City; and the sum of Five Thousand
Pesos (P5,000.00) as loss of business opportunities during his stranded stay
in Cotabato City;
(2) As moral damages, the sum of Fifty Thousand Pesos (P50,000.00) for
plaintiff's hurt feelings, serious anxiety, mental anguish and unkind and
discourteous treatment perpetrated by defendant's employees during his stay
as stranded passenger in Cotabato City;
(3) As exemplary damages, the sum of Ten Thousand Pesos (P10,000.00) to
set a precedent to the defendant airline that it shall provide means to give
comfort and convenience to stranded passengers;
(4) The sum of Three Thousand Pesos (P3,000.00) as attorney's fees;
(5) To pay the costs of this suit.
PAL appealed to the Court of Appeals which on 28 February 1985, finding no
reversible error, affirmed the judgment of the court a quo. 11
PAL then sought recourse to this Court by way of a petition for review
on certiorari 12 upon the following issues: (1) Can the Court of Appeals render a
decision finding petitioner (then defendant-appellant in the court below) negligent
and, consequently, liable for damages on a question of substance which was
neither raised on a question nor proved at the trial? (2) Can the Court of Appeals
award actual and moral damages contrary to the evidence and established
jurisprudence? 13
An assiduous examination of the records yields no valid reason for reversal of the
judgment on appeal; only a modification of its disposition.
In its petition, PAL vigorously maintains that private respondent's principal cause
of action was its alleged denial of private respondent's demand for priority over
the confirmed passengers on Flight 560. Likewise, PAL points out that the
complaint did not impute to PAL neglect in failing to attend to the needs of the
diverted passengers; and, that the question of negligence was not and never put in
issue by the pleadings or proved at the trial.
Contrary to the above arguments, private respondent's amended complaint
touched on PAL's indifference and inattention to his predicament. The pertinent
portion of the amended complaint 14 reads:
10. That by virtue of the refusal of the defendant through its agent in Cotabato
to accommodate (sic) and allow the plaintiff to take and board the plane back
to Cebu, and by accomodating (sic) and allowing passengers from Cotabato
for Cebu in his stead and place, thus forcing the plaintiff against his will, to
be left and stranded in Cotabato, exposed to the peril and danger of muslim
rebels plundering at the time, the plaintiff, as a consequence, (have) suffered
mental anguish, mental torture, social humiliation, bismirched reputation and
wounded feeling, all amounting to a conservative amount of thirty thousand
(P30,000.00) Pesos.
To substantiate this aspect of apathy, private respondent testified 15
A I did not even notice that I was I think the last passenger or the last
person out of the PAL employees and army personnel that were left there.
I did not notice that when I was already outside of the building after our
conversation.
Q What did you do next?
A I banished (sic) because it seems that there was a war not far from the
airport. The sound of guns and the soldiers were plenty.
Q After that what did you do?
A I tried to look for a transportation that could bring me down to the City
of Cotabato.
Q Were you able to go there?
A I was at about 7:00 o'clock in the evening more or less and it was a
private jeep that I boarded. I was even questioned why I and who am (sic)
I then. Then I explained my side that I am (sic) stranded passenger. Then
they brought me downtown at Cotabato.
Q During your conversation with the Manager were you not offered any
vehicle or transportation to Cotabato airport downtown?
A In fact I told him (Manager) now I am by-passed passenger here which
is not my destination what can you offer me. Then they answered, "it is
not my fault. Let us forget that."
Q In other words when the Manager told you that offer was there a
vehicle ready?
A Not yet. Not long after that the Ford Fiera loaded with PAL personnel
was passing by going to the City of Cotabato and I stopped it to take me
a ride because there was no more available transportation but I was not
accommodated.
Significantly, PAL did not seem to mind the introduction of evidence which
focused on its alleged negligence in caring for its stranded passengers. Well-
settled is the rule in evidence that the protest or objection against the admission of
evidence should be presented at the time the evidence is offered, and that the
proper time to make protest or objection to the admissibility of evidence is when defendant airline could have prevented, defendant becomes liable to
the question is presented to the witness or at the time the answer thereto is plaintiff. 23
given. 16 There being no objection, such evidence becomes property of the case
and all the parties are amenable to any favorable or unfavorable effects resulting
While we find PAL remiss in its duty of extending utmost care to private
from the evidence. 17
respondent while being stranded in Cotabato City, there is no sufficient basis to
conclude that PAL failed to inform him about his non-accommodation on Flight
PAL instead attempted to rebut the aforequoted testimony. In the process, it failed 560, or that it was inattentive to his queries relative thereto.
to substantiate its counter allegation for want of concrete proof 18 —
On 3 August 1975, the Station Agent reported to his Branch Manager in Cotabato
Atty. Rubin O. Rivera — PAL's counsel: City that —
Q You said PAL refused to help you when you were in Cotabato, is that
right?
3. Of the fifteen stranded passengers two pax elected to take F478 on August
Private respondent:
05, three pax opted to take F442 August 03. The remaining ten (10) including
A Yes.
subject requested that they be instead accommodated (sic) on F446 CBO-IGN
Q Did you ask them to help you regarding any offer of transportation or
the following day where they intended to take the surface transportation to
of any other matter asked of them?
OZC. Mr. Pedro Zapatos had by then been very vocal and boiceterous (sic) at
A Yes, he (PAL PERSONNEL) said what is? It is not our fault.
the counter and we tactfully managed to steer him inside the Station Agent's
Q Are you not aware that one fellow passenger even claimed that he was
office. Mr. Pedro Zapatos then adamantly insisted that all the diverted
given Hotel accommodation because they have no money?
passengers should have been given priority over the originating passengers of
xxx xxx xxx
F560 whether confirmed or otherwise. We explained our policies and after
A No, sir, that was never offered to me. I said, I tried to stop them but
awhile he seemed pacified and thereafter took his ticket (in-lieued (sic) to
they were already riding that PAL pick-up jeep, and I was not
CBO-IGN, COCON basis), at the counter in the presence of five other
accommodated.
passengers who were waiting for their tickets too. The rest of the diverted pax
had left earlier after being assured their tickets will be ready the following
Having joined in the issue over the alleged lack of care it exhibited towards its day. 24
passengers, PAL cannot now turn around and feign surprise at the outcome of the
case. When issues not raised by the pleadings are tried by express or implied
Aforesaid Report being an entry in the course of business is prima facie evidence
consent of the parties, they shall be treated in all respects as if they had been raised
of the facts therein stated. Private respondent, apart from his testimony, did not
in the pleadings. 19
offer any controverting evidence. If indeed PAL omitted to give information about
the options available to its diverted passengers, it would have been deluged with
With regard to the award of damages affirmed by the appellate court, PAL argues complaints. But, only private respondent complained —
that the same is unfounded. It asserts that it should not be charged with the task of
looking after the passengers' comfort and convenience because the diversion of
Atty. Rivera (for PAL)
the flight was due to a fortuitous event, and that if made liable, an added burden
Q I understand from you Mr. Zapatos that at the time you were waiting
is given to PAL which is over and beyond its duties under the contract of carriage.
at Cotabato Airport for the decision of PAL, you were not informed of
It submits that granting arguendo that negligence exists, PAL cannot be liable in
the decision until after the airplane left is that correct?
damages in the absence of fraud or bad faith; that private respondent failed to
A Yes.
apprise PAL of the nature of his trip and possible business losses; and, that private
COURT:
respondent himself is to be blamed for unreasonably refusing to use the free ticket
Q What do you mean by "yes"? You meant you were not informed?
which PAL issued.
A Yes, I was not informed of their decision, that they will only
accommodate few passengers.
The contract of air carriage is a peculiar one. Being imbued with public interest, Q Aside from you there were many other stranded passengers?
the law requires common carriers to carry the passengers safely as far as human A I believed, yes.
care and foresight can provide, using the utmost diligence of very cautious Q And you want us to believe that PAL did not explain (to) any of these
persons, with due regard for all the circumstances. 20 In Air France passengers about the decision regarding those who will board the aircraft
v. Carrascoso, 21 we held that — back to Cebu?
A No, Sir.
Q Despite these facts Mr. Zapatos did any of the other passengers
A contract to transport passengers is quite different in kind and degree from
complained (sic) regarding that incident?
any other contractual relation. And this, because of the relation which an air
xxx xxx xxx
carrier sustains with the public. Its business is mainly with the travelling
A There were plenty of argument and I was one of those talking about
public. It invites people to avail of the comforts and advantages it offers. The
my case.
contract of air carriage, therefore, generates a relation attended with a public
Q Did you hear anybody complained (sic) that he has not been informed
duty . . . . ( emphasis supplied).
of the decision before the plane left for Cebu?
A No. 25
The position taken by PAL in this case clearly illustrates its failure to grasp the
exacting standard required by law. Undisputably, PAL's diversion of its flight due
Admittedly, private respondent's insistence on being given priority in
to inclement weather was a fortuitous event. Nonetheless, such occurrence did not
accommodation was unreasonable considering the fortuitous event and that there
terminate PAL's contract with its passengers. Being in the business of air carriage
was a sequence to be observed in the booking, i.e., in the order the passengers
and the sole one to operate in the country, PAL is deemed equipped to deal with
checked-in at their port of origin. His intransigence in fact was the main cause for
situations as in the case at bar. What we said in one case once again must be
his having to stay at the airport longer than was necessary.
stressed, i.e., the relation of carrier and passenger continues until the latter has
been landed at the port of destination and has left the carrier's premises. 22 Hence,
PAL necessarily would still have to exercise extraordinary diligence in Atty. Rivera:
safeguarding the comfort, convenience and safety of its stranded passengers until Q And, you were saying that despite the fact that according to your
they have reached their final destination. On this score, PAL grossly failed testimony there were at least 16 passengers who were stranded there in
considering the then ongoing battle between government forces and Muslim rebels Cotabato airport according to your testimony, and later you said that there
in Cotabato City and the fact that the private respondent was a stranger to the were no other people left there at that time, is that correct?
place. As the appellate court correctly ruled — A Yes, I did not see anyone there around. I think I was the only civilian
who was left there.
Q Why is it that it took you long time to leave that place?
While the failure of plaintiff in the first instance to reach his destination at
A Because I was arguing with the PAL personnel. 26
Ozamis City in accordance with the contract of carriage was due to the closure
of the airport on account of rain and inclement weather which was radioed to
defendant 15 minutes before landing, it has not been disputed by defendant Anent the plaint that PAL employees were disrespectful and inattentive toward
airline that Ozamis City has no all-weather airport and has to cancel its flight private respondent, the records are bereft of evidence to support the same. Thus,
to Ozamis City or by-pass it in the event of inclement weather. Knowing this the ruling of respondent Court of Appeals in this regard is without basis. 27 On the
fact, it becomes the duty of defendant to provide all means of comfort and contrary, private respondent was attended to not only by the personnel of PAL but
convenience to its passengers when they would have to be left in a strange also by its Manager." 28
place in case of such by-passing. The steps taken by defendant airline
company towards this end has not been put in evidence, especially for those
In the light of these findings, we find the award of moral damages of Fifty
7 others who were not accommodated in the return trip to Cebu, only 6 of the
Thousand Pesos (P50,000.00) unreasonably excessive; hence, we reduce the same
21 having been so accommodated. It appears that plaintiff had to leave on the
to Ten Thousand Pesos (P10,000.00). Conformably herewith, the award of
next flight 2 days later. If the cause of non-fulfillment of the contract is due
exemplary damages is also reduced to five Thousand Pesos (5,000.00). Moral
to a fortuitous event, it has to be the sole and only cause (Art. 1755 CC., Art.
damages are not intended to enrich the private respondent. They are awarded only
1733 C.C.) Since part of the failure to comply with the obligation of common
to enable the injured party to obtain means, diversion or amusements that will
carrier to deliver its passengers safely to their destination lay in the
serve to alleviate the moral suffering he has undergone by reason of the
defendant's failure to provide comfort and convenience to its stranded
defendant's culpable action. 29
passengers using extra-ordinary diligence, the cause of non-fulfillment is not
solely and exclusively due to fortuitous event, but due to something which
With regard to the award of actual damages in the amount of P5,000.00
representing private respondent's alleged business losses occasioned by his stay at
Cotabato City, we find the same unwarranted. Private respondent's testimony that
he had a scheduled business "transaction of shark liver oil supposedly to have been
consummated on August 3, 1975 in the morning" and that "since (private
respondent) was out for nearly two weeks I missed to buy about 10 barrels of shark
liver oil,"30 are purely speculative. Actual or compensatory damages cannot be
presumed but must be duly proved with reasonable degree of certainty. A court
cannot rely on speculation, conjecture or guesswork as to the fact and amount of
damages, but must depend upon competent proof that they have suffered and on
evidence of the actual amount thereof. 31

WHEREFORE the decision appealed from is AFFIRMED with modification

however that the award of moral damages of Fifty Thousand Pesos (P50,000.00)
is reduced to Ten Thousand Pesos (P10,000.00) while the exemplary damages of
Ten Thousand Pesos (P10,000.00) is also reduced to Five Thousand Pesos
(P5,000.00). The award of actual damages in the amount Five Thousand Pesos
(P5,000.00) representing business losses occasioned by private respondent's being
stranded in Cotabato City is deleted.

SO ORDERED.
TRANSPO 100
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.
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).i•t•c-aüsl
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 Español, 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
Española 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 Española, 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.).
 attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-
In the light of the foregoing, the negligence of the common carrier, through appellants Ricardo and Sergia Beter as heirs of their son Ornominio are
its employees, consisted of the lack of extraordinary diligence required of entitled to an indemnity of Seventy Five Thousand Pesos (P75,000.00).
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
In the case of Narcisa Rautraut, her heirs are entitled to a straight death
of the doors of the bus while the same was travelling at an appreciably fast
indemnity of Thirty Thousand Pesos (P30,000.00), to moral damages in the
speed. At the same time, the common carrier itself acknowledged, through its
amount of Ten Thousand Pesos (P10,000.00) and Five Thousand Pesos
administrative officer, Benjamin Granada, that the bus was commissioned to
(P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos
travel and take on passengers and the public at large, while equipped with
(P45,000.00) as total indemnity for her death in the absence of any evidence
only a solitary door for a bus its size and loading capacity, in contravention
that she had visible means of support. (Rollo, pp. 30-31)
of rules and regulations provided for under the Land Transportation and
Traffic Code (RA 4136 as amended.) (Rollo, pp. 23-26)
WHEREFORE, the instant petition is DISMISSED. The questioned decision
dated May 19, 1988 and the resolution dated August 1, 1988 of the Court of
Considering the factual findings of the Court of Appeals-the bus driver did not
Appeals are AFFIRMED.
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 SO ORDERED.
after people had already fallen off the bus; and the bus was not properly equipped
with doors in accordance with law-it is clear that the petitioners have failed to
overcome the presumption of fault and negligence found in the law governing
common carriers.

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

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

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

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

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

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

As the formula adopted in the case of Davila v. Philippine Air Lines, 49

SCRA 497, at the age of 30 one's normal life expectancy is 33-1/3 years based
on the American Expectancy Table of Mortality (2/3 x 80-32).i•t•c-aüsl 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
TRANSPO 101
G.R. No. 113003 October 17, 1997
ALBERTA YOBIDO and CRESENCIO YOBIDO, petitioners,
vs.
COURT OF APPEALS, LENY TUMBOY, ARDEE TUMBOY and JASMIN
TUMBOY, respondents.
ROMERO, J.:
In this petition for review on certiorari of the decision of the Court of Appeals,
the issue is whether or not the explosion of a newly installed tire of a passenger
vehicle is a fortuitous event that exempts the carrier from liability for the death of
a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy and their minor children
named Ardee and Jasmin, bearded at Mangagoy, Surigao del Sur, a Yobido Liner
bus bound for Davao City. Along Picop Road in Km. 17, Sta. Maria, Agusan del
Sur, the left front tire of the bus exploded. The bus fell into a ravine around three
(3) feet from the road and struck a tree. The incident resulted in the death of 28-
year-old Tito Tumboy and physical injuries to other passengers.
On November 21, 1988, a complaint for breach of contract of carriage, damages
and attorney's fees was filed by Leny and her children against Alberta Yobido, the
owner of the bus, and Cresencio Yobido, its driver, before the Regional Trial
Court of Davao City. When the defendants therein filed their answer to the
complaint, they raised the affirmative defense of caso fortuito. They also filed a
third-party complaint against Philippine Phoenix Surety and Insurance, Inc. This
third-party defendant filed an answer with compulsory counterclaim. At the pre-
trial conference, the parties agreed to a stipulation of facts.1
Upon a finding that the third party defendant was not liable under the insurance
contract, the lower court dismissed the third party complaint. No amicable
settlement having been arrived at by the parties, trial on the merits ensued.
The plaintiffs asserted that violation of the contract of carriage between them and
the defendants was brought about by the driver's failure to exercise the diligence
required of the carrier in transporting passengers safely to their place of
destination. According to Leny Tumboy, the bus left Mangagoy at 3:00 o'clock in
the afternoon. The winding road it traversed was not cemented and was wet due
to the rain; it was rough with crushed rocks. The bus which was full of passengers
had cargoes on top. Since it was "running fast," she cautioned the driver to slow
down but he merely stared at her through the mirror. At around 3:30 p.m., in
Trento, she heard something explode and immediately, the bus fell into a ravine.
For their part, the defendants tried to establish that the accident was due to a
fortuitous event. Abundio Salce, who was the bus conductor when the incident
happened, testified that the 42-seater bus was not full as there were only 32
passengers, such that he himself managed to get a seat. He added that the bus was
running at a speed of "60 to 50" and that it was going slow because of the zigzag
road. He affirmed that the left front tire that exploded was a "brand new tire" that
he mounted on the bus on April 21, 1988 or only five (5) days before the incident.
The Yobido Liner secretary, Minerva Fernando, bought the new Goodyear tire
from Davao Toyo Parts on April 20, 1988 and she was present when it was
mounted on the bus by Salce. She stated that all driver applicants in Yobido Liner
underwent actual driving tests before they were employed. Defendant Cresencio
Yobido underwent such test and submitted his professional driver's license and
clearances from the barangay, the fiscal and the police.
On August 29, 1991, the lower court rendered a decision 2 dismissing the action
for lack of merit. On the issue of whether or not the tire blowout was a caso
fortuito, it found that "the falling of the bus to the cliff was a result of no other
outside factor than the tire blow-out." It held that the ruling in the La Mallorca
and Pampanga Bus Co. v. De Jesus3 that a tire blowout is "a mechanical defect of
the conveyance or a fault in its equipment which was easily discoverable if the
bus had been subjected to a more thorough or rigid check-up before it took to the
road that morning" is inapplicable to this case. It reasoned out that in said case, it
was found that the blowout was caused by the established fact that the inner tube
of the left front tire "was pressed between the inner circle of the left wheel and the
rim which had slipped out of the wheel." In this case, however, "the cause of the
explosion remains a mystery until at present." As such, the court added, the tire
blowout was "a caso fortuito which is completely an extraordinary circumstance
independent of the will" of the defendants who should be relieved of "whatever
liability the plaintiffs may have suffered by reason of the explosion pursuant to
Article 11744 of the Civil Code."
Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed to the
lower court the following errors: (a) finding that the tire blowout was a caso
fortuito; (b) failing to hold that the defendants did not exercise utmost and/or
extraordinary diligence required of carriers under Article 1755 of the Civil Code,
and (c) deciding the case contrary to the ruling in Juntilla v. Fontanar,5 and
Necesito v. Paras.6
On August 23, 1993, the Court of Appeals rendered the Decision7 reversing that
of the lower court. It held that:
To Our mind, the explosion of the tire is not in itself a fortuitous event. The
cause of the blow-out, if due to a factory defect, improper mounting,
excessive tire pressure, is not an unavoidable event. On the other hand, there
may have been adverse conditions on the road that were unforeseeable and/or
inevitable, which could make the blow-out a caso fortuito. The fact that the
cause of the blow-out was not known does not relieve the carrier of liability.
Owing to the statutory presumption of negligence against the carrier and its
obligation to exercise the utmost diligence of very cautious persons to carry
the passenger safely as far as human care and foresight can provide, it is the
burden of the defendants to prove that the cause of the blow-out was a
fortuitous event. It is not incumbent upon the plaintiff to prove that the cause
of the blow-out is not caso-fortuito.
Proving that the tire that exploded is a new Goodyear tire is not sufficient to
discharge defendants' burden. As enunciated in Necesito vs. Paras, the
passenger has neither choice nor control over the carrier in the selection and
use of its equipment, and the good repute of the manufacturer will not
necessarily relieve the carrier from liability.
Moreover, there is evidence that the bus was moving fast, and the road was
wet and rough. The driver could have explained that the blow-out that
precipitated the accident that caused the death of Toto Tumboy could not have
been prevented even if he had exercised due care to avoid the same, but he
was not presented as witness.
The Court of Appeals thus disposed of the appeal as follows:
WHEREFORE, the judgment of the court a quo is set aside and another one
entered ordering defendants to pay plaintiffs the sum of P50,000.00 for the
death of Tito Tumboy, P30,000.00 in moral damages, and P7,000.00 for
funeral and burial expenses.
SO ORDERED.
The defendants filed a motion for reconsideration of said decision which was
denied on November 4, 1993 by the Court of Appeals. Hence, the instant petition
asserting the position that the tire blowout that caused the death of Tito Tumboy
was a caso fortuito. Petitioners claim further that the Court of Appeals, in ruling
contrary to that of the lower court, misapprehended facts and, therefore, its
findings of fact cannot be considered final which shall bind this Court. Hence,
they pray that this Court review the facts of the case.
The Court did re-examine the facts and evidence in this case because of the
inapplicability of the established principle that the factual findings of the Court of
Appeals are final and may not be reviewed on appeal by this Court. This general
principle is subject to exceptions such as the one present in this case, namely, that
the lower court and the Court of Appeals arrived at diverse factual
findings.8 However, upon such re-examination, we found no reason to overturn
the findings and conclusions of the Court of Appeals.
As a rule, when a passenger boards a common carrier, he takes the risks incidental
to the mode of travel he has taken. After all, a carrier is not an insurer of the safety
of its passengers and is not bound absolutely and at all events to carry them safely
and without injury.9 However, when a passenger is injured or dies while travelling,
the law presumes that the common carrier is negligent. Thus, the Civil Code
provides:
Art. 1756. In case of death 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 1755 provides that "(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."
Accordingly, in culpa contractual, once a passenger dies or is injured, the carrier
is presumed to have been at fault or to have acted negligently. This disputable
presumption may only be overcome by evidence that the carrier had observed
extraordinary diligence as prescribed by Articles 1733, 10 1755 and 1756 of the
Civil Code or that the death or injury of the passenger was due to a fortuitous
event.11 Consequently, the court need not make an express finding of fault or
negligence on the part of the carrier to hold it responsible for damages sought by
the passenger.12
In view of the foregoing, petitioners' contention that they should be exempt from
liability because the tire blowout was no more than a fortuitous event that could
not have been foreseen, must fail. A fortuitous event is possessed of the following
characteristics: (a) the cause of the unforeseen and unexpected occurrence, or the
failure of the debtor to comply with his obligations, must be independent of human
will; (b) 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; (c) the occurrence
must be such as to render it impossible for the debtor to fulfill his obligation in a
normal manner; and (d) the obliger must be free from any participation in the
aggravation of the injury resulting to the creditor.13 As Article 1174 provides, no
person shall be responsible for a fortuitous event which could not be foreseen, or
which, though foreseen, was inevitable. In other words, there must be an entire
exclusion of human agency from the cause of injury or loss.14
Under the circumstances of this case, the explosion of the new tire may not be
considered a fortuitous event. There are human factors involved in the situation.
The fact that the tire was new did not imply that it was entirely free from
manufacturing defects or that it was properly mounted on the vehicle. Neither may
the fact that the tire bought and used in the vehicle is of a brand name noted for
quality, resulting in the conclusion that it could not explode within five days' use.
Be that as it may, it is settled that an accident caused either by defects in the
automobile or through the negligence of its driver is not a caso fortuito that would
exempt the carrier from liability for damages.15

Moreover, a common carrier may not be absolved from liability in case of force
majeure or fortuitous event alone. The common carrier must still prove that it
was not negligent in causing the death or injury resulting from an accident.16 This
Court has had occasion to state:

While it may be true that the tire that blew-up was still good because the
grooves of the tire were still visible, this fact alone does not make the
explosion of the tire a fortuitous event. No evidence was presented to show
that the accident was due to adverse road conditions or that precautions were
taken by the jeepney driver to compensate for any conditions liable to cause
accidents. The sudden blowing-up, therefore, could have been caused by too
much air pressure injected into the tire coupled by the fact that the jeepney
was overloaded and speeding at the time of the accident. 17

It is interesting to note that petitioners proved through the bus conductor, Salce,
that the bus was running at "60-50" kilometers per hour only or within the
prescribed lawful speed limit. However, they failed to rebut the testimony of Leny
Tumboy that the bus was running so fast that she cautioned the driver to slow
down. These contradictory facts must, therefore, be resolved in favor of liability
in view of the presumption of negligence of the carrier in the law. Coupled with
this is the established condition of the road — rough, winding and wet due to the
rain. It was incumbent upon the defense to establish that it took precautionary
measures considering partially dangerous condition of the road. As stated above,
proof that the tire was new and of good quality is not sufficient proof that it
was not negligent. Petitioners should have shown that it undertook extraordinary
diligence in the care of its carrier, such as conducting daily routinary check-ups
of the vehicle's parts. As the late Justice J.B.L. Reyes said:

It may be impracticable, as appellee argues, to require of carriers to test the

strength of each and every part of its vehicles before each trip; but we are of
the opinion that a due regard for the carrier's obligations toward the traveling
public demands adequate periodical tests to determine the condition and
strength of those vehicle portions the failure of which may endanger the safety
of the passengers.18

Having failed to discharge its duty to overthrow the presumption of negligence

with clear and convincing evidence, petitioners are hereby held liable for damages.
Article 176419 in relation to Article 220620 of the Civil Code prescribes the amount
of at least three thousand pesos as damages for the death of a passenger. Under
prevailing jurisprudence, the award of damages under Article 2206 has been
increased to fifty thousand pesos (P50,000.00).21

Moral damages are generally not recoverable in culpa contractual except when
bad faith had been proven. However, the same damages may be recovered when
breach of contract of carriage results in the death of a passenger, 22 as in this case.
Exemplary damages, awarded by way of example or correction for the public good
when moral damages are awarded,23 may likewise be recovered in contractual
obligations if the defendant acted in wanton, fraudulent, reckless, oppressive, or
malevolent manner.24 Because petitioners failed to exercise the extraordinary
diligence required of a common carrier, which resulted in the death of Tito
Tumboy, it is deemed to have acted recklessly.25 As such, private respondents
shall be entitled to exemplary damages.

WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED

subject to the modification that petitioners shall, in addition to the monetary
awards therein, be liable for the award of exemplary damages in the amount of
P20,000.00. Costs against petitioners.

SO ORDERED.
TRANSPO 102
G.R. No. L-8034 November 18, 1955
CORNELIA A. DE GILLACO, ET AL., plaintiffs-appellees,
vs.
MANILA RAILROAD COMPANY, defendant-appellant.
REYES, J.B.L., J.:
The Manila Railroad Company has appealed from a judgment of the Court of First
Instance of Laguna sentencing it to pay P4,000 damages to the appellees herein,
the widow and children of the late Tomas Gillaco, shot by an employee of the
Company in April, 1946.
The judgment was rendered upon the following stipulation of facts:
That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas
Gillaco, husband of the plaintiff, was a passenger in the early morning train
of the Manila Railroad Company from Calamba, Laguna to Manila;
That when the train reached the Paco Railroad station, Emilio Devesa, a train
guard of the Manila Railroad Company assigned in the Manila-San Fernando,
La Union Line, happened to be in said station waiting for the same train which
would take him to Tutuban Station, where he was going to report for duty;
That Emilio Devesa had a long standing personal grudge against Tomas
Gillaco, same dating back during the Japanese occupation;
That because of this personal grudge, Devesa shot Gillaco with the carbine
furnished to him by the Manila Railroad Company for his use as such train
guard, upon seeing him inside the train coach;
That Tomas Gillaco died as a result of the would which he sustained from the
shot fired by Devesa.
It is also undisputed that Devesa was convicted with homicide by final judgment
of the Court of Appeals.
Appellant's contention is that, on the foregoing facts, no liability attaches to it as
employer of the killer, Emilio Devesa; that it is not responsible subsidiary ex
delicto, under Art. 103 of the Revised Penal Code, because the crime was not
committed while the slayer was in the actual performance of his ordinary duties
and service; nor is it responsible ex contractu, since the complaint did not aver
sufficient facts to establish such liability, and no negligence on appellant's party
was shown. The Court below held the Railroad company responsible on the
ground that a contract of transportation implies protection of the passengers
against acts of personal violence by the agents or employees of the carrier.
There can be no quarrel with the principle that a passenger is entitled to protection
from personal violence by the carrier or its agents or employees, since the contract
of transportation obligates the carrier to transport a passenger safely to his
destination. But under the law of the case, this responsibility extends only to those
that the carrier could foresee or avoid through the exercise of the degree of car and
diligence required of it.
Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which
was in force in 1946, when Gillaco was shot) this Court said in Lasam vs. Smith
(45 Phil., 657):
In our opinion, the conclusions of the court below are entirely correct. That
upon the facts stated the defendant's liability, if any, is contractual, is well
settled by previous decisions of the court, beginning with the case of
Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the distinction
between extra-contractual liability and contractual liability has been so ably
and exhaustively discussed in various other cases that nothing further need
here be said upon that subject. (See Cangco vs. Manila Railroad Co., 38 Phil.,
768; Manila Railroad vs. Compañia Transatlantica and Atlantic, Gulf &
Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co.,
40 Phil., 706). It is sufficient to reiterate that the source of the defendant's
legal liability is the contract of carriage; that by entering into that contract he
bound himself to carry the plaintiff safely and securely to their destination;
and that having failed to do so he is liable in damages unless he shows that
the failure to fulfill his obligation was due to causes mentioned in article 1105
of the Civil Code, which reads as follows:
"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
such liability."
The act of guard Devesa in shooting passenger Gillaco (because of a personal
grudge nurtured against the latter since the Japanese occupation) was entirely
unforeseeable by the Manila Railroad Co. The latter had no means to ascertain or
anticipate that the two would meet, nor could it reasonably foresee every personal
rancor that might exist between each one of its many employees and any one of
the thousands of eventual passengers riding in its trains. The shooting in question
was therefore "caso fortuito" within the definition of article 105 of the old Civil
Code, being both unforeseeable and inevitable under the given circumstances; and
pursuant to established doctrine, the resulting breach of appellant's contract of safe
carriage with the late Tomas Gillaco was excused thereby.
No doubt that a common carrier is held to a very high degree of care and diligence
in the protection of its passengers; but, considering the vast and complex activities
of modern rail transportation, to require of appellant that it should guard against
all possible misunderstanding between each and every one of its employees and
every passenger that might chance to ride in its conveyances at any time, strikes
us as demanding diligence beyond what human care and foresight can provide.
The lower Court and the appellees both relied on the American authorities that
particularly hold carriers to be insurers of the safety of their passengers against
willful assault and intentional ill treatment on the part of their servants, it being
immaterial that the act should be one of private retribution on the part of the
servant, impelled by personal malice toward the passenger (10 Am. Jur. 108; Ed.
Note to Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But as can
be inferred from the previous jurisprudence of this Court , the Civil Code of 1889
did not impose such absolute liability (Lasam vs. Smith, supra). The liability of a
carrier as an insurer was not recognized in this jurisdiction
(Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm. Co. vs. Naviera
Filipina, 38 Off. Gaz., 1020).
Another very important consideration that must be borne in mind is that, when the
crime took place, the guard Devesa had no duties to discharge in connection with
the transportation of the deceased from Calamba to Manila. The stipulation of
facts is clear that when Devesa shot and killed Gillaco, Devesa was assigned to
guard the Manila-San Fernando (La Union) trains, and he was at Paco Station
awaiting transportation to Tutuban, the starting point of the train that he was
engaged to guard. In fact, his tour of duty was to start at 9:00 a.m., two
hours after the commission of the crime. Devesa was therefore under no
obligation to safeguard the passenger of the Calamba-Manila train, where the
deceased was riding; and the killing of Gillaco was not done in line of duty. The
position of Devesa at the time was that of another would be passenger, a stranger
also awaiting transportation, and not that of an employee assigned to discharge
any of the duties that the Railroad had assumed by its contract with the deceased.
As a result, Devesa's assault cannot be deemed in law a breach of Gillaco's
contract of transportation by a servant or employee of the carrier. We agree with
the position taken by the Supreme Court of Texas in a similar case, where it held:
The only good reason for making the carrier responsible for the misconduct
of the servant perpetrated in his own interest, and not in that of his employer,
or otherwise within the scope of his employment, is that the servant is clothed
with the delegated authority, and charge with the duty by the carrier, to
execute his undertaking with the passenger. And it cannot be said, we think,
that there is any such delegation to the employees at a station with reference
to passenger embarking at another or traveling on the train. Of course, we are
speaking only of the principle which holds a carrier responsible for wrong
done to passenger by servants acting in their own interest, and not in that of
the employer. That principle is not the ordinary rule,respondent superior, by
which the employer is held responsible only for act or omissions of the
employee in the scope of his employment; but the only reason in our opinion
for a broader liability arises from the fact that the servant, in mistreating the
passenger wholly for some private purpose of his own, in the very act, violates
the contractual obligation of the employer for the performance of which he
has put the employee in his place. The reason does not exist where the
employee who committed the assault was never in a position in which it
became his duty to his employer to represent him in discharging any duty of
the latter toward the passenger. The proposition that the carrier clothes every
employee engaged in the transportation business with the comprehensive duty
of protecting every passenger with whom he may in any way come in contact,
and hereby makes himself liable for every assault commited by such servant,
without regard to the inquiry whether or not the passenger has come within
the sphere of duty of that servant as indicated by the employment, is regarded
as not only not sustained by the authorities, but as being unsound and
oppressive both to the employer and the employee. (Houston & T. C. R. Co.
vs. Bush, 32 LRA (NS), p. 1205.)
Wherefore, the judgment appealed from is reversed and the complaint ordered
dismissed, without cost. So ordered.
TRANSPO 103 The Civil Code provisions on the subject of Common Carriers1 are new and were
taken from Anglo-American Law.2There, the basis of the carrier's liability for
assaults on passengers committed by its drivers rests either on (1) the doctrine
G.R. No. L-22272 June 26, 1967
of respondeat superior or (2) the principle that it is the carrier's implied duty to
transport the passenger safely.3
ANTONIA MARANAN, plaintiff-appellant,
vs.
Under the first, which is the minority view, the carrier is liable only when the act
PASCUAL PEREZ, ET AL., defendants.
of the employee is within the scope of his authority and duty. It is not sufficient
PASCUAL PEREZ, defendant appellant.
that the act be within the course of employment only.4

BENGZON, J.P., J.:

Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and
operated by Pascual Perez when he was stabbed and killed by the driver, Simeon
Valenzuela.
Valenzuela was prosecuted for homicide in the Court of First Instance of
Batangas. Found guilty, he was sentenced to suffer imprisonment and to
indemnify the heirs of the deceased in the sum of P6,000. Appeal from said
conviction was taken to the Court of Appeals.1äwphï1.ñët
On December 6 1961, while appeal was pending in the Court of Appeals, Antonia
Maranan, Rogelio's mother, filed an action in the Court of First Instance of
Batangas to recover damages from Perez and Valenzuela for the death of her son.
Defendants asserted that the deceased was killed in self-defense, since he first
assaulted the driver by stabbing him from behind. Defendant Perez further claimed
that the death was a caso fortuito for which the carrier was not liable.
The court a quo, after trial, found for the plaintiff and awarded her P3,000 as
damages against defendant Perez. The claim against defendant Valenzuela was
dismissed. From this ruling, both plaintiff and defendant Perez appealed to this
Court, the former asking for more damages and the latter insisting on non-liability.
Subsequently, the Court of Appeals affirmed the judgment of conviction earlier
mentioned, during the pendency of the herein appeal, and on May 19, 1964, final
judgment was entered therein. (Rollo, p. 33).
Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila
Railroad Co., 97 Phil. 884, that the carrier is under no absolute liability for assaults
of its employees upon the passengers. The attendant facts and controlling law of
that case and the one at bar are very different however. In the Gillaco case, the
passenger was killed outside the scope and the course of duty of the guilty
employee. As this Court there found:
x x x when the crime took place, the guard Devesa had no duties to discharge
in connection with the transportation of the deceased from Calamba to
Manila. The stipulation of facts is clear that when Devesa shot and killed
Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union)
trains, and he was at Paco Station awaiting transportation to Tutuban, the
starting point of the train that he was engaged to guard. In fact, his tour of
duty was to start at 9:00 two hours after the commission of the crime. Devesa
was therefore under no obligation to safeguard the passengers of the
Calamba-Manila train, where the deceased was riding; and the killing of
Gillaco was not done in line of duty. The position of Devesa at the time was
that of another would be passenger, a stranger also awaiting transportation,
and not that of an employee assigned to discharge any of the duties that the
Railroad had assumed by its contract with the deceased. As a result, Devesa's
assault can not be deemed in law a breach of Gillaco's contract of
transportation by a servant or employee of the carrier. . . . (Emphasis supplied)
Under the second view, upheld by the majority and also by the later cases, it is
enough that the assault happens within the course of the employee's duty. It is no
defense for the carrier that the act was done in excess of authority or in
disobedience of the carrier's orders.5 The carrier's liability here is absolute in the
sense that it practically secures the passengers from assaults committed by its own
employees.6
As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently
follows the rule based on the second view. At least three very cogent reasons
underlie this rule. As explained in Texas Midland R.R. v. Monroe, 110 Tex. 97,
216 S.W. 388, 389-390, and Haver v. Central Railroad Co., 43 LRA 84, 85: (1)
the special undertaking of the carrier requires that it furnish its passenger that full
measure of protection afforded by the exercise of the high degree of care
prescribed by the law, inter alia from violence and insults at the hands of strangers
and other passengers, but above all, from the acts of the carrier's own servants
charged with the passenger's safety; (2) said liability of the carrier for the servant's
violation of duty to passengers, is the result of the formers confiding in the
servant's hands the performance of his contract to safely transport the passenger,
delegating therewith the duty of protecting the passenger with the utmost care
prescribed by law; and (3) as between the carrier and the passenger, the former
must bear the risk of wrongful acts or negligence of the carrier's employees against
passengers, since it, and not the passengers, has power to select and remove them.
Accordingly, it is the carrier's strict obligation to select its drivers and similar
employees with due regard not only to their technical competence and physical
ability, but also, no less important, to their total personality, including their
patterns of behavior, moral fibers, and social attitude.
Applying this stringent norm to the facts in this case, therefore, the lower court
rightly adjudged the defendant carrier liable pursuant to Art. 1759 of the Civil
Code. The dismissal of the claim against the defendant driver was also correct.
Plaintiff's action was predicated on breach of contract of carriage7 and the cab
driver was not a party thereto. His civil liability is covered in the criminal case
wherein he was convicted by final judgment.
In connection with the award of damages, the court a quo granted only P3,000 to
plaintiff-appellant. This is the minimum compensatory damages amount
recoverable under Art. 1764 in connection with Art. 2206 of the Civil Code when
a breach of contract results in the passenger's death. As has been the policy
followed by this Court, this minimal award should be increased to P6,000. As to
other alleged actual damages, the lower court's finding that plaintiff's evidence
thereon was not convincing,8 should not be disturbed. Still, Arts. 2206 and 1764
award moral damages in addition to compensatory damages, to the parents of the
passenger killed to compensate for the mental anguish they suffered. A claim
therefor, having been properly made, it becomes the court's duty to award moral
damages.9 Plaintiff demands P5,000 as moral damages; however, in the
circumstances, We consider P3,000 moral damages, in addition to the P6,000
damages afore-stated, as sufficient. Interest upon such damages are also due to
plaintiff-appellant. 10

Now here, the killing was perpetrated by the driver of the very cab transporting
the passenger, in whose hands the carrier had entrusted the duty of executing the
contract of carriage. In other words, unlike the Gillaco case, the killing of the
passenger here took place in the course of duty of the guilty employee and when
the employee was acting within the scope of his duties.
Wherefore, with the modification increasing the award of actual damages in
plaintiff's favor to P6,000, plus P3,000.00 moral damages, with legal interest on
both from the filing of the complaint on December 6, 1961 until the whole amount
is paid, the judgment appealed from is affirmed in all other respects. No costs. So
ordered.

Moreover, the Gillaco case was decided under the provisions of the Civil Code of
1889 which, unlike the present Civil Code, did not impose upon common carriers
absolute liability for the safety of passengers against wilful assaults or negligent
acts committed by their employees. The death of the passenger in the Gillaco case
was truly a fortuitous event which exempted the carrier from liability. It is true
that Art. 1105 of the old Civil Code on fortuitous events has been substantially
reproduced in Art. 1174 of the Civil Code of the Philippines but both articles
clearly remove from their exempting effect the case where the law expressly
provides for liability in spite of the occurrence of force majeure. And herein
significantly lies the statutory difference between the old and present Civil Codes,
in the backdrop of the factual situation before Us, which further accounts for a
different result in the Gillaco case. Unlike the old Civil Code, the new Civil Code
of the Philippines expressly makes the common carrier liable for intentional
assaults committed by its employees upon its passengers, by the wording of Art.
1759 which categorically states that

Common carriers are liable for the death of or injuries 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.
TRANSPO 104 – LRTA VS. NATIVIDAD, Supra.
TRANSPO 105
G.R. No. 52159 December 22, 1989
JOSE PILAPIL, petitioner,
vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION
COMPANY, INC., respondents.
PADILLA, J.:
This is a petition to review on certiorari the decision* rendered by the Court of
Appeals dated 19 October 1979 in CA-G.R. No. 57354-R entitled "Jose Pilapil,
plaintiff-appellee versus Alatco Transportation Co., Inc., defendant-appellant,"
which reversed and set aside the judgment of the Court of First Instance of
Camarines Sur in Civil Case No. 7230 ordering respondent transportation
company to pay to petitioner damages in the total sum of sixteen thousand three
hundred pesos (P 16,300.00).
The record discloses the following facts:
Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-
defendant's bus bearing No. 409 at San Nicolas, Iriga City on 16 September 1971
at about 6:00 P.M. While said bus No. 409 was in due course negotiating the
distance between Iriga City and Naga City, upon reaching the vicinity of the
cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City,
an unidentified man, a bystander along said national highway, hurled a stone at
the left side of the bus, which hit petitioner above his left eye. Private respondent's
personnel lost no time in bringing the petitioner to the provincial hospital in Naga
City where he was confined and treated.
Considering that the sight of his left eye was impaired, petitioner was taken to Dr.
Malabanan of Iriga City where he was treated for another week. Since there was
no improvement in his left eye's vision, petitioner went to V. Luna Hospital,
Quezon City where he was treated by Dr. Capulong. Despite the treatment
accorded to him by Dr. Capulong, petitioner lost partially his left eye's vision and
sustained a permanent scar above the left eye.
Thereupon, petitioner instituted before the Court of First Instance of Camarines
Sur, Branch I an action for recovery of damages sustained as a result of the stone-
throwing incident. After trial, the court a quo rendered judgment with the
following dispositive part:
Wherefore, judgment is hereby entered:
1. Ordering defendant transportation company to pay plaintiff Jose
Pilapil the sum of P 10,000.00, Philippine Currency, representing actual
and material damages for causing a permanent scar on the face and
injuring the eye-sight of the plaintiff;
2. Ordering further defendant transportation company to pay the sum of
P 5,000.00, Philippine Currency, to the plaintiff as moral and exemplary
damages;
3. Ordering furthermore, defendant transportation company to reimburse
plaintiff the sum of P 300.00 for his medical expenses and attorney's fees
in the sum of P 1,000.00, Philippine Currency; and
4. To pay the costs.
SO ORDERED 1
From the judgment, private respondent appealed to the Court of Appeals where
the appeal was docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court
of Appeals, in a Special Division of Five, rendered judgment reversing and setting
aside the judgment of the court a quo.
Hence the present petition.
In seeking a reversal of the decision of the Court of Appeals, petitioner contends
that said court has decided the issue not in accord with law. Specifically, petitioner
argues that the nature of the business of a transportation company requires the
assumption of certain risks, and the stoning of the bus by a stranger resulting in
injury to petitioner-passenger is one such risk from which the common carrier may
not exempt itself from liability.
We do not agree.
In consideration of the right granted to it by the public to engage in the business
of transporting passengers and goods, a common carrier does not give its consent
to become an insurer of any and all risks to passengers and goods. It merely
undertakes to perform certain duties to the public as the law imposes, and holds
itself liable for any breach thereof.
Under Article 1733 of the Civil Code, common carriers are required to observe
extraordinary diligence for the safety of the passenger transported by them,
according to all the circumstances of each case. The requirement of extraordinary
diligence imposed upon common carriers is restated in 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 due regard
for all the circumstances." Further, in case of death of or injuries to passengers,
the law presumes said common carriers to be at fault or to have acted negligently. 2
While the law requires the highest degree of diligence from common carriers in
the safe transport of their passengers and creates a presumption of negligence
against them, it does not, however, make the carrier an insurer of the absolute
safety of its passengers. 3
Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance
and precaution in the carriage of passengers by common carriers to only such as
human care and foresight can provide. what constitutes compliance with said duty
is adjudged with due regard to all the circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence
on the part of the common carrier when its passenger is injured, merely relieves
the latter, for the time being, from introducing evidence to fasten the negligence
on the former, because the presumption stands in the place of evidence. Being a
mere presumption, however, the same is rebuttable by proof that the common
carrier had exercised extraordinary diligence as required by law in the
performance of its contractual obligation, or that the injury suffered by the
passenger was solely due to a fortuitous event. 4
In fine, we can only infer from the law the intention of the Code Commission and
Congress to curb the recklessness of drivers and operators of common carriers in
the conduct of their business.
Thus, it is clear that neither the law nor the nature of the business of a
transportation company makes it an insurer of the passenger's safety, but that its
liability for personal injuries sustained by its passenger rests upon its negligence,
its failure to exercise the degree of diligence that the law requires. 5
Petitioner contends that respondent common carrier failed to rebut the
presumption of negligence against it by proof on its part that it exercised
extraordinary diligence for the safety of its passengers.
We do not agree.
First, as stated earlier, the presumption of fault or negligence against the carrier is
only a disputable presumption. It gives in where contrary facts are established
proving either that the carrier had exercised the degree of diligence required by
law or the injury suffered by the passenger was due to a fortuitous event. Where,
as in the instant case, the injury sustained by the petitioner was in no way due to
any defect in the means of transport or in the method of transporting or to the
negligent or willful acts of private respondent's employees, and therefore
involving no issue of negligence in its duty to provide safe and suitable cars as
well as competent employees, with the injury arising wholly from causes created
by strangers over which the carrier had no control or even knowledge or could not
have prevented, the presumption is rebutted and the carrier is not and ought not to
be held liable. To rule otherwise would make the common carrier the insurer of
the absolute safety of its passengers which is not the intention of the lawmakers.
Second, while as a general rule, common carriers are bound to exercise
extraordinary diligence in the safe transport of their passengers, it would seem that
this is not the standard by which its liability is to be determined when intervening
acts of strangers is to be determined directly cause the injury, while the contract
of carriage Article 1763 governs:
Article 1763. A common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts or negligence of other passengers or
of strangers, if the common carrier's employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act
or omission.
Clearly under the above provision, a tort committed by a stranger which causes
injury to a passenger does not accord the latter a cause of action against the carrier.
The negligence for which a common carrier is held responsible is the negligent
omission by the carrier's employees to prevent the tort from being committed
when the same could have been foreseen and prevented by them. Further, under
the same provision, it is to be noted that when the violation of the contract is due
to the willful acts of strangers, as in the instant case, the degree of care essential
to be exercised by the common carrier for the protection of its passenger is only
that of a good father of a family.
Petitioner has charged respondent carrier of negligence on the ground that the
injury complained of could have been prevented by the common carrier if
something like mesh-work grills had covered the windows of its bus.
We do not agree.

Although the suggested precaution could have prevented the injury complained
of, the rule of ordinary care and prudence is not so exacting as to require one
charged with its exercise to take doubtful or unreasonable precautions to guard
against unlawful acts of strangers. The carrier is not charged with the duty of
providing or maintaining vehicles as to absolutely prevent any and all injuries to
passengers. Where the carrier uses cars of the most approved type, in general use
by others engaged in the same occupation, and exercises a high degree of care in
maintaining them in suitable condition, the carrier cannot be charged with
negligence in this respect. 6

Finally, petitioner contends that it is to the greater interest of the State if a carrier
were made liable for such stone-throwing incidents rather than have the bus riding
public lose confidence in the transportation system.

Sad to say, we are not in a position to so hold; such a policy would be better left
to the consideration of Congress which is empowered to enact laws to protect the
public from the increasing risks and dangers of lawlessness in society.

WHEREFORE, the judgment appealed from is hereby AFFIRMED.

SO ORDERED.