Republic of the Philippines

Municipal Trial Court

Sixth Region
Branch 7

INJURED PASSENGER
                        Plaintiff, For Damages

-versus-                                                            CIVIL CASE NO. 72-131411

                                                                                               

ZOMBIE TRANSPORTATION COMPANY

                        Defendant,
x-----------------------------------x

DEFENDANT’S MEMORANDUM

            The undersigned law firm most respectfully enters its appearance as

counsel for the Plaintiff INJURED PASSENGER in the above-entitled case.
Henceforth, it is most respectfully prayed that all notices and other legal processes
be sent to and furnished the undersigned at the address indicated herein below.

AND BY WAY OF MEMORANDUM-

           
Plaintiff INJURED PASSENGER, thru the undersigned counsel and unto this
Honorable Court, respectfully submits this MEMORANDUM in compliance with the 27
December 2014 Order of this Honorable Court which was received by defendant on
05 January 2015, requiring the parties to file their respective Memorandum within
thirty (30) days from receipt or until 04 February 2015 as for the plaintiff.

STATEMENT OF THE FACT

 In order that this honorable court may be enlightened and guided in the judicious
disposition of the above-entitled case, cited hereunder the material, relevant and
pertinent facts of the case to wit:

1.      Plaintiff Injured Passenger is a commuter of a public utility vehicle.

2.      The defendant Zombie Transportation Company is the owner of the public utility
vehicle.

3.      A vehicular accident occurred when the public utility automobile owned by the
defendant collided with another vehicle.
4.      Due to this unfortunate event, the plaintiff, Injured Passenger sustained injuries
and was brought to hospital on account of which dealing with incurred expenses.

5.      According to the investigation, it was found out that the vehicular accident was
due to the negligence of the driver of the Zombie Transportation Company.

STATEMENT OF THE ISSUES

DEFENDANT IS LIABLE
FOR BREACH OF CONTRACT OF CARRIAGE

II

DEFENDANT DID NOT OBSERVE

EXTRAORDINARY DILIGENCE
REQUIRED BY THE LAW

III

PROXIMATE CAUSE DID NOT BAR

THE ACTION FOR DAMAGES
AGAINST DEFENDANT

IV

DEFENDANT IS LIABLE
FOR THE DAMAGES INCURRED
BY THE INJURIES OF THE
INJURED PASSENGER

ARGUMENTS/DISCUSSONS

DEFENDANT IS LIABLE
FOR BREACH OF CONTRACT OF CARRIAGE

____________________________________

The operator of a public utility vehicle is a common carrier in the eyes of the
law. A common carrier is a person, corporation, firm or association engaged in the
business of carrying or transporting passengers or goods or both, by land, water, or
air, for compensation, offering such services to the public. 1
 In consideration of the defendant Zombie Transportation Company, diligence
of a good father is not enough. Contracts of common carriage are governed by the
provisions on common carriers of the Civil Code, the Public Service Act, and other
special laws relating to transportation.2 A common carrier is required to observe
extraordinary diligence, and is presumed to be at fault or to have acted negligently
in case of the loss of the effects of passengers, or the death or injuries to
passengers.3
To overcome the presumption, the Zombie Transportation Company must
prove that it exercised extraordinary diligence. However, it failed to fend off the
presumption by which it would be tantamount to liabilities for the damages of the
negligence of the driver.
__________________________________
1
Article 1732, Civil Code of the Philippines
2
 Commonwealth Act No. 146, as amended, particularly by PD No. 1, Integrated Reorganization Plan and E.O. 546.
3
Article 1756, Civil Code of the Philippines
II

DEFENDANT DID NOT OBSERVE

EXTRAORDINARY DILIGENCE
REQUIRED BY THE LAW
_________________________________

The Code Commission, in justifying this extraordinary diligence required of a

common carrier, says the following:

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
cautions persons, with due regard for all circumstances. This extraordinary
diligence required of common carriers is calculated to protect the
passengers from the tragic mishaps that frequently occur in connection with
rapid modern transportation. This high standard of care is imperatively demanded
by the precariousness of human life and by the consideration that every person
must in every way be safeguarded against all injury.4 (Emphasis supplied)

The principles governing the liability of a common carrier can be summarized

as follows: (1) the liability of a carrier is contractual and arises upon breach of its
obligation. There is breach if it fails to exert extraordinary diligence according to all
circumstances of each case; (2) a carrier is obliged to carry its passenger with the
utmost diligence of a very cautious person, having due regard for all the
circumstances; (3) a carrier is presumed to be at fault or to have acted negligently
in case of death of, or injury to, passengers, it being its duty to prove that it
exercised extraordinary diligence; and (4) the carrier is not an insurer against all
risks of travel.5

            The question now arises whether the defendant Zombie Transportation
Company observed extraordinary diligence required for common carriers.
Unfortunately, based on the findings on the facts of the case, the driver of the PUV
caused the vehicular accident. By which this incident sustained injuries to the
plaintiff Injured Passenger.

            The presumption of negligence, being a presumption of law, laid the burden
of evidence on their shoulders to establish that they had not been negligent. 6 It was
the law no less that required them to prove their observance of extraordinary
diligence in seeing to the safe and secure carriage of the passengers to their
destination. Until they did so in a credible manner, they stood to be held legally
responsible for the injuries of the passenger.7
__________________________________
4
 Report of the Code Commission, pp. 35-36, Padilla, Civil Code of the Philippines, Vol. IV, 1956 ed., p. 197.
  Article 1755, Civil Code of the Philippines
5
 Isaac vs. A.L. Ammen Transportation Co., Inc., G.R. No. L-9671, August 23, 1957, [J., Bautista-Angelo]
6
 31A CJS, Evidence §134, citing State Tax Commission v. Phelps Dodge Corporation, 157 P. 2d 693, 62 Ariz. 320; Kott v. Hilton, 114 P. 2d 666,
45 C.A. 2d 548; Lindley v. Mowell, Civ. Ap. 232 S.W. 2d 256.
7
Sps Pereña vs. Sps Zarate, G.R. No. 157917, August 29, 2012, [Bersamin, J.]

III

PROXIMATE CAUSE DID NOT BAR

THE ACTION FOR DAMAGES
AGAINST DEFENDANT
_________________________________

Proximate cause is defined as an act from which an injury results as a

natural, direct, uninterrupted, consequence and without which the injury would not
have occurred.8 The doctrine of proximate cause is applicable only in actions
for quasi-delict, not in actions involving breach of contract. The doctrine is a
device for imputing liability to a person where there is no relation between him and
another party. In such a case, the obligation is created by law itself. But, where
there is a pre-existing contractual relation between the parties, it is the parties
themselves who create the obligation, and the function of the law is merely to
regulate the relation thus created. Insofar as contracts of carriage are concerned,
some aspects regulated by the Civil Code are those respecting the diligence
required of common carriers with regard to the safety of passengers as well as
the presumption of negligence in cases of death or injury to passengers. 9 It
provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them, according to all
the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in
articles 1734, 1735, and 1746, Nos. 5,6, and 7, while the extraordinary diligence
for the safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with due regard for all the circumstances.
In the case at bar, it is evidently stated in the facts that Zombie
Transportation Company is at fault on the vehicular accident. The collision was due
to the negligence of the driver of the PUV owned by the defendant. Hence, the
proximate cause is the laxity of the driver which the presumption of law is proven.
___________________________
8
www.legal-dictionary.com

9
Calalas v. Sunga and Salva, G.R. No. 122039. May 31, 2000

IV
DEFENDANT IS LIABLE
FOR THE DAMAGES INCURRED
BY THE INJURIES OF THE
INJURED PASSENGER
_________________________________

            Failure to prove that Zombie Transportation Company exercised

extraordinary diligence or utmost diligence of every cautious person, having due
regard for all circumstances, in avoiding the collision which resulted in the injury
caused to the plaintiff is tantamount to civil damages for the injured passenger.
            Moreover, it was manifestly established that the proximate cause of the
accident is the negligence of the PUV driver owned by the company.
Assuming arguendo that the truck was the legal cause of the collision, still it is not
a valid defense for breach of contract in the case of common carriage. Without
proving that it carried the passenger safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due regard
for all the circumstances required by Article 1755. The legal basis for this is:
Art. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed by articles 1733 and 1755.
Thus, the defendant Zombie Transportation Company is liable to the civil
damages incurred by the injured passenger.
 CONCLUSION

            In summary, the defendant Zombie Transportation Company did not

observe the extraordinary diligence required for common carrier. Unable to break
the presumption of negligence prescribed by law give rise to the liabilities incurred
and sustained on the injuries on the passenger.

PRAYER

            WHEREFORE, premises considered, it is most respectfully prayed unto this

Honorable Court that an Order be issued resolving the claims here in Plaintiff
Injured Passenger be granted.

Other reliefs deemed just, proper and equitable in the premises are likewise most
respectfully prayed for.

RESPECTFULLY SUBMITTED.

Tigbauan, Iloilo, Philippines, 16 January 2015

                                                            PALMA LAW OFFICE

                                                            Counsel for Defendant                               
                                                            Rm.72, Santos Bldg.
                                                            La Paz, Iloilo City
                                                            
                                                            By:
                                                            KYTH L. PALMA
                                                            PTR No: 72131413
                                                            Roll No. 5272
                                                            IBP No. 92356
                                                            MCLE No. 1453