G.R. No.
95582 October 7, 1991 Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision 3 in
DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO CUDLAMAT,
MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL CUDIAMAT and LIGAYA
CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by Inocencia Cudiamat, respondents.
Francisco S. Reyes Law Office for petitioners.
Antonio C. de Guzman for private respondents.
REGALADO, J.:
On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the death
of Pedrito Cudiamat as a result of a vehicular accident which occurred on March 25, 1985 at Marivic,
Sapid, Mankayan, Benguet. Among others, it was alleged that on said date, while petitioner Theodore
M. Lardizabal was driving a passenger bus belonging to petitioner corporation in a reckless and
imprudent manner and without due regard to traffic rules and regulations and safety to persons and
property, it ran over its passenger, Pedrito Cudiamat. However, instead of bringing Pedrito immediately
to the nearest hospital, the said driver, in utter bad faith and without regard to the welfare of the
victim, first brought his other passengers and cargo to their respective destinations before banging said
victim to the Lepanto Hospital where he expired.
On the other hand, petitioners alleged that they had observed and continued to observe the
extraordinary diligence required in the operation of the transportation company and the supervision of
the employees, even as they add that they are not absolute insurers of the safety of the public at large.
Further, it was alleged that it was the victim's own carelessness and negligence which gave rise to the
subject incident, hence they prayed for the dismissal of the complaint plus an award of damages in
their favor by way of a counterclaim.
On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this
decretal portion:
IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito Cudiamat was
negligent, which negligence was the proximate cause of his death. Nonetheless, defendants in equity,
are hereby ordered to pay the heirs of Pedrito Cudiamat the sum of P10,000.00 which approximates
the amount defendants initially offered said heirs for the amicable settlement of the case. No costs.
SO ORDERED. 2
CA-G.R. CV No. 19504 promulgated on August 14, 1990, set aside the decision of the lower court, and
ordered petitioners to pay private respondents:
1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for death of the victim
Pedrito Cudiamat;
2. The sum of Twenty Thousand (P20,000.00) by way of moral damages;
3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as actual and
compensatory damages;
4. The costs of this suit. 4
Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated
October 4, 1990, 5 hence this petition with the central issue herein being whether respondent court
erred in reversing the decision of the trial court and in finding petitioners negligent and liable for the
damages claimed.
It is an established principle that the factual findings of the Court of Appeals as a rule are final and may
not be reviewed by this Court on appeal. However, this is subject to settled exceptions, one of which is
when the findings of the appellate court are contrary to those of the trial court, in which case a
reexamination of the facts and evidence may be undertaken. 6
In the case at bar, the trial court and the Court of Appeal have discordant positions as to who between
the petitioners an the victim is guilty of negligence. Perforce, we have had to conduct an evaluation of
the evidence in this case for the prope calibration of their conflicting factual findings and legal
conclusions.
The lower court, in declaring that the victim was negligent, made the following findings:
This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a moving vehicle,
especially with one of his hands holding an umbrella. And, without having given the driver or the
conductor any indication that he wishes to board the bus. But defendants can also be found wanting of
the necessary diligence. In this connection, it is safe to assume that when the deceased Cudiamat
attempted to board defendants' bus, the vehicle's door was open instead of being closed. This should
be so, for it is hard to believe that one would even attempt to board a vehicle (i)n motion if the door of
said vehicle is closed. Here lies the defendant's lack of diligence. Under such circumstances, equity
demands that there must be something given to the heirs of the victim to assuage their feelings. This,
also considering that initially, defendant common carrier had made overtures to amicably settle the
case. It did offer a certain monetary consideration to the victim's heirs. 7
However, respondent court, in arriving at a different opinion, declares that:
From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is evident that the
subject bus was at full stop when the victim Pedrito Cudiamat boarded the same as it was precisely on
this instance where a certain Miss Abenoja alighted from the bus. Moreover, contrary to the assertion
of the appellees, the victim did indicate his intention to board the bus as can be seen from the
testimony of the said witness when he declared that Pedrito Cudiamat was no longer walking and
made a sign to board the bus when the latter was still at a distance from him. It was at the instance
when Pedrito Cudiamat was closing his umbrella at the platform of the bus when the latter made a
sudden jerk movement (as) the driver commenced to accelerate the bus.
Evidently, the incident took place due to the gross negligence of the appellee-driver in prematurely
stepping on the accelerator and in not waiting for the passenger to first secure his seat especially so
when we take into account that the platform of the bus was at the time slippery and wet because of a
drizzle. The defendants-appellees utterly failed to observe their duty and obligation as common carrier
to the end that they should observe extra-ordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them according to the circumstances of each case (Article
1733, New Civil Code). 8
After a careful review of the evidence on record, we find no reason to disturb the above holding of the
Court of Appeals. Its aforesaid findings are supported by the testimony of petitioners' own witnesses.
One of them, Virginia Abalos, testified on cross-examination as follows:
Q It is not a fact Madam witness, that at bunkhouse 54, that is before the place of the incident, there is
a crossing?
A The way going to the mines but it is not being pass(ed) by the bus.
Q And the incident happened before bunkhouse 56, is that not correct?
A It happened between 54 and 53 bunkhouses. 9
The bus conductor, Martin Anglog, also declared:
Q When you arrived at Lepanto on March 25, 1985, will you please inform this Honorable Court if there
was anv unusual incident that occurred?
A When we delivered a baggage at Marivic because a person alighted there between Bunkhouse 53
and 54.
Q What happened when you delivered this passenger at this particular place in Lepanto?
A When we reached the place, a passenger alighted and I signalled my driver. When we stopped we
went out because I saw an umbrella about a split second and I signalled again the driver, so the driver
stopped and we went down and we saw Pedrito Cudiamat asking for help because he was lying down.
Q How far away was this certain person, Pedrito Cudiamat, when you saw him lying down — from the
bus how far was he?
A It is about two to three meters.
Q On what direction of the bus was he found about three meters from the bus, was it at the front or at
the back?
A At the back, sir. 10 (Emphasis supplied.)
The foregoing testimonies show that the place of the accident and the place where one of the
passengers alighted were both between Bunkhouses 53 and 54, hence the finding of the Court of
Appeals that the bus was at full stop when the victim boarded the same is correct. They further confirm
the conclusion that the victim fell from the platform of the bus when it suddenly accelerated forward
and was run over by the rear right tires of the vehicle, as shown by the physical evidence on where he
was thereafter found in relation to the bus when it stopped. Under such circumstances, it cannot be
said that the deceased was guilty of negligence.
The contention of petitioners that the driver and the conductor had no knowledge that the victim
would ride on the bus, since the latter had supposedly not manifested his intention to board the same,
does not merit consideration. When the bus is not in motion there is no necessity for a person who
wants to ride the same to signal his intention to board. A public utility bus, once it stops, is in effect
making a continuous offer to bus riders. Hence, it becomes the duty of the driver and the conductor,
every time the bus stops, to do no act that would have the effect of increasing the peril to a passenger
while he was attempting to board the same. The premature acceleration of the bus in this case was a
breach of such duty. 11
It is the duty of common carriers of passengers, including common carriers by railroad train, streetcar,
or motorbus, to stop their conveyances a reasonable length of time in order to afford passengers an
opportunity to board and enter, and they are liable for injuries suffered by boarding passengers
resulting from the sudden starting up or jerking of their conveyances while they are doing so. 12
Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot be
considered negligent under the circumstances. As clearly explained in the testimony of the aforestated
witness for petitioners, Virginia Abalos, th bus had "just started" and "was still in slow motion" at the
point where the victim had boarded and was on its platform. 13
It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which is
moving slowly. 14 An ordinarily prudent person would have made the attempt board the moving
conveyance under the same or similar circumstances. The fact that passengers board and alight from
slowly moving vehicle is a matter of common experience both the driver and conductor in this case
could not have been unaware of such an ordinary practice.
The victim herein, by stepping and standing on the platform of the bus, is already considered a
passenger and is entitled all the rights and protection pertaining to such a contractual relation. Hence,
it has been held that the duty which the carrier passengers owes to its patrons extends to persons
boarding cars as well as to those alighting therefrom. 15
Common carriers, from the nature of their business and reasons of public policy, are bound to observe
extraordina diligence for the safety of the passengers transported by the according to all the
circumstances of each case. 16 A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence very cautious persons, with a due
regard for all the circumstances. 17
It has also been repeatedly held that in an action based on a contract of carriage, the court need not
make an express finding of fault or negligence on the part of the carrier in order to hold it responsible
to pay the damages sought by the passenger. By contract of carriage, the carrier assumes the express
obligation to transport the passenger to his destination safely and observe extraordinary diligence with
a due regard for all the circumstances, and any injury that might be suffered by the passenger is right
away attributable to the fault or negligence of the carrier. This is an exception to the general rule that
negligence must be proved, and it is therefore incumbent upon the carrier to prove that it has
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the Civil Code. 18
Moreover, the circumstances under which the driver and the conductor failed to bring the gravely
injured victim immediately to the hospital for medical treatment is a patent and incontrovertible proof
of their negligence. It defies understanding and can even be stigmatized as callous indifference. The
evidence shows that after the accident the bus could have forthwith turned at Bunk 56 and thence to
the hospital, but its driver instead opted to first proceed to Bunk 70 to allow a passenger to alight and
to deliver a refrigerator, despite the serious condition of the victim. The vacuous reason given by
petitioners that it was the wife of the deceased who caused the delay was tersely and correctly
confuted by respondent court:
... The pretension of the appellees that the delay was due to the fact that they had to wait for about
twenty minutes for Inocencia Cudiamat to get dressed deserves scant consideration. It is rather
scandalous and deplorable for a wife whose husband is at the verge of dying to have the luxury of
dressing herself up for about twenty minutes before attending to help her distressed and helpless
husband. 19
Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was to
inform the victim's family of the mishap, since it was not said bus driver nor the conductor but the
companion of the victim who informed his family thereof. 20 In fact, it was only after the refrigerator
was unloaded that one of the passengers thought of sending somebody to the house of the victim, as
shown by the testimony of Virginia Abalos again, to wit:
Q Why, what happened to your refrigerator at that particular time?
A I asked them to bring it down because that is the nearest place to our house and when I went
down and asked somebody to bring down the refrigerator, I also asked somebody to call the family of
Mr. Cudiamat.
COURT:
Q Why did you ask somebody to call the family of Mr. Cudiamat?
A Because Mr. Cudiamat met an accident, so I ask somebody to call for the family of Mr.
Cudiamat.
Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?
A No sir. 21
With respect to the award of damages, an oversight was, however, committed by respondent Court of
Appeals in computing the actual damages based on the gross income of the victim. The rule is that the
amount recoverable by the heirs of a victim of a tort is not the loss of the entire earnings, but rather
the loss of that portion of the earnings which the beneficiary would have received. In other words, only
net earnings, not gross earnings, are to be considered, that is, the total of the earnings less expenses
necessary in the creation of such earnings or income and minus living and other incidental expenses. 22
We are of the opinion that the deductible living and other expense of the deceased may fairly and
reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or
compensatory damages, respondent court found that the deceased was 48 years old, in good health
with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a year. Using the
gross annual income as the basis, and multiplying the same by 12 years, it accordingly awarded
P288,000. Applying the aforestated rule on computation based on the net earnings, said award must
be, as it hereby is, rectified and reduced to P216,000.00. However, in accordance with prevailing
jurisprudence, the death indemnity is hereby increased to P50,000.00. 23
WHEREFORE, subject to the above modifications, the challenged judgment and resolution of
respondent Court of Appeals are hereby AFFIRMED in all other respects.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.
G.R. No. 145804 February 6, 2003
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY,
respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled
"Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has
modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating
Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) and
Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad, then
drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of the fare).
While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard
assigned to the area approached Navidad. A misunderstanding or an altercation between the two
apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight
started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks.
At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was
coming in. Navidad was struck by the moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her
children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro
Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and Roman
filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its
answer, denied liability and averred that it had exercised due diligence in the selection and supervision
of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting
evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in
his assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the
following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorney’s fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now
assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead,
holding the LRTA and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any
liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail
Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and
severally to the plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorney’s fees."2
The appellate court ratiocinated that while the deceased might not have then as yet boarded the train,
a contract of carriage theretofore had already existed when the victim entered the place where
passengers were supposed to be after paying the fare and getting the corresponding token therefor. In
exempting Prudent from liability, the court stressed that there was nothing to link the security agency
to the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the
victim and the evidence merely established the fact of death of Navidad by reason of his having been
hit by the train owned and managed by the LRTA and operated at the time by Roman. The appellate
court faulted petitioners for their failure to present expert evidence to establish the fact that the
application of emergency brakes could not have stopped the train.
The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October 2000.

In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:
"I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS
BY THE TRIAL COURT
"II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE
FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN
EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored the evidence and the factual findings of the
trial court by holding them liable on the basis of a sweeping conclusion that the presumption of
negligence on the part of a common carrier was not overcome. Petitioners would insist that Escartin’s
assault upon Navidad, which caused the latter to fall on the tracks, was an act of a stranger that could
not have been foreseen or prevented. The LRTA would add that the appellate court’s conclusion on the
existence of an employer-employee relationship between Roman and LRTA lacked basis because
Roman himself had testified being an employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a contract of carriage was
deemed created from the moment Navidad paid the fare at the LRT station and entered the premises
of the latter, entitling Navidad to all the rights and protection under a contractual relation, and that the
appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise
extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and for
reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety
of passengers.4 The Civil Code, governing the liability of a common carrier for death of or injury to its
passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence
as prescribed in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former’s employees, although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised all the diligence of
a good father of a family in the selection and supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of strangers, if the common 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."
The law requires common carriers to carry passengers safely using the utmost diligence of very
cautious persons with due regard for all circumstances.5 Such duty of a common carrier to provide
safety to its passengers so obligates it not only during the course of the trip but for so long as the
passengers are within its premises and where they ought to be in pursuance to the contract of
carriage.6 The statutory provisions render a common carrier liable for death of or injury to passengers
(a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of
other passengers or of strangers if the common carrier’s employees through the exercise of due
diligence could have prevented or stopped the act or omission.7 In case of such death or injury, a
carrier is presumed to have been at fault or been negligent, and8 by simple proof of injury, the
passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its
employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen
event or to force majeure.9 In the absence of satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the appellate court, have failed to show, the
presumption would be that it has been at fault,10 an exception from the general rule that negligence
must be proved.11
The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its failure to exercise the high diligence required of
the common carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier
may choose to hire its own employees or avail itself of the services of an outsider or an independent
firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities
under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the
provisions of Article 217612 and related provisions, in conjunction with Article 2180,13 of the Civil
Code. The premise, however, for the employer’s liability is negligence or fault on the part of the
employee. Once such fault is established, the employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection and supervision of its employees. The liability is primary and can only be negated by showing
due diligence in the selection and supervision of the employee, a factual matter that has not been
shown. Absent such a showing, one might ask further, how then must the liability of the common
carrier, on the one hand, and an independent contractor, on the other hand, be described? It would be
solidary. A contractual obligation can be breached by tort and when the same act or omission causes
the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 219414 of the Civil
Code can well apply.15 In fine, a liability for tort may arise even under a contract, where tort is that
which breaches the contract.16 Stated differently, when an act which constitutes a breach of contract
would have itself constituted the source of a quasi-delictual liability had no contract existed between
the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort
to apply.17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this
Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link (Prudent)
to the death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not
been duly proven x x x." This finding of the appellate court is not without substantial justification in our
own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or
omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT
and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made
liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.18 It is an established rule that nominal damages cannot co-exist with compensatory
damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in
that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from
liability. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.
G.R. No. L-20761 July 27, 1966
LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET AL., respondents.
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.
Ahmed Garcia for 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 bayong which was not unloaded, the
relation of passenger and carrier between him and the petitioner remained subsisting. For, the relation
of carrier and passenger does not necessarily cease where the latter, after alighting from the car, aids
the carrier's servant or employee in removing his baggage from the car.1 The issue to be determined
here is whether as to the child, who was already led by the father to a place about 5 meters away from
the bus, the liability of the carrier for her safety under the contract of carriage also persisted.
It has been recognized as a rule that the relation of carrier and passenger does not cease at the
moment the passenger alights from the carrier's vehicle at a place selected by the carrier at the point
of destination, but continues until the passenger has had a reasonable time or a reasonable
opportunity to leave the carrier's premises. And, what is a reasonable time or a reasonable delay within
this rule is to be determined from all the circumstances. Thus, a person who, after alighting from a
train, walks along the station platform is considered still a passenger.2 So also, where a passenger has
alighted at his destination and is proceeding by the usual way to leave the company's premises, but
before actually doing so is halted by the report that his brother, a fellow passenger, has been shot, and
he in good faith and without intent of engaging in the difficulty, returns to relieve his brother, he is
deemed reasonably and necessarily delayed and thus continues to be a passenger entitled as such to
the protection of the railroad and company and its agents.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.5 Herein petitioner's
contention, therefore, that the Court of Appeals committed error in raising the amount of the award
for damages is, evidently, meritorious.1äwphï1.ñët
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.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Makalintal, J., concurs in the result.
G.R. No. 84458 November 6, 1989
ABOITIZ SHIPPING CORPORATION, petitioner,
vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. VIANA, SPS. ANTONIO VIANA and
GORGONIA VIANA, and PIONEER STEVEDORING CORPORATION, respondents.
Herenio E. Martinez for petitioner.
M.R. Villaluz Law Office for private respondent.
REGALADO, J.:
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review of the decision 1 of
respondent Court of Appeals, dated July 29, 1988, the decretal portion of which reads:
WHEREFORE, the judgment appealed from as modified by the order of October 27, 1982, is hereby
affirmed with the modification that appellant Aboitiz Shipping is hereby ordered to pay plaintiff-
appellees the amount of P30,000.00 for the death of Anacleto Viana; actual damages of P9,800.00;
P150,000.00 for unearned income; P7,200.00 as support for deceased's parents; P20,000.00 as moral
damages; P10,000.00 as attorney's fees; and to pay the costs.
The undisputed facts of the case, as found by the court a quo and adopted by respondent court, are as
follows: .
The evidence disclosed that on May 11, 1975, Anacleto Viana boarded the vessel M/V Antonia, owned
by defendant, at the port at San Jose, Occidental Mindoro, bound for Manila, having purchased a ticket
(No. 117392) in the sum of P23.10 (Exh. 'B'). On May 12, 1975, said vessel arrived at Pier 4, North
Harbor, Manila, and the passengers therein disembarked, a gangplank having been provided
connecting the side of the vessel to the pier. Instead of using said gangplank Anacleto Viana
disembarked on the third deck which was on the level with the pier. After said vessel had landed, the
Pioneer Stevedoring Corporation took over the exclusive control of the cargoes loaded on said vessel
pursuant to the Memorandum of Agreement dated July 26, 1975 (Exh. '2') between the third party
defendant Pioneer Stevedoring Corporation and defendant Aboitiz Shipping Corporation.
The crane owned by the third party defendant and operated by its crane operator Alejo Figueroa was
placed alongside the vessel and one (1) hour after the passengers of said vessel had disembarked, it
started operation by unloading the cargoes from said vessel. While the crane was being operated,
Anacleto Viana who had already disembarked from said vessel obviously remembering that some of his
cargoes were still loaded in the vessel, went back to the vessel, and it was while he was pointing to the
crew of the said vessel to the place where his cargoes were loaded that the crane hit him, pinning him
between the side of the vessel and the crane. He was thereafter brought to the hospital where he later
expired three (3) days thereafter, on May 15, 1975, the cause of his death according to the Death
Certificate (Exh. "C") being "hypostatic pneumonia secondary to traumatic fracture of the pubic bone
lacerating the urinary bladder" (See also Exh. "B"). For his hospitalization, medical, burial and other
miscellaneous expenses, Anacleto's wife, herein plaintiff, spent a total of P9,800.00 (Exhibits "E", "E-1",
to "E-5"). Anacleto Viana who was only forty (40) years old when he met said fateful accident (Exh. 'E')
was in good health. His average annual income as a farmer or a farm supervisor was 400 cavans of
palay annually. His parents, herein plaintiffs Antonio and Gorgonia Viana, prior to his death had been
recipient of twenty (20) cavans of palay as support or P120.00 monthly. Because of Anacleto's death,
plaintiffs suffered mental anguish and extreme worry or moral damages. For the filing of the instant
case, they had to hire a lawyer for an agreed fee of ten thousand (P10,000.00) pesos. 2
Private respondents Vianas filed a complaint 3 for damages against petitioner corporation (Aboitiz, for
brevity) for breach of contract of carriage.
In its answer. 4 Aboitiz denied responsibility contending that at the time of the accident, the vessel was
completely under the control of respondent Pioneer Stevedoring Corporation (Pioneer, for short) as
the exclusive stevedoring contractor of Aboitiz, which handled the unloading of cargoes from the vessel
of Aboitiz. It is also averred that since the crane operator was not an employee of Aboitiz, the latter
cannot be held liable under the fellow-servant rule.
Thereafter, Aboitiz, as third-party plaintiff, filed a third-party complaint 5 against Pioneer imputing
liability thereto for Anacleto Viana's death as having been allegedly caused by the negligence of the
crane operator who was an employee of Pioneer under its exclusive control and supervision.
Pioneer, in its answer to the third-party complaint, 6 raised the defenses that Aboitiz had no cause of
action against Pioneer considering that Aboitiz is being sued by the Vianas for breach of contract of
carriage to which Pioneer is not a party; that Pioneer had observed the diligence of a good father of a
family both in the selection and supervision of its employees as well as in the prevention of damage or
injury to anyone including the victim Anacleto Viana; that Anacleto Viana's gross negligence was the
direct and proximate cause of his death; and that the filing of the third-party complaint was premature
by reason of the pendency of the criminal case for homicide through reckless imprudence filed against
the crane operator, Alejo Figueroa.
In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was ordered to pay the Vianas for
damages incurred, and Pioneer was ordered to reimburse Aboitiz for whatever amount the latter paid
the Vianas. The dispositive portion of said decision provides:
WHEREFORE, judgment is hereby rendered in favor of the plantiffs:
(1) ordering defendant Aboitiz Shipping Corporation to pay to plaintiffs the sum of P12,000.00 for
the death of Anacleto Viana P9,800.00 as actual damages; P533,200.00 value of the 10,664 cavans of
palay computed at P50.00 per cavan; P10,000.00 as attorney's fees; F 5,000.00, value of the 100 cavans
of palay as support for five (5) years for deceased (sic) parents, herein plaintiffs Antonio and Gorgonia
Viana computed at P50.00 per cavan; P7,200.00 as support for deceased's parents computed at
P120.00 a month for five years pursuant to Art. 2206, Par. 2, of the Civil Code; P20,000.00 as moral
damages, and costs; and
(2) ordering the third party defendant Pioneer Stevedoring Corporation to reimburse defendant
and third party plaintiff Aboitiz Shipping Corporation the said amounts that it is ordered to pay to
herein plaintiffs.
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein they similarly raised the
trial court's failure to declare that Anacleto Viana acted with gross negligence despite the
overwhelming evidence presented in support thereof. In addition, Aboitiz alleged, in opposition to
Pioneer's motion, that under the memorandum of agreement the liability of Pioneer as contractor is
automatic for any damages or losses whatsoever occasioned by and arising from the operation of its
arrastre and stevedoring service.
In an order dated October 27, 1982, 8 the trial court absolved Pioneer from liability for failure of the
Vianas and Aboitiz to preponderantly establish a case of negligence against the crane operator which
the court a quo ruled is never presumed, aside from the fact that the memorandum of agreement
supposedly refers only to Pioneer's liability in case of loss or damage to goods handled by it but not in
the case of personal injuries, and, finally that Aboitiz cannot properly invoke the fellow-servant rule
simply because its liability stems from a breach of contract of carriage. The dispositive portion of said
order reads:
WHEREFORE, judgment is hereby modified insofar as third party defendant Pioneer Stevedoring
Corporation is concerned rendered in favor of the plaintiffs-,:
(1) Ordering defendant Aboitiz Shipping Corporation to pay the plaintiffs the sum of P12,000.00
for the death of Anacleto Viana; P9,000.00 (sic) as actual damages; P533,200.00 value of the 10,664
cavans of palay computed at P50.00 per cavan; P10,000.00 as attorney's fees; P5,000.00 value of the
100 cavans of palay as support for five (5) years for deceased's parents, herein plaintiffs Antonio and
Gorgonia Viana,computed at P50.00 per cavan; P7,200.00 as support for deceased's parents computed
at P120.00 a month for five years pursuant to Art. 2206, Par. 2, of the Civil Code; P20,000.00 as moral
damages, and costs; and
(2) Absolving third-party defendant Pioneer Stevedoring Corporation for (sic) any liability for the
death of Anacleto Viana the passenger of M/V Antonia owned by defendant third party plaintiff Aboitiz
Shipping Corporation it appearing that the negligence of its crane operator has not been established
therein.
Not satisfied with the modified judgment of the trial court, Aboitiz appealed the same to respondent
Court of Appeals which affirmed the findings of of the trial court except as to the amount of damages
awarded to the Vianas.
Hence, this petition wherein petitioner Aboitiz postulates that respondent court erred:
(A) In holding that the doctrine laid down by this honorable Court in La Mallorca vs. Court of
Appeals, et al. (17 SCRA 739, July 27, 1966) is applicable to the case in the face of the undisputable fact
that the factual situation under the La Mallorca case is radically different from the facts obtaining in
this case;
(B) In holding petitioner liable for damages in the face of the finding of the court a quo and
confirmed by the Honorable respondent court of Appeals that the deceased, Anacleto Viana was guilty
of contributory negligence, which, We respectfully submit contributory negligence was the proximate
cause of his death; specifically the honorable respondent Court of Appeals failed to apply Art. 1762 of
the New Civil Code;
(C) In the alternative assuming the holding of the Honorable respondent Court of Appears that
petitioner may be legally condemned to pay damages to the private respondents we respectfully
submit that it committed a reversible error when it dismissed petitioner's third party complaint against
private respondent Pioneer Stevedoring Corporation instead of compelling the latter to reimburse the
petitioner for whatever damages it may be compelled to pay to the private respondents Vianas. 9
At threshold, it is to be observed that both the trial court and respondent Court of Appeals found the
victim Anacleto Viana guilty of contributory negligence, but holding that it was the negligence of
Aboitiz in prematurely turning over the vessel to the arrastre operator for the unloading of cargoes
which was the direct, immediate and proximate cause of the victim's death.
I. Petitioner contends that since one (1) hour had already elapsed from the time Anacleto Viana
disembarked from the vessel and that he was given more than ample opportunity to unload his cargoes
prior to the operation of the crane, his presence on the vessel was no longer reasonable e and he
consequently ceased to be a passenger. Corollarily, it insists that the doctrine in La Mallorca vs. Court
of Appeals, et al. 10 is not applicable to the case at bar.
The rule is that the relation of carrier and passenger continues until the passenger has been landed at
the port of destination and has left the vessel owner's dock or premises. 11 Once created, the
relationship will not ordinarily terminate until the passenger has, after reaching his destination, safely
alighted from the carrier's conveyance or had a reasonable opportunity to leave the carrier's premises.
All persons who remain on the premises a reasonable time after leaving the conveyance are to be
deemed passengers, and what is a reasonable time or a reasonable delay within this rule is to be
determined from all the circumstances, and includes a reasonable time to see after his baggage and
prepare for his departure.12 The carrier-passenger relationship is not terminated merely by the fact
that the person transported has been carried to his destination if, for example, such person remains in
the carrier's premises to claim his baggage.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, 18 which, in the instant case, necessarily includes its failure to safeguard its passenger with
extraordinary diligence while such relation subsists.
The presumption is, therefore, established by law that in case of a passenger's death or injury the
operator of the vessel was at fault or negligent, having failed to exercise extraordinary diligence, and it
is incumbent upon it to rebut the same. This is in consonance with the avowed policy of the State to
afford full protection to the passengers of common carriers which can be carried out only by imposing
a stringent statutory obligation upon the latter. Concomitantly, this Court has likewise adopted a rigid
posture in the application of the law by exacting the highest degree of care and diligence from common
carriers, bearing utmost in mind the welfare of the passengers who often become hapless victims of
indifferent and profit-oriented carriers. We cannot in reason deny that petitioner failed to rebut the
presumption against it. Under the facts obtaining in the present case, it cannot be gainsaid that
petitioner had inadequately complied with the required degree of diligence to prevent the accident
from happening.
As found by the Court of Appeals, the evidence does not show that there was a cordon of drums
around the perimeter of the crane, as claimed by petitioner. It also adverted to the fact that the alleged
presence of visible warning signs in the vicinity was disputable and not indubitably established. Thus,
we are not inclined to accept petitioner's explanation that the victim and other passengers were
sufficiently warned that merely venturing into the area in question was fraught with serious peril.
Definitely, even assuming the existence of the supposed cordon of drums loosely placed around the
unloading area and the guard's admonitions against entry therein, these were at most insufficient
precautions which pale into insignificance if considered vis-a-vis the gravity of the danger to which the
deceased was exposed. There is no showing that petitioner was extraordinarily diligent in requiring or
seeing to it that said precautionary measures were strictly and actually enforced to subserve their
purpose of preventing entry into the forbidden area. By no stretch of liberal evaluation can such
perfunctory acts approximate the "utmost diligence of very cautious persons" to be exercised "as far as
human care and foresight can provide" which is required by law of common carriers with respect to
their passengers.
While the victim was admittedly contributorily negligent, still petitioner's aforesaid failure to exercise
extraordinary diligence was the proximate and direct cause of, because it could definitely have
prevented, the former's death. Moreover, in paragraph 5.6 of its petition, at bar, 19 petitioner has
expressly conceded the factual finding of respondent Court of Appeals that petitioner did not present
sufficient evidence in support of its submission that the deceased Anacleto Viana was guilty of gross
negligence. Petitioner cannot now be heard to claim otherwise.
No excepting circumstance being present, we are likewise bound by respondent court's declaration
that there was no negligence on the part of Pioneer Stevedoring Corporation, a confirmation of the
trial court's finding to that effect, hence our conformity to Pioneer's being absolved of any liability.
As correctly observed by both courts, Aboitiz joined Pioneer in proving the alleged gross negligence of
the victim, hence its present contention that the death of the passenger was due to the negligence of
the crane operator cannot be sustained both on grounds, of estoppel and for lack of evidence on its
present theory. Even in its answer filed in the court below it readily alleged that Pioneer had taken the
necessary safeguards insofar as its unloading operations were concerned, a fact which appears to have
been accepted by the plaintiff therein by not impleading Pioneer as a defendant, and likewise
inceptively by Aboitiz by filing its third-party complaint only after ten (10) months from the institution
of the suit against it. Parenthetically, Pioneer is not within the ambit of the rule on extraordinary
diligence required of, and the corresponding presumption of negligence foisted on, common carriers
like Aboitiz. This, of course, does not detract from what we have said that no negligence can be
imputed to Pioneer but, that on the contrary, the failure of Aboitiz to exercise extraordinary diligence
for the safety of its passenger is the rationale for our finding on its liability.
WHEREFORE, the petition is DENIED and the judgment appealed from is hereby AFFIRMED in toto.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the
difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date of the filing of the complaint until paid;
plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket
from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs
against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes
on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to
Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness
Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the
seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class;
when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man"
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the
plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court
of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the
issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of
record without expressing therein clearly and distinctly the facts and the law on which it is based". 5
This is echoed in the statutory demand that a judgment determining the merits of the case shall state
"clearly and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the
Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened
with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This
is but a part of the mental process from which the Court draws the essential ultimate facts. A decision
is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the
decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error
for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere
failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to the requirements of the provisions of law
and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the
findings "were based entirely on the evidence for the prosecution without taking into consideration or
even mentioning the appellant's side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or
each item of evidence presented by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that
official duty has been regularly performed, and that all the matters within an issue in a case were laid
before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the
Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of
this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first
class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance
of a first class ticket was no guarantee that he would have a first class ride, but that such would depend
upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that
plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his
journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the
first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at
every station for the necessary first-class reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant airplane company could have the indiscretion
to give out tickets it never meant to honor at all. It received the corresponding amount in payment of
first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in
keeping with the ordinary course of business that the company should know whether or riot the tickets
it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention,
thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart
from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's
own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-
1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a
first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the
Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has
merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court
of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been raised are to be
regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be
regarded as free from all error". 25 We reached this policy construction because nothing in the decision
of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with
those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds
different from those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger have?
It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations
in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a
schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform
language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here.
The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which the
Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was
entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27
We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position",
as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso
"surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from
Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in
the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages
there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails
to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting
point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only
Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been
compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after
he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane on
his return trip from Madrid to Manila.32
2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid,
plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a
first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was
breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there
was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation
berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he
suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish,
serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that
there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is
there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred
to establish the relation between the parties. But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok,
Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence
of bad faith in the fulfillment of the contract was presented without objection on the part of the
petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in
the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by
the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant company at Bangkok to intervene even refused to
do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence
for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence,
if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had
already been taken, surely the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence committed by defendant's
employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in our belief that this probably was what
happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain
the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed
for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the
Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged
with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the
seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better",
nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying
and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to
find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because
the said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the
"white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use
the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The
manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed
his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go
to the tourist class compartment - just to give way to another passenger whose right thereto has not
been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning
different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively
operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith,
with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of
threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to
give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G.
Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant
has not proven that this "white man" had any "better right" to occupy the "first class" seat that the
plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued by
the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well
settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must
answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions
of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is
mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So it is,
that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an
action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract
and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that
the check was worthless and demand payment under threat of ejection, though the language used was
not insulting and she was not ejected." 46 And this, because, although the relation of passenger and
carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be
also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came
to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and
told him that as soon as the train reached such point he would pay the cash fare from that point to
destination, there was nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina
there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action
as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the
petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said, "We
will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything there because I am
protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me — because it was recorded in
French — "First class passenger was forced to go to the tourist class against his will, and that the
captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best evidence would be
the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and that
the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is
incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident.
Testimony on the entry does not come within the proscription of the best evidence rule. Such
testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down.
Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out
of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of the
purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the
ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would
have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really
true that no such entry was made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages — in contracts and quasi- contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in
addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just
and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that
discretion well exercised — as it was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals,
thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as
attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of
Appeals did not interfere with the same. The dictates of good sense suggest that we give our
imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., took no part.
G.R. No. L-22272 June 26, 1967
ANTONIA MARANAN, plaintiff-appellant,
vs. PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.
Pedro Panganiban for plaintiff-appellant.
Magno T. Bueser for defendant-appellant.
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)
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.
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.
The Civil Code provisions on the subject of Common Carriers1 are new and were taken from Anglo-
American Law.2 There, the basis of the carrier's liability for assaults on passengers committed by its
drivers rests either on (1) the doctrine of respondeat superior or (2) the principle that it is the carrier's
implied duty to transport the passenger safely.3
Under the first, which is the minority view, the carrier is liable only when the act of the employee is
within the scope of his authority and duty. It is not sufficient that the act be within the course of
employment only.4
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
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.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
G.R. No. L-19161 April 29, 1966
MANILA RAILROAD COMPANY, petitioner,
vs.
MACARIA BALLESTEROS, TIMOTEO CAMAYO, JOSE REYES and JULIAN MAIMBAN, JR., respondents.
Gov't Corp. Counsel S. M. Gopengco and Atty. R. G. Fernando, for petitioner.
George G. Arbolario, for respondents.
MAKALINTAL, J.:
In civil case No. 45968 of the Court of First Instance of Manila (Macaria Ballesteros, Timoteo Camayo,
Jose Reyes and Julian Maimban, Jr. vs. Manila Railroad Company) the defendant was adjudged to pay
damages in the following amounts: P2,400 to Macaria Ballesteros; P4,000 to Timoteo Camayo; P3,000
to Jose Reyes: and P2,000, plus P1,000 as attorney's fees, to Julian Maimban, Jr.
The defendant appealed from the judgment, but upon motion by the plaintiffs, the trial court, by order
dated October 14, 1961, dismissed the appeal on the ground that it was "manifestly and palpably
frivolous and interposed ostensibly to delay the settlement of the just and reasonable claims of the
herein plaintiffs, which have been pending since 1958." The defendant moved to reconsider, and upon
denial of its motion instituted in this Court the instant petition for mandamus to set aside the order of
dismissal and to order respondent court to give due course to the appeal.
In filing the petition directly with this Court, petitioner evidently intended to raise only questions of law
in the appeal contemplated, since under Rule 41, section 15, "when erroneously a motion to dismiss an
appeal is granted or a record on appeal is disallowed by the trial court, a proper petition for mandamus
may be filed in the appellate court;" and under section 17(6) of the Judiciary Act this Court may review
on appeal only questions of law in civil cases decided by inferior courts unless the value in controversy
exceeds P200,000.1äwphï1.ñët
The fact that an appeal is frivolous and interposed only for purposes of delay has been recognized as a
valid ground to deny issuance of the writ of mandamus to compel the trial court to approve and certify
the appeal. In De la Cruz vs. Blanco and Quevedo, 73 Phil. 596, We held:
And where as in the instant case, the dismissal has been ordered by the trial court, it would not be
disturbed in the Appellate Court if the latter finds the appeal to have been interposed ostensibly for
delay. It has been held that a frivolous appeal is one presenting no justiciable question or one so readily
cognizable as devoid of merit on the face of the record that there is little, if any, prospect that it can
over succeed. The instant case is one such instance in which the appeal is evidently without merit,
taken manifestly for delay.
And in Paner vs. Yatco, 87 Phil. 271, We denied the writ prayed for and held that "while strictly and
legally speaking the petition may be granted, we may, before acting thereon, inquire into the facts
involved in order to determine whether once the writ is granted and the case is brought up here on
appeal the appellant has any chance, even possibility, of having the basic decision of the trial court set
aside or modified; for if the appellant has not that prospect or likelihood then the granting of the writ
and the consequent appeal would be futile and would mean only a waste of time to the parties and to
this Court."
The material facts, as found by respondent court in its decision, are as follows: Private respondents
here, plaintiffs below, were passengers on petitioner's bus, the driver of which was Jose Anastacio. In
Bayombong, Nueva Vizcaya, Anastacio stopped the bus and got off to replace a defective spark plug.
While he was thus engaged, one Dionisio Abello, an auditor assigned to defendant company by the
General Auditing Office, took the wheel and told the driver to sit somewhere else. With Abello driving,
the bus proceeded on its way, from time to time stopping to pick up passengers. Anastacio tried twice
to take the wheel back but Abello would not relinquish it. Then, in the language of the trial court,
"while the bus was negotiating between Km. posts 328 and 329 (in Isabela) a freight truck ... driven by
Marcial Nocum ... bound for Manila, was also negotiating the same place; when these two vehicles
were about to meet at the bend of the road Marcial Nocum, in trying to evade several holes on the
right lane, where his truck was running, swerved his truck towards the middle part of the road and in so
doing, the left front fender and left side of the freight truck smashed the left side of the bus resulting in
extensive damages to the body of the bus and injuries to seventeen of its passengers, ... including the
plaintiffs herein."
In rejecting petitioner's contention that the negligence of Marcial Nocum could not be imputed to it
and relieved it from liability, the trial court found that Dionisio Abello "was likewise reckless when he
was driving the bus at the rate of from 40 to 50 kilometers per hour on a bumpy road at the moment of
the collision."
Another defense put up by petitioner is that since Abello was not its employee it should not be held
responsible for his acts. This defense was correctly overruled by the trial court, considering the
provisions of Article 1763 of the Civil Code and section 48 (b) of the Motor Vehicle Law, which
respectively provide as follows:
Art. 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilfull
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.
Sec. 48(b). No professional chauffeur shall permit any unlicensed person to drive the motor vehicle
under his control, or permit a person, sitting beside him or in any other part of the car, to interfere with
him in the operation of the motor vehicle, by allowing said person to take hold of the steering wheel,
or in any other manner take part in the manipulation or control of the car.
It appears further, and so the trial court found, that there were negotiations between the parties to
compromise the case, as a result of which respondents herein, plaintiffs below, considerably reduced
their claims to the amounts subsequently awarded in the judgment; that petitioner had in fact settled
the claims of the other passengers who were also injured in the same accident and even the claim for
damages filed in another action by the owner of the freight truck; and that the Government Corporate
Counsel himself, who represents herein petitioner, rendered two separate opinions (Op. No. 86, May
19, 1960; and Op. No. 99, series of 1961) wherein, after analyzing the facts and the law applicable, he
reached the conclusion that the acts of the bus personnel, particularly "in allowing Mr. Abello to drive
despite two occasions when the bus stopped and the regular driver could have taken over, constitute
reckless imprudence and wanton injurious conduct on the part of the MRR employees." On the basis of
those opinions the Government Corporate Counsel advised petitioner that the offer of the claimants
was reasonable and should be accepted. His advice, however, was not favorably acted upon, petitioner
obviously preferring to litigate.
The issues proposed to be taken up on appeal, as set forth in the petition, are whether or not Dionisio
Abello acted with reckless negligence while driving petitioner's bus at the time of the accident, and
whether or not petitioner may be held liable on account of such negligence, considering that he was
not its employee. These are no longer justiciable questions which would justify our issuing the
peremptory writ prayed for. The first is a question of fact on which the affirmative finding of
respondent court is not reviewable by Us; and the second is one as to which there can be no possible
doubt in view of the provisions of the Civil Code and of the Motor Vehicle Law hereinbefore cited.
There would be no point in giving the appeal due course.
The writ prayed for is denied, with costs against petitioner.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P., and
Sanchez, JJ., concur.

THIRD DIVISION
[G.R. No. 120553. June 17, 1997]
PHILTRANCO SERVICE ENTERPRISES, INC. and ROGACIONES MANILHIG, petitioner, vs. COURT OF
APPEALS and HEIRS OF THE LATE RAMON ACUESTA, respondents.
DECISION
DAVIDE, JR., J.:
The petitioners interposed this appeal by way of a petition for review under Rule 45 of the Rules of
Court from the 31 January 1995 Decision of the Court of Appeals in CA-G.R. CV No. 41140[1] affirming
the 22 January 1993[2] Decision of Branch 31 of the Regional Trial Court, Calbayog City, in Civil Case No.
373, which ordered the petitioners to pay the private respondents damages as a result of a vehicular
accident.
Civil Case No. 373 was an action against herein petitioners for damages instituted by the heirs of
Ramon A. Acuesta, namely, Gregorio O. Acuesta; Julio O. Acuesta; Ramon O. Acuesta, Jr.; Baltazar O.
Acuesta; Rufino O. Acuesta; Maximo O. Acuesta; Neri O. Acuesta; Iluminada O. Acuesta; Rosario
Acuesta-Sanz; and Pamfilo O. Acuesta. Atty. Julio O. Acuesta also appeared as counsel for the plaintiffs
(herein private respondents).[3] The private respondents alleged that the petitioners were guilty of
gross negligence, recklessness, violation of traffic rules and regulations, abandonment of victim, and
attempt to escape from a crime.
To support their allegations, the private respondents presented eight witnesses. On 10 February 1992,
after the cross-examination of the last witness, the private respondents counsel made a reservation to
present a ninth witness. The case was then set for continuation of the trial on 30 and 31 March 1992.
Because of the non-appearance of the petitioners counsel, the 30 March 1992 hearing was cancelled.
The next day, private respondents counsel manifested that he would no longer present the ninth
witness. He thereafter made an oral offer of evidence and rested the case. The trial court summarized
private respondents evidence in this wise:
[I]n the early morning of March 24, 1990, about 6:00 o'clock, the victim Ramon A. Acuesta was riding in
his easy rider bicycle (Exhibit O), along the Gomez Street of Calbayog City. The Gomez Street is along
the side of Nijaga Park. On the Magsaysay Blvd., also in Calbayog City, defendant Philtranco Service
Enterprises, Inc. (Philtranco for brevity) Bus No. 4025 with plate No. EVA-725 driven by defendant
Rogasiones Manilhig y Dolira was being pushed by some persons in order to start its engine. The
Magsaysay Blvd. runs perpendicular to Gomez St. and the said Philtranco bus 4025 was heading in the
general direction of the said Gomez Street. Some of the persons who were pushing the bus were on its
back, while the others were on the sides. As the bus was pushed, its engine started thereby the bus
continued on its running motion and it occurred at the time when Ramon A. Acuesta who was still
riding on his bicycle was directly in front of the said bus. As the engine of the Philtranco bus started
abruptly and suddenly, its running motion was also enhanced by the said functioning engine, thereby
the subject bus bumped on the victim Ramon A. Acuesta who, as a result thereof fell and, thereafter,
was run over by the said bus. The bus did not stop although it had already bumped and ran [sic] over
the victim; instead, it proceeded running towards the direction of the Rosales Bridge which is located at
one side of the Nijaga Park and towards one end of the Gomez St., to which direction the victim was
then heading when he was riding on his bicycle. P/Sgt. Yabao who was then jogging thru the Gomez
Street and was heading and meeting the victim Ramon A. Acuesta as the latter was riding on his
bicycle, saw when the Philtranco bus was being pushed by some passengers, when its engine abruptly
started and when the said bus bumped and ran over the victim. He approached the bus driver
defendant Manilhig herein and signalled to him to stop, but the latter did not listen. So the police
officer jumped into the bus and introducing himself to the driver defendant as policeman, ordered the
latter to stop. The said defendant driver stopped the Philtranco bus near the Nijaga Park and Sgt. Yabao
thereafter, told the driver to proceed to the Police Headquarter which was only 100 meters away from
Nijaga Park because he was apprehensive that the said driver might be harmed by the relatives of the
victim who might come to the scene of the accident. Then Sgt. Yabao cordoned the scene where the
vehicular accident occurred and had P/Cpl. Bartolome Bagot, the Traffic Investigator, conduct an
investigation and make a sketch of the crime scene. Sgt. Yambao Yabao was only about 20 meters away
when he saw the bus of defendant Philtranco bumped [sic] and [sic] ran over the victim. From the place
where the victim was actually bumped by the bus, the said vehicle still had run to a distance of about
15 meters away.[4]
For their part, the petitioners filed an Answer[5] wherein they alleged that petitioner Philtranco
exercised the diligence of a good father of a family in the selection and supervision of its employees,
including petitioner Manilhig who had excellent record as a driver and had undergone months of rigid
training before he was hired. Petitioner Manilhig had always been a prudent professional driver,
religiously observing traffic rules and regulations. In driving Philtranco's buses, he exercised the
diligence of a very cautious person.
As might be expected, the petitioners had a different version of the incident. They alleged that in the
morning of 24 March 1990, Manilhig, in preparation for his trip back to Pasay City, warmed up the
engine of the bus and made a few rounds within the city proper of Calbayog. While the bus was slowly
and moderately cruising along Gomez Street, the victim, who was biking towards the same direction as
the bus, suddenly overtook two tricycles and swerved left to the center of the road. The swerving was
abrupt and so sudden that even as Manilhig applied the brakes and blew the bus horn, the victim was
bumped from behind and run over by the bus. It was neither willful nor deliberate on Manilhig's part to
proceed with the trip after his bus bumped the victim, the truth being that when he looked at his rear-
view window, he saw people crowding around the victim, with others running after his bus. Fearing
that he might be mobbed, he moved away from the scene of the accident and intended to report the
incident to the police. After a man boarded his bus and introduced himself as a policeman, Manilhig
gave himself up to the custody of the police and reported the accident in question.
The petitioners further claimed that it was the negligence of the victim in overtaking two tricycles,
without taking precautions such as seeing first that the road was clear, which caused the death of the
victim. The latter did not even give any signal of his intention to overtake. The petitioners then
counterclaimed for P50,000 as and for attorney's fees; P1 million as moral damages; and P50,000 for
litigation expenses.
However, the petitioners were not able to present their evidence, as they were deemed to have
waived that right by the failure of their counsel to appear at the scheduled hearings on 30 and 31
March 1992. The trial court then issued an Order[6] declaring the case submitted for decision. Motions
for the reconsideration of the said Order were both denied.
On 22 January 1992, the trial court handed down a decision ordering the petitioners to jointly and
severally pay the private respondents the following amounts:
1) P55, 615.72 as actual damages;
2) P200,000 as death indemnity for the death of the victim Ramon A. Acuesta;
3) P1 million as moral damages;
4) P500,000 by way of exemplary damages;
5) P50,000 as attorneys fees; and
6) the costs of suit.[7]
Unsatisfied with the judgment, the petitioners appealed to the Court of Appeals imputing upon the trial
court the following errors:
(1) in preventing or barring them from presenting their evidence;
(2) in finding that petitioner Manilhig was at fault;
(3) in not finding that Ramon was the one at fault and his own fault caused, or at least contributed to,
his unfortunate accident;
(4) in awarding damages to the private respondents; and
(5) in finding that petitioner Philtranco was solidarily liable with Manilhig for damages.[8]
In its decision of 31 January 1995, the Court of Appeals affirmed the decision of the trial court. It held
that the petitioners were not denied due process, as they were given an opportunity to present their
defense. The records show that they were notified of the assignment of the case for 30 and 31 March
1992. Yet, their counsel did not appear on the said dates. Neither did he file a motion for
postponement of the hearings, nor did he appeal from the denial of the motions for reconsideration of
the 31 March 1992 Order of the trial court. The petitioners have thereby waived their right to present
evidence. Their expectation that they would have to object yet to a formal offer of evidence by the
private respondents was misplaced, for it was within the sound discretion of the court to allow oral
offer of evidence.
As to the second and third assigned errors, the respondent court disposed as follows:
... We cannot help but accord with the lower court's finding on appellant Manilhig's fault. First, it is not
disputed that the bus driven by appellant Manilhig was being pushed at the time of the unfortunate
happening. It is of common knowledge and experience that when a vehicle is pushed to a jump-start,
its initial movement is far from slow. Rather, its movement is abrupt and jerky and it takes a while
before the vehicle attains normal speed. The lower court had thus enough basis to conclude, as it did,
that the bumping of the victim was due to appellant Manilhig's actionable negligence and inattention.
Prudence should have dictated against jump-starting the bus in a busy section of the city. Militating
further against appellants' posture was the fact that the precarious pushing of subject bus to a
jumpstart was done where the bus had to take a left turn, thereby making the move too risky to take.
The possibility that pedestrians on Gomez Street, where the bus turned left and the victim was biking,
would be unaware of a vehicle being pushed to a jumpstart, was too obvious to be overlooked. Verily,
contrary to their bare arguments, there was gross negligence on the part of appellants.
The doctrine of last clear chance theorized upon by appellants, is inapplicable under the premises
because the victim, who was bumped from behind, obviously, did not of course anticipate a Philtranco
bus being pushed from a perpendicular street.
The respondent court sustained the awards of moral and exemplary damages and of attorneys fees, for
they are warranted under Articles 2206, 2231, and 2208(1), respectively, of the Civil Code. Anent the
solidary liability of petitioner Philtranco, the same finds support in Articles 2180 and 2194 of the said
Code. The defense that Philtranco exercised the diligence of a good father of a family in the selection
and supervision of its employees crumbles in the face of the gross negligence of its driver, which
caused the untimely death of the victim.
Their motion for reconsideration having been denied, the petitioners came to us claiming that the
Court of Appeals gravely erred
I In its order of 26 May 1992, the trial court denied the motion, finding it to be "devoid of meritorious
...IN HOLDING THAT PETITIONERS WAIVED THEIR RIGHT TO PRESENT THEIR EVIDENCE, AND THAT
PETITIONERS WERE NOT DENIED DUE PROCESS.
II
...IN APPLYING ART. 2194, INSTEAD OF ART. 2180, OF THE CIVIL CODE, AND IN HOLDING THAT
PETITIONER PHILTRANCO CAN NOT INVOKE THE DEFENSE OF DILIGENCE OF A GOOD FATHER OF A
FAMILY.
III
...IN AWARDING DAMAGES TO RESPONDENTS AND/OR IN NOT FINDING THE TRIAL COURT'S AWARD OF
DAMAGES EXCESSIVE.
We resolved to give due course to the petition and required the parties to submit their respective
memoranda after due consideration of the allegations, issues, and arguments adduced in the petition,
the comment thereon by the private respondents, and the reply to the comment filed by the
petitioners. The petitioners filed their memorandum in due time; while the private respondents filed
theirs only on 3 January 1997, after their counsel was fined in the amount of P1,000 for failure to
submit the required memorandum.
The first imputed error is without merit. The petitioners and their counsel, Atty. Jose Buban, were duly
notified in open court of the order of the trial court of 10 February 1992 setting the case for hearing on
30 and 31 March 1992.[9] On both dates neither the petitioners nor their counsel appeared. In his
motion for reconsideration,[10] Atty. Buban gave the following reasons for his failure to appear on the
said hearings:
1. That when this case was called on March 27, 1992, counsel was very much indisposed due to the
rigors of a very hectic campaign as he is a candidate for City Councilor of Tacloban; he wanted to leave
for Calbayog City, but he was seized with slight fever on the morning of said date; but then, during the
last hearing, counsel was made to understand that plaintiffs would formally offer their exhibits in
writing, for which reason, counsel for defendants waited for a copy of said formal offer, but counsel did
not receive any copy as counsel for plaintiffs opted to formally offer their exhibits orally in open court;
2. That counsel for defendants, in good faith believed that he would be given reasonable time within
which to comment on the formal offer in writing, only to know that counsel for plaintiffs orally offered
their exhibits in open court and that the same were admitted by the Honorable Court; and that when
this case was called on March 30 and 31, 1992, the undersigned counsel honestly believed that said
schedule would be cancelled, pending on the submission of the comments made by the defendants on
the formal offer; but it was not so, as the exhibits were admitted in open court.[11]
basis," as Atty. Buban could have filed a motion for postponement.[12] Atty. Buban then filed a motion
to reconsider[13] the order of denial, which was likewise denied by the trial court in its order of 12
August 1992.[14] Nothing more was done by the petitioners after receipt of the order of 12 August
1992. A perusal of the first and second motions for reconsideration discloses absence of any claim that
the petitioners have meritorious defenses. Clearly, therefore, the trial court committed no error in
declaring the case submitted for decision on the basis of private respondent's evidence.
The second imputed error is without merit either.
Civil Case No. 373 is an action for damages based on quasi-delict[15] under Article 2176 and 2180 of
the Civil Code against petitioner Manilhig and his employer, petitioner Philtranco, respectively. These
articles pertinently provide:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
...
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks even though the former are not engaged in any business or
industry.
...
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage.
We have consistently held that the liability of the registered owner of a public service vehicle, like
petitioner Philtranco,[16] for damages arising from the tortious acts of the driver is primary, direct, and
joint and several or solidary with the driver.[17] As to solidarity, Article 2194 expressly provides:
ART. 2194. The responsibility of two or more persons who are liable for a quasi-delict is solidary.
Since the employer's liability is primary, direct and solidary, its only recourse if the judgment for
damages is satisfied by it is to recover what it has paid from its employee who committed the fault or
negligence which gave rise to the action based on quasi-delict. Article 2181 of the Civil Code provides:
ART. 2181. Whoever pays for the damage caused by his dependents or employees may recover from
the latter what he has paid or delivered in satisfaction of the claim.
There is, however, merit in the third imputed error.
The trial court erroneously fixed the "death indemnity" at P200,000. The private respondents defended
the award in their Opposition to the Motion for Reconsideration by saying that "[i]n the case of
Philippine Airlines, Inc. vs. Court of Appeals, 185 SCRA 110, our Supreme Court held that the award of
damages for death is computed on the basis of the life expectancy of the deceased." In that case, the
"death indemnity" was computed by multiplying the victim's gross annual income by his life
expectancy, less his yearly living expenses. Clearly then, the "death indemnity" referred to was the
additional indemnity for the loss of earning capacity mentioned in Article 2206(1) of the Civil Code, and
not the basic indemnity for death mentioned in the first paragraph thereof. This article provides as
follows:
ART. 2206. 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. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by
the court, unless the deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient
who is not an heir called to the decedent's inheritance by the law of testate or intestate succession,
may demand support from the person causing the death, for a period of not exceeding five years, the
exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.
We concur with petitioners view that the trial court intended the award of "P200,000.00 as death
indemnity" not as compensation for loss of earning capacity. Even if the trial court intended the award
as indemnity for loss of earning capacity, the same must be struck out for lack of basis. There is no
evidence on the victim's earning capacity and life expectancy.
Only indemnity for death under the opening paragraph of Article 2206 is due, the amount of which has
been fixed by current jurisprudence at P50,000.[18]
The award of P1 million for moral damages to the heirs of Ramon Acuesta has no sufficient basis and is
excessive and unreasonable. This was based solely on the testimony of one of the heirs, Atty. Julio
Acuesta, contained in his "Direct Testimony... As Plaintiff, conducted by Himself,"[19] to wit:
Q. What was your feeling or reaction as a result of the death of your father Ramon A. Acuesta?
A. We, the family members, have suffered much from wounded feelings, moral shock, mental anguish,
sleepless nights, to which we are entitled to moral damages at the reasonable amount of ONE MILLION
(P1,000,000.00) PESOS or at the sound discretion of this Hon. Court."
Since the other heirs of the deceased did not take the witness stand, the trial court had no basis for its
award of moral damages to those who did not testify thereon.
Moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant.
They are awarded only to allow the former to obtain means, diversion, or amusements that will serve
to alleviate the moral suffering he has undergone due to the defendant's culpable action and must,
perforce, be proportional to the suffering inflicted.[20] In light of the circumstances in this case, an
award of P50,000 for moral damages is in order.
The award of P500,000 for exemplary damages is also excessive. In quasi-delicts, exemplary damages
may be awarded if the party at fault acted with gross negligence.[21] The Court of Appeals found that
there was gross negligence on the part of petitioner Manilhig.[22] Under Article 2229 of the Civil Code,
exemplary damages are imposed by way of example or correction for the public good, in addition to
the moral, temperate, liquidated, or compensatory damages. Considering its purpose, it must be fair
and reasonable in every case and should not be awarded to unjustly enrich a prevailing party. In the
instant case, an award of P50,000 for the purpose would be adequate, fair, and reasonable.

Finally, the award of P50,000 for attorney's fees must be reduced. The general rule is that attorney's
fees cannot be recovered as part of damages because of the policy that no premium should be placed
on the right to litigate.[23] Stated otherwise, the grant of attorney's fees as part of damages is the
exception rather than the rule, as counsel's fees are not awarded every time a party prevails in a
suit.[24] Such attorney's fees can be awarded in the cases enumerated in Article 2208 of the Civil Code,
and in all cases it must be reasonable. In the instant case, the counsel for the plaintiffs is himself a co-
plaintiff; it is then unlikely that he demanded from his brothers and sisters P100,000 as attorney's fees
as alleged in the complaint and testified to by him.[25] He did not present any written contract for his
fees. He is, however, entitled to a reasonable amount for attorney's fees, considering that exemplary SECOND DIVISION
damages are awarded. Among the instances mentioned in Article 2208 of the Civil Code when [G.R. No. 119756. March 18, 1999]
attorney's fees may be recovered is "(1) when exemplary damages are awarded." Under the
circumstances in this case, an award of P25,000 for attorney's fees is reasonable. FORTUNE EXPRESS, INC., petitioner, vs. COURT OF APPEALS, PAULIE U. CAORONG, and minor
children YASSER KING CAORONG, ROSE HEINNI and PRINCE ALEXANDER, all surnamed CAORONG,
The petitioners did not contest the award for actual damages fixed by the trial court. Hence, such and represented by their mother PAULIE U. CAORONG, respondents.
award shall stand. DECISION
MENDOZA, J.:
IN VIEW OF THE FOREGOING, the petition is hereby partly granted and the challenged decision of CA-
G.R. CV No. 41140 is AFFIRMED, subject to modifications as to the damages awarded, which are This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of the Court of
reduced as follows: Appeals, which reversed the decision of the Regional Trial Court, Branch VI, Iligan City. The aforesaid
decision of the trial court dismissed the complaint of private respondents against petitioner for
(a) Death indemnity, from P200,000 to P50,000; damages for breach of contract of carriage filed on the ground that petitioner had not exercised the
required degree of diligence in the operation of one of its buses. Atty. Talib Caorong, whose heirs are
(b) Moral damages, from P1 million to P50,000; private respondents herein, was a passenger of the bus and was killed in the ambush involving said bus.

(c) Exemplary damages, from P500,000 to P50,000; and The facts of the instant case are as follows:

(d) Attorney's fees, from P50,000 to P25,000. Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is the widow of
Atty. Caorong, while private respondents Yasser King, Rose Heinni, and Prince Alexander are their
No pronouncements as to costs in this instance. minor children.

SO ORDERED. On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in Kauswagan, Lanao
del Norte, resulting in the death of several passengers of the jeepney, including two Maranaos.
Narvasa, C.J., (Chairman), Melo, and Panganiban, JJ., concur. Crisanto Generalao, a volunteer field agent of the Constabulary Regional Security Unit No. X, conducted
Francisco, J., On Leave. an investigation of the accident. He found that the owner of the jeepney was a Maranao residing in
Delabayan, Lanao del Norte and that certain Maranaos were planning to take revenge on the petitioner
by burning some of its buses. Generalao rendered a report on his findings to Sgt. Reynaldo Bastasa of
the Philippine Constabulary Regional Hearquarters at Cagayan de Oro. Upon the instruction of Sgt.
Bastasa, he went to see Diosdado Bravo, operations manager of petitioner, at its main office in Cagayan
de Oro City. Bravo assured him that the necessary precautions to insure the safety of lives and property
would be taken.[1]
At about 6:45 P.M. on November 22, 1989, three armed Maranaos who pretended to be passengers,
seized a bus of petitioner at Linamon, Lanao del Norte while on its way to Iligan City. Among the
passengers of the bus was Atty. Caorong. The leader of the Maranaos, identified as one Bashier
Mananggolo, ordered the driver, Godofredo Cabatuan, to stop the bus on the side of the highway.
Mananggolo then shot Cabatuan on the arm, which caused him to slump on the steering wheel. Then
one of the companions of Mananggolo started pouring gasoline inside the bus, as the other held the
passengers at bay with a handgun. Mananggolo then ordered the passengers to get off the bus. The
passengers, including Atty. Caorong, stepped out of the bus and went behind the bushes in a field some
distance from the highway.[2]
However, Atty. Caorong returned to the bus to retrieve something from the overhead rack. At that
time, one of the armed men was pouring gasoline on the head of the driver. Cabatuan, who had
meantime regained consciousness, heard Atty. Caorong pleading with the armed men to spare the
driver as he was innocent of any wrong doing and was only trying to make a living. The armed men
were, however, adamant as they repeated their warning that they were going to burn the bus along
with its driver. During this exchange between Atty. Caorong and the assailants, Cabatuan climbed out
of the left window of the bus and crawled to the canal on the opposite side of the highway. He heard
shots from inside the bus. Larry de la Cruz, one of the passengers, saw that Atty. Caorong was hit. Then
the bus was set on fire. Some of the passengers were able to pull Atty. Caorong out of the burning bus
and rush him to the Mercy Community Hospital in Iligan City, but he died while undergoing
operation.[3]
The private respondents brought this suit for breach of contract of carriage in the Regional Trial Court,
Branch VI, Iligan City. In his decision, dated December 28, 1990, the trial court dismissed the complaint,
holding as follows:
The fact that defendant, through Operations Manager Diosdado Bravo, was informed of the rumors
that the Moslems intended to take revenge by burning five buses of defendant is established since the
latter also utilized Crisanto Generalaos as a witness. Yet despite this information, the plaintiffs charge,
defendant did not take proper precautions. . . . Consequently, plaintiffs now fault the defendant for
ignoring the report. Their position is that the defendant should have provided its buses with security
guards. Does the law require common carriers to install security guards in its buses for the protection
and safety of its passengers? Is the failure to post guards an omission of the duty to exercise the
diligence of a good father of the family which could have prevented the killing of Atty. Caorong? To our
mind, the diligence demanded by law does not include the posting of security guards in buses. It is an
obligation that properly belongs to the State. Besides, will the presence of one or two security guards
suffice to deter a determined assault of the lawless and thus prevent the injury complained of? Maybe
so, but again, perhaps not. In other words, the presence of a security guard is not a guarantee that the
killing of Atty. Caorong would have been definitely avoided.
.
Accordingly, the failure of defendant to accord faith and credit to the report of Mr. Generalao and the
fact that it did not provide security to its buses cannot, in the light of the circumstances, be
characterized as negligence.
Finally, the evidence clearly shows that the assailants did not have the least intention of harming any of
the passengers. They ordered all the passengers to alight and set fire on the bus only after all the
passengers were out of danger. The death of Atty. Caorong was an unexpected and unforseen
occurrence over which defendant had no control. Atty. Caorong performed an act of charity and
heroism in coming to the succor of the driver even in the face of danger. He deserves the undying
gratitude of the driver whose life he saved. No one should blame him for an act of extraordinary charity
and altruism which cost his life. But neither should any blame be laid on the doorstep of defendant. His
death was solely due to the willful acts of the lawless which defendant could neither prevent nor stop.
.
WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For lack of merit, the
counter-claim is likewise dismissed. No cost.[4]
On appeal, however, the Court of Appeals reversed. It held:
In the case at bench, how did defendant-appellee react to the tip or information that certain Maranao
hotheads were planning to burn five of its buses out of revenge for the deaths of two Maranaos in an
earlier collision involving appellees bus? Except for the remarks of appellees operations manager that
we will have our action . . . . and Ill be the one to settle it personally, nothing concrete whatsoever was
taken by appellee or its employees to prevent the execution of the threat. Defendant-appellee never
adopted even a single safety measure for the protection of its paying passengers. Were there available
safeguards? Of course, there were: one was frisking passengers particularly those en route to the area
where the threats were likely to be carried out such as where the earlier accident occurred or the place
of influence of the victims or their locality. If frisking was resorted to, even temporarily, . . . . appellee
might be legally excused from liability. Frisking of passengers picked up along the route could have
been implemented by the bus conductor; for those boarding at the bus terminal, frisking could have
been conducted by him and perhaps by additional personnel of defendant-appellee. On hindsight, the
handguns and especially the gallon of gasoline used by the felons all of which were brought inside the
bus would have been discovered, thus preventing the burning of the bus and the fatal shooting of the
victim.
Appellees argument that there is no law requiring it to provide guards on its buses and that the safety
of citizens is the duty of the government, is not well taken. To be sure, appellee is not expected to
assign security guards on all of its buses; if at all, it has the duty to post guards only on its buses plying
predominantly Maranao areas. As discussed in the next preceding paragraph, the least appellee could
have done in response to the report was to adopt a system of verification such as frisking of passengers
boarding its buses. Nothing, and to repeat, nothing at all, was done by defendant-appellee to protect
its innocent passengers from the danger arising from the Maranao threats. It must be observed that
frisking is not a novelty as a safety measure in our society. Sensitive places in fact, nearly all important
places have applied this method of security enhancement. Gadgets and devices are available in the
market for this purpose. It would not have weighed much against the budget of the bus company if
such items were made available to its personnel to cope up with situations such as the Maranao
threats.
In view of the constitutional right to personal privacy, our pronouncement in this decision should not
be construed as an advocacy of mandatory frisking in all public conveyances. What we are saying is that
given the circumstances obtaining in the case at bench that: (a) two Maranaos died because of a
vehicular collision involving one of appellees vehicles; (b) appellee received a written report from a
member of the Regional Security Unit, Constabulary Security Group, that the tribal/ethnic group of the
two deceased were planning to burn five buses of appellee out of revenge; and (c) appellee did nothing
absolutely nothing for the safety of its passengers travelling in the area of influence of the victims,
appellee has failed to exercise the degree of diligence required of common carriers. Hence, appellee
must be adjudged liable.
.
WHEREFORE, the decision appealed from is hereby REVERSED and another rendered ordering
defendant-appellee to pay plaintiffs-appellants the following:
1) P3,399,649.20 as death indemnity;
2) P50,000.00 and P500.00 per appearance as attorneys fees; and
Costs against defendant-appellee.[5]
Hence, this appeal. Petitioner contends:
(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT
DATED DECEMBER 28, 1990 DISMISSING THE COMPLAINT AS WELL AS THE COUNTERCLAIM, AND
FINDING FOR PRIVATE RESPONDENTS BY ORDERING PETITIONER TO PAY THE GARGANTUAN SUM OF
P3,449,649.20 PLUS P500.00 PER APPEARANCE AS ATTORNEYS FEES, AS WELL AS DENYING
PETITIONERS MOTION FOR RECONSIDERATION AND THE SUPPLEMENT TO SAID MOTION, WHILE
HOLDING, AMONG OTHERS, THAT PETITIONER BREACHED THE CONTRACT OF CARIAGE BY ITS FAILURE
TO EXERCISE THE REQUIRED DEGREE OF DILIGENCE;
(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO GRAVE, IRRESISTIBLE, VIOLENT, AND
FORCEFUL, AS TO BE REGARDED AS CASO FORTUITO; AND
(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT PETITIONER
COULD HAVE PROVIDED ADEQUATE SECURITY IN PREDOMINANTLY MUSLIM AREAS AS PART OF ITS
DUTY TO OBSERVE EXTRA-ORDINARY DILIGENCE AS A COMMON CARRIER.
The instant petition has no merit.
First. Petitioners Breach of the Contract of Carriage
Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts of other passengers, if the employees of the common carrier
could have prevented the act the exercise of the diligence of a good father of a family. In the present
case, it is clear that because of the negligence of petitioners employees, the seizure of the bus by
Mananggolo and his men was made possible.
Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were planning to
take revenge on the petitioner by burning some of its buses and the assurance of petitioners operation
manager, Diosdado Bravo, that the necessary precautions would be taken, petitioner did nothing to
protect the safety of its passengers.
Had petitioner and its employees been vigilant they would not have failed to see that the malefactors
had a large quantity of gasoline with them. Under the circumstances, simple precautionary measures to
protect the safety of passengers, such as frisking passengers and inspecting their baggages, preferably
with non-intrusive gadgets such as metal detectors, before allowing them on board could have been
employed without violating the passengers constitutional rights. As this Court intimated in Gacal v.
Philippine Air Lines, Inc.,[6] a common carrier can be held liable for failing to prevent a hijacking by
frisking passengers and inspecting their baggages.
From the foregoing, it is evident that petitioners employees failed to prevent the attack on one of
petitioners buses because they did not exercise the diligence of a good father of a family. Hence,
petitioner should be held liable for the death of Atty. Caorong.
Second. Seizure of Petitioners Bus not a Case of Force Majeure
The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous event for
which it could not be held liable.
Art. 1174 of the Civil Code defines a fortuitous even as an occurrence which could not be foreseen or
which though foreseen, is inevitable. In Yobido v. Court of Appeals,[7] we held that to be considered as
force majeure, it is necessary that: (1) the cause of the breach of the obligation must be independent of
the human will; (2) the event must be either unforeseeable or unavoidable; (3) the occurrence must be
such as to render it impossible for the debtor to fulfill the obligation in a normal manner; and (4) the
obligor must be free of participation in, or aggravation of, the injury to the creditor. The absence of any
of the requisites mentioned above would prevent the obligor from being excused from liability.
Thus, in Vasquez v. Court of Appeals,[8] it was held that the common carrier was liable for its failure to
take the necessary precautions against an approaching typhoon, of which it was warned, resulting in
the loss of the lives of several passengers. The event was foreseeable, and, thus, the second requisite
mentioned above was not fulfilled. This ruling applies by analogy to the present case. Despite the
report of PC agent Generalao that the Maranaos were going to attack its buses, petitioner took no
steps to safeguard the lives and properties of its passengers. The seizure of the bus of the petitioner
was foreseeable and, therefore, was not a fortuitous event which would exempt petitioner from
liability.
Petitioner invokes the ruling in Pilapil v. Court of Appeals[9] and De Guzman v. Court of Appeals[10] in
support of its contention that the seizure of its bus by the assailants constitutes force majeure. In
Pilapil v. Court of Appeals,[11] it was held that a common carrier is not liable for failing to install
window grills on its buses to protect passengers from injuries caused by rocks hurled at the bus by
lawless elements. On the other hand, in De Guzman v. Court of Appeals,[12] it was ruled that a
common carrier is not responsible for goods lost as a result of a robbery which is attended by grave or
irresistible threat, violence, or force.
It is clear that the cases of Pilapil and De Guzman do not apply to the present case. Art. 1755 of the Civil
Code provides that a common carrier is bound to carry the passengers as far as human care and
foresight can provide, using the utmost diligence of very cautious person, with due regard for all the
circumstances. Thus, we held in Pilapil and De Guzman that the respondents therein were not negligent
in failing to take special precautions against threats to the safety of passengers which could not be
foreseen, such as tortious or criminal acts of third persons. In the present case, this factor of
unforeseeablility (the second requisite for an event to be considered force majeure) is lacking. As
already stated, despite the report of PC agent Generalao that the Maranaos were planning to burn
some of petitioners buses and the assurance of petitioners operations manager (Diosdado Bravo) that
the necessary precautions would be taken, nothing was really done by petitioner to protect the safety
of passengers.
Third. Deceased not Guilty of Contributory Negligence
The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to the bus
to retrieve something. But Atty. Caorong did not act recklessly. It should be pointed out that the
intended targets of the violence were petitioner and its employees, not its passengers. The assailants
motive was to retaliate for the loss of life of two Maranaos as a result of the collision between
petitioners bus and the jeepney in which the two Maranaos were riding. Mananggolo, the leader of the
group which had hijacked the bus, ordered the passengers to get off the bus as they intended to burn it
and its driver. The armed men actually allowed Atty. Caorong to retrieve something from the bus. What
apparently angered them was his attempt to help the driver of the bus by pleading for his life. He was
playing the role of the good Samaritan. Certainly, this act cannot be considered an act of negligence, let
alone recklessness.
Fourth. Petitioner Liable to Private Respondents for Damages
We now consider the question of damages that the heirs of Atty. Caorong, private respondents herein,
are entitled to recover from the petitioner.
Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for the
payment of indemnity for the death of passengers caused by the breached of contract of carriage by a
common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death
has through the years been gradually increased in view of the declining value of the peso. It is presently
fixed at P50,000.00.[13] Private respondents are entitled to this amount.
Actual damages. Art. 2199 provides that Except as provided by law or by stipulation, one is entitled to
an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. The trial
court found that the private respondents spent P30,000.00 for the wake and burial of Atty.
Caorong.[14] Since petitioner does not question this finding of the trial court, it is liable to private
respondents in the said amount as actual damages.
Moral Damages. Under Art. 2206, the spouse, legitimate and illegitimate descendants and ascendants
of the deceased may demand moral damages for mental anguish by reason of the death of the
deceased. The trial court found that private respondent Paulie Caorong suffered pain from the death of
her husband and worry on how to provide support for their minor children, private respondents Yasser
King, Rose Heinni, and Prince Alexander.[15] The petitioner likewise does not question this finding of
the trial court. Thus, in accordance with recent decisions of this Court,[16] we hold that the petitioner
is liable to the private respondents in the amount of P100,000.00 as moral damages for the death of
Atty. Caorong.
Exemplary Damages. Art. 2232 provides that in contracts and quasi-contracts, the court may award
exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner. In the present case, the petitioner acted in a wanton and reckless manner. Despite warning
that the Maranaos were planning to take revenge against the petitioner by burning some of its buses,
and contrary to the assurance made by its operations manager that the necessary precautions would
be taken, the petitioner and its employees did nothing to protect the safety of passengers. Under the
circumstances, we deem it reasonable to award private respondents exemplary damages in the
amount of P100,000.00.[17]
Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered when, as in the instant case,
exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals,[18] we
held an award of P50,000.00 as attorneys fees to be reasonable. Hence, the private respondents are
entitled to attorneys fees in that amount.
Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof,
provides that in addition to the indemnity for death arising from the breach of contract of carriage by a
common carrier, the defendant shall be liable for the loss of the earning capacity of the deceased, and
the indemnity shall be paid to the heirs of the latter. The formula established in decided cases for
computing net earning capacity is as follows:[19]
Gross Necessary
Net earning = Life x Annual - Living
Capacity Expectancy Income Expenses
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and the age
of the deceased.[20] Since Atty. Caorong was 37 years old at the time of his death,[21] he had a life
expectancy of 28 2/3 more years.[22] His projected gross annual income, computed based on his
monthly salary of P11,385.00[23] as a lawyer in the Department of Agrarian Reform at the time of his
death, was P148,005.00.[24] allowing for necessary living expenses of fifty percent (50%)[25]of his
projected gross annual income, his total earning capacity amounts to P2,121,404.90.[26] Hence, the
petitioner is liable to the private respondents in the said amount as compensation for loss of earning
capacity.

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

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

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

3. moral damages in the amount of one hundred thousand pesos(P100,000.00);

4. exemplary damages in the amount of one hundred thousand pesos (P100,000.00);

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

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

7) costs of suits.

SO ORDERED.

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

Quisumbing, J., on official business abroad.

G.R. No. 52159 December 22, 1989

JOSE PILAPIL, petitioner,

vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC., respondents.

Martin Badong, Jr. for petitioner.


Eufronio K. Maristela for private respondent.
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. strangers, as in the instant case, the degree of care essential to be exercised by the common carrier for
4 the protection of its passenger is only that of a good father of a family.

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 Although the suggested precaution could have prevented the injury complained of, the rule of ordinary
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:
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.
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.
Melencio-Herrera (Chairperson), Sarmiento and Regalado, concur.
Paras, J., took no part.

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