Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-47822 December 22, 1988
PEDRO DE GUZMAN, petitioner,
vs.
COURT OF APPEALS and ERNESTO CENDANA, respondents.
Vicente D. Millora for petitioner.
Jacinto Callanta for private respondent.

FELICIANO, J.:
Respondent Ernesto Cendana, a junk dealer, was engaged in buying up used bottles and scrap metal in Pangasinan. Upon
gathering sufficient quantities of such scrap material, respondent would bring such material to Manila for resale. He utilized two
(2) six-wheeler trucks which he owned for hauling the material to Manila. On the return trip to Pangasinan, respondent would load
his vehicles with cargo which various merchants wanted delivered to differing establishments in Pangasinan. For that service,
respondent charged freight rates which were commonly lower than regular commercial rates.
Sometime in November 1970, petitioner Pedro de Guzman a merchant and authorized dealer of General Milk Company
(Philippines), Inc. in Urdaneta, Pangasinan, contracted with respondent for the hauling of 750 cartons of Liberty filled milk from a
warehouse of General Milk in Makati, Rizal, to petitioner's establishment in Urdaneta on or before 4 December 1970. Accordingly,
on 1 December 1970, respondent loaded in Makati the merchandise on to his trucks: 150 cartons were loaded on a truck driven
by respondent himself, while 600 cartons were placed on board the other truck which was driven by Manuel Estrada, respondent's
driver and employee.
Only 150 boxes of Liberty filled milk were delivered to petitioner. The other 600 boxes never reached petitioner, since the truck
which carried these boxes was hijacked somewhere along the MacArthur Highway in Paniqui, Tarlac, by armed men who took with
them the truck, its driver, his helper and the cargo.
On 6 January 1971, petitioner commenced action against private respondent in the Court of First Instance of Pangasinan,
demanding payment of P 22,150.00, the claimed value of the lost merchandise, plus damages and attorney's fees. Petitioner
argued that private respondent, being a common carrier, and having failed to exercise the extraordinary diligence required of him
by the law, should be held liable for the value of the undelivered goods.
In his Answer, private respondent denied that he was a common carrier and argued that he could not be held responsible for the
value of the lost goods, such loss having been due to force majeure.
On 10 December 1975, the trial court rendered a Decision 1 finding private respondent to be a common carrier and holding him
liable for the value of the undelivered goods (P 22,150.00) as well as for P 4,000.00 as damages and P 2,000.00 as attorney's
fees.
On appeal before the Court of Appeals, respondent urged that the trial court had erred in considering him a common carrier; in
finding that he had habitually offered trucking services to the public; in not exempting him from liability on the ground of  force
majeure; and in ordering him to pay damages and attorney's fees.
The Court of Appeals reversed the judgment of the trial court and held that respondent had been engaged in transporting return
loads of freight "as a casual
occupation — a sideline to his scrap iron business" and not as a common carrier. Petitioner came to this Court by way of a Petition
for Review assigning as errors the following conclusions of the Court of Appeals:
1. that private respondent was not a common carrier;
2. that the hijacking of respondent's truck was force majeure; and
3. that respondent was not liable for the value of the undelivered cargo. (Rollo, p. 111)
We consider first the issue of whether or not private respondent Ernesto Cendana may, under the facts earlier set forth, be
properly characterized as a common carrier.
The Civil Code defines "common carriers" in the following terms:
Article 1732. Common carriers are persons, corporations, firms or associations engaged in the business of
carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering their
services to the public.
The above article makes no distinction between one whose principal business activity is the carrying of persons or goods or both,
and one who does such carrying only as an ancillary activity (in local Idiom as "a sideline"). Article 1732 also carefully avoids
making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one
offering such service on an occasional, episodic or unscheduled basis . Neither does Article 1732 distinguish between a carrier
offering its services to the "general public," i.e., the general community or population, and one who offers services or solicits
business only from a narrow segment of the general population. We think that Article 1733 deliberaom making such distinctions.
So understood, the concept of "common carrier" under Article 1732 may be seen to coincide neatly with the notion of "public
service," under the Public Service Act (Commonwealth Act No. 1416, as amended) which at least partially supplements the law on
common carriers set forth in the Civil Code. Under Section 13, paragraph (b) of the Public Service Act, "public service" includes:
... every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or
compensation, with general or limited clientele, whether permanent, occasional or accidental, and done for
general business purposes, any common carrier,  railroad, street railway, traction railway, subway motor vehicle,
either for freight or passenger, or both, with or without fixed route and whatever may be its classification, freight
or carrier service of any class, express service, steamboat, or steamship line, pontines, ferries and water craft,
engaged in the transportation of passengers or freight or both, shipyard, marine repair shop, wharf or dock, ice
plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and power, water supply and power
petroleum, sewerage system, wire or wireless communications systems, wire or wireless broadcasting stations
and other similar public services. ... (Emphasis supplied)
It appears to the Court that private respondent is properly characterized as a common carrier even though he merely "back-
hauled" goods for other merchants from Manila to Pangasinan, although such back-hauling was done on a periodic or occasional
rather than regular or scheduled manner, and even though private respondent's principal  occupation was not the carriage of
goods for others. There is no dispute that private respondent charged his customers a fee for hauling their goods; that fee
frequently fell below commercial freight rates is not relevant here.
The Court of Appeals referred to the fact that private respondent held no certificate of public convenience, and concluded he was
not a common carrier. This is palpable error. A certificate of public convenience is not a requisite for the incurring of liability under
the Civil Code provisions governing common carriers. That liability arises the moment a person or firm acts as a common carrier,
without regard to whether or not such carrier has also complied with the requirements of the applicable regulatory statute and
implementing regulations and has been granted a certificate of public convenience or other franchise. To exempt private
respondent from the liabilities of a common carrier because he has not secured the necessary certificate of public convenience,
would be offensive to sound public policy; that would be to reward private respondent precisely for failing to comply with
applicable statutory requirements. The business of a common carrier impinges directly and intimately upon the safety and well
being and property of those members of the general community who happen to deal with such carrier. The law imposes duties
and liabilities upon common carriers for the safety and protection of those who utilize their services and the law cannot allow a
common carrier to render such duties and liabilities merely facultative by simply failing to obtain the necessary permits and
authorizations.
We turn then to the liability of private respondent as a common carrier.
Common carriers, "by the nature of their business and for reasons of public policy"  2 are held to a very high degree of care and
diligence ("extraordinary diligence") in the carriage of goods as well as of passengers. The specific import of extraordinary
diligence in the care of goods transported by a common carrier is, according to Article 1733, "further expressed in Articles
1734,1735 and 1745, numbers 5, 6 and 7" of the Civil Code.
Article 1734 establishes the general rule that common carriers are responsible for the loss, destruction or deterioration of the
goods which they carry, "unless the same is due to any of the following causes only:
(1) Flood, storm, earthquake, lightning or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character-of the goods or defects in the packing or-in the containers; and
(5) Order or act of competent public authority.
It is important to point out that the above list of causes of loss, destruction or deterioration which exempt the common carrier for
responsibility therefor, is a closed list. Causes falling outside the foregoing list, even if they appear to constitute a species of force
majeure fall within the scope of Article 1735, which provides as follows:
In all cases other than those mentioned in numbers 1, 2, 3, 4 and 5 of the preceding article, if the goods are
lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence  as required in Article 1733. (Emphasis
supplied)
Applying the above-quoted Articles 1734 and 1735, we note firstly that the specific cause alleged in the instant case — the
hijacking of the carrier's truck — does not fall within any of the five (5) categories of exempting causes listed in Article 1734. It
would follow, therefore, that the hijacking of the carrier's vehicle must be dealt with under the provisions of Article 1735, in other
words, that the private respondent as common carrier is presumed to have been at fault or to have acted negligently. This
presumption, however, may be overthrown by proof of extraordinary diligence on the part of private respondent.
Petitioner insists that private respondent had not observed extraordinary diligence in the care of petitioner's goods. Petitioner
argues that in the circumstances of this case, private respondent should have hired a security guard presumably to ride with the
truck carrying the 600 cartons of Liberty filled milk. We do not believe, however, that in the instant case, the standard of
extraordinary diligence required private respondent to retain a security guard to ride with the truck and to engage brigands in a
firelight at the risk of his own life and the lives of the driver and his helper.
The precise issue that we address here relates to the specific requirements of the duty of extraordinary diligence in the vigilance
over the goods carried in the specific context of hijacking or armed robbery.
As noted earlier, the duty of extraordinary diligence in the vigilance over goods is, under Article 1733, given additional
specification not only by Articles 1734 and 1735 but also by Article 1745, numbers 4, 5 and 6, Article 1745 provides in relevant
part:
Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy:
xxx xxx xxx
(5) that the common carrier shall not be responsible for the acts or omissions of his or its
employees;
(6) that the common carrier's liability for acts committed by thieves, or of r obbers who
do not act with grave or irresistible threat, violence or force, is dispensed with or diminished;
and
(7) that the common carrier shall not responsible for the loss, destruction or deterioration of
goods on account of the defective condition of the car vehicle, ship, airplane or other equipment
used in the contract of carriage. (Emphasis supplied)
Under Article 1745 (6) above, a common carrier is held responsible — and will not be allowed to divest or to diminish such
responsibility — even for acts of strangers like thieves or robbers, except where such thieves or robbers in fact acted "with grave
or irresistible threat, violence or force." We believe and so hold that the limits of the duty of extraordinary diligence in the
vigilance over the goods carried are reached where the goods are lost as a result of a robbery which is attended by "grave or
irresistible threat, violence or force."
In the instant case, armed men held up the second truck owned by private respondent which carried petitioner's cargo. The
record shows that an information for robbery in band was filed in the Court of First Instance of Tarlac, Branch 2, in Criminal Case
No. 198 entitled "People of the Philippines v. Felipe Boncorno, Napoleon Presno, Armando Mesina, Oscar Oria and one John Doe ."
There, the accused were charged with willfully and unlawfully taking and carrying away with them the second truck, driven by
Manuel Estrada and loaded with the 600 cartons of Liberty filled milk destined for delivery at petitioner's store in Urdaneta,
Pangasinan. The decision of the trial court shows that the accused acted with grave, if not irresistible, threat, violence or
force.3 Three (3) of the five (5) hold-uppers were armed with firearms. The robbers not only took away the truck and its cargo but
also kidnapped the driver and his helper, detaining them for several days and later releasing them in another province (in
Zambales). The hijacked truck was subsequently found by the police in Quezon City. The Court of First Instance convicted all the
accused of robbery, though not of robbery in band.   4
In these circumstances, we hold that the occurrence of the loss must reasonably be regarded as quite beyond the control of the
common carrier and properly regarded as a fortuitous event. It is necessary to recall that even common carriers are not made
absolute insurers against all risks of travel and of transport of goods, and are not held liable for acts or events which cannot be
foreseen or are inevitable, provided that they shall have complied with the rigorous standard of extraordinary diligence.
We, therefore, agree with the result reached by the Court of Appeals that private respondent Cendana is not liable for the value of
the undelivered merchandise which was lost because of an event entirely beyond private respondent's control.
ACCORDINGLY, the Petition for Review on certiorari is hereby DENIED and the Decision of the Court of Appeals dated 3 August
1977 is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner,
vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.
Pedro G. Peralta for petitioner.
Florentino G. Libatique for private respondent.

FELICIANO, J.:
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's "Thames" mini bus at
a point in San Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the way, while the bus was running along
the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly heard at one part of the bus and, shortly
thereafter, the vehicle bumped a cement flower pot on the side of the road, went off the road, turned turtle and fell into a ditch.
Several passengers, including petitioner Gatchalian, were injured. They were promptly taken to Bethany Hospital at San Fernando,
La Union, for medical treatment. Upon medical examination, petitioner was found to have sustained physical injuries on the leg,
arm and forehead, specifically described as follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left;
abrasion, lateral surface, leg, left. 1

On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their hospitalization and medical expenses. She also gave petitioner P12.00 with

which to pay her transportation expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint Affidavit which stated, among

other things:

That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while passing through the National

Highway No. 3;

That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle to the east canal of the road into a creek causing physical injuries to us;

x x x           x x x          x x x

That we are no longer interested to file a complaint, criminal or civil against  the said driver and owner of the said Thames, because it was an accident  and the said driver and owner of the said Thames have

gone to the extent of helping us to be treated upon our injuries.

xxx xxx xxx 2

(Emphasis supplied)

Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action  extra contractu to recover compensatory and moral damages. She alleged in the complaint that her injuries

sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that as a result, she had to

retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and deprived her of opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment

and other opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees.

In defense, respondent averred that the vehicular mishap was due to  force majeure, and that petitioner had already been paid and moreover had waived any right to institute any action against him (private respondent) and

his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973.

After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she may have had against

respondent and the driver of the mini-bus.

On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages:

We are not in accord, therefore, of ( sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial court's disposition of the case — its dismissal.

IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is hereby affirmed.

Without special pronouncement as to costs.

SO ORDERED. 3

In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her actual or compensatory damages as well as moral damages.

We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit may be quoted again:

That we are no longer interested to file a complaint, criminal or civil against the said driver and owner  of the said Thames, because it was an accident and the said driver and owner of the said Thames have

gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied)

A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him.  4
 A
waiver may not casually be attributed to a person when the terms thereof do not explicitly and clearly evidence an intent to
abandon a right vested in such person.
The degree of explicitness which this Court has required in purported waivers is illustrated in  Yepes and Susaya v. Samar Express
Transit (supra), where the Court in reading and rejecting a purported waiver said:
. . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they
signed the document Exhibit I wherein they stated that "in consideration of the expenses which said operator has
 incurred in properly giving us the proper medical treatment, we hereby manifest our desire to waive  any and all claims
against the operator of the Samar Express Transit."
x x x           x x x          x x x
Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive
their right to claim damages  from appellant for the latter's failure to comply with their contract of carriage. All that said
document proves is that  they expressed a "desire" to make the waiver — which obviously is not the same as making an
actual waiver of their right. A waiver of the kind invoked by appellant must be clear and unequivocal  (Decision of the
Supreme Court of Spain of July 8, 1887) — which is not the case of the one relied upon in this appeal . (Emphasis
supplied)
If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in the instant
case cannot be regarded as a waiver cast in "clear and unequivocal" terms. Moreover, the circumstances under which the Joint
Affidavit was signed by petitioner Gatchalian need to be considered. Petitioner testified that she was still reeling from the effects
of the vehicular accident, having been in the hospital for only three days, when the purported waiver in the form of the Joint
Affidavit was presented to her for signing; that while reading the same, she experienced dizziness but that, seeing the other
passengers who had also suffered injuries sign the document, she too signed without bothering to read the Joint Affidavit in its
entirety. Considering these circumstances there appears substantial doubt whether petitioner understood fully the import of the
Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether she actually intended thereby to
waive any right of action against private respondent.
Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect of whose
safety a common carrier must exercise extraordinary diligence, we must construe any such purported waiver most strictly against
the common carrier. For a waiver to be valid and effective, it must not be contrary to law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to claim damages by an injured passenger, under circumstances like those
exhibited in this case, would be to dilute and weaken the standard of extraordinary diligence exacted by the law from common
carriers and hence to render that standard unenforceable. 6 We believe such a purported waiver is offensive to public policy.
Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there was no enforceable waiver of
her right of action, should have awarded her actual or compensatory and moral damages as a matter of course.
We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed upon a
common carrier. 7 In case of death or injuries to passengers, a statutory presumption arises that the common carrier was at fault
or had acted negligently "unless it proves that it [had] observed extraordinary diligence as prescribed in Articles 1733 and
1755." 8 In fact, because of this statutory presumption, it has been held that a court need not even make an express finding of
fault or negligence on the part of the common carrier in order to hold it liable. 9 To overcome this presumption, the common
carrier must slow to the court that it had exercised extraordinary diligence to prevent the injuries.  10 The standard of extraordinary
diligence imposed upon common carriers is considerably more demanding than the standard of ordinary diligence, i.e., the
diligence of a good paterfamilias established in respect of the ordinary relations between members of society. A common carrier is
bound to carry its passengers safely" as far as human care and foresight can provide , using the utmost diligence of a very
cautious person, with due regard to all the circumstances". 11
Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records before the

Court are bereft of any evidence showing that respondent had exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt, during the trial before the court  a quo, to prove that he had

indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of  force majeure. But allegation is not proof and here again, respondent

utterly failed to substantiate his defense of force majeure. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of  force majeure, the carrier must clearly show not only that

the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense of  force

 the Court summed up the essential characteristics  of force majeure by quoting with
majeure. In Servando v. Philippine Steam Navigation Company,  12

approval from the Enciclopedia Juridica Española:

Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt
from liability non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines "caso fortuito" as
'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses,
unexpected fire, shipwreck, violence of robber.
In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says: 'In legal sense and, consequently,
also in relation to contracts, a "caso fortuito" presents the following essential characteristics: (1) the cause of the
unforeseen and unexpected occurence, or of the failure of the debtor to comply with his obligation, must be independent
of the human will; (2) it must be impossible to foresee the event which constitutes the "caso fortuito", or if it can be
foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the
injury resulting to the creditor.
Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of respondent common carrier. In
her direct examination, petitioner Gatchalian narrated that shortly before the vehicle went off the road and into a ditch, a
"snapping sound" was suddenly heard at one part of the bus. One of the passengers, an old woman, cried out, "What
happened?" ("Apay addan samet nadadaelen?").  The driver replied, nonchalantly, "That is only normal" ("Ugali ti makina
dayta"). The driver did not stop to check if anything had gone wrong with the bus. Moreover, the driver's reply necessarily
indicated that the same "snapping sound" had been heard in the bus on previous occasions. This could only mean that the bus
had not been checked physically or mechanically to determine what was causing the "snapping sound" which had occurred so
frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating
condition, and even a modicum of concern for life and limb of passengers dictated that the bus be checked and repaired. The
obvious continued failure of respondent to look after the roadworthiness and safety of the bus, coupled with the driver's refusal or
neglect to stop the mini-bus after he had heard once again the "snapping sound" and the cry of alarm from one of the
passengers, constituted wanton disregard of the physical safety of the passengers, and hence gross negligence on the part of
respondent and his driver.
We turn to petitioner's claim for damages. The first item in that claim relates to revenue which petitioner said she failed to realize
because of the effects of the vehicular mishap. Petitioner maintains that on the day that the mini-bus went off the road, she was
supposed to confer with the district supervisor of public schools for a substitute teacher's job, a job which she had held off and on
as a "casual employee." The Court of Appeals, however, found that at the time of the accident, she was no longer employed in a
public school since, being a casual employee and not a Civil Service eligible, she had been laid off. Her employment as a
substitute teacher was occasional and episodic, contingent upon the availability of vacancies for substitute teachers. In view of her
employment status as such, the Court of Appeals held that she could not be said to have in fact lost any employment after and by
reason of the accident. 13 Such was the factual finding of the Court of Appeals, a finding entitled to due respect from this Court.
Petitioner Gatchalian has not submitted any basis for overturning this finding of fact, and she may not be awarded damages on
the basis of speculation or conjecture. 14
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter. A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished, actual injury

is suffered for which actual or compensatory damages are due and assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A scar, especially one on the

face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to her  conditio ante. If the scar is relatively small and does not grievously

disfigure the victim, the cost of surgery may be expected to be correspondingly modest. In  Araneta, et al. vs. Areglado, et al.,  15 this Court awarded actual or compensatory damages for, among other things, the surgical

removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:

We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as compensation for the

"permanent deformity and — something like an inferiority complex" as well as for the "pathological condition on the left side of the jaw" caused to said plaintiff, the court below overlooked the clear evidence on

record that to arrest the degenerative process taking place in the mandible and   restore the injured boy to a nearly normal condition, surgical intervention was needed,  for which the doctor's charges would

amount to P3,000.00, exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation, according to Dr. Diño, would probably have to be repeated in order to effectuate a complete cure,

while removal of the scar on the face obviously demanded plastic surgery.

x x x           x x x          x x x

The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. The damage to the jaw and the  existence of the scar in Benjamin Araneta's

face are physical facts that can not be reasoned out of existence. That the injury should be treated in order to restore him as far as possible to his original condition is undeniable.  The father's delay, or even his

negligence, should not be allowed to prejudice the son who has no control over the parent's action nor impair his right to a full indemnity.

. . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage;  the pain suffered by the injured party; his feelings of inferiority due to consciousness of his present

deformity, as well as the voluntary character of the injury inflicted; and further considering that  a repair, however, skillfully conducted, is never equivalent to the original state,  we are of the opinion that the

indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis supplied)

Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00.  16
 Upon the other hand, Dr. Fe Tayao Lasam, a witness
presented as an expert by petitioner, testified that the cost would probably be between P5,000.00 to P10,000.00. 17 In view of this
testimony, and the fact that a considerable amount of time has lapsed since the mishap in 1973 which may be expected to
increase not only the cost but also very probably the difficulty of removing the scar, we consider that the amount of P15,000.00 to
cover the cost of such plastic surgery is not unreasonable.
Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may be awarded where gross
negligence on the part of the common carrier is shown. 18 Since we have earlier concluded that respondent common carrier and
his driver had been grossly negligent in connection with the bus mishap which had injured petitioner and other passengers, and
recalling the aggressive manuevers of respondent, through his wife, to get the victims to waive their right to recover damages
even as they were still hospitalized for their injuries, petitioner must be held entitled to such moral damages. Considering the
extent of pain and anxiety which petitioner must have suffered as a result of her physical injuries including the permanent scar on
her forehead, we believe that the amount of P30,000.00 would be a reasonable award. Petitioner's claim for P1,000.00 as
atttorney's fees is in fact even more modest. 19

WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instance of La Union dated 4 December 1975 are hereby REVERSED and SET ASIDE.Respondent is

hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the scar on petitioner's forehead; 2)

P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to bear interest at the legal rate of 6% per annum counting from the promulgation of this decision until full payment thereof. Costs

against private respondent.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
G.R. No. 118126 March 4, 1996
TRANS-ASIA SHIPPING LINES, INC., petitioner,
vs.
COURT OF APPEALS and ATTY. RENATO T. ARROYO, respondents.
 
DAVIDE, JR., J.:p
As formulated by the petitioner, the issue in this petition for review on certiorari  under Rule 45 of the Rules of Court is as follows:
In case of interruption of a vessel's voyage and the consequent delay in that vessel's arrival at its port of
destination, is the right of a passenger affected thereby to be determined and governed by the vague Civil Code
provision on common carriers, or shall it be, in the absence of a specific provision thereon  governed by Art. 698
of the Code of Commerce?1
The petitioner considers it a "novel question of law."
Upon a closer evaluation, however, of the challenged decision of the Court of Appeals of 23 November 1994, 2 vis-a-vis, the
decision of 29 June 1992 in Civil Case No. 91-491 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 24, 3 as well as
the allegations and arguments adduced by the parties, we find the petitioner's formulation of the issue imprecise. As this Court
sees it, what stands for resolution is a common carrier's liability for damages to a passenger who disembarked from the vessel
upon its return to the port of origin, after it suffered engine trouble and had to stop at sea, having commenced the contracted
voyage on one engine.
The antecedents are summarized by the Court of Appeals as follows:
Plaintiff [herein private respondent Atty. Renato Arroyo], a public attorney, bought a ticket [from] defendant
[herein petitioner], a corporation engaged in . . . inter-island shipping, for the voyage of M/V Asia Thailand
vessel to Cagayan de Oro City from Cebu City on November 12, 1991.
At around 5:30 in the evening of November 12, 1991, plaintiff boarded the M/V Asia Thailand vessel. At that
instance, plaintiff noticed that some repair works [ sic] were being undertaken on the engine of the vessel. The
vessel departed at around 11:00 in the evening with only one (1) engine running.
After an hour of slow voyage, the vessel stopped near Kawit Island and dropped its anchor thereat. After half an
hour of stillness, some passengers demanded that they should be allowed to return to Cebu City for they were
no longer willing to continue their voyage to, Cagayan de Oro City. The captain acceeded [ sic] to their request
and thus the vessel headed back to Cebu City.
At Cebu City, plaintiff together with the other passengers who requested to be brought back to Cebu City, were
allowed to disembark. Thereafter, the vessel proceeded to Cagayan de Oro City. Plaintiff, the next day, boarded
the M/V Asia Japan for its voyage to Cagayan de Oro City, likewise a vessel of defendant.
On account of this failure of defendant to transport him to the place of destination on November 12, 1991,
plaintiff filed before the trial court a complaint for damages against defendant. 4
In his complaint, docketed as Civil Case No. 91-491, plaintiff (hereinafter private respondent) alleged that the engines of the M/V
Asia Thailand conked out in the open sea, and for more than an hour it was stalled and at the mercy of the waves, thus causing
fear in the passengers. It sailed back to Cebu City after it regained power, but for unexplained reasons, the passengers, including
the private respondent, were arrogantly told to disembark without the necessary precautions against possible injury to them. They
were thus unceremoniously dumped, which only exacerbated the private respondent's mental distress. He further alleged that by
reason of the petitioner's wanton, reckless, and willful acts, he was unnecessarily exposed to danger and, having been stranded in
Cebu City for a day, incurred additional expenses and loss of income. He then prayed that he be awarded P1,100.00, P50,000.00,
and P25,000.00 as compensatory, moral; and exemplary damages, respectively. 5
In his pre-trial brief, the private respondent asserted that his complaint was "an action for damages arising from bad faith, breach
of contract and from tort," with the former arising from the petitioner's "failure to carry [him] to his place of destination as
contracted," while the latter from the "conduct of the [petitioner] resulting [in] the infliction of emotional distress" to the private
respondent.6
After due trial, the trial court rendered its decision 7 and ruled that the action was only for breach of contract, with Articles 1170,
1172, and 1173 of the Civil Code as applicable law — not Article 2180 of the same Code. It was of the opinion that Article 1170
made a person liable for damages if, in the performance of his obligation, he was guilty of fraud, negligence, or delay, or in any
manner contravened the tenor thereof; moreover, pursuant to Article 2201 of the same Code, to be entitled to damages, the non-
performance of the obligation must have been tainted not only by fraud, negligence, or delay, but also bad faith, malice, and
wanton attitude. It then disposed of the case as follows:
WHEREFORE, it not appearing from the evidence that plaintiff was left in the Port of Cebu because of the fault,
negligence, malice or wanton attitude of defendant's employees, the complaint is DISMISSED. Defendant's
counterclaim is likewise dismissed it not appearing also that filing of the case by plaintiff was motivated by malice
or bad faith.8
The trial court made the following findings to support its disposition:
In the light of the evidence adduced by the parties and of the above provisions of the New Civil Code, the issue
to be resolved, in the resolution of this case is whether or not, defendant thru its employees in [ sic] the night of
November 12, 1991, committed fraud, negligence, bad faith or malice when it left plaintiff in the Port of Cebu
when it sailed back to Cagayan de Oro City after it has [sic] returned from Kawit Island.
Evaluation of the evidence of the parties tended to show nothing that defendant committed fraud. As early as
3:00 p.m. of November 12, 1991, defendant did not hide the fact that the cylinder head cracked. Plaintiff even
saw during its repair. If he had doubts as to the vessel's capacity to sail, he had time yet to take another boat.
The ticket could be returned to defendant and corresponding cash [would] be returned to him.
Neither could negligence, bad faith or malice on the part of defendant be inferred from the evidence of the
parties. When the boat arrived at [the] Port of Cebu after it returned from Kawit Island, there was an
announcement that passengers who would like to disembark were given ten (10) minutes only to do so. By this
announcement, it could be inferred that the boat will [ sic] proceed to Cagayan de Oro City. If plaintiff
 entertained doubts, he should have asked a member of the crew of the boat or better still, the captain of the
boat. But as admitted by him, he was of the impression only that the boat will not proceed to Cagayan de Oro
that evening so he disembarked. He was instead, the ones [ sic] negligent. Had he been prudent, with the
announcement that those who will disembark were given ten minutes only, he should have lingered a little by
staying in his cot and inquired whether the boat will proceed to Cagayan de Oro City or not. Defendant cannot be
expected to be telling [sic] the reasons to each passenger. Announcement by microphone was enough.
The court is inclined to believe that the story of defendant that the boat returned to the Port of Cebu because of
the request of the passengers in view of the waves. That it did not return because of the defective engines as
shown by the fact that fifteen (15) minutes after the boat docked [at] the Port of Cebu and those who wanted to
proceed to Cagayan de Oro disembarked, it left for Cagayan de Oro City.
The defendant got nothing when the boat returned to Cebu to let those who did not want to proceed to Cagayan
de Oro City including plaintiff disembarked. On the contrary, this would mean its loss instead because it will have
to refund their tickets or they will use it the next trip without paying anymore. It is hard therefore, to imagine
how defendant by leaving plaintiff in Cebu could have acted in bad faith, negligently, wantonly and with malice.
If plaintiff, therefore, was not able to [m]ake the trip that night of November 12, 1991, it was not because
defendant maliciously did it to exclude him [from] the trip. If he was left, it was because of his fault or
negligence.9
Unsatisfied, the private respondent appealed to the Court of Appeals (CA-G.R. CV No. 39901) and submitted for its determination
the following assignment of errors: (1) the trial court erred in not finding that the defendant-appellee was guilty of fraud, delay,
negligence, and bad faith; and (2) the trial court. erred in not awarding moral and exemplary damages. 10
In its decision of 23 November 1994, 11 the Court of Appeals reversed the trial court's decision by applying Article 1755 in relation
to Articles 2201, 2208, 2217, and 2232 of the Civil Code and, accordingly, awarded compensatory, moral, and exemplary damages
as follows:
WHEREFORE, premises considered, the appealed decision is hereby REVERSED and SET ASIDE and another one
is rendered ordering defendant-appellee to pay plaintiff-appellant:
1. P20,000.00 as moral damages;
2. P10,000.00 as exemplary damages;
3. P5,000.00 as attorney's fees;
4. Cost of suit.
SO ORDERED.12
It did not, however, allow the grant of damages for the delay in the performance of the petitioner's obligation as the requirement
of demand set forth in Article 1169 of the Civil Code had not been met by the private respondent. Besides, it found that the
private respondent offered no evidence to prove that his contract of carriage with the petitioner provided for liability in case of
delay in departure, nor that a designation of the time of departure was the controlling motive for the establishment of the
contract. On the latter, the court a quo  observed that the private respondent even admitted he was unaware of the vessel's
departure time, and it was only when he boarded the vessel that he became aware of such. Finally, the respondent Court found
no reasonable basis for the private respondent's belief that demand was useless because the petitioner had rendered it beyond its
power to perform its obligation; on the contrary, he even admitted that the petitioner had been assuring the passengers that the
vessel would leave on time, and that it could still perform its obligation to transport them as scheduled.
To justify its award of damages, the Court of Appeals ratiocinated as follows:
It is an established and admitted fact that the vessel before the voyage had undergone some repair work on the
cylinder head of the engine. It is likewise admitted by defendant-appellee that it left the port of Cebu City with
only one engine running. Defendant-appellee averred:
. . . The dropping of the vessel's anchor after running slowly on only one engine  when it
departed earlier must have alarmed some nervous passengers . . .
The entries in the logbook which defendant-appellee itself offered as evidence categorically stated therein that
the vessel stopped at Kawit Island because of engine trouble. It reads:
2330 HRS STBD ENGINE' EMERGENCY STOP
2350 HRS DROP ANCHOR DUE TO ENGINE TROUBLE, 2 ENGINE STOP.
The stoppage was not to start and synchronized [ sic] the engines of the vessel as claimed by defendant-
appellee. It was because one of the engines of the vessel broke down; it was because of the disability of the
vessel which from the very beginning of the voyage was known to defendant-appellee.
Defendant-appellee from the very start of the voyage knew for a fact that the vessel was not yet in its sailing
condition because the second engine was still being repaired. Inspite of this knowledge, defendant-appellee still
proceeded to sail with only one engine running.
Defendant-appellee at that instant failed to exercise the diligence which all common carriers should exercise in
transporting or carrying passengers. The law does not merely require extraordinary diligence in the performance
of the obligation. The law mandates that common carrier[s] should exercise utmost diligence  the transport of
passengers.
Article 1755 of the New Civil Code provides:
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard
for all the circumstances.
Utmost diligence of a VERY CAUTIOUS person dictates that defendant-appellee should have pursued the voyage
only when its vessel was already fit to sail. Defendant-appellee should have made certain that the vessel [could]
complete the voyage before starting [to] sail. Anything less than this, the vessel [could not] sail . . . with so
many passengers on board it.
However, defendant-appellant [sic] in complete disregard of the safety of the passengers, chose to proceed with
its voyage even if only one engine was running as the second engine was still being repaired during the voyage.
Defendant-appellee disregarded the not very remote possibility that because of the disability of the vessel, other
problems might occur which would endanger the lives of the passengers sailing with a disabled vessel.
As expected, . . . engine trouble occurred. Fortunate[ly] for defendant-appellee, such trouble only necessitated
the stoppage of the vessel and did not cause the vessel to capsize. No wonder why some passengers requested
to be brought back to Cebu City. Common carriers which are mandated to exercise utmost diligence should not
be taking these risks.
 On this premise, plaintiff-appellant should not be faulted why he chose to disembark from the vessel with the
other passengers when it returned back to Cebu City. Defendant-appellee may call him a very "panicky
passenger" or a "nervous person", but this will not relieve defendant-appellee from the liability it incurred for its
failure to exercise utmost diligence.13
xxx xxx xxx
As to the second assigned error, we find that plaintiff-appellant is entitled to the award of moral and exemplary
damages for the breach committed by defendant-appellee.
As discussed, defendant-appellee in sailing to Cagayan de Oro City with only one engine and with full knowledge
of the true condition of the vessel, acted. in bad faith with malice, in complete disregard for the safety of the
passengers and only for its own personal advancement/interest.
The Civil Code provides:
Art. 2201.
x x x           x x x          x x x
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to the non-performance of the obligation.
Plaintiff-appellant is entitled to moral damages for the mental anguish, fright and serious anxiety he suffered
during the voyage when the vessel's engine broke down and when he disembarked from the vessel during the
wee hours of the morning at Cebu City when it returned. 14
Moral damages are recoverable in a damage suit predicated upon a breach of contract of carriage where it is
proved that the carrier was guilty of fraud or bad faith even if death does not result. 15
Fraud and bad faith by defendant-appellee having been established, the award of moral damages is in order. 16
To serve as a deterrent to the commission of similar acts in the future, exemplary damages should be imposed
upon defendant-appellee. 17 Exemplary damages are designed by our civil law to permit the courts to reshape
behavior that is socially deleterious in its consequence by creating . . . negative incentives or deterrents against
such behavior.18
Moral damages having been awarded, exemplary damages maybe properly awarded. When entitlement to moral
damages has been established, the award of exemplary damages is proper. 19
The petitioner then instituted this petition and submitted the question of law earlier adverted to.
Undoubtedly, there was, between the petitioner and the private respondent, a contract of common carriage. The laws of primary
application then are the provisions on common carriers under Section 4, Chapter 3, Title VIII, Book IV of the Civil Code, while for
all other matters not regulated thereby, the Code of Commerce and special laws. 20
Under Article 1733 of the Civil Code, the petitioner was bound to observe extraordinary diligence in ensuring the safety of the
private respondent. That meant that the petitioner was, pursuant to Article 1755 of the said Code, bound to carry the private
respondent safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due
regard for all the circumstances. In this case, we are in full accord with the Court of Appeals that the petitioner failed to discharge
this obligation.
Before commencing the contracted voyage, the petitioner undertook some repairs on the cylinder head of one of the vessel's
engines. But even before it could finish these repairs, it allowed the vessel to leave the port of origin on only one functioning
engine, instead of two. Moreover, even the lone functioning engine was not in perfect condition as sometime after it had run its
course, it conked out. This caused the vessel to stop and remain a drift at sea, thus in order to prevent the ship from capsizing, it
had to drop anchor. Plainly, the vessel was unseaworthy even before the voyage began. For a vessel to be seaworthy, it must be
adequately equipped for the voyage and manned with a sufficient number of competent officers and crew.  21 The failure of a
common carrier to maintain in seaworthy condition its vessel involved in a contract of carriage is a clear breach of its duty
prescribed in Article 1755 of the Civil Code.
As to its liability for damages to the private respondent, Article 1764 of the Civil Code expressly provides:
Art. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this
Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of
contract by common carrier.
The damages comprised in Title XVIII of the Civil Code are actual or compensatory, moral, nominal, temperate or
moderate, liquidated, and exemplary.
In his complaint, the private respondent claims actual or compensatory, moral, and exemplary damages.
Actual or compensatory damages represent the adequate compensation for pecuniary loss suffered and for profits the obligee
failed to obtain.22
In contracts or quasi-contracts, the obligor is liable for all the damages which may be reasonably attributed to the non-
performance of the obligation if he is guilty of fraud, bad faith, malice, or wanton attitude. 23
Moral damages include moral suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, or similar injury. They may be recovered in the cases enumerated in Article 2219 of the Civil Code,
likewise, if they are the proximate result of, as in this case, the petitioner's breach of the contract of carriage. 24 Anent a breach of
a contract of common carriage, moral damages may be awarded if the common carrier, like the petitioner, acted fraudulently or in
bad faith.25
Exemplary damages are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated
or compensatory damages.26 In contracts and quasi-contracts, exemplary damages may be awarded if the defendant acted in a
wanton, fraudulent, reckless, oppressive or malevolent manner. 27 It cannot, however, be considered as a matter of right; the
court having to decide whether or not they should be adjudicated. 28 Before the court may consider an award for exemplary
damages, the plaintiff must first show that he is entitled to moral, temperate or compensatory damages; but it is not necessary
that he prove the monetary value thereof.29
The Court of Appeals did not grant the private respondent actual or compensatory damages, reasoning that no delay was incurred
since there was no demand, as required by Article 1169 of the Civil Code. This article, however, finds no application in this case
because, as found by the respondent Court, there was in fact no delay in the commencement of the contracted voyage. If any
delay was incurred, it was after the commencement of such voyage, more specifically, when the voyage was subsequently
interrupted when the vessel had to stop near Kawit Island after the only functioning engine conked out.
As to the rights and duties of the parties strictly arising out of such delay, the Civil Code is silent. However, as correctly pointed
out by the petitioner, Article 698 of the Code of Commerce specifically provides for such a situation. It reads:
In case a voyage already begun should be interrupted, the passengers shall be obliged to pay the fare in
proportion to the distance covered, without right to recover for losses and damages if the interruption is due to
fortuitous event or force majeure, but with a right to indemnity if the interruption should have been caused by
 the captain exclusively. If the interruption should be caused by the disability of the vessel and a passenger
should agree to await the repairs, he may not be required to pay any increased price of passage, but his living
expenses during the stay shall be for his own account.
This article applies suppletorily pursuant to Article 1766 of the Civil Code.
Of course, this does not suffice for a resolution of the case at bench for, as earlier stated, the cause of the delay or interruption
was the petitioner's failure to observe extraordinary diligence. Article 698 must then be read together with Articles 2199, 2200,
2201, and 2208 in relation to Article 21 of the Civil Code. So read, it means that the petitioner is liable for any pecuniary loss or
loss of profits which the private respondent may have suffered by reason thereof. For the private respondent, such would be the
loss of income if unable to report to his office on the day he was supposed to arrive were it not for the delay. This, however,
assumes that he stayed on the vessel and was with it when it thereafter resumed its voyage; but he did not. As he and some
passengers resolved not to complete the voyage, the vessel had to return to its port of origin and allow them to disembark. The
private respondent then took the petitioner's other vessel the following day, using the ticket he had purchased for the previous
day's voyage.
Any further delay then in the private respondent's arrival at the port of destination was caused by his decision to disembark. Had
he remained on the first vessel, he would have reached his destination at noon of 13 November 1991, thus been able to report to
his office in the afternoon. He, therefore, would have lost only the salary for half of a day. But actual or compensatory damages
must be proved,30 which the private respondent failed to do. There is no convincing evidence that he did not receive his salary for
13 November 1991 nor that his absence was not excused.
We likewise fully agree with the Court of Appeals that the petitioner is liable for moral and exemplary damages. In allowing its
unseaworthy M/V Asia Thailand to leave the port of origin and undertake the contracted voyage, with full awareness that it was
exposed to perils of the sea, it deliberately disregarded its solemn duty to exercise extraordinary diligence and obviously acted
with bad faith and in a wanton and reckless manner. On this score, however, the petitioner asserts that the safety or the vessel
and passengers was never at stake because the sea was "calm" in the vicinity where it stopped as faithfully recorded in the
vessel's log book (Exhibit "4"). Hence, the petitioner concludes, the private respondent was merely "over-reacting" to the situation
obtaining then.31
We hold that the petitioner's defense cannot exculpate it nor mitigate its liability. On the contrary, such a claim demonstrates
beyond cavil the petitioner's lack of genuine concern for the safety of its passengers. It was, perhaps, only providential then the
sea happened to be calm. Even so, the petitioner should not expect its passengers to act in the manner it desired. The passengers
were not stoics; becoming alarmed, anxious, or frightened at the stoppage of a vessel at sea in an unfamiliar zone as nighttime is
not the sole prerogative of the faint-hearted. More so in the light of the many tragedies at sea resulting in the loss of lives of
hopeless passengers and damage to property simply because common carriers failed in their duty to exercise extraordinary
diligence in the performance of their obligations.
We cannot, however, give our affirmance to the award of attorney's fees. Under Article 2208 of the Civil Code, these are
recoverable only in the concept of actual damages, 32 not as moral damages33 nor judicial costs. 34 Hence, to merit such an award,
it is settled that the amount thereof must be proven. 35 Moreover, such must be specifically prayed for — as was not done in this
case—and may not be deemed incorporated within a general prayer for "such other relief and remedy as this court may deem just
and equitable."36 Finally, it must be noted that aside from the following, the body of the respondent Court's decision was devoid of
any statement regarding attorney's fees:
Plaintiff-appellant was forced to litigate in order that he can claim moral and exemplary damages for the
suffering he encurred [sic]. He is entitled to attorney's fees pursuant to Article 2208 of the Civil Code. It states:
Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs
cannot be recovered except:
1. When exemplary damages are awarded;
2. When the defendant's act or omission has compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest.
This Court holds that the above does not satisfy the benchmark of "factual, legal and equitable justification" needed as
basis for an award of attorney's fees. 3 7 In sum, for lack of factual and legal basis, the award of attorney's fees must be
deleted.
WHEREFORE, the instant petition is DENIED and the challenged decision of the Court of Appeals in CA-G.R. CV No. 39901 is
AFFIRMED subject to the modification as to the award for attorney's fees which is hereby SET ASIDE.
Costs against the petitioner.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 
G.R. No. 110398 November 7, 1997
NEGROS NAVIGATION CO., INC., petitioner,
vs.
THE COURT OF APPEALS, RAMON MIRANDA, SPS. RICARDO and VIRGINIA DE LA VICTORIA, respondents.

MENDOZA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals affirming with modification the Regional Trial
Court's award of damages to private respondents for the death of relatives as a result of the sinking of petitioner's vessel.
In April of 1980, private respondent Ramon Miranda purchased from the Negros Navigation Co., Inc. four special cabin tickets
(#74411, 74412, 74413 and 74414) for his wife, daughter, son and niece who were going to Bacolod City to attend a family
reunion. The tickets were for Voyage No. 457-A of the M/V Don Juan, leaving Manila at 1:00 p.m. on April 22, 1980.
The ship sailed from the port of Manila on schedule.
At about 10:30 in the evening of April 22, 1980, the Don Juan collided off the Tablas Strait in Mindoro, with the M/T Tacloban
City, an oil tanker owned by the Philippine National Oil Company (PNOC) and the PNOC Shipping and Transport Corporation
(PNOC/STC). As a result, the M/V Don Juan sank. Several of her passengers perished in the sea tragedy. The bodies of some of
the victims were found and brought to shore, but the four members of private respondents' families were never found.
Private respondents filed a complaint on July 16, 1980 in the Regional Trial Court of Manila, Branch 34, against the Negros
Navigation, the Philippine National Oil Company (PNOC), and the PNOC Shipping and Transport Corporation (PNOC/STC), seeking
damages for the death of Ardita de la Victoria Miranda, 48, Rosario V. Miranda, 19, Ramon V. Miranda, Jr., 16, and Elfreda de la
Victoria, 26.
In its answer, petitioner admitted that private respondents purchased ticket numbers 74411, 74412, 74413 and 74414; that the
ticket numbers were listed in the passenger manifest; and that the Don Juan left Pier 2, North Harbor, Manila on April 22, 1980
and sank that night after being rammed by the oil tanker M/T Tacloban City, and that, as a result of the collision, some of the
passengers of the M/V Don Juan died. Petitioner, however, denied that the four relatives of private respondents actually boarded
the vessel as shown by the fact that their bodies were never recovered. Petitioner further averred that the  Don Juan was
seaworthy and manned by a full and competent crew, and that the collision was entirely due to the fault of the crew of the
M/T Tacloban City.
On January 20, 1986, the PNOC and petitioner Negros Navigation Co., Inc. entered into a compromise agreement whereby
petitioner assumed full responsibility for the payment and satisfaction of all claims arising out of or in connection with the collision
and releasing the PNOC and the PNOC/STC from any liability to it. The agreement was subsequently held by the trial court to be
binding upon petitioner, PNOC and PNOC/STC. Private respondents did not join in the agreement.
After trial, the court rendered judgment on February 21, 1991, the dispositive portion of which leads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs, ordering all the defendants
to pay jointly and severally to the plaintiffs damages as follows:
To Ramon Miranda:
P42,025.00 for actual damages;
P152,654.55 as compensatory damages for loss of
earning capacity of his wife;
P90,000.00 as compensatory damages for wrongful
death of three (3) victims;
P300,000.00 as moral damages;
P50,000.00 as exemplary damages, all in the total
amount of P634,679.55; and
P40,000.00 as attorney's fees.
To Spouses Ricardo and Virginia de la Victoria:
P12,000.00 for actual damages;
P158,899.00 as compensatory damages for loss of
earning capacity;
P30,000.00 as compensatory damages for wrongful
death;
P100,000.00 as moral damages;
P20,000.00 as exemplary damages, all in the total
amount of P320,899.00; and
P15,000.00 as attorney's fees.
On appeal, the Court of Appeals1 affirmed the decision of the Regional Trial Court with modification —
1. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiff-appellee Ramon Miranda the
amount of P23,075.00 as actual damages instead of P42,025.00;
2. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiff-appellee Ramon Miranda the
amount of P150,000.00, instead of P90,000.00, as compensatory damages for the death of his wife and two children;
3. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiffs-appellees Dela Victoria spouses
the amount of P50,000.00, instead of P30,000.00, as compensatory damages for the death of their daughter Elfreda Dela
Victoria;
Hence this petition, raising the following issues:
(1) whether the members of private respondents' families were actually passengers of the Don Juan;
(2) whether the ruling in Mecenas v. Court of Appeals,2 finding the crew members of petitioner to be grossly negligent in the
performance of their duties, is binding in this case;
(3) whether the total loss of the M/V Don Juan extinguished petitioner's liability; and
(4) whether the damages awarded by the appellate court are excessive, unreasonable and unwarranted.
First. The trial court held that the fact that the victims were passengers of the M/V Don Juan was sufficiently proven by private
respondent Ramon Miranda, who testified that he purchased tickets numbered 74411, 74412, 74413, and 74414 at P131.30 each
from the Makati office of petitioner for Voyage No. 47-A of the M/V  Don Juan, which was leaving Manila on April 22, 1980. This
was corroborated by the passenger manifest (Exh. E) on which the numbers of the tickets and the names of Ardita Miranda and
her children and Elfreda de la Victoria appear.
Petitioner contends that the purchase of the tickets does not necessarily mean that the alleged victims actually took the trip.
Petitioner asserts that it is common knowledge that passengers purchase tickets in advance but do not actually use them. Hence,
private respondent should also prove the presence of the victims on the ship. The witnesses who affirmed that the victims were
on the ship were biased and unreliable.
This contention is without merit. Private respondent Ramon Miranda testified that he personally took his family and his niece to
the vessel on the day of the voyage and stayed with them on the ship until it was time for it to leave. There is no reason he
should claim members of his family to have perished in the accident just to maintain an action. People do not normally lie about
so grave a matter as the loss of dear ones. It would be more difficult for private respondents to keep the existence of their
relatives if indeed they are alive than it is for petitioner to show the contrary. Petitioner's only proof is that the bodies of the
supposed victims were not among those recovered from the site of the mishap. But so were the bodies of the other passengers
reported missing not recovered, as this Court noted in the Mecenas3 case.
Private respondent Miranda's testimony was corroborated by Edgardo Ramirez. Ramirez was a seminarian and one of the
survivors of the collision. He testified that he saw Mrs. Miranda and Elfreda de la Victoria on the ship and that he talked with
them. He knew Mrs. Miranda who was his teacher in the grade school. He also knew Elfreda who was his childhood friend and
townmate. Ramirez said he was with Mrs. Miranda and her children and niece from 7:00 p.m. until 10:00 p.m. when the collision
happened and that he in fact had dinner with them. Ramirez said he and Elfreda stayed on the deck after dinner and it was there
where they were jolted by the collision of the two vessels. Recounting the moments after the collision, Ramirez testified that
Elfreda ran to fetch Mrs. Miranda. He escorted her to the room and then tried to go back to the deck when the lights went out. He
tried to return to the cabin but was not able to do so because it was dark and there was a stampede of passengers from the deck.
Petitioner casts doubt on Ramirez' testimony, claiming that Ramirez could not have talked with the victims for about three hours
and not run out of stories to tell, unless Ramirez had a "storehouse" of stories. But what is incredible about acquaintances thrown
together on a long journey staying together for hours on end, in idle conversation precisely to while the hours away?
Petitioner also points out that it took Ramirez three (3) days before he finally contacted private respondent Ramon Miranda to tell
him about the fate of his family. But it is not improbable that it took Ramirez three days before calling on private respondent
Miranda to tell him about the last hours of Mrs. Miranda and her children and niece, in view of the confusion in the days following
the collision as rescue teams and relatives searched for survivors.
Indeed, given the facts of this case, it is improper for petitioner to even suggest that private respondents' relatives did not board
the ill-fated vessel and perish in the accident simply because their bodies were not recovered.
Second. In finding petitioner guilty of negligence and in failing to exercise the extraordinary diligence required of it in the carriage
of passengers, both the trial court and the appellate court relied on the findings of this Court in  Mecenas v. Intermediate
Appellate Court,4 which case was brought for the death of other passengers. In that case it was found that although the
proximate cause of the mishap was the negligence of the crew of the M/T Tacloban City, the crew of the Don Juan was equally
negligent as it found that the latter's master, Capt. Rogelio Santisteban, was playing mahjong at the time of collision, and the
officer on watch, Senior Third Mate Rogelio De Vera, admitted that he failed to call the attention of Santisteban to the imminent
danger facing them. This Court found that Capt. Santisteban and the crew of the M/V Don Juan failed to take steps to prevent the
collision or at least delay the sinking of the ship and supervise the abandoning of the ship.
Petitioner Negros Navigation was found equally negligent in tolerating the playing of mahjong by the ship captain and other crew
members while on board the ship and failing to keep the M/V Don Juan seaworthy so much so that the ship sank within 10 to 15
minutes of its impact with the M/T Tacloban City.
In addition, the Court found that the Don Juan was overloaded. The Certificate of Inspection, dated August 27, 1979, issued by
the Philippine Coast Guard Commander at Iloilo City stated that the total number of persons allowed on the ship was 864, of
whom 810 are passengers, but there were actually 1,004 on board the vessel when it sank, 140 persons more than the maximum
number that could be safely carried by it.
Taking these circumstances together, and the fact that the M/V Don Juan, as the faster and better-equipped vessel, could have
avoided a collision with the PNOC tanker, this Court held that even if the Tacloban City had been at fault for failing to observe an
internationally-recognized rule of navigation, the Don Juan was guilty of contributory negligence. Through Justice Feliciano, this
Court held:
The grossness of the negligence of the "Don Juan" is underscored when one considers the foregoing circumstances in the
context of the following facts: Firstly, the "Don Juan" was more than twice as fast as the "Tacloban City." The "Don
Juan's" top speed was 17 knots; while that of the "Tacloban City" was 6.3. knots. Secondly, the "Don Juan" carried the
full complement of officers and crew members specified for a passenger vessel of her class. Thirdly, the "Don Juan" was
equipped with radar which was functioning that night. Fourthly, the "Don Juan's officer on-watch had sighted the
"Tacloban City" on his radar screen while the latter was still four (4) nautical miles away. Visual confirmation of radar
contact was established by the "Don Juan" while the "Tacloban City" was still 2.7 miles away. In the total set of
circumstances which existed in the instant case, the "Don Juan," had it taken seriously its duty of extraordinary diligence,
could have easily avoided the collision with the "Tacloban City." Indeed, the "Don Juan" might well have avoided the
collision even if it had exercised ordinary diligence merely.
It is true that the "Tacloban City" failed to follow Rule 18 of the International Rules of the Road which requires two (2)
power-driven vessels meeting end on or nearly end on each to alter her course to starboard (right) so that each vessel
may pass on the port side (left) of the other. The "Tacloban City," when the two (2) vessels were only three-tenths (0.3)
of a mile apart, turned (for the second time) 15° to port side while the "Don Juan" veered hard to starboard. . . . [But]
"route observance" of the International Rules of the Road will not relieve a vessel from responsibility if the collision could
have been avoided by proper care and skill on her part or even by a departure from the rules.
In the petition at bar, the "Don Juan" having sighted the "Tacloban City" when it was still a long way off was negligent in
failing to take early preventive action and in allowing the two (2) vessels to come to such close quarters as to render the
collision inevitable when there was no necessity for passing so near to the "Tacloban City" as to create that hazard or
inevitability, for the "Don Juan" could choose its own distance. It is noteworthy that the "Tacloban City," upon turning
hard to port shortly before the moment of collision, signalled its intention to do so by giving two (2) short blasts with its
horn. The "Don Juan" gave no answering horn blast to signal its own intention and proceeded to turn hard to starboard.
 We conclude that Capt. Santisteban and Negros Navigation are properly held liable for gross negligence in connection
with the collision of the "Don Juan" and "Tacloban City" and the sinking of the "Don Juan" leading to the death of
hundreds of passengers. . . .5
Petitioner criticizes the lower court's reliance on the Mecenas case, arguing that, although this case arose out of the same incident
as that involved in Mecenas, the parties are different and trial was conducted separately. Petitioner contends that the decision in
this case should be based on the allegations and defenses pleaded and evidence adduced in it or, in short, on the record of this
case.
The contention is without merit. What petitioner contends may be true with respect to the merits of the individual claims against
petitioner but not as to the cause of the sinking of its ship on April 22, 1980 and its liability for such accident, of which there can
only be one truth. Otherwise, one would be subscribing to the sophistry: truth on one side of the Pyrenees, falsehood on the
other!
Adherence to the Mecenas case is dictated by this Court's policy of maintaining stability in jurisprudence in accordance with the
legal maxim "stare decisis et non quieta movere"  (Follow past precedents and do not disturb what has been settled.) Where, as in
this case, the same questions relating to the same event have been put forward by parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same
issue.6 In Woulfe v. Associated Realties Corporation ,7 the Supreme Court of New Jersey held that where substantially similar cases
to the pending case were presented and applicable principles declared in prior decisions, the court was bound by the principle of
stare decisis. Similarly, in State ex rel. Tollinger v. Gill,8 it was held that under the doctrine of stare decisis a ruling is final even as
to parties who are strangers to the original proceeding and not bound by the judgment under the res judicata doctrine. The
Philadelphia court expressed itself in this wise: "Stare decisis simply declares that, for the sake of certainty, a conclusion reached
in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be
different."9 Thus, in J.M. Tuason v. Mariano, supra, this Court relied on its rulings in other cases involving different parties in
sustaining the validity of a land title on the principle of "stare decisis et non quieta movere."
Indeed, the evidence presented in this case was the same as those presented in the Mecenas case, to wit:
Document Mecenas case This case
Decision of Commandant, Exh. 10 10 Exh. 11-B-NN/X
Phil. Coast Guard
in BMI Case No.
415-80 dated 3/26/81
Decision of the Minister Exh. 11 11 Exh. ZZ
of National Defense
dated 3/12/82
Resolution on the Exh. 13 12 Exh. AAA
motion for reconsideration (private
of the decision of the respondents)
Minister of National
defense dated 7/27/84
Certificate of Exh. 1-A 13 Exh. 19-NN
inspection dated
8/27/79
Certificate of Stability Exh. 6-A 14 Exh. 19-D-NN
dated 12/16/76
Nor is it true that the trial court merely based its decision on the Mecenas case. The trial court made its own independent findings
on the basis of the testimonies of witnesses, such as Senior Third Mate Rogelio de Vera, who incidentally gave substantially the
same testimony on petitioner's behalf before the Board of Marine Inquiry. The trial court agreed with the conclusions of the then
Minister of National Defense finding both vessels to be negligent.
Third. The next issue is whether petitioner is liable to pay damages notwithstanding the total loss of its ship. The issue is not one
of first impression. The rule is well-entrenched in our jurisprudence that a shipowner may be held liable for injuries to passengers
notwithstanding the exclusively real and hypothecary nature of maritime law if fault can be attributed to the shipowner. 15
In Mecenas, this Court found petitioner guilty of negligence in (1) allowing or tolerating the ship captain and crew members in
playing mahjong during the voyage, (2) in failing to maintain the vessel seaworthy and (3) in allowing the ship to carry more
passengers than it was allowed to carry. Petitioner is, therefore, clearly liable for damages to the full extent.
Fourth. Petitioner contends that, assuming that the Mecenas case applies, private respondents should be allowed to claim only
P43,857.14 each as moral damages because in the Mecenas case, the amount of P307,500.00 was awarded to the seven children
of the Mecenas couple. Under petitioner's formula, Ramon Miranda should receive P43,857.14, while the De la Victoria spouses
should receive P97,714.28.
Here is where the principle of stare decisis does not apply in view of differences in the personal circumstances of the victims. For
that matter, differentiation would be justified even if private respondents had joined the private respondents in the  Mecenas case.
The doctrine of stare decisis works as a bar only against issues litigated in a previous case. Where the issue involved was not
raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not
stare decisis of the question presently presented. 16 The decision in the Mecenas case relates to damages for which petitioner was
liable to the claimants in that case.
In the case at bar, the award of P300,000.00 for moral damages is reasonable considering the grief petitioner Ramon Miranda
suffered as a result of the loss of his entire family. As a matter of fact, three months after the collision, he developed a heart
condition undoubtedly caused by the strain of the loss of his family. The P100,000.00 given to Mr. and Mrs. de la Victoria is
likewise reasonable and should be affirmed.
As for the amount of civil indemnity awarded to private respondents, the appellate court's award of P50,000.00 per victim should
be sustained. The amount of P30,000.00 formerly set in De Lima v. Laguna Tayabas Co.,  17 Heirs of Amparo delos Santos
v. Court of Appeals,  18  and Philippine Rabbit Bus Lines, Inc . v. Intermediate Appellate Court  19 as benchmark was subsequently
increased to P50,000.00 in the case of Sulpicio Lines, Inc. v. Court of Appeals, 20 which involved the sinking of another interisland
ship on October 24, 1988.
We now turn to the determination of the earning capacity of the victims. With respect to Ardita Miranda, the trial court awarded
damages computed as follows: 21
In the case of victim Ardita V. Miranda whose age at the time of the accident was 48 years, her life expectancy was
computed to be 21.33 years, and therefore, she could have lived up to almost 70 years old. Her gross earnings for 21.33
years based on P10,224.00  per annum, would be P218,077.92. Deducting therefrom 30% as her living expenses, her net
 earnings would be P152,654.55, to which plaintiff Ramon Miranda is entitled to compensatory damages for the loss of
earning capacity of his wife. In considering 30% as the living expenses of Ardita Miranda, the Court takes into account
the fact that plaintiff and his wife were supporting their daughter and son who were both college students taking
Medicine and Law respectively.
In accordance with the ruling in Villa-Rey Transit, Inc. v. Court of Appeals, 22 we think the life expectancy of Ardita Miranda was
correctly determined to be 21.33 years, or up to age 69. Petitioner contends, however, that Mrs. Miranda would have retired from
her job as a public school teacher at 65, hence her loss of earning capacity should be reckoned up to 17.33 years only.
The accepted formula for determining life expectancy is 2/3 multiplied by (80 minus the age of the deceased). It may be that in
the Philippines the age of retirement generally is 65 but, in calculating the life expectancy of individuals for the purpose of
determining loss of earning capacity under Art. 2206(1) of the Civil Code, it is assumed that the deceased would have earned
income even after retirement from a particular job. In this case, the trial court took into account the fact that Mrs. Miranda had a
master's degree and a good prospect of becoming principal of the school in which she was teaching. There was reason to believe
that her income would have increased through the years and she could still earn more after her retirement,  e.g., by becoming a
consultant, had she not died. The gross earnings which Mrs. Miranda could reasonably be expected to earn were it not for her
untimely death was, therefore, correctly computed by the trial court to be P218,077.92 (given a gross annual income of
P10,224.00 and life expectancy of 21.33 years).
Petitioner contends that from the amount of gross earnings, 60% should be deducted as necessary living expenses, not merely
30% as the trial court allowed. Petitioner contends that 30% is unrealistic, considering that Mrs. Miranda's earnings would have
been subject to taxes, social security deductions and inflation.
We agree with this contention. In Villa-Rey Transit, Inc. v. Court of Appeals, 23 the Court allowed a deduction of P1,184.00 for
living expenses from the P2,184.00 annual salary of the victim, which is roughly 54.2% thereof. The deceased was 29 years old
and a training assistant in the Bacnotan Cement Industries. In People v. Quilation, 24 the deceased was a 26-year old laborer
earning a daily wage. The court allowed a deduction of P120,000.00 which was 51.3% of his annual gross earnings of
P234,000.00. In People v. Teehankee, 25 the court allowed a deduction of P19,800.00, roughly 42.4% thereof from the deceased's
annual salary of P46,659.21. The deceased, Maureen Hultman, was 17 years old and had just received her first paycheck as a
secretary. In the case at bar, we hold that a deduction of 50% from Mrs. Miranda's gross earnings (P218,077.92) would be
reasonable, so that her net earning capacity should be P109,038.96. There is no basis for supposing that her living expenses
constituted a smaller percentage of her gross income than the living expenses in the decided cases. To hold that she would have
used only a small part of her income for herself, a larger part going to the support of her children would be conjectural and
unreasonable.
As for Elfreda de la Victoria, the trial court found that, at the time of her death, she was 26 years old, a teacher in a private school
in Malolos, Bulacan, earning P6,192.00 per annum. Although a probationary employee, she had already been working in the
school for two years at the time of her death and she had a general efficiency rating of 92.85% and it can be presumed that, if
not for her untimely death, she would have become a regular teacher. Hence, her loss of earning capacity is P111,456.00,
computed as follows:
net earning = life x gross less reasonable
capacity (x) expectancy annual & necessary
income living expenses
(50%)
x = [2(80-26)] x [P6,192.00 - P3,096.00]
————
3
= 36 x 3,096.00
= P111,456.00
On the other hand, the award of actual damages in the amount of P23,075.00 was determined by the Court of Appeals on the
basis receipts submitted by private respondents. This amount is reasonable considering the expenses incurred by private
respondent Miranda in organizing three search teams to look for his family, spending for transportation in going to places such as
Batangas City and Iloilo, where survivors and the bodies of other victims were found, making long distance calls, erecting a
monument in honor of the four victims, spending for obituaries in the Bulletin Today and for food, masses and novenas.
Petitioner's contention that the expenses for the erection of a monument and other expenses for memorial services for the victims
should be considered included in the indemnity for death awarded to private respondents is without merit. Indemnity for death is
given to compensate for violation of the rights of the deceased, i.e., his right to life and physical integrity. 26 On the other hand,
damages incidental to or arising out of such death are for pecuniary losses of the beneficiaries of the deceased.
As for the award of attorney's fees, we agree with the Court of Appeals that the amount of P40,000.00 for private respondent
Ramon Miranda and P15,000.00 for the de la Victoria spouses is justified. The appellate court correctly held:
The Mecenas case cannot be made the basis for determining the award for attorney's fees. The award would naturally
vary or differ in each case. While it is admitted that plaintiff-appellee Ramon Miranda who is himself a lawyer,
represented also plaintiffs-appellees Dela Victoria spouses, we note that separate testimonial evidence were adduced by
plaintiff-appellee Ramon Miranda (TSN, February 26, 1982, p. 6) and plaintiffs-appellees spouses Dela Victoria (TSN,
August 13, 1981, p. 43). Considering the amount of work and effort put into the case as indicated by the voluminous
transcripts of stenographic notes, we find no reason to disturb the award of P40,000.00 for plaintiff-appellee Ramon
Miranda and P15,000.00 for plaintiffs-appellees Dela Victoria spouses. 27
The award of exemplary damages should be increased to P300,000.00 for Ramon Miranda and P100,000.00 for the de la Victoria
spouses in accordance with our ruling in the Mecenas case:
Exemplary damages are designed by our civil law to permit the courts to reshape behaviour that is socially deleterious in
its consequence by creating negative incentives or deterrents against such behaviour. In requiring compliance with the
standard of extraordinary diligence, a standard which is in fact that of the highest possible degree of diligence, from
common carriers and in creating a presumption of negligence against them, the law seeks to compel them to control their
employees, to tame their reckless instincts and to force them to take adequate care of human beings and their property.
The Court will take judicial notice of the dreadful regularity with which grievous maritime disasters occur in our waters
with massive loss of life. The bulk of our population is too poor to afford domestic air transportation. So it is that
notwithstanding the frequent sinking of passenger vessels in our waters, crowds of people continue to travel by sea. This
Court is prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of
those instruments is the institution of exemplary damages; one of those ends, of special importance in an archipelagic
state like the Philippines, is the safe and reliable carriage of people and goods by sea. 28
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with modification and petitioner is ORDERED to pay private
respondents damages as follows:
To private respondent Ramon Miranda:
P23,075.00 for actual damages;
P109,038.96 as compensatory damages for loss of
earning capacity of his wife;
P150,000.00 as compensatory damages for wrongful
death of three (3) victims;
P300,000.00 as moral damages;
P300,000.00 as exemplary damages, all in the total
amount of P882,113.96; and
P40,000.00 as attorney's fees.
To private respondents Spouses Ricardo and Virginia de la Victoria:
P12,000.00 for actual damages;
P111,456.00 as compensatory damages for loss of
earning capacity;
P50,000.00 as compensatory damages for wrongful
death;
P100,000.00 as moral damages;
P100,000.00 as exemplary damages, all in the total
amount of P373,456.00; and
P15,000.00 as attorney's fees.
Petitioners are further ordered to pay costs of suit.
In the event the Philippine National Oil Company and/or the PNOC Shipping and Transport Corporation pay or are required to pay
all or a portion of the amounts adjudged, petitioner Negros Navigation Co., Inc. shall reimburse either of them such amount or
amounts as either may have paid, and in the event of failure of Negros Navigation Co., Inc., to make the necessary
reimbursement, PNOC and/or PNOC/STC shall be entitled to a writ of execution without need of filing another action.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-30309 November 25, 1983
CLEMENTE BRIÑAS, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and HONORABLE COURT OF APPEALS, respondents.
Mariano R. Abad for petitioner.
The Solicitor General for respondents.

GUTIERREZ, JR., J.:
This is a petition to review the decision of respondent Court of Appeals, now Intermediate Appellate Court, affirming the decision
of the Court of First Instance of Quezon, Ninth Judicial District, Branch 1, which found the accused Clemente Briñas guilty of the
crime of DOUBLE HOMICIDE THRU RECKLESS IMPRUDENCE prior the deaths of Martina Bool and Emelita Gesmundo.
The information charged the accused-appellant. and others as follows:
That on or about the 6th day of January, 1957, in the Municipality of Tiaong, Province of Quezon, Philippines, and within the
jurisdiction of this Hon. Court, the said accused Victor Milan, Clemente Briñas and Hermogenes Buencamino, being then persons
in charge of passenger Train No. 522-6 of the Manila Railroad Company, then running from Tagkawayan to San Pablo City, as
engine driver, conductor and assistant conductor, respectively, wilfully and unlawfully drove and operated the same in a negligent,
careless and imprudent manner, without due regard to existing laws, regulations and ordinances, that although there were
passengers on board the passenger coach, they failed to provide lamps or lights therein, and failed to take the necessary
precautions for the safety of passengers and to prevent accident to persons and damage to property, causing by such negligence,
carelessness and imprudence, that when said passenger Train No. 522-6 was passing the railroad tracks in the Municipality of
Tiaong, Quezon, two of its passengers, Martina Bool, an old woman, and Emelita Gesmundo, a child about three years of age, fell
from the passenger coach of the said train, as a result of which, they were over run, causing their instantaneous death. "
The facts established by the prosecution and accepted by the respondent court as basis for the decision are summarized as
follows:
The evidence of the prosecution tends to show that in the afternoon of January 6, 1957, Juanito Gesmundo bought a train ticket
at the railroad station in Tagkawayan, Quezon for his 55-year old mother Martina Bool and his 3-year old daughter Emelita
Gesmundo, who were bound for Barrio Lusacan, Tiaong, same province. At about 2:00 p.m., Train No. 522 left Tagkawayan with
the old woman and her granddaughter among the passengers. At Hondagua the train's complement were relieved, with Victor
Millan taking over as engineman, Clemente Briñas as conductor, and Hermogenes Buencamino as assistant conductor. Upon
approaching Barrio Lagalag in Tiaong at about 8:00 p.m. of that same night, the train slowed down and the conductor shouted
'Lusacan', 'Lusacan'. Thereupon, the old woman walked towards the left front door facing the direction of Tiaong, carrying the
child with one hand and holding her baggage with the other. When Martina and Emelita were near the door, the train suddenly
picked up speed. As a result the old woman and the child stumbled and they were seen no more. It took three minutes more
before the train stopped at the next barrio, Lusacan, and the victims were not among the passengers who disembarked
thereat .têñ.£îhqwâ£
Next morning, the Tiaong police received a report that two corpses were found along the railroad tracks at Barrio
Lagalag. Repairing to the scene to investigate, they found the lifeless body of a female child, about 2 feet from
the railroad tracks, sprawled to the ground with her belly down, the hand resting on the forehead, and with the
back portion of the head crushed. The investigators also found the corpse of an old woman about 2 feet away
from the railroad tracks with the head and both legs severed and the left hand missing. The head was located
farther west between the rails. An arm was found midway from the body of the child to the body of the old
woman. Blood, pieces of scattered brain and pieces of clothes were at the scene. Later, the bodies were
Identified as those of Martina Bool and Emelita Gesmundo. Among the personal effects found on Martina was a
train ticket (Exhibits "B").
On January 7, 1957, the bodies of the deceased were autopsied by Dr. Pastor Huertas, the Municipal Health Officer of Tiaong. Dr.
Huertas testified on the cause of death of the victims as follows: têñ.£îhqwâ£
FISCAL YNGENTE:
Q What could have caused the death of those women?
A Shock.
Q What could have caused that shock?
A Traumatic injury.
Q What could have caused traumatic injury?
A The running over by the wheel of the train.
Q With those injuries, has a person a chance to survive?
A No chance to survive.
Q What would you say death would come?
A Instantaneous.
Q How about the girl, the young girl about four years old, what could have caused the death?
A Shock too.
Q What could have caused the shock?
A Compound fracture of the skull and going out of the brain.
Q What could have caused the fracture of the skull and the going out of the brain?
A That is the impact against a steel object. (TSN., pp. 81-82, July 1, 1959)
The Court of First Instance of Quezon convicted defendant-appellant Clemente Briñas for double homicide thru reckless
imprudence but acquitted Hermogenes Buencamino and Victor Millan The dispositive portion of the decision reads: têñ.£îhqwâ£
WHEREFORE, the court finds the defendant Clemente Briñas guilty beyond doubt of the crime of double homicide
thru reckless imprudence, defined and punished under Article 305 in connection with Article 249 of the Revised
Penal Code, and sentences him to suffer six (6) months and one (1) day of  prision correccional  to indemnify the
heirs of the deceased Martina Bool and Emelita Gesmundo in the amounts of P6,000 and P3,000, respectively,
 with subsidiary imprisonment in case of insolvency not to exceed one-third of the principal penalty, and to pay
the costs.
For lack of sufficient evidence against the defendant Hermogenes Buencamino and on the ground of reasonable
doubt in the case of defendant Victor Millan the court hereby acquits them of the crime charged in the
information and their bail bonds declared cancelled.
As to the responsibility of the Manila Railroad Company in this case, this will be the subject of court
determination in another proceeding.
On appeal, the respondent Court of Appeals affirmed the judgment of the lower court.
During the pendency of the criminal prosecution in the Court of First Instance of Quezon, the heirs of the deceased victims filed
with the same court, a separate civil action for damages against the Manila Railroad Company entitled "Civil Case No. 5978,
Manaleyo Gesmundo, et al., v. Manila Railroad Company". The separate civil action was filed for the recovery of P30,350.00 from
the Manila Railroad Company as damages resulting from the accident.
The accused-appellant alleges that the Court of Appeals made the following errors in its decision:
I têñ.£îhqwâ£
THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING PETITIONER-APPELLANT UNDER THE FACTS AS
FOUND BY SAID COURT; and
II têñ.£îhqwâ£
THE HONORABLE COURT OF APPEALS ERRED IN INCLUDING THE PAYMENT OF DEATH INDEMNITY BY THE
PETITIONER- APPELLANT, WITH SUBSIDIARY IMPRISONMENT IN CASE OF INSOLVENCY, AFTER THE HEIRS OF
THE DECEASED HAVE ALREADY COMMENCED A SEPARATE CIVIL ACTION FOR DAMAGES AGAINST THE
RAILROAD COMPANY ARISING FROM THE SAME MISHAP.
We see no error in the factual findings of the respondent court and in the conclusion drawn from those findings.
It is undisputed that the victims were on board the second coach where the petitioner-appellant was assigned as conductor and
that when the train slackened its speed and the conductor shouted "Lusacan, Lusacan", they stood up and proceeded to the
nearest exit. It is also undisputed that the train unexpectedly resumed its regular speed and as a result "the old woman and the
child stumbled and they were seen no more.
In finding petitioner-appellant negligent, respondent Court têñ.£îhqwâ£
xxx xxx xxx
The appellant's announcement was premature and erroneous, for it took a full three minutes more before the
next barrio of Lusacan was reached. In making the erroneous and premature announcement, appellant was
negligent. He ought to have known that train passengers invariably prepare to alight upon notice from the
conductor that the destination was reached and that the train was about to stop. Upon the facts, it was the
appellant's negligent act which led the victims to the door. Said acts virtually exposed the victims to peril, for had
not the appellant mistakenly made the announcement, the victims would be safely ensconced in their seats when
the train jerked while picking up speed, Although it might be argued that the negligent act of the appellant was
not the immediate cause of, or the cause nearest in time to, the injury, for the train jerked before the victims
stumbled, yet in legal contemplation appellant's negligent act was the proximate cause of the injury. As this
Court held in Tucker v. Milan, CA G.R. No. 7059-R, June 3, 1953: 'The proximate cause of the injury is not
necessarily the immediate cause of, or the cause nearest in time to, the injury. It is only when the causes are
independent of each other that the nearest is to be charged with the disaster. So long as there is a natural,
direct and continuous sequence between the negligent act the injury (sic) that it can reasonably be said that but
for the act the injury could not have occurred, such negligent act is the proximate cause of the injury, and
whoever is responsible therefore is liable for damages resulting therefrom. One who negligently creates a
dangerous condition cannot escape liability for the natural and probable consequences thereof, although the act
of a third person, or an act of God for which he is not responsible intervenes to precipitate the loss.
xxx xxx xxx
It is a matter of common knowledge and experience about common carriers like trains and buses that before reaching a station or
flagstop they slow down and the conductor announces the name of the place. It is also a matter of common experience that as
the train or bus slackens its speed, some passengers usually stand and proceed to the nearest exit, ready to disembark as the
train or bus comes to a full stop. This is especially true of a train because passengers feel that if the train resumes its run before
they are able to disembark, there is no way to stop it as a bus may be stopped.
It was negligence on the conductor's part to announce the next flag stop when said stop was still a full three minutes ahead. As
the respondent Court of Appeals correctly observed, "the appellant's announcement was premature and erroneous.
That the announcement was premature and erroneous is shown by the fact that immediately after the train slowed down, it
unexpectedly accelerated to full speed. Petitioner-appellant failed to show any reason why the train suddenly resumed its regular
speed. The announcement was made while the train was still in Barrio Lagalag.
The proximate cause of the death of the victims was the premature and erroneous announcement of petitioner' appelant Briñas.
This announcement prompted the victims to stand and proceed to the nearest exit. Without said announcement, the victims would
have been safely seated in their respective seats when the train jerked as it picked up speed. The connection between the
premature and erroneous announcement of petitioner-appellant and the deaths of the victims is direct and natural, unbroken by
any intervening efficient causes.
Petitioner-appellant also argues that it was negligence per se for Martina Bool to go to the door of the coach while the train was
still in motion and that it was this negligence that was the proximate cause of their deaths.
We have carefully examined the records and we agree with the respondent court that the negligence of petitioner-appellant in
prematurely and erroneously announcing the next flag stop was the proximate cause of the deaths of Martina Bool and Emelita
Gesmundo. Any negligence of the victims was at most contributory and does not exculpate the accused from criminal liability.
With respect to the second assignment of error, the petitioner argues that after the heirs of Martina Bool and Emelita Gesmundo
had actually commenced the separate civil action for damages in the same trial court during the pendency of the criminal action,
the said court had no more power to include any civil liability in its judgment of conviction.
The source of the obligation sought to be enforced in Civil Case No. 5978 is culpa contractual, not an act or omission punishable
by law. We also note from the appellant's arguments and from the title of the civil case that the party defendant is the Manila
Railroad Company and not petitioner-appellant Briñas Culpa contractual and an act or omission punishable by law are two distinct
sources of obligation.
The petitioner-appellant argues that since the information did not allege the existence of any kind of damages whatsoever coupled
by the fact that no private prosecutors appeared and the prosecution witnesses were not interrogated on the issue of damages,
the trial court erred in awarding death indemnity in its judgment of conviction.
A perusal of the records clearly shows that the complainants in the criminal action for double homicide thru reckless imprudence
did not only reserve their right to file an independent civil action but in fact filed a separate civil action against the Manila Railroad
Company.
The trial court acted within its jurisdiction when, despite the filing with it of the separate civil action against the Manila Railroad
Company, it still awarded death indemnity in the judgment of conviction against the petitioner-appellant.
It is well-settled that when death occurs as a result of the commission of a crime, the following items of damages may be
recovered: (1) an indemnity for the death of the victim; (2) an indemnity for loss of earning capacity of the deceased; (3) moral
damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation, and (6) interest in proper cases.
The indemnity for loss of earning capacity, moral damages, exemplary damages, attorney's fees, and interests are recoverable
separately from and in addition to the fixed slim of P12,000.00 corresponding to the indemnity for the sole fact of death. This
indemnity arising from the fact of death due to a crime is fixed whereas the others are still subject to the determination of the
court based on the evidence presented. The fact that the witnesses were not interrogated on the issue of damages is of no
moment because the death indemnity fixed for death is separate and distinct from the other forms of indemnity for damages.
WHEREFORE, the judgment appealed from is modified in that the award for death indemnity is increased to P12,000.00 for the
death of Martina Bool instead of P6,000.00 and P12,000.00 for the death of Emelita Gesmundo instead of P3,000.00, but deleting
the subsidiary imprisonment in case of insolvency imposed by the lower court. The judgment is AFFIRMED in all other respects.
SO ORDERED.1äwphï1.ñët
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 73835 January 17, 1989
CHINA AIRLINES, LTD., petitioner,
vs.
INTERMEDIATE APPELLATE COURT and CLAUDIA B. OSORIO, respondent respondents.
Balgos & Perez Law Offices for petitioner.
C.A.S. Sipin, Jr. for private respondent.

FERNAN, C.J.:
This is a petition to review the decision 1 dated January 21, 1986 of the then Intermediate Appellate Court in AC-G.R. No. 00915
entitled, "Claudia B. Osorio v. China Airlines, Ltd." , as well as the resolution of February 28, 1986 denying petitioner's motion for
reconsideration of said decision.
It is worthwhile noting at the outset that there exists in this case a conflict in the findings of facts of the trial and appellate courts
which made a thorough review of the records of the case imperative. Such exercise disclosed that:
On April 14, 1980, after a four-day delay caused by an engine malfunction, private respondent Claudia B. Osorio boarded in
Manila Flight No. CI-812 of petitioner China Airlines, Ltd., for Taipei. Said flight, as originally scheduled, was to bring private
respondent and nine (9) other passengers to Taipei in time for petitioner airline's Flight No. CI-002 for Los Angeles (LAX). As this
schedule had been rendered impossible by the delay, it was agreed, prior to their departure from Manila that private respondent
and the nine (9) other passengers similarly situated would spend the night in Taipei at petitioner's expense and would be brought
the following day to San Francisco (SF), U.S.A., where they would be furnished an immediate flight connection to LAX.
This arrangement went well until private respondent and her co-passengers arrived in San Francisco, U.S.A. on April 15, 1980 at
around 1:31 p.m., SF local time. No instructions having been received regarding them by petitioner's SF Office due to the delay in
the transmission of the telex messages from Manila, private respondent and her co-passengers were asked to deplane and wait
while contact with Manila was being made. This, however, could not be done immediately because of the time difference between
the two (2) places.
Later, when it appeared that private respondent and her co-passengers might have to spend the night in San Francisco, they
asked that they be provided food and overnight accommodations as transit passengers, but were refused by petitioner's
passenger service agent, Dennis Cheng. Apparently irked by this refusal, in addition to the information that their luggage were not
unloaded, private respondent and some of her fellow passengers angrily left petitioner's SF Office without leaving a contact
address. Thus, when word from Manila came at 6:45 p.m. authorizing the issuance of tickets for LAX to private respondent and
her companions, the latter could not be informed thereof.
It was only on the following day, April 16, 1980, after spending the night at the YMCA, paying a fee of $5.00 therefor, that private
respondent learned thru her companions Atty. Laud and Mrs. Sim that her ticket for LAX and luggage were ready for pick-up any
time. Notwithstanding, private respondent preferred to pick up her luggage on April 17, 1980 and fly to LAX on said date with a
Western Airlines ticket which she purchased for $56.00. Private respondent spent the night of April 16, 1980 in the house of Mrs.
Sims friend who did not charge anything. Private respondent, however, bought some groceries for her hostess.
On June 30, 1980, private respondent filed before the then Court of First Instance of Manila a complaint for damages arising from
breach of contract against petitioner airline. After trial, the court a quo rendered judgment 2 on October 7, 1981, absolving
petitioner airline from any liability for damages to private respondent, except for the sum of Pl,248.00 representing reimbursement
of the $100.00 spent by private respondent as an involuntarily rerouted passenger in San Francisco, California, U.S.A and the
$56.00 paid by her for her SFC-LAX Western Airlines ticket. 3
On appeal, respondent Intermediate Appellate Court reversed the lower court's decision. Finding a palpable breach of contract of
carriage to have been committed by petitioner airlines, the respondent court ordered the latter to pay to private respondent, in
addition to the actual damages imposed by the trial court, moral and exemplary damages in the amounts of P100,000 and
P20,000, respectively, with attorney's fees of P5,000. 4
Its motion for reconsideration having been denied, petitioner airline brought the instant petition for review, alleging that:
THE RESPONDENT COURT WRONGLY INCLUDED FROM THE PROVEN FACTS AND, INDEED WENT AGAINST THE
EVIDENCE, WHEN IT FOUND THE PETITIONER AS HAVING COMMITTED A PALPABLE BREACH OF THE
CONTRACT OF CARRIAGE.
'THE RESPONDENT COURT COMMITTED AN ERROR OR LAW CORRECTIBLE BY REVIEW ON CERTIORARI WHEN
IT AWARDED MORAL AND EXEMPLARY DAMAGES IN FAVOR OF THE PRIVATE RESPONDENT. 5
The issues posed for determination are; did the failur1e of petitioner airline to arrange for private respondent's immediate flight to
Los Angeles constitute a palpable breach of contract of carriage? Was the treatment of private respondent by petitioner's agent in
San Francisco characterized by malice or bad faith?
The records manifest that it was upon petitioner's traffic agent Mrs. Diana Lim's assurance of an immediate flight connection from
San Francisco that private respondent agreed to be re-routed to San Francisco, thus:
Q. What was the condition before leaving Manila, how would these passengers be flown to Taipei? Since their
destination petition is Los Angeles?
A. From Manila to Taipei, they would still take the China Airlines, the night where they were really booked on.
They still stay overnight in Taipei. From Taipei they will connect the next day to San Francisco. Then from San
Francisco we promised that we would give them tickets from San Francisco to Los Angeles.
Q. That same day?
A. To San Francisco, that would be the next day.
Q. Then what happened next?
A. We told them that before they left.
Q. How about the flights for them from San Francisco to Angeles?
A. It would be immediate connection. As soon as they arrive, they would be given tickets so that they could
catch up on the next available flights. '
Q. What airlines?
A. These was no airlines because they will make the booking.
Q. Who would make the booking?
 A. Our reservation sir.
Q. So do you wish to inform this Honorable Court that these ten (10) passengers were informed that they would
be flown to Taipei and from Taipei they will be flown to San Francisco and will be furnished transportation from
San Francisco to Los Angeles?
A. Yes, sir.
Q. All at the expense of China Airlines?
A. Yes, sir. .
xxx xxx xxx
Q. Did they agree to this condition before departing for Taipei?
A. For the Sims they had no objection at all. In fact, they wanted to stay longer in San Francisco.
Q. How about the plaintiff?
A. For Osorio and Laud, at first they did not agree, until I told them that San Francisco would issue them the new
tickets from San Francisco to Los Angeles.
Q. So that when Laud and Osorio were informed by you that they would be furnished tickets from San Francisco
to Los Angeles, did they still continue to object?
A. No more sir.
Q. But were you sure that there would be booking for them for immediate connection?
A. The reservation would do that because from San Francisco to Los Angeles there would be flight every hour. As
soon as they arrive and they. . . if they would not catch up with the very first flight, they would catch the next
one.
Q. So, accommodation of flight from San Francisco to Los Angeles is no problem?
A. No problem because there is flight every hour. 6
Due, however, to the delay in the receipt of the telex messages regarding private respondent's status and the arrangements to be
made for her, the promised immediate flight connection was not reaped. The testimony of Mrs. Lim on the circumstances
surrounding the transmission of the telex messages in question is as follows:
Q. Would you know Mrs. Lim whether the Manila office had been sending Telexes on April 14, 1980 regarding
these passengers?
A. Yes, sir.
xxx xxx xxx
Q Now, are there any other Telexes sent by the Manila office in connection with this case by you personally and
by Mr. Austria the Sales Director?
A Here sir, (Witness handing to Atty. de Santos two Telexes)
xxx xxx xxx
Q. These Telexes Mrs. Lim intended for San Francisco, they were duly received?
Court:
A. In other words, they were sent out?
Q. Yes, sir but we have had a lot of experiences wherein the messages would be received late. We sent out the
messages immediately but sometimes the Hongkong link will be down so the messages would arrive late. It
stuck there sir.
A. Did you have any understanding with these passengers including the plaintiff on how they would subsist in
San Francisco should there be a delay in the transmission of messages?
Q. No sir because I did not expect any delay. It was very sudden. I did not expect any delay at all from San
Francisco. I knew all the time they would connect immediately.
A. What I mean is that should the communication sent out from Manila be not received on time in San Francisco,
did you cover that . . . or did you take some steps to answer for that contingency?
Q. No sir, we did not. We never thought of it that way. We always took it for granted that everything would be
alright. It has never happened before. In other cases where we had cases like this, they were always on time.
We never had this problem where the passengers would be stranded. This is the first time.
A. There would be a time lag of around two days. Because one night in Taipei. They left Manila April 14?
Q. They arrived Taipei April 14. They arrived San Francisco April 15.
A. So the 24-hour or more time gap would be normally sufficient for all your messages to reach San Francisco?
Q. Yes, sir.
A. And never before did you experience such a delay?
Q. Yes, sir. 7
The respondent court considered petitioner airline as wanting in human care and foresight in providing for the care and safety of
its passengers in not having taken other steps to ensure receipt by its San Francisco Office of the instructions about the re-routed
passengers, notwithstanding its previous experience with delayed transmission of messages. For respondent court, this omission
on the part of petitioner, coupled with what respondent court received as rude and arrogant behavior of petitioner's passenger
service agent Dennis Cheng, constituted a palpable breach of contract of carriage entitling private respondent to an award of
actual, moral and exemplary damages as well as attorney's fees. We are not in complete agreement.
Verily, petitioner airlines committed a breach of contract in failing to secure an immediate flight connection for private respondent.
Under Article 1755 of the Civil Code of the Philippines, petitioner, as a common carrier, is duty bound to "carry 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." The reliance of petitioner on the subject telex communications falls short of the utmost diligence of a very
cautious person expected of it, thereby rendering it liable for its failure to abide by the promised immediate connection. 8
Be that as it may, we, however, find that the breach of contract committed by petitioner was not attended by gross negligence,
recklessness or wanton disregard of the rights of private respondent as a passenger. Telex was the established mode of
communication between petitioner's Manila and San Francisco offices. Contact by telephone was not a practice due to the time
difference between the two places. Thus, while petitioner's Manila office was aware of the possibility of transmission delay, it bad
to avail itself of this mode of communication. For this course of action, we do not find petitioner to have acted wantonly or
recklessly. Considering the gap of more than 24 hours between the time the telex messages were sent out and private
respondent's expected arrival at San Francisco, it was not unreasonable for petitioner to expect that this time gap would cover
whatever delay might be encountered at the Hongkong Link. 9 Thus, while petitioner may have been remiss in its total reliance
upon the telex communications and therefore considered negligent in view of the degree of diligence required of it as a common
carrier, such negligence cannot under the obtaining circumstances be said to be so gross as to amount to bad faith.
As regards petitioners passenger service agent Dennis Cheng's treatment of private respondent, we share the trial court's
observation, thus:
Neither is the court impressed with plaintiffs (private respondent) allegation that she was ill-treated by
defendant's (petitioner) personnel at the San Francisco airport area. Her self-serving declaration on this score
does not suffice to contradict the straightforward and detailed deposition of Dennis Cheng (see Exhs. 10 to 10-
1), let along the well-known custom and policy of Chinese businessmen and employees of being courteous and
attentive to customers...10
The respondent appellate court chose to believe private respondent's allegation of rudeness and arrogance over Dennis Cheng's
categorical denial contained in his deposition 11 on the ground that said deposition is hearsay. This is an error on respondent
court's part. The deposition was taken in accordance with the Rules of Court and is admissible under the Rules of Evidence. It is a
material and vital evidence that the appellate court had overlooked, nay, ignored; a factor which calls for the Court's review
powers and which excludes the case from the general rule that findings of facts of the Court of Appeals are binding on this court.
We are convinced that petitioner's personnel were not motivated by ill will or malice in their dealings with private respondent.
Their refusal to accede to her demands for a flight connection to Los Angeles and/or food and hotel accommodations was due
primarily to lack of information or knowledge upon which to act upon and not from a deliberate intent to ignore or disregard
private respondent's rights as a passenger. They cannot be faulted for wanting to verify with Manila private respondent's status
before acting upon her request as tickets for Los Angeles cannot be used in going to San Francisco, and possession of a ticket
with Los Angeles as destination was not an indication that one was a transit or an involuntarily re-routed passenger.
Contact thru telephone with Manila could not immediately be made because of the time difference and private respondent was
accordingly advised that information from Manila could be expected at around 6:30 p.m., the time that the Manila Office would
have begun its office hours. 12 This repeated advise, notwithstanding, private respondent left the airport without leaving a contact
address. In this sense, it was private respondent herself who rendered it impossible for petitioner airlines to perform its obligation
of bringing her to Los Angeles as contracted for.
The breach of contract under consideration having been incurred in good faith, petitioner airlines is liable for damages which are
the natural and probable consequences of said breach and which the parties have foreseen at the time the obligation was
constituted.13 These damages consist of the actual damages awarded by the trial court to private respondent.
With respect to moral damages, the rule is that the same are recoverable in a damage suit predicated upon a breach of contract
of carriage only where [1] the mishap results in the death of a passenger 14 and [2] it is proved that the carrier was guilty of fraud
or bad faith, even if death does not result. 15 As the present case does not fall under either of the cited instances, the award of
moral damages should be, as it is hereby disallowed.
The award of exemplary damages must likewise be deleted, as it has not been shown that petitioner, in committing the breach of
contract of carriage, acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. 16
The award of attorney's fees is justified under Article 2208(2) of the Civil Code which states that the same may be recovered
when the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his
interest. The amount of P6,000.00 awarded by respondent court should be increased to P10,000.00 considering that the case has
reached this Tribunal.
WHEREFORE, the decision under review is hereby MODIFIED in that the award of moral and exemplary damages to private
respondent Claudia B. Osorio is eliminated and the attorney's fees is increased to P10,000.00. No pronouncement as to costs.
SO ORDERED.