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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. DECISION MENDOZA, J.: This is a petition for review on certiorari of the decision of the Court of Appeals affirming with modification the Regional Trial Courts award of damages to private respondents for the death of relatives as a result of the sinking of petitioners 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 reads 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; as compensatory damages for loss of earning capacity of his wife; as compensatory damages for wrongful death of three (3) victims; as moral damages; as exemplary damages, all in the total amount of P634,679.55; and as attorneys fees.

P152,654.55 P90,000.00 P300,000.00 P50,000.00 P40,000.00

To Spouses Ricardo and Virginia de la Victoria: P12,000.00 for actual damages;

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P158,899.00 P30,000.00 P100,000.00 P20,000.00 P15,000.00 as compensatory damages for loss of earning capacity;

as compensatory damages for wrongful death; as moral damages; as exemplary damages, all in the total amount of P320,899.00; and as attorneys fees.

On appeal, the Court of Appealsi[1] 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,ii[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 petitioners 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 s how the contrary. Petitioners 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 Mecenasiii[3] case. Private respondent Mirandas 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?

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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 n ot 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,iv[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 latters 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 Juans 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 Juans 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 o 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 har d 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. . . .v[5] Petitioner criticizes the lower courts 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

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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 Courts 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.vi[6] In Woulfe v. Associated Realties Corporation,vii[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,viii[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. ix[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 Decision of Commandant Phil. Coast Guard in BMI Case No. 415-80 dated 3/26/81 Decision of the Minister of National Defense dated 3/12/82 Resolution on the motion for reconsideration of the decision of the Minister of National Defense dated 7/24/84 Certificate of inspection dated 8/27/79 Certificate of Stability dated 12/16/76 Mecenas case Exh. 10x[10] This case Exh. 11-B-NN/X

Exh. 11xi[11]

Exh. ZZ

Exh. 13xii[12]

Exh. AAA (private respondents)

Exh. 1-Axiii[13]

Exh. 19-NN

Exh. 6-Axiv[14]

Exh. 19-D-NN

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 petitioners 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.xv[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 petitioners 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.xvi[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

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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 courts 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.,xvii[17] Heirs of Amparo delos Santos v. Court of Appeals,xviii[18] and Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court xix[19] as benchmark was subsequently increased to P50,000.00 in the case of Sulpicio Lines, Inc. v. Court of Appeals,xx[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:xxi[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,xxii[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 /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 masters 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. Mirandas 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,xxiii[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. Quilaton,xxiv[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,xxv[25] the court allowed a deduction of P19,800.00, roughly 42.4% thereof from the deceaseds 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. Mirandas 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 capacity (x) = life expectancy x x = [ 2 (80-26) ] x 3 = = 36 x 3,096.00 [P6,192.00 [ gross annual income less reasonable & necessary living expenses (50%) ] P3,096.00]
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P111,456.00

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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 of 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. Petitioners 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.xxvi[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 attorneys 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 attorneys 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.xxvii[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.xxviii[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 P109,038.96 P150,000.00 P300,000.00 P300,000.00 P40,000.00 for actual damages; as compensatory damages for loss of earning capacity of his wife; as compensatory damages for wrongful death of three (3) victims; as moral damages; as exemplary damages, all in the total amount of P882,113.96; and as attorneys fees.

To private respondents Spouses Ricardo and Virginia de la Victoria: P12,000.00 P111,456.00 P50,000.00 P100,000.00 P100,000.00 for actual damages; as compensatory damages for loss of earning capacity; as compensatory damages for wrongful death; as moral damages; as exemplary damages, all in the total amount of P373,456.00; and

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P15,000.00 as attorneys 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. Regalado, (Chairman), and Puno, JJ., concur.

Per Justice Eduardo G. Montenegro and concurred in by Justices Arturo B. Buena and Regina G. Ordoez-Benitez.
i[1] ii[2]

180 SCRA 83 (1989). 180 SCRA at 87. Ibid. Id. at 95-98. J. M. Tuason & Corp. v. Mariano, 85 SCRA 644 (1978). 130 N.J. Eq. 519, 23 A.2d 399, 401 (1942). 75 Ohio App. ___, 62 N.E.2d 760 (1944).

iii[3]

iv[4]

v[5]

vi[6]

vii[7]

viii[8]

Heisler v. Thomas Colliery Co., 274 Pa. 448, 452, 118 A. 394, 395 (1922). Accord, Monogahela Street Ry. Co. v. Philadelphia Co., 350 Pa. 603, 39 A.2d 909, 916 (1944); In re Burtts Estate, 353 Pa. 217, 44 A.2d 670, 677 (1945).
ix[9] x[10]

p. 90 at note 7.

xi[11]

Id., at note 8. Id., at note 9. p. 94 at note 16. Id., at note 18.

xii[12]

xiii[13]

xiv[14]

Manila Steamship Co. v. Insa Abdulhanan, 100 Phil. 32 (1956); Chua Yek Heng v. Intermediate Appellate Court, 166 SCRA 183 (1988); Heirs of Amparo delos Santos v. Court of Appeals, 186 SCRA 649 (1990).
xv[15] xvi[16]

Eubanks v. State, Tex. Civ. App., 203 S.W. 2d 339, 342 (1947). 160 SCRA 70 (1988). Supra, note 15.

xvii[17]

xviii[18]

xix[19]

189 SCRA 158 (1990).

xx[20]

246 SCRA 376 (1995). Records, p. 721.

xxi[21]

31 SCRA 511 (1970); Accord, People v. Teehankee, Jr., 249 SCRA 54 (1995); Philippine Airlines, Inc. v. Court of Appeals, 185 SCRA 110 (1990); Monzon v. Intermediate Appellate Court, 169 SCRA 760 (1989); Davila v. Philippine Airlines, 49 SCRA 497 (1973).
xxii[22] xxiii[23]

Supra, note 22. 205 SCRA 279 (1992). Supra, note 22. Geluz v. Court of Appeals, 2 SCRA 801 (1961). Rollo, p. 62. 180 SCRA at 100.
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

xxiv[24]

xxv[25]

xxvi[26]

xxvii[27]

xxviii[28]

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 1 by Art. 698 of the Code of Commerce? 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, vis-a-vis, the 3 decision of 29 June 1992 in Civil Case No. 91-491 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 24, 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.
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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, 4 1991, plaintiff filed before the trial court a complaint for damages against defendant. 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, 5 respectively. 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 6 distress" to the private respondent. After due trial, the trial court rendered its decision 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 8 motivated by malice or bad faith. 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.
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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 9 negligence. 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 10 damages. In its decision of 23 November 1994, 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.
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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 defendantappellee. 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, defendantappellee still proceeded to sail with only one engine running.

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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 13 incurred for its failure to exercise utmost diligence. 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. xxx xxx xxx 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 14 vessel during the wee hours of the morning at Cebu City when it returned. Moral damages are recoverable in a damage suit predicated upon a breach of contract of carriage where 15 it is proved that the carrier was guilty of fraud or bad faith even if death does not result. Fraud and bad faith by defendant-appellee having been established, the award of moral damages is in 16 order. To serve as a deterrent to the commission of similar acts in the future, exemplary damages should be 1 imposed upon defendant-appellee. 7 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 18 incentives or deterrents against such behavior.

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Moral damages having been awarded, exemplary damages maybe properly awarded. When entitlement 19 to moral damages has been established, the award of exemplary damages is proper. 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 20 Code, while for all other matters not regulated thereby, the Code of Commerce and special laws. 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 21 officers and crew. 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 22 obligee failed to obtain. In contracts or quasi-contracts, the obligor is liable for all the damages which may be reasonably attributed to the non23 performance of the obligation if he is guilty of fraud, bad faith, malice, or wanton attitude. 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 24 Code, likewise, if they are the proximate result of, as in this case, the petitioner's breach of the contract of carriage. Anent a breach of a contract of common carriage, moral damages may be awarded if the common carrier, like the petitioner, 25 acted fraudulently or in bad faith. Exemplary damages are imposed by way of example or correction for the public good, in addition to moral, temperate, 26 liquidated or compensatory damages. In contracts and quasi-contracts, exemplary damages may be awarded if the 2 defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. 7 It cannot, however, be considered 28 as a matter of right; the court having to decide whether or not they should be adjudicated. Before the court may consider an award for exemplary damages, the plaintiff must first show that he is entitled to moral, temperate or compensatory 29 damages; but it is not necessary that he prove the monetary value thereof. 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

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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 30 or compensatory damages must be proved, 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 31 merely "over-reacting" to the situation obtaining then. 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 32 33 34 recoverable only in the concept of actual damages, not as moral damages nor judicial costs. Hence, to merit such an 35 award, it is settled that the amount thereof must be proven. Moreover, such must be specifically prayed for as was not done in this caseand may not be deemed incorporated within a general prayer for "such other relief and remedy as this 36 court may deem just and equitable." 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" 3 needed as basis for an award of attorney's fees. 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.

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Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur Footnotes 1 Rollo, 3. 2 Annex "A" of Petition; Id., 11-22. Per Labitoria, E., J., with Abad-Santos, Jr., Q., and Hofilefia, H., JJ., concurring. 3 Original Records (OR), Civil Case No. 91-491, 92-99; 100-107; 108-115. Per Judge Leonardo N. Demecillo. 4 Rollo, 12-13. 5 OR, Civil Case No. 91-491, 2-5. 6 Id., 43. 7 Supra note 3. 8 OR, Civil Case No. 91-491, 99. 9 OR, Civil Case No. 91-491, 97-99. 10 Rollo, 12. 11 Supra note 2. 12 Rollo, 21. 13 Rollo, 14-16. 14 Id., 19-20, citing Article 2217, Civil Code. 15 Id., citing China Airlines Ltd. vs. Intermediate Appellate Court, 169 SCRA 226 [1989]; Sabena Belgina World Airlines vs. Court of Appeals, 171 SCRA 620 [1989]. 16 Id., citing Bert Osmea & Associates vs. Court of Appeals, 120 SCRA 395 [1983]. 17 Rollo 19-20, citing Rotea vs. Halili, 109 Phil. 495 [1960]. 18 Id., citing Mecenas vs. Court of Appeals, 180 SCRA 83 [1989]. 19 Id., citing De Leon vs. Court of Appeals, 165 SCRA 166 [1988]. 20 Article 1766, Civil Code. 21 Chan Keep vs. Chan Gioco, 14 Phil. 5 [1909]. 22 Articles 2199 and 2200. 23 Article 2201. 24 Article 2217. 25 Article 2220. See Necesito vs. Paras, 104 Phil. 75, 82-83 [1958]. 26 Article 2229. 27 Article 2232. 28 Article 2233. 29 Article 2234. 30 Article 2199.

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31 Brief for Defendant Appellee, 9; Rollo, 33. 32 Fores vs. Miranda, 105 Phil. 266, 272 [1959]; PCIB vs. Intermediate Appellate Court, 196 SCRA 29, 39 [1991]. 33 Mirasol vs. de la Cruz, 84 SCRA 337, 342 [1978]. 34 Damasen vs. Hernando, 104 SCRA 111, 116-117 [1981]. 35 See Warner, Barnes & Co., Ltd. vs. Luzon Surety Co., Inc., 95 Phil. 925 [1954]. 36 Mirasol vs. de la Crur, supra note 33, at 343. 37 See Scott Consultants & Resource Development vs. Court of Appeals, 242 SCRA 393, 405-406 [1995]. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 73998 November 14, 1988 PEDRO T. LAYUGAN, petitioner, vs. INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents. Edralin S. Mateo for petitioner. Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp. Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.: Assailed in this petition for review on certiorari are 1) the decision of the then Intermediate Appellate Court in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Third Party Defendant- Appellant, "which reversed and 3 set aside the decision of the Regional Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed 4 the complaint, third party complaint, and the counter claims of the parties and 2) the resolution denying the plaintiffappellee's (herein petitioner) motion for reconsideration, for lack of merit. The findings of fact by the trial court which were adopted by the appellate court are as follows: xxx xxx xxx Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck with Plate No. SU-730 which was parked along the right side of the National Highway; that defendant's truck bearing Plate No. PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and hospitalized at Dr. Paulino J. Garcia Research and Medical Center and the Our Lady of Lourdes Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) and will incur more expenses as he recuperates from said injuries; that because of said injuries he would be deprived of a lifetime income in the sum of SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00). As prayed for by the plaintiffs counsel, the Court declared the defendant in default on October 12, 1979, and plaintiff's evidence was received ex-parte on January 11, 1978 and February 19, 1980. The decision on behalf of the plaintiff was set aside to give a chance to the defendant to file his answer and later on, a third-party complaint. Defendant admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law law of the driver of said truck; that the truck allegedly being repaired was parked, occupying almost half
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of the right lane towards Solano, Nueva Vizcaya, right after the curve; that the proximate cause of the incident was the failure of the driver of the parked truck in installing the early warning device, hence the driver of the parked car should be liable for damages sustained by the truck of the herein defendant in the amount of more than P20,000.00; that plaintiff being a mere bystander and hitchhiker must suffer all the damages he incurred. By way of counterclaim defendant alleged that due to plaintiffs baseless complaint he was constrained to engage the services of counsel for P5,000.00 and P200.00 per court appearance; that he suffered sleepless nights, humiliation, wounded feelings which may be estimated at P30.000.00. On May 29, 1981, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi Indemnity Corporation; that the third-party plaintiff, without admitting his liability to the plaintiff, claimed that the third-party defendant is liable to the former for contribution, indemnity and subrogation by virtue of their contract under Insurance Policy No. 11723 which covers the insurer's liability for damages arising from death, bodily injuries and damage to property. Third-party defendant answered that, even assuming that the subject matter of the complaint is covered by a valid and existing insurance policy, its liability shall in no case exceed the limit defined under the terms and conditions stated therein; that the complaint is premature as no claim has been submitted to the third party defendant as prescribed under the Insurance Code; that the accident in question was approximately caused by the carelessness and gross negligence of the plaintiff-, that by reason of the third-party complaint, third-party defendant was constrained to engage the services of counsel for a fee of P3,000.00. Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he worked as a truck helper and while working as such, he sustained injuries as a result of the bumping of the cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his left leg was amputated so he had to use crutches to walk. Prior to the incident, he supported his family sufficiently, but after getting injured, his family is now being supported by his parents and brother. GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in this vehicular accident is insured with the Travellers Multi Indemnity Corporation covering own damage and third-party liability, under vehicle policy No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim the insurance company paid him the sum of P18,000.00 for the damages sustained by this truck but not the third party liability. DANIEL SERRANO, defendant driver, declared that he gave a statement before the municipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew the responsibilities of a driver; that before leaving, he checked the truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Pedro Layugan, plaintiff, while the same was at a stop position. From the evidence presented, it has been established clearly that the injuries sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. The police report confirmed the allegation of the plaintiff and admitted by Daniel Serrano on cross-examination. The collision dislodged the jack from the parked truck and pinned the plaintiff to the ground. As a result thereof, plaintiff sustained injuries on his left forearm and left foot. The left leg of the plaintiff from below the knee was later on amputated (Exh. "C") when gangrene had set in, thereby rendering him incapacitated for work depriving him of his income. (pp. 118 to 120, Record on Appeal.) xxx xxx xxx Upon such findings, amply supported by the evidence on record, the trial court rendered its decision, the dispositive part of 6 which reads as follows: WHEREFORE, premises considered, the defendant is hereby ordered: a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and compensatory damages; b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees; c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and d) To pay the costs of this suit. On the third-party complaint, the third-party defendant is ordered to indemnify the defendant/third party plaintiff-. a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory damages; and

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b) The costs of this suit. The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the complaint, the 7 third-party complaint, and the counter- claims of both appellants. Hence, this petition. The petitioner alleges the following errors.
8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN REVERSING AND SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT. 2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS. The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for itself).<re||an1w> Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable. The respondent corporation stresses that the issues raised in the petition being factual, the same is not reviewable by this 9 Court in a petition for review by certiorari. Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are entitled to 10 great respect and will not ordinarily be disturbed by this Court. For if we have to review every question of fact elevated to 11 us, we would hardly have any more time left for the weightier issues compelling and deserving our preferential attention. 12 Be that as it may, this rule is not inflexible. Surely there are established exceptions when the Court should review and rectify the findings of fact of the lower court, such as: 1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record. Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule. From its finding that the parked truck was loaded with ten (10) big round logs the Court of Appeals inferred that because of its weight the truck could not have been driven to the shoulder of the road and concluded that the same was parked on a 14 portion of the road at the time of the accident. Consequently, the respondent court inferred that the mishap was due to 15 the negligence of the driver of the parked truck. The inference or conclusion is manifestly erroneous. In a large measure, it is grounded on speculation, surmise, or conjecture. How the respondent court could have reversed the finding of the trial 16 court that a warning device was installed escapes us because it is evident from the record that really such a device, in the form of a lighted kerosene lamp, was installed by the driver of the parked truck three to four meters from the rear of his 17 parked truck. We see this negative finding of the respondent appellate court as a misreading of the facts and the evidence on record and directly contravening the positive finding of the trial court that an early warning device was in proper place when the accident happened and that the driver of the private respondent was the one negligent. On the other hand, the respondent court, in refusing to give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private respondent Isidro's driver) was negligent in driving the truck that bumped the parked truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply and nebulously adverted to unspecified "scanty evidence on record."
18 13

On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the ground that it 19 was filed out of time. It must be noted that there was a motion for extension, albeit filed erroneously with the respondent court, dated March 19, 1986, requesting for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner before the 20 Supreme Court" with motion was filed, again erroneously, with the Court of Appeals, requesting for 20 days extension "to 21 file the Petition for Review on Certiorari." Likewise a similar motion was filed with this Court also on April 1, 1986. On the 22 other hand, the instant petition for review was filed on April 17, 1986 but it was only after three months, on August 1, 23 1986, in its comment that the respondent corporation raised the issue of tardiness. The respondent corporation should not have waited in ambush before the comment was required and before due course was given. In any event, to exact its "a pound of flesh", so to speak, at this very late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that private respondent Isidro did not raise this issue of late filing. We now come to the merits of this petition.

18

The question before us is who was negligent? Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which 24 a prudent and reasonable man would not do or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, 25 whereby such other person suffers injury. In Picart vs. Smith,
26

decided more than seventy years ago but still a sound rule, we held:

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The Law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle which has the right to be on the highway. He argues that since the parked cargo truck in this case was a threat to life and limb and property, it was incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care so that the motorist negotiating the road would be properly forewarned of the peril of a parked vehicle. Isidro submits that the burden of proving that care and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers that the petitioner must show to the satisfaction of a reasonable mind that the driver and he (petitioner) himself, provided an early warning device, like that required by law, or, by some other adequate means that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place, and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well as his helper, the petitioner herein, who was fixing the flat tire of the said truck.
27

Respondent Isidro's contention is untenable. The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted kerosene lamp was 28 29 placed. Moreover, there is the admission of respondent Isidro's driver, Daniel Serrano, to Wit: Question No. 8 (by Patrolman Josefino Velasco) Will you narrate to me in brief how the accident happens (sic) if you can still remember? Answer: (by Daniel Serrano) That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another vehicle who (sic) did not dim his (sic) lights which cause (sic) me to be blinded with intense glare of the light that's why I did not notice a parked truck who (sic) was repairing a front flat tire. When I was a few meters away, I saw the truck which was loaded with round logs. I step (sic) on my foot brakes but it did not function with my many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why the breaks did not function . (Emphasis supplied). Whether the cargo truck was parked along the road or on half the shoulder of the right side of the road would be of no moment taking into account the warning device consisting of the lighted kerosene lamp placed three or four meters from 30 the back of the truck. But despite this warning which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still bumped the rear of the parked cargo truck. As a direct consequence of such accident the petitioner sustained injuries on his left forearm and left foot. His left leg was later amputated from below the 31 knee when gangrene had set in. It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been established by clear and convincing evidence. It follows that in stamping its imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape liability for the negligence of his employee, the respondent court committed reversible error. The respondent court ruled: xxx xxx xxx In addition to this, we agree with the following arguments of appellant Godofredo Isidro which would show that the accident was caused due to the negligence of the driver of the cargo truck:
32

19

xxx xxx xxx ... In the case at bar the burden of proving that care and diligence was (sic) observed is shifted evidently to the plaintiff, for, as adverted to, the motorists have the right to be on the road, while the immobile truck has no business, so to speak, to be there. It is thus for the plaintiff to show to the satisfaction of a reasonable mind that the driver and he himself did employ early warning device such as that required by law or by some other adequate means or device that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur, on the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of said truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied). At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to examine the doctrine of Res ipsa loquitur. This doctrine is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want 33 34 of care. Or as Black's Law Dictionary puts it: Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used. In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al., 36 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA.
35

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie 37 negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The 38 39 doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the 40 requirement of proof of culpable negligence on the part of the party charged. It merely determines and regulates what 41 shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not 42 readily available. Hence, it has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the 43 accident and all the facts and circumstances attendant on the occurrence clearly appear. Finally, once the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely eludicated that no inference of 44 defendant's liability can reasonably be made, whatever the source of the evidence, as in this case. The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from 45 liability. In disclaiming liability for the incident, the private respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck 46 owner used to instruct him to be careful in driving. We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the fact that the private respondent used to intruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the respondent

20

court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the 47 trial The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased. WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With costs against the private respondents. SO ORDERED. Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur.

Footnotes 1 Veloso, Marcelino R., ponente; Sison, Porfirio V., Bidin, Abdulwahid A., and Britanico, Ramon B., JJ., concurring. 2 Fourth Civil Cases Division. 3 Rendered by Judge Leticia P. Morales. 4 Veloso, Mercelino R., J., ponente; Sison, Porfirio V. Bidin, Abdulwahid A., and Britanico, Ramon B., JJ., concurring. 5 Decision of IAC, Rollo, 46-49. 6 Decision of the Regional Trial Court, Rollo, 32. 7 Ibid., p. 52. 8 Petition, Rollo, pp. 8-9. 9 Rollo, 108. 10 The Executive Secretary, et al. vs. CA, G.R. No. L-37999, June 10, 1988, citing Chan vs. CA, G.R. No. L27488, June 30, 1970, 33 SCRA 737; Lianga Bay Logging Co., Inc. vs. CA, G.R. No. L-37783, January 28,1988. 11 Anderson Co., et al. vs. IAC, G.R. No. L-65928, June 21, 1988. 12 Director of Lands vs. CA, G.R. No. L-46068, September 30, 1982, 117 SCRA 346, citing Macadangdang vs. CA No. L-49542, September 12, 1980, 100 SCRA 73; Manero vs. CA G.R. No. L-49824, February 20, 1981; 102 SCRA 817; Pio L. Padilla vs, C.A., January 29, 1988; G.R. 75577, January 29, 1988; Municipality of Meycauayan, Bulacan vs. IAC, G.R. L-72126, January 29, 1988. 13 Decision, Court of Appeals, 50. 14 Id. 15 Id. 16 Id. 17 Petition, 13. 18 Decision, CA, 50.

21

19 Annex K, 59. 20 Annex M, 62. 21 Motion for Extension, 2. 22 Petition, 4. 23 Comment, 65. 24 Black Law Dictionary, Fifth Edition, 930. 25 Cooley on Torts, Fourth Edition, Vol. 3, 265. 26 37 Phil. 809, 813, No. L-12219, March 15, 1918; Hedy Gan vs. The Hon. Court of Appeals, G.R. L-44264, September 19, 1988. 27 Memorandum of Private Respondent, 2-3. 28 Rollo, 13. 29 Id., 11, quoting the police investigation report by Patrolman Josefino Velasco at about 10:00 a.m., on May 16, 1979, the morning after the accident, of the statement of Daniel Serrano, the driver of respondent Isidro. 30 Petition, Rollo, 13. 31 Decision, RTC, Rollo, 13. 32 Decision, IAC, Rollo, 50-51, 52. 33 Cooley on Torts, Vol. 3. 369. 34 Fifth Edition, 1173. 35 L-12986, March 31, 1966, 16 SCRA 448. 36 L-52732, August 29, 1988. 37 Corpus Juris Secundum, Vol. 65A, 525. 38 Id., 527. 39 Id., 529. 40 Id 529-530. 41 Id., 530. 42 Id., 543-544. 43 Id., 544-545. 44 Id., 548. 45 Bahia vs. Litonpia and Leynes, No. L-9734, March 31, 1915, 30 Phils. 624. 46 Memorandum of private respondent, 6. 47 Decision, IAC, Rollo, 52.

22

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-25785 February 26, 1981 SATURNINO BAYASEN, petitioner, vs. COURT OF APPEALS, respondent.

FERNANDEZ, J.: This is a petition for certiorari to review the decision of the Court of Appeals promulgated on November 17, 1965, in CAG.R. N.. 05105-CR affirming and modifying the decision of the Court of First Instance of Mountain Province, Second Judicial 2 District, in Criminal Case No. 1056 entitled "People of the Philippines vs. Saturnino Bayasen" convicting the accused, petitioner herein, of the crime of Homicide Thru Reckless Imprudence. The records show that the petitioner was charged in December 1963 by the Provincial Fiscal of Mountain Province of the crime of Homicide Thru Reckless Imprudence allegedly committed as follows: That on or about the 15th day of August, 1963, at Langtiw, Municipality of Sagada, Province of Mountain, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then the driver and person in-charge of Rural health Unit Jeep bearing Plate No. 5735, Philippines, willfully, unlawfully and feloniously drove, managed and operated the said jeep along Suyo Municipal Road, Sagada, Mountain Province in a negligent, careless and imprudent manner, lack of foresight and skill, without due care and absolute disregard of traffic laws, rules and regulations and other conditions of the road, making it to run in an unreasonable rate of speed, without taking the necessary precaution to prevent accident to persons and damage to property in violation of law, and as a result of which said jeep driven and operated by the herein accused fell over a precipice in the abovementioned place causing thereby the death of Elena Awichen shortly thereafter. Contrary to law.
3 1

After trial, the petitioner was found guilty of the charge and was sentenced to an indeterminate penalty of Four (4) Months and One (1) Day of arresto mayor as minimum. to One (1) Year, Seven (7) Months and Ten (10) Days of prision correccional as maximum, to indemnify the heirs of the deceased Elena Awichen the amount of P3,000.00 as compensatory damages and P1,000.00 as fees of the attorney contracted by the said heirs and P1,886.00 for burial expenses of the deceased, and 4 5 to pay the costs. From this decision, the petitioner appealed to the Court of Appeals which affirmed the decision of the trial court with the following modifications: the indemnity was increased to P6,000.00; the award of attorney's fees was set aside, and the maximum of the prison term was raised to One (1) Year, Seven (7) Months, and Seventeen (17) Days of 6 prision correccional. The motion for reconsideration of the petitioner was denied by Justices Angeles, Capistrano, Mojica and Soriano. Justice 7 Magno S. Gatmaitan voted to grant the said motion. From the decision of the respondent Court of Appeals, the petitioner has appealed to this Court assigning the following 8 errors: I THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE ACCUSED-PETITIONER SATURNINO BAYASEN WAS NEGLIGENT IN DRIVING HIS JEEP, AFTER TAKING INTO CONSIDERATION ALLEGED PREVIOUS INCIDENTS IN WHICH THE ACCUSED WAS ALLEGEDLY INVOLVED, THEREBY DECIDING A QUESTION OF SUBSTANCE THAT OF PRESUMED NEGLIGENCE NOT IN ACCORD WITH LAW OR ESTABLISHED RULES OF EVIDENCE SPECIFICALLY THE RULE OF RES INTER ALIOS ACTA. II THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROXIMATE CAUSE OF THE DEATH OF AWICHEN WAS THE PETITIONER'S "NEGLIGENCE IN DRIVING AT AN UNREASONABLE SPEED," WHICH FINDING IS OPENLY CONTRARY TO THE EVIDENCE OF THE PROSECUTION. III

23

THE COURT OF APPEALS ERRED IN NOT ACQUITTING THE ACCUSED-PETITIONER OF THE CRIME CHARGED. The facts, as found by the Court of Appeals, are: On the morning of August 15, 1963, Saturnino Bayasen, the Rural Health Physician in Sagada, Mountain Province, went to barrio Ambasing to visit a patient. Two nurses from the Saint Theodore's Hospital in Sagada, viz., Elena Awichen and Dolores Balcita, rode with him in the jeep assigned for the use of the Rural Health Unit as they had requested for a ride to Ambasing. Later, at Ambasing, the girls, who wanted to gather flowers, again asked if they could ride with him up to a certain place on the way to barrio Suyo which he intended to visit anyway. Dr. Bayasen again allowed them to ride, Elena sitting herself between him and Dolores. On the way, at barrio Langtiw, the jeep went over a precipice About 8 feet below the road, it was blocked by a pine tree. The three were thrown out of the jeep. Elena was found lying in a 9 creek further below. Among other injuries, she suffered a skull fracture which caused her death. The Court of Appeals concluded: It is not therefore improbable that due to lack of sufficient skin and confidence in driving, he lost his nerve when confronted by an emergency due to his negligence in driving at an unreasonable speed on a narrow and slippery road and was at a loss what to do indeed, at no time did he step on the brakes he failed to control the jeep after it skidded. On the whole, we are, satisfied that the fatal and unfortunate accident 10 was due to appellant's failure to exercise due diligence under the circumstances. The main issue raised by the petitioner is whether or not he is entitled to acquittal on the ground that the finding of the Court of Appeals that the proximate cause of the death of Awichen was the petitioner's "negligence in driving at an unreasonable speed" is openly contrary to the evidence of the prosecution. The majority opinion of the Court of Appeals is that the accused- petitioner was negligent in driving his jeep because he was driving at "an unreasonable speed". A careful examination of 'he evidence introduced by the prosecution shows no "legally sufficient" proof that the accused was negligent in driving his jeep. The star witness of the prosecution, Dolores Balcita who was one of the passengers in the jeep, testified that the accused-petitioner, Saturnino Bayasen was driving his jeep moderately just before the accident and categorically stated that she did not know what caused the jeep to fall into the precipice. The pertinent portions of her testimony are: ATTY. GOMEZ: Q From Ambasing to the place where the jeep fell over the precipice, was the driver running fast or slow? A He was with moderate speed, sir.
11

In the course of the cross-examination, the Court asked the witness the following: COURT: to the witness) Q Could you inform this Court as to what caused the jeep to fall into the embankment? A I do not know, sir.
12

When asked whether the jeep hit anything before it fell into the precipice, the witness answered that she did not feel any bump or jolt. Her testimony on this point reads: COURT (to the witness) xxx xxx xxx Q Did the jeep hit anything before it fell into the embankment ? A I did not feel any bump, sir. Q Going to Suyo you were passing by a mountain is that right? A Yes, sir.

24

Q On what side was that mountain? A On the left side. Q And while the jeep was going toward Suyo, how far was it from the mountain along the left side? A I do not know, sir. Q Where was the jeep nearer to while it was on the way to Suyo to the embankment or the mountain? A I do not know, sir. I was not aware of that. Q During the time that the jeep was traversing toward Suyo, was there any conversation transpiring? A Just before the accident, I did not hear anything, sir.
13

It is clear from the last part of the Testimony of the witness, Dolores Balcita, that there was no conversation between the passengers in the jeep that could have distracted the attention of the accused while driving the jeep. As to the condition of 14 the jeep itself, the same witness testified that she "did not notice anything wrong" with it from the time they drove from Sagada to Ambasing, and from there to the place where the jeep fell off the road. Regarding the road, she said that it was 15 fair enough to drive on, but that it was moist or wet, and the weather was fair, too. As to whether the accused-petitioner 16 was under the influence of liquor at the time of the accident, she testified that he was not. In the light of the testimony of Dolores Balcita, the eyewitness of the accident presented by the prosecution, there is absolutely no evidence on record to show that the accused was negligent in driving his jeep. The petitioner testified that before reaching the portion of the road where the jeep fell he noticed that the rear wheel skidded, while driving from 8 to 10 kilometers per hour; that as a precautionary measure, he directed the jeep towards the side of the mountain, along the side of the mountain, but not touching the mountain; that while doing so, the late Elena Awichen suddenly held the steering wheel and he felt that her foot stepped on his right foot which was pressed then on the 17 accelerator; and that immediately after, the jeep suddenly swerved to the right and went off. In rebuttal to this testimony, Dolores Balcita, testified thus: COURT Witness may answer. A When I said I was [not] looking at him, I did not see and with the space of time that I was still conscious, I did not feel any movement from my side. COURT Your answer is not responsive. Is it true what the accused said? A I did not see, sir.
18

From the foregoing testimony of Dolores Balcita, it is apparent that she "did not see" what Elena Awichen suddenly did, and she "did not feel any movement from (her) side". These answers of Dolores Balcita are all in the negative and equivocal. They do not deny or preclude the truth of the positive testimony of the accused. As held by this Court: The testimony of a credible witness that he saw or heard at a particular time and place is more reliable than that of an equally credible witness who with the same opportunities, testified that he did not see or 19 hear the same thing at the same time and place. Hence as to the relative weight to be given to the positive and consistent. testimony of the accused and to the negative and equivocal answers of Dolores Balcita, the former is more worthy of credence . Furthermore , the statement of Dolores Balcita that the accused was driving at moderate speed and not "an unreasonable ,speed' is bolstered by the testimony, of Pablo Lizardo. then mayor of Sagada, Mountain Province, who found the jeep at 20 second gear when he examined it not long after the incident. Such fact shows that the accused-petitioner could not have been driving the jeep at a fast rate of speed. Mr. Justice Gatmaitan, in voting to grant the motion for reconsideration, said:

25

... but that statement of the Majority would most clearly show that its position is that appellant's negligence, the proximate cause of the tragedy, was appellant's unreasonable speed which has been refuted by the very evidence of prosecution, for here, it can hardly be debated that the proximate cause was the skidding of the rear wheels, there is nothing, absolutely nothing in the entire record which would pin upon him the fault for that, prosecution witnesses concede that he was driving moderately, the skidding of the rear wheels was to my mind, undisputably an unforeseen cause, because of this, I 21 cannot rest easy on conviction and therefore register my final vote for acquittal. It is obvious that the proximate cause of the tragedy was the skidding of the rear wheels of the jeep and not the "unreasonable speed" of the petitioner because there is no evidence on record to prove or support the finding that the petitioner was driving a at "an unreasonable speed". It is a well known physical tact that cars may skid on greasy or slippery roads, as in the instant case, without fault on account of the manner of handling the car. Skidding means partial or complete loss of control of the car under circumstances not necessarily implying negligence. It may occur without fault. No negligence as a matter of law can, therefore, be charged to the petitioner. In fact, the moment he felt that the rear wheels of the jeep skidded, he promptly drove it to the left hand side of the road, parallel to the slope of the mountain, 22 because as he said, he wanted to play safe and avoid the embankment. Under the particular circumstances of the instant case, the petitioner- driver who skidded could not be regarded as negligent, the skidding being an unforeseen event, so that the petitioner had a valid excuse for his departure from his regular course. The negligence of the petitioner not having been sufficiently established, his guilt of the crime charged has not been proven beyond reasonable doubt. He is, therefore, entitled to acquittal. WHEREFORE, the decision of the Court of Appeals sought to be reviewed is hereby set aside and the petitioner is ACQUITTED of the crime charged in the information in Criminal Case No. 1056 of the Court of First Instance of Mountain Province, with costs de oficio. SO ORDERED. Teehankee (Chairman), Makasiar, Guerrero and Melencio-Herrera, JJ., concur.

Footnotes 1 CA Decision, Annex "A", Petition, Rollo. p. 16, Written by Justice Eugenio Angeles and concurred in by Justice Carmelito G. Alvendia and Justice Magno S. Gatmaitan. 2 Record of Criminal Case No. 1056, pp. 167-197, 3 Ibid., p. 27. 4 Ibid., p. 197. 5 Ibid., p. 199. 6 CA Decision, p. 8, Annex "A", Petition, Rollo, p. 23. 7 Rollo, pp. 27-29. 8 Brief for the Petitioner, pp. 6-7, Rollo, p. 59. 9 CA Decision, Annex "A", pp. 1-2. Rollo, p. 16. 10 CA Decision, pp. 6-7, Annex "A", Petition, Rollo, p. 16. 11 TSN., p. 38. 12 Ibid, p. 44. 13 Ibid, pp. 44-45. 14 Ibid, pp. 35, 41.

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15 Ibid, pp. 38, 43. 16 Ibid, p. 40. 17 Ibid, pp. 191-195. 18 Ibid, pp. 335-336. 19 People vs. Gonzales. et aL., 76 Phil. 473 20 TSN., p. 103, 21 Resolution on Motion for Reconsideration, Rollo, pp. 22 TSN., pp. 218-220. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-28256 March 17, 1982 SEVERO DEL CASTILLO, plaintiff-appellant, vs. LORENZO JAYMALIN MANUEL SABIT and BITRANCO and A. L. AMMEN TRANS. CO., INC., defendants-appellees.

MELENCIO-HERRERA, J.: A direct appeal from the Decision, dated January 25, 1967, of the Court of First Instance of Sorsogon, Branch 1, dismissing this case for Damages (Civil Case No. 1784 below) by reason of plaintiff Severo del Castillo's death. On June 29, 1960, Mario del Castillo, a deaf-mute, son of plaintiff Severo del Castillo, and a paying passenger of defendant Bicol Transportation Company (Bitranco), operated by A.L. Ammen Transportation Co., Inc. (ALATCO) at Casiguran, Sorsogon, fell upon alighting from Bus No. 624 of said companies and died as a result. On September 5, 1962, an action for the recovery of damages for Mario's death was filed by his father, Severo, plaintiff herein, against the driver and conductor of the bus, and the transportation companies. The Complaint alleged that Severo, a widower, was the sole heir. Defendant transportation companies traversed the complaint by stating that the passenger bus involved was owned by Bicol Transportation Co. alone; that the two companies had always exercised due diligence in the selection and supervision of their employees; and that the proximate cause of Mario's death was his recklessness and gross negligence in jumping out of the bus while in motion. Trial ensued with plaintiff having been able to present his evidence and rest his case. Defendants proceeded with the presentation of their witnesses until July 9, 1966 when they filed a "Motion for Annulment of Proceedings after February 1, 1965", having learned that plaintiff Severo had died on February 1, 1965, at which time plaintiff had not yet rested his case having done so only on January 28, 1966. the Court a quo directed plaintiff's counsel to verify the existence of heirs and whether they were willing to be substituted as parties-plaintiffs." On August 6, 1966, plaintiff's counsel filed a "Motion to Admit Amended Complaint" substituting Severo's son-in-law, one Wenceslao Haloc, as party plaintiff. This was in virtue of a "Deed of Assignment" dated August 13, 1960, thumbmarked by Severo, and reading as follows: KNOW ALL MEN BY THESE PRESENTS: That I, SEVERO DEL CASTILLO, of age, a widower and a resident of Casiguran, Sorsogon, Philippines, for reasons of my health and old age, do hereby transfer and assigned (sic) and by these presents do hereby assign and transfer unto the said WENCESLAO (sic) HALOC, my son in-law, of Barrio Storom Casiguran, Sorsogon, Philippines, my rights, privileges and all its accessory rights as such an heir to me (sic) for and in my behalf (sic) the case I originally instituted for indemnity for the death of my son the late Mario Castillo,

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who died while a passenger in an Alatco Bus No. 624, June 29, 1960 at about 7:00 P.M. more or less at Barrio Storom, Casiguran, Sorsogon. That I hereby declare that from this date August 13, 1960 on, my son-in-law Wenceslao Haloc, of legal age will be my assignee as aforesaid. (Sgd.) Thumb mark SEVERO DEL CASTILLO Res. Cert. No. A2920570 Issued on July 5, 1960 at Casiguran. Sorsogon The Amended Complaint was admitted by the trial Court for lack of objection thereto on August 20, 1966. Trial proceeded with defendants closing their evidence on November 25, 1966. On January 26, 1967, the trial Court rendered judgment in defendants' favor dismissing the original and the amended Complaints upon the following ratiocination ... Since Severo del Castillo died before the conclusion of this case, this action died with him. Wenceslao Haloc is without personality to continue this case. He is not even an heir of Severo del Castillo. Wenceslao Haloc appealed as a pauper directly to this Court contending that the Decision is "contrary to law." Before this instance, it is urged that the trial Court erred: 1) In construing the Deed of Assignment as not a deed that transfers any benefit to the transferee. 2) In dismissing the case in virtue of the death of Severo del Castillo after the deed of assignment was executed and further still after the evidence testimonial and documentary were already presented. We find merit in the foregoing contentions. This is not a case where the provisions of Section 17, Rule 3 of the Rules of Court on "death of a party" are applicable. Rather, it is a situation where plaintiff, while alive, had assigned his rights to another, in which case, the proper procedure 1 would have been for the transferee to have been substituted for the transferor as plaintiff. The rights of Severo to claim damages for his son were transferable. Severo had transferred his rights as plaintiff to Wenceslao Haloc but after the assignment the case continued in Severo's name and there was no immediate and formal substitution of party plaintiff. This is but a formality, however, and the fact remains that, after the assignment, the substantial plaintiff and real party in interest became Haloc, with Severo as a sort of trustee of whatever fruits the litigation would bring It was reversible error, therefore, for the trial Court to have dismissed the case by virtue of Severo's death. The action did not die with him. In point is the following ruling of this Court: ... where an assignable right has been transferred before action brought, the proceeding ought to be instituted in the name of the assignee; and where an assignment is effect pendente lite, it is proper to have the assignee substituted for the original plaintiff. If such substitution should not be effected and the transfer of the right of action should not be brought to the attention of the court, the original plaintiff, if successful in the litigation, would hold the fruits of the action as a sort of trustee for the use and benefit 2 of his assignee. ... Relative to the aspect of damages, the trial Court ruled: Common carriers are responsible for the death of their passengers (Articles 1764 and 2206 of the Civil Code). This liability includes the loss of the earning capacity of the deceased. It appears proven that the defendant corporations failed to exercise the diligence that was their duty to observe according to Articles 1733 and 1755. The conductor was apprised of the fact that Mario del Castillo was deaf and dumb. With this knowledge the conductor should have taken extra-ordinary care for the safety of the said passenger. In this he failed. The trial Court then concluded that "under the circumstances obtaining in the case, the plaintiff Severo del Castillo would be entitled to actual and moral damages but did not determine the amount of damages because it dismissed the case. Technicality would require a remand of this case to the Court a quo, for a determination of the amount of damages [the total amount of P41,000.00 (P6,000.00 as damages for death, and P35,000.00 for loss of earning capacity), and attorney's fees of P5,000.00, were claimed]. Considering, however, the pendency of this case for 13 years and in order to put an end to the controversy, we determine the damages at P12,000.00 for the death of the victim, without interest, and P2,000.00 for attorney's fees. Loss of earning capacity in the amount of P35,000.00 has not been proven specially considering that the victim was a deaf-mute.

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WHEREFORE, the judgment appealed from is hereby reversed, and defendants hereby ordered jointly and severally, to pay Wenceslao Haloc, the amount of P12,000.00 as damages for death, without interest, and P2,000.00 as attorney's fees. No costs. SO ORDERED. Teehankee (Chairman), Makasiar, Fernandez, Guerrero and Plana, JJ., concur.

Footnotes 1 Sec. 20, Rule 3, Rules of Court. 2 Oria Hermanos y Compaia vs. Gutierrez Hermanos, 52 Phil. 156 (1928). Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-42926 September 13, 1985 PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B. BAGAIPO, AGUSTINA VIRTUDES, ROMEO VASQUEZ and MAXIMINA CAINAY, petitioners, vs. THE COURT OF APPEALS and FILIPINAS PIONEER LINES, INC., respondents. Emilio D. Castellanes for petitioners. Apolinario A. Abantao for private respondents.

MELENCIO-HERRERA, J.: This litigation involves a claim for damages for the loss at sea of petitioners' respective children after the shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in May of 1966. The factual antecedents, as summarized by the trial Court and adopted by respondent Court, and which we find supported by the record, read as follows: When the inter-island vessel MV "Pioneer Cebu" left the Port of Manila in the early morning of May 15, 1966 bound for Cebu, it had on board the spouses Alfonso Vasquez and Filipinas Bagaipo and a four-year old boy, Mario Marlon Vasquez, among her passengers. The MV "Pioneer Cebu" encountered typhoon "Klaring" and struck a reef on the southern part of Malapascua Island, located somewhere north of the island of Cebu and subsequently sunk. The aforementioned passengers were unheard from since then. Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso Vasquez; plaintiffs Cleto Bagaipo and Agustina Virtudes are the parents of Filipinas Bagaipo; and plaintiffs Romeo Vasquez and Maxima Cainay are the parents of the child, Mario Marlon Vasquez. They seek the recovery of damages due to the loss of Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez during said voyage. At the pre-trial, the defendant admitted its contract of carriage with Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the MV "Pioneer Cebu". The issues of the case were limited to the defenses alleged by the defendant that the sinking of the vessel was caused by force majeure, and that the defendant's liability had been extinguished by the total loss of the vessel. The evidence on record as to the circumstances of the last voyage of the MV "Pioneer Cebu" came mainly, if not exclusively, from the defendant. The MV "Pioneer Cebu" was owned and operated by the defendant and used in the transportation of goods and passengers in the inter-island shipping. Scheduled to leave the Port of Manila at 9:00 p.m. on May 14, 1966, it actually left port at 5:00 a.m. the following day, May 15, 1966. It had a passenger capacity of three hundred twenty-two (322) including the crew. It undertook the said voyage on a special permit issued by the Collector of Customs inasmuch as, upon inspection, it

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was found to be without an emergency electrical power system. The special permit authorized the vessel to carry only two hundred sixty (260) passengers due to the said deficiency and for lack of safety devices for 322 passengers (Exh. 2). A headcount was made of the passengers on board, resulting on the tallying of 168 adults and 20 minors, although the passengers manifest only listed 106 passengers. It has been admitted, however, that the headcount is not reliable inasmuch as it was only done by one man on board the vessel. When the vessel left Manila, its officers were already aware of the typhoon Klaring building up somewhere in Mindanao. There being no typhoon signals on the route from Manila to Cebu, and the vessel having been cleared by the Customs authorities, the MV "Pioneer Cebu" left on its voyage to Cebu despite the typhoon. When it reached Romblon Island, it was decided not to seek shelter thereat, inasmuch as the weather condition was still good. After passing Romblon and while near Jintotolo island, the barometer still indicated the existence of good weather condition continued until the vessel approached Tanguingui island. Upon passing the latter island, however, the weather suddenly changed and heavy rains felt Fearing that due to zero visibility, the vessel might hit Chocolate island group, the captain ordered a reversal of the course so that the vessel could 'weather out' the typhoon by facing the winds and the waves in the open. Unfortunately, at about noontime on May 16, 1966, the vessel struck a reef near Malapascua island, sustained leaks and eventually sunk, bringing with her Captain Floro Yap who was in command of the vessel. Due to the loss of their children, petitioners sued for damages before the Court of First Instance of Manila (Civil Case No. 67139). Respondent defended on the plea of force majeure, and the extinction of its liability by the actual total loss of the vessel. After proper proceedings, the trial Court awarded damages, thus: WHEREFORE, judgment is hereby rendered ordering the defendant to pay: (a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for the loss of earning capacity of the deceased Alfonso Vasquez, P2,100.00 for support, and P10,000.00 for moral damages; (b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00 for loss of earning capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral damages; and (c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by way of moral damages by reason of the death of Mario Marlon Vasquez. On appeal, respondent Court reversed the aforementioned judgment and absolved private respondent from any and all liability. Hence, this Petition for Review on Certiorari, the basic issue being the liability for damages of private respondent for the presumptive death of petitioners' children. The trial Court found the defense of caso fortuito untenable due to various decisive factors, thus: ... It is an admitted fact that even before the vessel left on its last voyage, its officers and crew were already aware of the typhoon brewing somewhere in the same general direction to which the vessel was going. The crew of the vessel took a calculated risk when it proceeded despite the typhoon advisory. This is quite evident from the fact that the officers of the vessel had to conduct conferences amongst themselves to decide whether or not to proceed. The crew assumed a greater risk when, instead of seeking shelter in Romblon and other islands the vessel passed en route, they decided to take a change on the expected continuation of the good weather the vessel was encountering, and the possibility that the typhoon would veer to some other directions. The eagerness of the crew of the vessel to proceed on its voyage and to arrive at its destination is readily understandable. It is undeniably lamentable, however, that they did so at the risk of the lives of the passengers on board. Contrariwise, respondent Appellate Court believed that the calamity was caused solely and proximately by fortuitous event which not even extraordinary diligence of the highest degree could have guarded against; and that there was no negligence on the part of the common carrier in the discharge of its duties. Upon the evidence and the applicable law, we sustain the trial Court. "To constitute a caso fortuito that would exempt a person from responsibility, it is necessary that (1) the event must be independent of the human will; (2) the occurrence must render it impossible for the debtor to fulfill the obligation in a normal manner; and that (3) the obligor must be free of 1 participation in, or aggravation of, the injury to the creditor." In the language of the law, the event must have been 2 impossible to foresee, or if it could be foreseen, must have been impossible to avoid. There must be an entire exclusion of 3 human agency from the cause of injury or loss.

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Turning to this case, before they sailed from the port of Manila, the officers and crew were aware of typhoon "Klaring" that was reported building up at 260 kms. east of Surigao. In fact, they had lashed all the cargo in the hold before sailing in 4 anticipation of strong winds and rough waters. They proceeded on their way, as did other vessels that day. Upon reaching Romblon, they received the weather report that the typhoon was 154 kms. east southeast of Tacloban and was moving 5 west northwest. Since they were still not within the radius of the typhoon and the weather was clear, they deliberated and decided to proceed with the course. At Jintotolo Island, the typhoon was already reported to be reaching the mainland of 6 Samar. They still decided to proceed noting that the weather was still "good" although, according to the Chief Forecaster 7 of the Weather Bureau, they were already within the typhoon zone. At Tanguingui Island, about 2:00 A.M. of May 16, 1966, the typhoon was in an area quite close to Catbalogan, placing Tanguingui also within the typhoon zone. Despite knowledge of that fact, they again decided to proceed relying on the forecast that the typhoon would weaken upon 8 crossing the mainland of Samar. After about half an hour of navigation towards Chocolate Island, there was a sudden fall of the barometer accompanied by heavy downpour, big waves, and zero visibility. The Captain of the vessel decided to reverse course and face the waves in the open sea but because the visibility did not improve they were in total darkness and, as a consequence, the vessel ran aground a reef and sank on May 16, 1966 around 12:45 P.M. near Malapascua Island somewhere north of the island of Cebu. Under the circumstances, while, indeed, the typhoon was an inevitable occurrence, yet, having been kept posted on the course of the typhoon by weather bulletins at intervals of six hours, the captain and crew were well aware of the risk they were taking as they hopped from island to island from Romblon up to Tanguingui. They held frequent conferences, and 9 oblivious of the utmost diligence required of very cautious persons, they decided to take a calculated risk. In so doing, they failed to observe that extraordinary diligence required of them explicitly by law for the safety of the passengers 10 transported by them with due regard for an circumstances and unnecessarily exposed the vessel and passengers to the tragic mishap. They failed to overcome that presumption of fault or negligence that arises in cases of death or injuries to 11 passengers. While the Board of Marine Inquiry, which investigated the disaster, exonerated the captain from any negligence, it was because it had considered the question of negligence as "moot and academic," the captain having "lived up to the true tradition of the profession." While we are bound by the Board's factual findings, we disagree with its conclusion since it obviously had not taken into account the legal responsibility of a common carrier towards the safety of the passengers involved. With respect to private respondent's submission that the total loss of the vessel extinguished its liability pursuant to Article 12 587 of the Code of Commerce as construed in Yangco vs. Laserna, 73 Phil. 330 [1941], suffice it to state that even in the cited case, it was held that the liability of a shipowner is limited to the value of the vessel or to the insurance thereon. Despite the total loss of the vessel therefore, its insurance answers for the damages that a shipowner or agent may be held liable for by reason of the death of its passengers. WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of the then Court of First Instance of Manila, Branch V, in Civil Case No. 67139, is hereby reinstated. No costs. SO ORDERED. Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Footnotes 1 Lasam vs. Smith, 45 Phil. 657, 661 [1924]; Autria vs. Court of Appeals, 39 SCRA 527 [1971]. 2 Art. 1174, Civil Code; Lasam vs. Smith, 45 Phil. 657 [1924]. 3 Tolentino, Commentaries on the Civil Code, Vol. V, p. 252. 4 T.s.n., August 8, 1967, p. 22. 5 Domestic Bulletin No. 16 of the Weather Bureau. 6 Domestic Bulletin No. 17. 7 T.s.n. December 15, 1967, p. 21. 8 Domestic Bulletin No. 18. 9 Arts. 1755, 1756, Civil Code. 10 Art. 1733, Ibid.

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11 Art. 1756, Ibid. 12 Art. 587. The ship agent shall also be civilly liable for the indemnities in favor of third persons which may arise from the conduct of the captain in the vigilance over the goods which the vessel carried; but he may exempt himself therefrom by abandoning the vessel with all her equipments and the freight he may have earned during the voyage. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-45637 May 31, 1985 ROBERTO JUNTILLA, petitioner, vs. CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents. Valentin A. Zozobrado for petitioner. Ruperto N. Alfarara for respondents.

GUTIERREZ, JR., J.: This is a petition for review, on questions of law, of the decision of the Court of First Instance of Cebu which reversed the decision of the City Court of Cebu and exonerated the respondents from any liability arising from a vehicular accident. The background facts which led to the filing of a complaint for breach of contract and damages against the respondents are summarized by the Court of First Instance of Cebu as follows: The facts established after trial show that the plaintiff was a passenger of the public utility jeepney bearing plate No. PUJ-71-7 on the course of the trip from Danao City to Cebu City. The jeepney was driven by defendant Berfol Camoro. It was registered under the franchise of defendant Clemente Fontanar but was actually owned by defendant Fernando Banzon. When the jeepney reached Mandaue City, the right rear tire exploded causing the vehicle to turn turtle. In the process, the plaintiff who was sitting at the front seat was thrown out of the vehicle. Upon landing on the ground, the plaintiff momentarily lost consciousness. When he came to his senses, he found that he had a lacerated wound on his right palm. Aside from this, he suffered injuries on his left arm, right thigh and on his back. (Exh. "D"). Because of his shock and injuries, he went back to Danao City but on the way, he discovered that his "Omega" wrist watch was lost. Upon his arrival in Danao City, he immediately entered the Danao City Hospital to attend to his injuries, and also requested his father-in-law to proceed immediately to the place of the accident and look for the watch. In spite of the efforts of his father-in-law, the wrist watch, which he bought for P 852.70 (Exh. "B") could no longer be found. xxx xxx xxx Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with damages before the City Court of Cebu City, Branch I against Clemente Fontanar, Fernando Banzon and Berfol Camoro. The respondents filed their answer, alleging inter alia that the accident that caused losses to the petitioner was beyond the control of the respondents taking into account that the tire that exploded was newly bought and was only slightly used at the time it blew up. After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in favor of the petitioner and against the respondents. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants and the latter are hereby ordered, jointly and severally, to pay the plaintiff the sum of P750.00 as reimbursement for the lost Omega wrist watch, the sum of P246.64 as unrealized salary of the plaintiff from his employer, the further sum of P100.00 for the doctor's fees and medicine, an additional sum of P300.00 for attorney's fees and the costs. The respondents appealed to the Court of First Instance of Cebu, Branch XIV.

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Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a finding that the accident in question was due to a fortuitous event. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered exonerating the defendants from any liability to the plaintiff without pronouncement as to costs. A motion for reconsideration was denied by the Court of First Instance. The petitioner raises the following alleged errors committed by the Court of First Instance of Cebu on appeal a. The Honorable Court below committed grave abuse of discretion in failing to take cognizance of the fact that defendants and/or their employee failed to exercise "utmost and/or extraordinary diligence" required of common carriers contemplated under Art. 1755 of the Civil Code of the Philippines. b. The Honorable Court below committed grave abuse of discretion by deciding the case contrary to the doctrine laid down by the Honorable Supreme Court in the case of Necesito et al. v. Paras, et al. We find the petition impressed with merit. The City Court and the Court of First Instance of Cebu found that the right rear tire of the passenger jeepney in which the petitioner was riding blew up causing the vehicle to fall on its side. The petitioner questions the conclusion of the respondent court drawn from this finding of fact. The Court of First Instance of Cebu erred when it absolved the carrier from any liability upon a finding that the tire blow out is a fortuitous event. The Court of First Instance of Cebu ruled that: After reviewing the records of the case, this Court finds that the accident in question was due to a fortuitous event. A tire blow-out, such as what happened in the case at bar, is an inevitable accident that exempts the carrier from liability, there being absence of a showing that there was misconduct or negligence on the part of the operator in the operation and maintenance of the vehicle involved. The fact that the right rear tire exploded, despite being brand new, constitutes a clear case of caso fortuito which can be a proper basis for exonerating the defendants from liability. ... The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, where the Court of Appeals ruled that: A tire blow-out does not constitute negligence unless the tire was already old and should not have been used at all. Indeed, this would be a clear case of fortuitous event. The foregoing conclusions of the Court of First Instance of Cebu are based on a misapprehension of overall facts from which a conclusion should be drawn. The reliance of the Court of First Instance on the Rodriguez case is not in order. In La Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that: Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing the rulings of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are not binding on this Court but were based on considerations quite different from those that obtain in the case at bar. The appellate court there made no findings of any specific acts of negligence on the part of the defendants and confined itself to the question of whether or not a tire blow-out, by itself alone and without a showing as to the causative factors, would generate liability. ... In the case at bar, there are specific acts of negligence on the part of the respondents. The records show that the passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The evidence shows that the passenger jeepney was running at a very fast speed before the accident. We agree with the observation of the petitioner that a public utility jeep running at a regular and safe speed will not jump into a ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was overloaded at the time of the accident. The petitioner stated that there were three (3) passengers in the front seat and fourteen (14) passengers in the rear. While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact alone does not make the explosion of the tire a fortuitous event. No evidence was presented to show that the accident was due to adverse road conditions or that precautions were taken by the jeepney driver to compensate for any conditions liable to cause accidents. The sudden blowing-up, therefore, could have been caused by too much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the time of the accident. In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of caso fortuito: xxx xxx xxx

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... In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor. (5 Encyclopedia Juridica Espanola, 309.) In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human will. The accident was caused either through the negligence of the driver or because of mechanical defects in the tire. Common carriers should teach their drivers not to overload their vehicles, not to exceed safe and legal speed limits, and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all times. Relative to the contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al. (104 Phil. 75), that: ... The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury resulting from a defect in an appliance purchased from a manufacturer, whenever it appears that the defect would have been discovered by the carrier if it had exercised the degree of care which under the circumstances was incumbent upon it, with regard to inspection and application of the necessary tests. For the purposes of this doctrine, the manufacturer is considered as being in law the agent or servant of the carrier, as far as regards the work of constructing the appliance. According to this theory, the good repute of the manufacturer will not relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co. v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann. Cas. 1916E 929). The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not an insurer of the safety of his passengers, should nevertheless be held to answer for the flaws of his equipment if such flaws were at all discoverable. ... It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of carriage, and by entering into the said contract, it binds itself to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of a very cautious person, with a due regard for all the circumstances. The records show that this obligation was not met by the respondents. The respondents likewise argue that the petitioner cannot recover any amount for failure to prove such damages during the trial. The respondents submit that if the petitioner was really injured, why was he treated in Danao City and not in Mandaue City where the accident took place. The respondents argue that the doctor who issued the medical certificate was not presented during the trial, and hence not cross-examined. The respondents also claim that the petitioner was not wearing any wrist watch during the accident. It should be noted that the City Court of Cebu found that the petitioner had a lacerated wound on his right palm aside from injuries on his left arm, right thigh and on his back, and that on his way back to Danao City, he discovered that his "Omega" wrist watch was lost. These are findings of facts of the City Court of Cebu which we find no reason to disturb. More so when we consider the fact that the Court of First Instance of Cebu impliedly concurred in these matters when it confined itself to the question of whether or not the tire blow out was a fortuitous event. WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed from is hereby REVERSED and SET ASIDE, and the decision of the City Court of Cebu, Branch I is REINSTATED, with the modification that the damages shall earn interest at 12% per annum and the attorney's fees are increased to SIX HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Alampay, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 77679 September 30, 1987 VICENTE VERGARA, petitioner, vs. THE COURT OF APPEALS and AMADEO AZARCON, respondents. RESOLUTION

PADILLA, J.: An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private respondent against petitioner. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on" the store-residence of the private respondent, causing damages thereto which were inventoried and assessed at P53,024.22. In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte operated said cargo truck in a very diligent (and) careful manner; that the steering wheel refused to respond to his effort and as a result of a blownout tire and despite application of his brakes, the said cargo truck hit the store-residence of plaintiff (private respondent) and that the said accident was an act of God for which he cannot be held liable." 1 Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation, alleging that said cargo truck involved in the vehicular accident, belonging to the petitioner, was insured by the third party defendant insurance company. Petitioner asked that the latter be ordered to pay him whatever amount he may be ordered by the court to pay to the private respondent. The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals, the latter court affirmed in toto the decision of the trial court, which ordered Petitioner to pay, jointly and severally with Travellers Insurance and Surety Corporation, to the private, respondent the following: (a) P53,024.22 as actual damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third party complaint, the insurance company was sentenced to pay to the petitioner the following: (a) P50,000.00 for third party liability under its comprehensive accident insurance policy; and (b) P3,000.00 for and as attorney's fees. Hence, this petition for review on certiorari. Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not tenable. It was established by competent evidence that the requisites of a quasi-delict are present in the case at bar. These requisites are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose acts he must respond, was guilty; and (3) the connection of cause and effect between such negligence and the damages. It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner. The issue of whether or not this act or omission can be considered as a "negligent" act or omission was passed upon by the trial court. The findings of said court, affirmed by the respondent court, which we are not prepared to now disturb, show that the fact of occurrence of the "vehicular accident" was sufficiently established by the policy report and the testimony of Patrolman Masiclat. And the fact of negligence may be deduced from the surrounding circumstances thereof. According to the police report, "the cargo truck was travelling on the right side of the road going to Manila and then it crossed to the center line and went to the left side of the highway; it then bumped a tricycle; and then another bicycle; and then said cargo truck 2 rammed the store warehouse of the plaintiff." According to the driver of the cargo truck, he applied the brakes but the latter did not work due to mechanical defect. Contrary to the claim of the petitioner, a mishap caused by defective brakes can not be consideration as fortuitous in character. Certainly, the defects were curable and the accident preventable. Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of negligence on his part in the selection and supervision of his driver. Based on the foregoing finding by the respondent Court that there was negligence on the part of the petitioner, the petitioner's contention that the respondent court erred in awarding private respondent actual, moral and exemplary damages as well as attorney's fees and costs, is untenable.

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ACCORDINGLY, the petition is DENIED. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes 1 Rollo, p. 26. 2 Rollo, p. 30. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-28692 July 30, 1982 CONRADA VDA. DE ABETO, CARME0000LO ABETO, CECILIA ABETO, CONCEPCION ABETO, MARIA ABETO, ESTELA ABETO, PERLA ABETO, PATRIA ABETO and ALBERTO ABETO, plaintiffs-appellees, vs. PHILIPPINE AIR LINES, INCORPORATED, defendant-appellant. Quijano, Arroyo & Padilla Law Offices for plaintiffs-appellees. Siguion Reyna, Montecillo & Ongsiako, Belo and Associates for defendant-appellant.

RELOVA, J.. Appeal from the decision of the Court of First Instance of Iloilo finding that defendant-appellant "did not exercise extraordinary diligence or prudence as far as human foresight can provide ... but on the contrary showed negligence and indifference for the safety of the passengers that it was bound to transport, " and for the death of Judge Quir ico Abeto, defendant- appellant was ordered to pay plaintiffs, the heirs of Judge Abeto, the following: 1st For the death of Judge Quirico Abeto, the amount of P6,000.00; 2nd For the loss of his earning capacity, for 4.75 (4 ) years at the rate of P7,200.00 per annum in the amount of P34,200.00; 3rd For moral damages in favor of the plaintiffs in the sum of P10,000.00; 4th For actual damages in the sum of P2,000.00 minus P400.00 received under Voucher Exhibit 'H' the amount of Pl,600.00; 5th For attorney's fees, the sum of P6,000.00 and/or the total sum of P57,800.00 and; To pay the costs of this proceedings. Plaintiff's evidence shows that about 5:30 in the afternoon of November 23, 1960, Judge Quirico Abeto, with the necessary tickets, boarded the Philippine Air Lines' PI-C133 plane at the Mandurriao Airport, Iloilo City for Manila. He was listed as the No. 18 passenger in its Load Manifest (Exhibit A). The plane which would then take two hours from Iloilo to Manila did not reach its destination and the next day there was news that the plane was missing. After three weeks, it was ascertained that the plane crashed at Mt. Baco, Province of Mindoro. All the passengers, including Judge Abeto, must have been killed instantly and their remains were scattered all over the area. Among the articles recovered on the site of the crash was a leather bag with the name "Judge Quirico Abeto. " (Exhibit C.) Judge Abeto, prior to the plane crash, was a Technical Assistant in the Office of the President receiving an annual compensation of P7,200.00; and before that, has held the various positions in the government, namely: Municipal President of Iloilo; Provincial Fiscal of Antique, Negros Occidental and Cebu; Judge of the Court of First Instance of Manila, and Secretary of Justice. He was in good health before the incident even if he was already 79 years old at that time.

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Plaintiff-appellee Conrada Vda. de Abeto was appointed administratrix of the estate of Judge Abeto. The other plaintiffsappellees are the children of the deceased. When they received the news of the plane crash, Mrs. Abeto was shocked and until it was ascertained that the plane had crashed three weeks after, she could not sleep and eat. She felt sick and was miserable after that. The members of the family also suffered. Personal belongings which were lost amounted to P300.00. Burial expenses of the late judge was P1,700.00. When defendant-appellant would not hear demands for settlement of damages, plaintiffs-appellees were compelled to hire counsel for the institution and prosecution of this case. Defendant-appellant tried to prove that the plane crash at Mt. Baco was beyond the control of the pilot. The plane at the time of the crash was airworthy for the purpose of conveying passengers across the country as shown by the certificate of airworthiness issued by the Civil Aeronautics Administration (CAA). There was navigational error but no negligence or malfeasance on the part of the pilot. The plane had undergone 1,822 pre- flight checks, 364 thorough checks, 957 terminating checks and 501 after maintenance checks. These checks were part of the quality control operation of defendant airline Further, deviation from its prescribed route was due to the bad weather conditions between Mt. Baco and Romblon and strong winds which caused the plane to drift to Mt. Baco. Under the circumstances, appellant argues that the crash was a fortuitous event and, therefore, defendant-appellant cannot be held liable under the provisions of Article 1174 of the New Civil Code. Besides, appellant tried to prove that it had exercised all the cares, skill and diligence required by law on that particular flight in question. The trial court, finding for the plaintiffs, said: The Court after a thorough perusal of the evidences, testimonial and documentaries submitted by both parties has come into the conclusion that the evidence introduced by the plaintiffs have established the following significant facts which proved the negligence of the defendant's pilot of the plane on that flightin question. 1st That the Pilot of the plane disobeyed instruction given in not following the route of Amber 1 prescribed by the CAA in Violation of Standard Regulation. Second The defendant failed to perform the pre-flight test on plane PIC-133 before the same took off from Mandurriao Airport to Manila in order to find out a possible defect of the plane. Third When the defendant allowed during the flight in question, student Officer Rodriguez on training as proved when his body was found on the plane's cockpit with its microphone hanging still on his left leg. Fourth When the Pilot during the flight in question failed or did not report his position over or abeam Romblon which is a compulsory reporting point. These facts as established by the evidence of the plaintiff lead to the inevitable conclusion that the defendant did not exercise extraordinary diligence or prudence as far as human foresight can provide imposed upon by the Law, but on the contrary showed negligence and indifference for the safety of the passengers that it was bound to transport. By the very evidence of the defendant, as shown by the deposition of one Jose Abanilla, dated December 13, 1963, Section Chief of the Actuarial Department of the Insular Life Insurance Company regarding life expectancy through American experience, the late Judge Abeto at the age of 79 would still live or have a life expectancy of 4.75 years. Appealing to this Court, defendant claimed that the trial court erred: I ... in finding, contrary to the evidence, that the appellant was negligent; III ... in not finding that the appellant, in the conduct and operation of PI-C133, exercised its statutory obligation over the passengers of PI C133 of extraordinary diligence as far as human care and foresight can provide, using the utmost diligence of a very cautious person with due regard for all the circumstances and in not finding that the crash of PI-C133 was caused by fortuitous events; ... in awarding damages to the appellees; and IV ... in not finding that appellant acted in good faith and exerted efforts to minimize damages.

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The issue before Us in this appeal is whether or not the defendant is liable for violation of its contract of carriage. The provisions of the Civil Code on this question of liability are clear and explicit. Article 1733 binds common carriers, "from the nature of their business and by reasons of public policy, ... to observe extraordinary diligence in the vigilance ... for the safety of the passengers transported by them according to all the circumstances of each case." Article 1755 establishes the standard of care required of a common carrier, which is, "to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances." Article 1756 fixes the burden of proof by providing that "in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extra-ordinary diligence as prescribed in Articles 1733 and 1755." Lastly, Article 1757 states that "the responsibility of a common carrier for the safety of passengers ... cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on tickets, or otherwise." The prescribed airway of plane PI-C133 that afternoon of November 23, 1960, with Capt. de Mesa, as the pilot, was IloiloRomblon-Manila, denominated as airway "Amber l," and the prescribed elevation of the flight was 6,000 ft. The fact is, the plane did not take the designated route because it was some 30 miles to the west when it crashed at Mt. Baco. According to defendant's witness, Ramon A. Pedroza, Administrative Assistant of the Philippine Air Lines, Inc., this tragic crash would have not happened had the pilot continued on the route indicated. Hereunder is Mr. Pedroza's testimony on this point: Q Had the pilot continued on the route indicated, Amber A-1 there would have been no crash, obviously? A Yes, Your Honor ATTY. HILADO: (To the witness) Q Because Mt. Baco is 30 miles from Amber I? A Yes,sir.(TSN,p.75,Oct.22,1963 hearing) xxx xxx xxx And, Assistant Director Cesar Mijares of the Civil Aeronautics Administration testified that the pilot of said plane was "off course." Q But the fact is that you found him out, that he was off course? A Yes, sir. Q And off course, you mean that he did not follow the route prescribed for him? A Yes, sir. Q And the route for him to follow was Amber A-l? A Yes, sir. Q And the route for Iloilo direct to Manila, is passing Romblon to Manila? A Yes, passing Romblon to Manila. Q And you found that he was not at all following the route to Romblon to Manila? A Yes, sir. Q You know Mr. Witness that a disregard or, violation, or disregard of instruction is punishable by law? A Yes,sir. (TSN,pp.247-248,Dec. 20, 1963) xxx xxx xxx

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It is clear that the pilot did not follow the designated route for his flight between Romblon and Manila. The weather was clear and he was supposed to cross airway "Amber I" over Romblon; instead, he made a straight flight to Manila in violation of air traffic rules. At any rate, in the absence of a satisfactory explanation by appellant as to how the accident occurred, the presumption is, it is at fault. In an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought for by the passenger. By the contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code). This is an exception to the general rule that negligence must be proved. (Batangas Transportation Company vs. Caguimbal, 22 SCRA 171.) The total of the different items which the lower court adjudged herein appellant to pay the plaintiffs is P57,800.00. The judgment of the court a quo is modified in the sense that the defendant is hereby ordered to pay the said amount to the plaintiffs, with legal interest thereon from the finality of this judgment. With costs against defendant-appellant. Teehankee (Chairman), Makasiar, Melencio-Herrera, Plana and Vasquez, JJ., concur. Gutierrez, Jr., J., is on leave. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 52159 December 22, 1989 JOSE PILAPIL, petitioner, vs. HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC., respondents. Martin Badong, Jr. for petitioner. Eufronio K. Maristela for private respondent.

PADILLA, J.: This is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19 October 1979 in CA-G.R. No. 57354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco Transportation Co., Inc., defendant-appellant," which reversed and set aside the judgment of the Court of First Instance of Camarines Sur in Civil Case No. 7230 ordering respondent transportation company to pay to petitioner damages in the total sum of sixteen thousand three hundred pesos (P 16,300.00). The record discloses the following facts: Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing No. 409 at San Nicolas, Iriga City on 16 September 1971 at about 6:00 P.M. While said bus No. 409 was in due course negotiating the distance between Iriga City and Naga City, upon reaching the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, an unidentified man, a bystander along said national highway, hurled a stone at the left side of the bus, which hit petitioner above his left eye. Private respondent's personnel lost no time in bringing the petitioner to the provincial hospital in Naga City where he was confined and treated. Considering that the sight of his left eye was impaired, petitioner was taken to Dr. Malabanan of Iriga City where he was treated for another week. Since there was no improvement in his left eye's vision, petitioner went to V. Luna Hospital, Quezon City where he was treated by Dr. Capulong. Despite the treatment accorded to him by Dr. Capulong, petitioner lost partially his left eye's vision and sustained a permanent scar above the left eye. Thereupon, petitioner instituted before the Court of First Instance of Camarines Sur, Branch I an action for recovery of damages sustained as a result of the stone-throwing incident. After trial, the court a quo rendered judgment with the following dispositive part:

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Wherefore, judgment is hereby entered: 1. Ordering defendant transportation company to pay plaintiff Jose Pilapil the sum of P 10,000.00, Philippine Currency, representing actual and material damages for causing a permanent scar on the face and injuring the eye-sight of the plaintiff; 2. Ordering further defendant transportation company to pay the sum of P 5,000.00, Philippine Currency, to the plaintiff as moral and exemplary damages; 3. Ordering furthermore, defendant transportation company to reimburse plaintiff the sum of P 300.00 for his medical expenses and attorney's fees in the sum of P 1,000.00, Philippine Currency; and 4. To pay the costs. SO ORDERED
1

From the judgment, private respondent appealed to the Court of Appeals where the appeal was docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court of Appeals, in a Special Division of Five, rendered judgment reversing and setting aside the judgment of the court a quo. Hence the present petition. In seeking a reversal of the decision of the Court of Appeals, petitioner contends that said court has decided the issue not in accord with law. Specifically, petitioner argues that the nature of the business of a transportation company requires the assumption of certain risks, and the stoning of the bus by a stranger resulting in injury to petitioner-passenger is one such risk from which the common carrier may not exempt itself from liability. We do not agree. In consideration of the right granted to it by the public to engage in the business of transporting passengers and goods, a common carrier does not give its consent to become an insurer of any and all risks to passengers and goods. It merely undertakes to perform certain duties to the public as the law imposes, and holds itself liable for any breach thereof. Under Article 1733 of the Civil Code, common carriers are required to observe extraordinary diligence for the safety of the passenger transported by them, according to all the circumstances of each case. The requirement of extraordinary diligence imposed upon common carriers is restated in Article 1755: "A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances." Further, in case of death of or injuries to passengers, the law presumes said common carriers to be at fault 2 or to have acted negligently. While the law requires the highest degree of diligence from common carriers in the safe transport of their passengers and creates a presumption of negligence against them, it does not, however, make the carrier an insurer of the absolute safety 3 of its passengers. Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in the carriage of passengers by common carriers to only such as human care and foresight can provide. what constitutes compliance with said duty is adjudged with due regard to all the circumstances. Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the common carrier when its passenger is injured, merely relieves the latter, for the time being, from introducing evidence to fasten the negligence on the former, because the presumption stands in the place of evidence. Being a mere presumption, however, the same is rebuttable by proof that the common carrier had exercised extraordinary diligence as required by law in the performance 4 of its contractual obligation, or that the injury suffered by the passenger was solely due to a fortuitous event. In fine, we can only infer from the law the intention of the Code Commission and Congress to curb the recklessness of drivers and operators of common carriers in the conduct of their business. Thus, it is clear that neither the law nor the nature of the business of a transportation company makes it an insurer of the passenger's safety, but that its liability for personal injuries sustained by its passenger rests upon its negligence, its failure 5 to exercise the degree of diligence that the law requires. Petitioner contends that respondent common carrier failed to rebut the presumption of negligence against it by proof on its part that it exercised extraordinary diligence for the safety of its passengers. We do not agree.

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First, as stated earlier, the presumption of fault or negligence against the carrier is only a disputable presumption. It gives in where contrary facts are established proving either that the carrier had exercised the degree of diligence required by law or the injury suffered by the passenger was due to a fortuitous event. Where, as in the instant case, the injury sustained by the petitioner was in no way due to any defect in the means of transport or in the method of transporting or to the negligent or willful acts of private respondent's employees, and therefore involving no issue of negligence in its duty to provide safe and suitable cars as well as competent employees, with the injury arising wholly from causes created by strangers over which the carrier had no control or even knowledge or could not have prevented, the presumption is rebutted and the carrier is not and ought not to be held liable. To rule otherwise would make the common carrier the insurer of the absolute safety of its passengers which is not the intention of the lawmakers. Second, while as a general rule, common carriers are bound to exercise extraordinary diligence in the safe transport of their passengers, it would seem that this is not the standard by which its liability is to be determined when intervening acts of strangers is to be determined directly cause the injury, while the contract of carriage Article 1763 governs: Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. Clearly under the above provision, a tort committed by a stranger which causes injury to a passenger does not accord the latter a cause of action against the carrier. The negligence for which a common carrier is held responsible is the negligent omission by the carrier's employees to prevent the tort from being committed when the same could have been foreseen and prevented by them. Further, under the same provision, it is to be noted that when the violation of the contract is due to the willful acts of strangers, as in the instant case, the degree of care essential to be exercised by the common carrier for the protection of its passenger is only that of a good father of a family. Petitioner has charged respondent carrier of negligence on the ground that the injury complained of could have been prevented by the common carrier if something like mesh-work grills had covered the windows of its bus. We do not agree. Although the suggested precaution could have prevented the injury complained of, the rule of ordinary care and prudence is not so exacting as to require one charged with its exercise to take doubtful or unreasonable precautions to guard against unlawful acts of strangers. The carrier is not charged with the duty of providing or maintaining vehicles as to absolutely prevent any and all injuries to passengers. Where the carrier uses cars of the most approved type, in general use by others engaged in the same occupation, and exercises a high degree of care in maintaining them in suitable condition, the carrier 6 cannot be charged with negligence in this respect. Finally, petitioner contends that it is to the greater interest of the State if a carrier were made liable for such stonethrowing incidents rather than have the bus riding public lose confidence in the transportation system. Sad to say, we are not in a position to so hold; such a policy would be better left to the consideration of Congress which is empowered to enact laws to protect the public from the increasing risks and dangers of lawlessness in society. WHEREFORE, the judgment appealed from is hereby AFFIRMED. SO ORDERED. Melencio-Herrera (Chairperson), Sarmiento and Regalado, concur. Paras, J., took no part.

Footnotes * .. Penned by Justice Hugo E. Gutierrez, Jr., with Justices Edgardo L. Paras, Milagros A. German, Jorge R. Coquia, concurring. Justice Ramon G. Gaviola, Jr. dissented. 1. Record on Appeal, Annex "B", Rollo, p. 31. 2. Article 1756, New Civil Code. 3. Strong v. Iloilo-Negros Air Express Co., 40 OG Supp. 12 p. 274; Alfaro v. Ayson, 54 OG Dec. 1, 1958, p. 7920. 4. Art. 1174, Civil Code; Lasam v. Smith, 45 Phil. 657.

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5. Art. 1170, 1173, Civil Code; Alfaro v. Ayson, Supra; Necesito, et al. vs. Paras, et al., 104 Phil. 75. 6 Irwin v. Louisville & N.R. Co., 50 Southern Reporter 62. 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.:p 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; xxx xxx xxx 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.

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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." xxx xxx xxx 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

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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 majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court summed up the essential characteristics of force majeure by quoting with approval from the Enciclopedia Juridica Espaola: 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 Espaola 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

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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. Dio, 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. xxx xxx xxx 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. Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

# Footnotes 1 TSN, 19 December 1974, p. 8.

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2 Record on Appeal, p. 10. 3 Annex A of Petition; Rollo, pp. 16-26. The Decision was split; Coquia, J. joined the ponente Asunsion, J.; Cuevas, J. concurred in the result, stating that there was a valid waiver of the civil but not of the criminal liability involved; German and Gopengco, JJ., dissented, holding that there was no valid waiver and the claim for damages should be granted. 4 Fernandez vs. Sebido, 70 Phil. 151 (1940); Lang v. Provincial Sheriff of Surigao, et al., 93 Phil. 661 (1953); Andres v. Crown Life Insurance Co., 102 Phil. 919 (1958); Yepes and Susaya v. Samar Express Transit, 17 SCRA 91 (1966). 5 Article 6, Civil Code. 6 See e.g., Maniego v. Castelo, 101 Phil. 293 (1957); Cui v. Arellano University, 2 SCRA 205 (1961). 7 Article 1733 and 1755, Civil Code. 8 Article 1756, Civil Code. 9 Brito Sy v. Malate Taxicab & Garage, Inc., 102 Phil. 482 (1957). 10 Landingin v. Pangasinan Transportation Co., 33 SCRA 284 (1970). 11 Article 1755, Civil Code. 12 117 SCRA 832, 837 (1982). 13 Rollo, p. 18. 14 Article 2199, Civil Code of the Philippines; Suntay Tanjangco vs. Jovellanos, 108 Phil. 713 (1960). 15 104 Phil. 529 (1958). 16 TSN, 15 July 1975, p. 10. 17 Id., 19 December 1974, p. 7. 18 See, e.g., Mecenas v. Court of Appeals, 180 SCRA 83 (1989); Kapalaran Bus Line v. Coronado, 176 SCRA 792 (1989); Sweet Lines, Inc. v. Court of Appeals, 121 SCRA 769 (1983); Ortigas, Jr. v. Lufthansa German Airlines, 64 SCRA 610 (1975); Air France v. Carrascoso, 18 SCRA 155 (1966); La Mallorca and Pampanga Bus Co. v. De Jesus, et al., 17 SCRA 23 (1966); Laguna Tayabas Bus Co. v. Tiongson, et al., 16 SCRA 940 (1966); Lopez, et al. v. Pan American World Airways, 16 SCRA 431 (1966); Laguna Tayabas Bus Co. v. Cornista, 11 SCRA 181 (1964); Verzosa v. Baytan, et al., 107 Phil. 1010 (1960); Layda v. Court of Appeals and Brillantes, 90 Phil. 724 (1952). 19 Article 2208(2) and (11) Civil Code.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-30309 November 25, 1983 CLEMENTE BRIAS, 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 Brias 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 Brias 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 Brias 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 .t.hqw 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: t.hqw

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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 Brias for double homicide thru reckless imprudence but acquitted Hermogenes Buencamino and Victor Millan The dispositive portion of the decision reads: t.hqw WHEREFORE, the court finds the defendant Clemente Brias 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 onethird 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 t.hqw THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING PETITIONER-APPELLANT UNDER THE FACTS AS FOUND BY SAID COURT; and

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II t.hqw 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 t.hqw 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 Brias. 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 petitionerappellant 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.

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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 Brias 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.1wph1.t Teehankee (Chairman), Melencio-Herrera; Plana and Relova, JJ., concur. FIRST DIVISION [G.R. No. 145804. February 6, 2003] LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, vs. MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents. DECISION VITUG, J.: The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al., which has modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad. On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a token (representing payment of the fare). While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area approached Navidad. A misunderstanding or an altercation between the two apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train, and he was killed instantaneously. On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro

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Transit), and Prudent for the death of her husband. LRTA and Roman filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer, denied liability and averred that it had exercised due diligence in the selection and supervision of its security guards. The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following: a) 1) Actual damages of P44,830.00; 2) 3) b) c) d) Compensatory damages of P443,520.00; Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;

Moral damages of P50,000.00; Attorneys fees of P20,000; Costs of suit.

The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit. The compulsory counterclaim of LRTA and Roman are likewise dismissed. xxviii[1] Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and severally liable thusly: WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the following amounts: a) b) c) d) e) P44,830.00 as actual damages; P50,000.00 as nominal damages; P50,000.00 as moral damages; P50,000.00 as indemnity for the death of the deceased; and P20,000.00 as and for attorneys fees. xxviii[2]

The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a contract of carriage theretofore had already existed when the victim entered the place where passengers were supposed to be after paying the fare and getting the corresponding token therefor. In exempting Prudent from liability, the court stressed that there was nothing to link the security agency to the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the victim and the evidence merely established the fact of death of Navidad by reason of his having been hit by the train owned and managed by the LRTA and operated at the time by Roman. The appellate court faulted petitioners for their failure to present expert evidence to establish the fact that the application of emergency brakes could not have stopped the train. The appellate court denied petitioners motion for reconsideration in its resolution of 10 October 2000. In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.

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III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA.xxviii[3] Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court by holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a common carrier was not overcome. Petitioners would insist that Escartins assault upon Navidad, which caused the latter to fall on the tracks, was an act of a stranger that could not have been foreseen or prevented. The LRTA would add that the appellate courts conclusion on the existence of an employer -employee relationship between Roman and LRTA lacked basis because Roman himself had testified being an employee of Metro Transit and not of the LRTA. Respondents, supporting the decision of the appellate court, contended that a contract of carriage was deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of the latter, entitling Navidad to all the rights and protection under a contractual relation, and that the appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary diligence imposed upon a common carrier. Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.xxviii[4] The Civil Code, governing the liability of a common carrier for death of or injury to its passengers, provides: Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinar y diligence as prescribed in articles 1733 and 1755. Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts o f the formers employees, although such employees may have acted beyond the s cope of their authority or in violation of the orders of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carriers employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with due regard for all circumstances.xxviii[5] Such duty of a common carrier to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract of carriage.xxviii[6] The statutory provisions render a common carrier liable for death of or injury to passengers (a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of other passengers or of strangers if the common carriers employees through the exerc ise of due diligence could have prevented or stopped the act or omission .xxviii[7] In case of such death or injury, a carrier is presumed to have been at fault or been negligent, andxxviii[8] by simple proof of injury, the passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen event or to force majeure.xxviii[9] In the absence of satisfactory explanation by the carrier on how the accident occurred, which petitioners, according to the appellate court, have failed to show, the presumption would be that it has been at fault,xxviii[10] an exception from the general rule that negligence must be proved.xxviii[11] The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises from the breach of that contract by reason of its failure to exercise the high diligence required of the common carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its own employees or avail itself of the services of an outsider or an independent firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities under the contract of carriage. Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article 2176xxviii[12] and related provisions, in conjunction with Article 2180,xxviii[13] of the Civil Code. The premise, however, for the employers liability is negligence or fault on the part of the employee. Once such fault is established, the employer can then be made liable on the basis of the presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision of its employees. The liability is primary and can only be negated by showing due diligence in the selection and supervision of the employee, a factual matter that has not been shown. Absent such a showing, one might ask further, how then must the liability of the common carrier, on the one hand, and an independent contractor, on the other hand, be described? It would be solidary. A contractual obligation can be breached by tort and when the same act or omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 2194xxviii[14] of the Civil Code can well apply.xxviii[15] In fine, a liability for tort may arise even under a contract, where

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tort is that which breaches the contract.xxviii[16] Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply.xxviii[17] Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this Court is concluded by the factual finding of the Court of Appeals that there is nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not been duly proven x x x. This finding of the appellate cou rt is not without substantial justification in our own review of the records of the case. There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made liable only for his own fault or negligence. The award of nominal damages in addition to actual damages is untenable. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.xxviii[18] It is an established rule that nominal damages cannot co-exist with compensatory damages.xxviii[19] WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-34597 November 5, 1982 ROSITO Z. BACARRO, WILLIAM SEVILLA, and FELARIO MONTEFALCON, petitioners, vs. GERUNDIO B. CASTAO, and the COURT OF APPEALS, respondents. Felipe G. Tac-an counsel for petitioner. Gerundio B. Castao counsel for private respondent.

RELOVA, J.: Appeal taken by petitioners from a decision of the Court of Appeals, affirming that of the Court of First Instance of Misamis Occidental, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered, ordering the defendants to jointly and severally pay to the plaintiff the sum of (1) P973.10 for medical treatment and hospitalization; (2) P840.20 for loss of salary during treatment; and (3) P2,000.00 for partial permanent deformity, with costs against the defendants. The facts are set forth in the decision of the Court of Appeals, from which We quote: ... In the afternoon of April 1, 1960, he (appellee) boarded the said jeep as a paying passenger at Oroquieta bound for Jimenez, Misamis Occidental. It was then fined to capacity, with twelve (12) passengers in all. 'The jeep was running quite fast and the jeep while approaching the (Sumasap) bridge there was a cargo truck which blew its horn for a right of way. The jeep gave way but did not change speed. ... When the jeep gave way it turned to the right and continued running with the same speed. In so doing ...the driver was not able to return the jeep to the proper place ... instead, it ran obliquely towards the canal; that is why, we fell to the ditch. ... When the jeep was running in the side of the road for few meters, naturally, the jeep was already inclined and two passengers beside me were the ones who pushed me. I was pushed by the two passengers beside me; that is why, when I was clinging, my leg and half of my body were outside the jeep when it reached the canal. ... My right leg was sandwiched by the body of

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the jeep and the right side of the ditch. ... My right leg was broken.' He was rushed to the Saint Mary's Hospital where he stayed for about two (2) months. 'My right leg is now shorter by one and one-half inches causing me to use specially made shoes. ... I could not squat for a long time; I could not kneel for a long time; and I could not even sit for a long time because I will suffer cramp. ... With my three fingers I am still uneasy with my three fingers in my right hand. There is a feeling of numbness with my three fingers even right now. xxx xxx xxx From appellee's version just set out, it appears that after he boarded the jeep in question at Oroquieta, it was driven by defendant Montefalcon at around forty (40) kilometers per hour bound for Jimenez; that while approaching Sumasap Bridge at the said speed, a cargo truck coming from behind blew its horn to signal its intention to overtake the jeep; that the latter, without changing its speed, gave way by swerving to the right, such that both vehicles ran side by side for a distance of around twenty (20) meters, and that thereafter as the jeep was left behind, its driver was unable to return it to its former lane and instead it obliquely or diagonally ran down an inclined terrain towards the right until it fell into a ditch pinning down and crushing appellee's right leg in the process. Throwing the blame for this accident on the driver of the cargo truck, appellants, in turn, state the facts to be as follows: In the afternoon of April 1, 1960, plaintiff Gerundio Castao boarded the said jeepney at Oroquieta bound for Jimenez, Misamis occidental. While said jeepney was negotiating the upgrade approach of the Sumasap Bridge at Jimenez, Misamis Occidental and at a distance of about 44 meters therefrom, a cargo truck, owned and operated by a certain Te Tiong alias Chinggim, then driven by Nicostrato Digal, a person not duly licensed to drive motor vehicles, overtook the jeepney so closely that in the process of overtaking sideswiped the jeepney, hitting the reserve tire placed at the left side of the jeepney with the hinge or bolt of the siding of the cargo truck, causing the jeepney to swerve from its course and after running 14 meters from the road it finally fell into the canal. The right side of the jeep fell on the right leg of the plaintiff-appellee, crushing said leg against the ditch resulting in the injury to plaintiff-appellee consisting of a broken right thigh. and take the following stand: 'The main defense of defendants appellants is anchored on the fact that the jeepney was sideswiped by the overtaking cargo truck' (Appellants' Brief, pp. 3-4, 7). It must be admitted, out of candor, that there is evidence of the sideswiping relied upon by appellants. .... This appeal by certiorari to review the decision of respondent Court of Appeals asserts that the latter decided questions of substance which are contrary to law and the approved decisions of this Court. Petitioners alleged that respondent Court of Appeals erred (1) in finding contributory negligence on the part of jeepney driver appellant Montefalcon for having raced with the overtaking cargo truck to the bridge instead of slackening its speed, when the person solely responsible for the sideswiping is the unlicensed driver of the overtaking cargo truck; (2) in finding the jeepney driver not to have exercised extraordinary diligence, human care, foresight and utmost. diligence of very cautious persons, when the diligence required pursuant to Article 1763 of the New Civil Code is only that of a good father of a family since the injuries were caused by the negligence of a stranger; and (3) in not considering that appellants were freed from any liability since the accident was due to fortuitous event - the sideswiping of the jeepney by the overtaking cargo truck. We are not persuaded. The fact is, petitioner-driver Montefalcon did not slacken his speed but instead continued to run the jeep at about forty (40) kilometers per hour even at the time the overtaking cargo truck was running side by side for about twenty (20) meters and at which time he even shouted to the driver of the truck. Hereunder is the testimony of private respondent Gerundio B. Castao on this point: Q At that time when you rode that jeep on your way to Jimenez, you said that the jeep was running quite fast for a jeep, is that correct? A Yes, sir. xxx xxx xxx Q When you said that it is quite fast for a jeep, do you mean to tell this Court that the speed of that jeep could not be made by that particular jeepney? A It can be made but it will not be very safe for that kind of transportation to run that kind of speed. Q What was the speed of that jeep in terms of miles or kilometers per hour?

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A About 40 kilometers or about that time during that trip per hour. Q And you said also that there was a cargo truck that was behind the jeep, is that correct, while you were already approaching the Sumasap bridge? A Yes. xxx xxx xxx Q How about the speed of that truck as the jeep you were riding was approaching the Sumasap bridge? What was the speed of that truck, fast or not fast? A Naturally, the truck when it asks for a clearance that he will overtake it will run fast. xxx xxx xxx Q Now comparing the speed that you mentioned that the jeep was negotiating in that place and the cargo truck, which ran faster-the jeep or the cargo truck? xxx xxx xxx A Naturally, the truck was a little bit faster because he was able to overtake. xxx xxx xxx Q Now, how far more or less was the jeep from the bridge when the truck was about to or in the process of overtaking the jeep you were riding? A When the truck was asking for a clearance it was yet about less than 100 meters from the bridge when he was asking for a clearance to overtake. xxx xxx xxx Q Do you remember the distance when the truck and the jeep were already side by side as they approach the bridge in relation to the bridge? xxx xxx xxx A They were about fifty meters ... from fifty to thirty meters when they were side by side from the bridge. xxx xxx xxx Q .... You said before that the jeep and the truck were running side by side for a few meters, is that correct? A Yes, sir. Q I am asking you now, how long were they running side by side-the jeep and the cargo truck? A About 20 meters, they were running side by side. Q And after running side by side for 20 meters, the jeep and its passengers went to the canal? A Yes. Q You said on direct examinaton that when the jeep (should be truck) was blowing its horn and asking for a way, you said that the jeep gave way and turned to the right and did not recover its position and the jeep fell into the ditch, is that what you said before? A The jeep did not recover. It was not able to return to the center of the road. It was running outside until it reached the canal, running diagonally.

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Q When the jeep gave way to the cargo truck, the jeep was at the right side of the road? A Already on the right side of the road. Q And this jeep was running steadily at the right side of the road. A Yes, sir. xxx xxx xxx Q When the jeep gave way to the cargo truck and it kept its path to the right, it was still able to maintain that path to the right for about twenty meters and while the jeep and the cargo truck were running side by side? A Yes. Q When the truck and the jeep were already running side by side and after having run twenty meters side by side, do you know why the jeep careened to the ditch or to the canal? A I do not know why but I know it slowly got to the canal but I do not know why it goes there. xxx xxx xxx Q You said when the jeep was about to be lodged in the canal, you stated that the jeep was running upright, is that a fact? A Yes. Q So that the terrain was more or less level because the jeep was already running upright, is that not correct? A The jeep was running on its wheels but it is running on the side, the side was inclining until it reached the ditch. Q You mean to tell the Court that from the entire of the fifteen meters distance from the side of the road up to the place where the jeep was finally lodged that place is inclining towards the right? A When the jeep left the road it was already inclining because it was running part side of the road which is inclining. (Transcript of March 25 and 26, 1963). Thus, had Montefalcon slackened the speed of the jeep at the time the truck was overtaking it, instead of running side by side with the cargo truck, there would have been no contact and accident. He should have foreseen that at the speed he was running, the vehicles were getting nearer the bridge and as the road was getting narrower the truck would be to close to the jeep and would eventually sideswiped it. Otherwise stated, he should have slackened his jeep when he swerved it to the right to give way to the truck because the two vehicles could not cross the bridge at the same time. The second assigned error is centered on the alleged failure on the part of the jeepney driver to exercise extraordinary diligence, human care, foresight and utmost diligence of a very cautious person, when the diligence required pursuant to Article 1763 of the Civil Code is only that of a good father of a family. Petitioners contend that the proximate cause of the accident was the negligence of the driver of the truck. However, the fact is, there was a contract of carriage between the private respondent and the herein petitioners in which case the Court of Appeals correctly applied Articles 1733, 1755 and 1766 of the Civil Code which require the exercise of extraordinary diligence on the part of petitioner Montefalcon. Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Art. 1755. A common carrier is bound to carry the Passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. Art. 1766. In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws.

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Indeed, the hazards of modern transportation demand extraordinary diligence. A common carrier is vested with public interest. Under the new Civil Code, instead of being required to exercise mere ordinary diligence a common carrier is exhorted to carry the passengers safely as far as human care and foresight can provide "using the utmost diligence of very cautious persons." (Article 1755). Once a passenger in the course of travel is injured, or does not reach his destination safely, the carrier and driver are presumed to be at fault. The third assigned error of the petitioners would find fault upon respondent court in not freeing petitioners from any liability, since the accident was due to a fortuitous event. But, We repeat that the alleged fortuitous event in this case - the sideswiping of the jeepney by the cargo truck, was something which could have been avoided considering the narrowness of the Sumasap Bridge which was not wide enough to admit two vehicles. As found by the Court of Appeals, Montefalcon contributed to the occurrence of the mishap. WHEREFORE, the decision of the respondent Court of Appeals, dated September 30,1971, is hereby AFFIRMED. With costs. SO ORDERED. Melencio-Herrera, ** Plana, Vasquez and Gutierrez, Jr., JJ., concur. Teehankee, J., is on leave.

Footnotes ** Acting Chairman. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 95582 October 7, 1991 DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y MALECDAN, petitioners, vs. COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by Inocencia Cudiamat, respondents. Francisco S. Reyes Law Office for petitioners. Antonio C. de Guzman for private respondents.

REGALADO, J.:p On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the death of Pedrito Cudiamat as a result of a vehicular accident which occurred on March 25, 1985 at Marivic, Sapid, Mankayan, Benguet. Among others, it was alleged that on said date, while petitioner Theodore M. Lardizabal was driving a passenger bus belonging to petitioner corporation in a reckless and imprudent manner and without due regard to traffic rules and regulations and safety to persons and property, it ran over its passenger, Pedrito Cudiamat. However, instead of bringing Pedrito immediately to the nearest hospital, the said driver, in utter bad faith and without regard to the welfare of the victim, first brought his other passengers and cargo to their respective destinations before banging said victim to the Lepanto Hospital where he expired. On the other hand, petitioners alleged that they had observed and continued to observe the extraordinary diligence required in the operation of the transportation company and the supervision of the employees, even as they add that they are not absolute insurers of the safety of the public at large. Further, it was alleged that it was the victim's own carelessness and negligence which gave rise to the subject incident, hence they prayed for the dismissal of the complaint plus an award of damages in their favor by way of a counterclaim. On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this decretal portion:

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IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito Cudiamat was negligent, which negligence was the proximate cause of his death. Nonetheless, defendants in equity, are hereby ordered to pay the heirs of Pedrito Cudiamat the sum of P10,000.00 which approximates the amount defendants initially offered said heirs for the amicable settlement of the case. No costs. SO ORDERED. 2 Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision 3 in CA-G.R. CV No. 19504 promulgated on August 14, 1990, set aside the decision of the lower court, and ordered petitioners to pay private respondents: 1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for death of the victim Pedrito Cudiamat; 2. The sum of Twenty Thousand (P20,000.00) by way of moral damages; 3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as actual and compensatory damages; 4. The costs of this suit. 4 Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated October 4, 1990, 5 hence this petition with the central issue herein being whether respondent court erred in reversing the decision of the trial court and in finding petitioners negligent and liable for the damages claimed. It is an established principle that the factual findings of the Court of Appeals as a rule are final and may not be reviewed by this Court on appeal. However, this is subject to settled exceptions, one of which is when the findings of the appellate court are contrary to those of the trial court, in which case a reexamination of the facts and evidence may be undertaken. 6 In the case at bar, the trial court and the Court of Appeal have discordant positions as to who between the petitioners an the victim is guilty of negligence. Perforce, we have had to conduct an evaluation of the evidence in this case for the prope calibration of their conflicting factual findings and legal conclusions. The lower court, in declaring that the victim was negligent, made the following findings: This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a moving vehicle, especially with one of his hands holding an umbrella. And, without having given the driver or the conductor any indication that he wishes to board the bus. But defendants can also be found wanting of the necessary diligence. In this connection, it is safe to assume that when the deceased Cudiamat attempted to board defendants' bus, the vehicle's door was open instead of being closed. This should be so, for it is hard to believe that one would even attempt to board a vehicle (i)n motion if the door of said vehicle is closed. Here lies the defendant's lack of diligence. Under such circumstances, equity demands that there must be something given to the heirs of the victim to assuage their feelings. This, also considering that initially, defendant common carrier had made overtures to amicably settle the case. It did offer a certain monetary consideration to the victim's heirs. 7 However, respondent court, in arriving at a different opinion, declares that: From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is evident that the subject bus was at full stop when the victim Pedrito Cudiamat boarded the same as it was precisely on this instance where a certain Miss Abenoja alighted from the bus. Moreover, contrary to the assertion of the appellees, the victim did indicate his intention to board the bus as can be seen from the testimony of the said witness when he declared that Pedrito Cudiamat was no longer walking and made a sign to board the bus when the latter was still at a distance from him. It was at the instance when Pedrito Cudiamat was closing his umbrella at the platform of the bus when the latter made a sudden jerk movement (as) the driver commenced to accelerate the bus. Evidently, the incident took place due to the gross negligence of the appellee-driver in prematurely stepping on the accelerator and in not waiting for the passenger to first secure his seat especially so when we take into account that the platform of the bus was at the time slippery and wet because of a drizzle. The defendants-appellees utterly failed to observe their duty and obligation as common carrier to the end that they should observe extra-ordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them according to the circumstances of each case (Article 1733, New Civil Code). 8

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After a careful review of the evidence on record, we find no reason to disturb the above holding of the Court of Appeals. Its aforesaid findings are supported by the testimony of petitioners' own witnesses. One of them, Virginia Abalos, testified on cross-examination as follows: Q It is not a fact Madam witness, that at bunkhouse 54, that is before the place of the incident, there is a crossing? A The way going to the mines but it is not being pass(ed) by the bus. Q And the incident happened before bunkhouse 56, is that not correct? A It happened between 54 and 53 bunkhouses. 9 The bus conductor, Martin Anglog, also declared: Q When you arrived at Lepanto on March 25, 1985, will you please inform this Honorable Court if there was anv unusual incident that occurred? A When we delivered a baggage at Marivic because a person alighted there between Bunkhouse 53 and 54. Q What happened when you delivered this passenger at this particular place in Lepanto? A When we reached the place, a passenger alighted and I signalled my driver. When we stopped we went out because I saw an umbrella about a split second and I signalled again the driver, so the driver stopped and we went down and we saw Pedrito Cudiamat asking for help because he was lying down. Q How far away was this certain person, Pedrito Cudiamat, when you saw him lying down from the bus how far was he? A It is about two to three meters. Q On what direction of the bus was he found about three meters from the bus, was it at the front or at the back? A At the back, sir. 10 (Emphasis supplied.) The foregoing testimonies show that the place of the accident and the place where one of the passengers alighted were both between Bunkhouses 53 and 54, hence the finding of the Court of Appeals that the bus was at full stop when the victim boarded the same is correct. They further confirm the conclusion that the victim fell from the platform of the bus when it suddenly accelerated forward and was run over by the rear right tires of the vehicle, as shown by the physical evidence on where he was thereafter found in relation to the bus when it stopped. Under such circumstances, it cannot be said that the deceased was guilty of negligence. The contention of petitioners that the driver and the conductor had no knowledge that the victim would ride on the bus, since the latter had supposedly not manifested his intention to board the same, does not merit consideration. When the bus is not in motion there is no necessity for a person who wants to ride the same to signal his intention to board. A public utility bus, once it stops, is in effect making a continuous offer to bus riders. Hence, it becomes the duty of the driver and the conductor, every time the bus stops, to do no act that would have the effect of increasing the peril to a passenger while he was attempting to board the same. The premature acceleration of the bus in this case was a breach of such duty. 11 It is the duty of common carriers of passengers, including common carriers by railroad train, streetcar, or motorbus, to stop their conveyances a reasonable length of time in order to afford passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding passengers resulting from the sudden starting up or jerking of their conveyances while they are doing so. 12 Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot be considered negligent under the circumstances. As clearly explained in the testimony of the aforestated witness for petitioners, Virginia Abalos, th bus had "just started" and "was still in slow motion" at the point where the victim had boarded and was on its platform. 13 It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which is moving slowly. 14 An ordinarily prudent person would have made the attempt board the moving conveyance under the same or similar circumstances. The fact that passengers board and alight from slowly moving vehicle is a matter of common experience both the driver and conductor in this case could not have been unaware of such an ordinary practice.

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The victim herein, by stepping and standing on the platform of the bus, is already considered a passenger and is entitled all the rights and protection pertaining to such a contractual relation. Hence, it has been held that the duty which the carrier passengers owes to its patrons extends to persons boarding cars as well as to those alighting therefrom. 15 Common carriers, from the nature of their business and reasons of public policy, are bound to observe extraordina diligence for the safety of the passengers transported by the according to all the circumstances of each case. 16 A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence very cautious persons, with a due regard for all the circumstances. 17 It has also been repeatedly held that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought by the passenger. By contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier. This is an exception to the general rule that negligence must be proved, and it is therefore incumbent upon the carrier to prove that it has exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the Civil Code. 18 Moreover, the circumstances under which the driver and the conductor failed to bring the gravely injured victim immediately to the hospital for medical treatment is a patent and incontrovertible proof of their negligence. It defies understanding and can even be stigmatized as callous indifference. The evidence shows that after the accident the bus could have forthwith turned at Bunk 56 and thence to the hospital, but its driver instead opted to first proceed to Bunk 70 to allow a passenger to alight and to deliver a refrigerator, despite the serious condition of the victim. The vacuous reason given by petitioners that it was the wife of the deceased who caused the delay was tersely and correctly confuted by respondent court: ... The pretension of the appellees that the delay was due to the fact that they had to wait for about twenty minutes for Inocencia Cudiamat to get dressed deserves scant consideration. It is rather scandalous and deplorable for a wife whose husband is at the verge of dying to have the luxury of dressing herself up for about twenty minutes before attending to help her distressed and helpless husband. 19 Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was to inform the victim's family of the mishap, since it was not said bus driver nor the conductor but the companion of the victim who informed his family thereof. 20 In fact, it was only after the refrigerator was unloaded that one of the passengers thought of sending somebody to the house of the victim, as shown by the testimony of Virginia Abalos again, to wit: Q Why, what happened to your refrigerator at that particular time? A I asked them to bring it down because that is the nearest place to our house and when I went down and asked somebody to bring down the refrigerator, I also asked somebody to call the family of Mr. Cudiamat. COURT: Q Why did you ask somebody to call the family of Mr. Cudiamat? A Because Mr. Cudiamat met an accident, so I ask somebody to call for the family of Mr. Cudiamat. Q But nobody ask(ed) you to call for the family of Mr. Cudiamat? A No sir. 21 With respect to the award of damages, an oversight was, however, committed by respondent Court of Appeals in computing the actual damages based on the gross income of the victim. The rule is that the amount recoverable by the heirs of a victim of a tort is not the loss of the entire earnings, but rather the loss of that portion of the earnings which the beneficiary would have received. In other words, only net earnings, not gross earnings, are to be considered, that is, the total of the earnings less expenses necessary in the creation of such earnings or income and minus living and other incidental expenses. 22 We are of the opinion that the deductible living and other expense of the deceased may fairly and reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or compensatory damages, respondent court found that the deceased was 48 years old, in good health with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a year. Using the gross annual income as the basis, and multiplying the same by 12 years, it accordingly awarded P288,000. Applying the aforestated rule on computation based on the net earnings, said award must be, as it hereby is, rectified and reduced to P216,000.00. However, in accordance with prevailing jurisprudence, the death indemnity is hereby increased to P50,000.00. 23

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WHEREFORE, subject to the above modifications, the challenged judgment and resolution of respondent Court of Appeals are hereby AFFIRMED in all other respects. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

# Footnotes 1 Civil Case No. 584-R, Regional Trial Court, Branch 7, Baguio City. 2 Rollo, 51. 3 Penned by Justice Bonifacio A. Cacdac, Jr., with Justices Gloria C. Paras and Serafin V.C. Guingona concurring. 4 Rollo, 26-27. 5 Ibid., 48. 6 Sabinosa vs. Court of Appeals, et al., 175 SCRA 552 (1989). 7 Original Record, 169; Judge Rodolfo D. Rodrigo, presiding. 8 Rollo, 25. 9 TSN, January 20, 1987, 26-27. 10 TSN, November 18, 1986, 3-4. 11 See Del Prado vs. Manila Electric Co., 52 Phil. 900 (1929). 12 14 Am. Jur. 2d 436. 13 TSN, January 20, 1987, 11. 14 Am. Jur. 2d 414. 15 Del Prado vs. Manila Electric Co., supra. 16 Art. 1733, Civil Code. 17 Art. 1755, Civil Code. 18 Sy vs. Malate Tajdcab & Garage, Inc., 102 Phil. 482 (1957); Batangas Transportation Co. vs. Caguimbal, et al., 22 SCRA 171 (1968). 19 Rollo, 25. 20 TSN, June 20, 1986, 3-4. 21 TSN, January 20, 1987, 16. 22 Villa Rey Transit, Inc. vs. Court of Appeals, et al., 31 SCRA 511 (1970); Davila, et al. vs. Philippine Airlines, Inc., 49 SCRA 497 (1973). 23 People vs. Sazon, 189 SCRA 700 (1990).

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 145804 February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, vs. MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents. DECISION VITUG, J.: The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad. On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of the fare). While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area approached Navidad. A misunderstanding or an altercation between the two apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train, and he was killed instantaneously. On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and Roman filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer, denied liability and averred that it had exercised due diligence in the selection and supervision of its security guards. The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged: "WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following: "a) 1) Actual damages of P44,830.00; 2) Compensatory damages of P443,520.00; 3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00; "b) Moral damages of P50,000.00; "c) Attorneys fees of P20,000; "d) Costs of suit. "The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit. "The compulsory counterclaim of LRTA and Roman are likewise dismissed."
1

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and severally liable thusly: "WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the following amounts:

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a) P44,830.00 as actual damages; b) P50,000.00 as nominal damages; c) P50,000.00 as moral damages; d) P50,000.00 as indemnity for the death of the deceased; and e) P20,000.00 as and for attorneys fees."
2

The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a contract of carriage theretofore had already existed when the victim entered the place where passengers were supposed to be after paying the fare and getting the corresponding token therefor. In exempting Prudent from liability, the court stressed that there was nothing to link the security agency to the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the victim and the evidence merely established the fact of death of Navidad by reason of his having been hit by the train owned and managed by the LRTA and operated at the time by Roman. The appellate court faulted petitioners for their failure to present expert evidence to establish the fact that the application of emergency brakes could not have stopped the train. The appellate court denied petitioners motion for reconsideration in its resolution of 10 October 2000. In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz: "I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT "II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR. "III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA."
3

Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court by holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a common carrier was not overcome. Petitioners would insist that Escartins assault upon Navidad, which caused the latter to fall on the tracks, was an act of a stranger that could not have been foreseen or prevented. The LRTA would add that the appellate courts conclusion on the existence of an employer-employee relationship between Roman and LRTA lacked basis because Roman himself had testified being an employee of Metro Transit and not of the LRTA. Respondents, supporting the decision of the appellate court, contended that a contract of carriage was deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of the latter, entitling Navidad to all the rights and protection under a contractual relation, and that the appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary diligence imposed upon a common carrier. Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of public policy, 4 is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers. The Civil Code, governing the liability of a common carrier for death of or injury to its passengers, provides: "Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. "Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755." "Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the formers employees, although such employees may have acted beyond the scope of their authority or in vio lation of the orders of the common carriers. "This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees."

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"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carriers employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission." The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with due 5 regard for all circumstances. Such duty of a common carrier to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in 6 pursuance to the contract of carriage. The statutory provisions render a common carrier liable for death of or injury to passengers (a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of other passengers or of strangers if the common carriers employees through the exercise of due diligence could have prevented 7 or stopped the act or omission. In case of such death or injury, a carrier is presumed to have been at fault or been 8 negligent, and by simple proof of injury, the passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen event or 9 to force majeure. In the absence of satisfactory explanation by the carrier on how the accident occurred, which petitioners, 10 according to the appellate court, have failed to show, the presumption would be that it has been at fault, an exception 11 from the general rule that negligence must be proved. The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises from the bre ach of that contract by reason of its failure to exercise the high diligence required of the common carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its own employees or avail itself of the services of an outsider or an independent firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities under the contract of carriage. Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article 2176 13 and related provisions, in conjunction with Article 2180, of the Civil Code. The premise, however, for the employers liability is negligence or fault on the part of the employee. Once such fault is established, the employer can then be made liable on the basis of the presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision of its employees. The liability is primary and can only be negated by showing due diligence in the selection and supervision of the employee, a factual matter that has not been shown. Absent such a showing, one might ask further, how then must the liability of the common carrier, on the one hand, and an independent contractor, on the other hand, be described? It would be solidary. A contractual obligation can be breached by tort and when the same act or 14 omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 2194 of the Civil 15 Code can well apply. In fine, a liability for tort may arise even under a contract, where tort is that which breaches the 16 contract. Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by 17 tort, thereby allowing the rules on tort to apply. Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not been duly proven x x x." This finding of the appellate court is not without substantial justification in our own review of the records of the case. There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made liable only for his own fault or negligence. The award of nominal damages in addition to actual damages is untenable. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for 18 the purpose of indemnifying the plaintiff for any loss suffered by him. It is an established rule that nominal damages 19 cannot co-exist with compensatory damages. WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.
12

Footnotes
1

Rollo, p. 16. Rollo, pp. 46-47. Rollo, pp. 18-19.

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Arada vs. Court of Appeals, 210 SCRA 624. Philippine Airlines, Inc. vs. Court of Appeals, 226 SCRA 423. Dangwa Transportation Co., Inc. vs. Court of Appeals, 202 SCRA 575. Article 1763, Civil Code.

Gatchalian vs. Delim, 203 SCRA 126; Yobido vs. Court of Appeals, 281 SCRA 1; Landingin vs. Pangasinan Transportation Co., 33 SCRA 284.
9

Mercado vs. Lira, 3 SCRA 124. Article 1756, Civil Code. Vda. De Abeto vs. Phil. Air Lines, Inc., 30 July 1982.

10

11

12

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
13

Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own a cts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent, but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.
14

Art. 2194. The responsibility of two or more persons who are liable for a quasi-delict is solidary. Air France vs. Carrascoso, 124 Phil. 722. PSBA vs. CA, 205 SCRA 729. Cangco vs. Manila Railroad, 38 Phil. 768; Manila Railroad vs. Compania Transatlantica, 38 Phil. 875. Article 2221, Civil Code. Medina, et al. vs. Cresencia, 99 Phil. 506.

15

16

17

18

19

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 85331 August 25, 1989 KAPALARAN BUS LINE, petitioner, vs. ANGEL CORONADO, LOPE GRAJERA, DIONISIO SHINYO, and THE COURT OF APPEALS, respondents, Leopoldo M. Consunto for petitioner. Danilo S. Cruz for intervenor-appellee. Conrado Manicad for private respondents.

FELICIANO, J.: Petitioner Kapalaran Bus Line ("Kapalaran") seeks the reversal or modification of the Court of Appeals' decision in CA G.R. CV No. 12476 and the absolution of petitioner from all liability arising from the collision between one of petitioner's buses and a jeepney owned by respondent Coronado, driven by respondent Grajera and in which jeepney respondent Shinyo was a passenger. The facts of this case as found by the trial court and adopted by the Court of Appeals, are summarized in the trial court's decision and quoted in the Court of Appeals' own judgment in the following terms: The accident happened on the National Highway at 10:30 A.M. on August 2, 1982. The jeepney driven by Lope Grajera was then corning from Pila, Laguna on its way towards the direction of Sta. Cruz, traversing the old highway. As it reached the intersection where there is a traffic sign 'yield,' it stopped and cautiously treated the intersection as a "Thru Stop' street, which it is not. The KBL bus was on its way from Sta. Cruz, Laguna, driven by its regular driver Virgilio Llamoso, on its way towards Manila. The regular itinerary of the KBL bus is through the town proper of Pila, Laguna, but at times it avoids this if a bus is already fully loaded with passengers and can no longer accommodate additional passengers. As the KBL bus neared the intersection, Virgilio Llamoso inquired from his conductor if they could still accommodate passengers and learning that they were already full, he decided to bypass Pila and instead, to proceed along the national highway. Virgilio Llamoso admitted that there was another motor vehicle ahead of him. The general rule is that the vehicle on the national highway has the right-of-way as against a feeder road. Another general rule is that the vehicle coming from the right has the right-of-way over the vehicle coming from the left. The general rules on right-of-way may be invoked only if both vehicles approach the intersection at almost the same time. In the case at bar, both roads are national roads. Also, the KBL bus was still far from the intersection when the jeepney reached the same. As testified to by Atty. Conrado L. Manicad who was driving a Mustang car coming from the direction of Sta. Cruz and proceeding towards the direction of Manila, he stopped at the intersection to give way to the jeepney driven by Grajera. Behind Manicad were two vehicles, a car of his client and another car. A Laguna Transit bus had just entered the town of Pila ahead of Atty. Manicad. The sketch marked Exhibit 'E' indicates very clearly that the jeepney had already traversed the intersection when it met the KBL bus head-on. It is also obvious that the point of impact was on the right lane of the highway which is the lane properly belonging to the jeepney. As testified to by Lope Grajera, the KBL bus ignored the stopped vehicles of Atty. Manicad and the other vehicles behind Atty. Manicad and overtook both vehicles at the intersection, therefore, causing the accident. Judging from the testimony of Atty. Conrado L. Manicad and the sketch (Exhibit 'E'), the sequence of events shows that the first vehicle to arrive at the intersection was the jeepney. Seeing that the road was clear, the jeepney which had stopped at the intersection began to move forward, and for his part, Atty. Manicad stopped his car at the intersection to give way to the jeepney. At about this time, the KBL bus was approaching the intersection and its driver was engaged in determining from his conductor if they would still pass through the town proper of Pila. Upon learning that they were already full, he turned his attention to the road and found the stopped vehicles at the intersection with the jeepney trying to cross the intersection. The KBL bus had no more room within which to stop without slamming into the rear of the vehicle behind the car of Atty. Manicad. The KBL driver chose to gamble on proceeding on its way, unfortunately, the jeepney driven by Grajera, which had the right-of-way, was about to cross the center of

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the highway and was directly on the path of the KBL bus. The gamble made by Llamoso did not pay off. The impact indicates that the KBL bus was travelling at a fast rate of speed because, after the collision, it did not stop; it travelled for another 50 meters and stopped only when it hit an electric post (pp. 3-4, 1 Decision; pp. 166167, Record). On 14 September 1982, Kapalaran, apparently believing that the best defense was offense, filed a complaint for damage to property and physical injuries through reckless imprudence against respondents Angel Coronado and Lope Grajera in the Regional Trial Court, Branch 27, Sta. Cruz, Laguna. Respondents answered with their own claims (counter-claims) for damages. A third-party complaint and/or a complaint for intervention was also filed in the same case against Kapalaran by jeepney passenger Dionisio Shinyo. On 15 October 1986, after trial, the trial court rendered a judgment in favor of private respondents and ordering Kapalaran (a) to pay Angel Coronado the sum of P40,000.00 as compensation for the totally wrecked jeepney, plus the sum of P5,000.00 as attorney's fees and litigation expenses, and (b) to Dionisio Shinyo the sum of P35,000.00 representing the expenses incurred by said intervenor for his treatment including his car-hire, the further sum of P30,000.00 representing the expenses said defendant will incur for his second operation to remove the intramedulary nail from his femur, the additional sum of P50,000.00 to serve as moral damages for the pain and suffering inflicted on said defendant, plus the sum of P10,000.00 in the concept of exemplary damages to serve as a deterrent to others who, like the plaintiff, may be minded to induce accident victims to perjure themselves in a sworn statement, and the sum of P15,000.00 as attorney's fees and litigation expenses. From the above judgment, Kapalaran appealed to the Court of Appeals assailing the trial court's findings on the issue of fault and the award of damages. The Court of Appeals, on 28 June 1988, affirmed the decision of the trial court but modified the award of damages by setting aside the grant of exemplary damages as well as the award of attomey's fee and 2 litigation expenses made to Dionisio Shinyo. This decision of the Court of Appeals is now before us on a Petition for Review, a motion for reconsideration by Kapalaran having been denied by that court on 13 October 1988. Kapalaran assails the findings of fact of the Regional Trial Court and of the Court of Appeals, and insists before this Court that respondent Grajera, driver of the jeepney, was at fault and not the driver of Kapalaran's bus. It must be remembered that it is not the function of this Court to analyze and weigh evidence presented by the parties all over again and that our jurisdiction is in principle limited to reviewing errors of law that might have been committed by the Court of Appeals. Kapalaran has made no compelling showing of any misapprehension of facts on the part of the Court of Appeals that would require us to review and overturn the factual findings of that court. On the contrary, examination of the record shows that not only are the conclusions of fact of the Court of Appeals and the trial court on who the bus driver or the jeepney driver had acted negligently and was at fault in the collision of their vehicles, amply supported by the evidence of record, but also that Kapalaran's bus driver was grossly negligent and had acted wantonly and in obvious disregard of the applicable rules on safety on the highway. Kapalaran's driver had become aware that some vehicles ahead of the bus and travelling in the same direction had already stopped at the intersection obviously to give way either to pedestrians or to another vehicle about to enter the intersection. The bus driver, who was driving at a speed too high to be safe and proper at or near an intersection on the highway, and in any case too high to be able to slow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose to swerve to the left lane and overtake such preceding vehicles, entered the intersection and directly smashed into the jeepney within the intersection. Immediately before the collision, the bus driver was actually violating the following traffic rules and regulations, among others, in the Land Transportation and Traffic Code, Republic Act No. 4136, as amended: Sec. 35. Restriction as to speed. (a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and or any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead. xxx xxx xxx Sec. 41. Restrictions on overtaking and passing. _1 (a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking or passing another vehicle, proceeding in the same direction, unless such left side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in safety. xxx xxx xxx

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(c) The driver of a vehicle shall not overtake or pass any other vehicle proceeding in the same direction, at any railway grade crossing, or at any intersection of highways, unless such intersection or crossing is controlled by traffic signal, or unless permitted to do so by a watchman or a peace officer, except on a highway having two or more lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle on the right. Nothing in this section shall be construed to prohibit a driver overtaking or passing, upon the right, another vehicle which is making or about to make a left turn. xxx xxx xxx (Emphasis supplied) Thus, a legal presumption arose that the bus driver was negligent a presumption Kapalaran was unable to overthrow. Petitioner's contention that the jeepney should have stopped before entering the "Y-intersection" because of the possibility that another vehicle behind the cars which had stopped might not similarly stop and might swerve to the left to proceed to the highway en route to Manila, is more ingenious than substantial. It also offers illustration of the familiar litigation tactic of shifting blame from one's own shoulders to those of the other party. But the jeepney driver, seeing the cars closest to the intersection on the opposite side of the highway come to a stop to give way to him, had the right to assume that other vehicles further away and behind the stopped cars would similarly come to a stop and not seek illegally to overtake the 4 stopped vehicles and come careening into the intersection at an unsafe speed. Petitioner's bus was still relatively far away from the intersection when the jeepney entered the same; the bus collided head on into the jeepney because the bus had been going at an excessively high velocity immediately before and at the time of overtaking the stopped cars, and so caught the jeepney within the intersection. It was also the responsibility of the bus driver to see to it, when it overtook the two (2) cars ahead which had stopped at the intersection, that the left lane of the road within the intersection and beyond was clear. The point of impact was on the left side of the intersection (the light lane so far as concerns the jeepney coming from the opposite side), which was precisely the lane or side on which the jeepney had a right to be. Petitioner Kapalaran also assails the award of moral damages against itself, upon the ground that its own bus driver, third5 party defendant, was apparently not held liable by the trial court . Hence, Kapalaran argues that there was no justification for holding it, the employer, liable for damages, considering that such liability was premised upon the bus driver's 6 negligence and that petitioner "as mere employer" was not guilty of such negligence or imprudence. This contention in thoroughly unpersuasive. The patent and gross negligence on the part of the petitioner Kapalaran's driver raised the legal presumption that Kapalaran as employer was guilty of negligence either in the selection or in the supervision of its bus 7 driver, Where the employer is held liable for damages, it has of course a right of recourse against its own negligent employee. If petitioner Kapalaran was interested in maintaining its right of recourse against or reimbursement from its own 8 driver, it should have appealled from that portion of the trial court's decision which had failed to hold the bus driver is not "merely subsidiary," and is not limited to cases where the employee "cannot pay his liability" nor are private respondents compelled frist to proceed against the bus driver. The liability of the employer under Article 2180 of the Civil Code is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the 9 insolvency of such employee. So far as the record shows, petitioner Kapalaran was unable to rebut the presumption of negligence on its own part. The award of moral damages against petitioner Kapalaran is not only entirely in order; it is also quite modest consideirng Dionisio Shinyo's death during the pendency of this petition, a death hastened by, if not directly due to, the grievous injuries sustained by him in the violent collision. The Court of Appeals deleted the award of exemplary damages which the trial court had granted in order "to serve as a deterrent to others who, like the plaintiff [Kapalaran], may be minded to induce accident victims to perjure themselves in a sworn statement." The Court of Appeals held that htere was no basis for this award of exemplary damages, stating that it was not "such a reprehensible act to try to gather witnesses for one's cause" and that there was no evidence of use of "presure or influence" to induce the accident victims to perjure themselves While that might have been so, both the trial court and the Court of Appeals overlook another and far more compelling basis for the award of exemplary damages against petitioner Kapalaran in this case. There is no question that petitioner's bus driver was grossly and very probably criminally negligent in his reckless disregard of the rights of other vehicles and their pasangers and of pedestrian as well The Court is entitled to take judicial notice of the gross negligence and the appalling disregard of the physical safety and property of others so commonly exhibited today by the drivers of passanger bussses and similar vehicles on our highways. The law requires petitioner as common carrier to exercise extraordinary diligence incarrying and transporting their passanger safely "as far as human care and foresight can proved, using the utmost diligence of very cautious persons, with 10 due regard for all circumstances." In requiring the highest possible degree of diligence from common carriers and 11 creating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers. While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of cargo carried by a common carrier, they are not only persons that the law seeks to benefit. For if common carriers carefully observed the statutory standard of extraordinary diligence in respect of of their own passengers, they cannot help but simultaneously benefit pedestrians and the owners and passengers of other vehicles who are equally entitled to the safe 12 and convenient use of our roads and highways. The law seeks to stop and prevent the slaughter and maiming of people (whether passengers or not) and the destruction of property (whether freight or not) on our highways by buses, the very size and power of which seem often to inflame the minds of their drivers. Article 2231 of the Civil Code explicitly authorizes the imposition of exemplary damages in cases of quasi-delicts "if the defendant acted with gross negligence." Thus we believe that the award of exemplary damages by the trial court was quite proper, although granted for the wrong reason, and should not only be restored but augmented in the present case. The Court is aware that respondent Shinyo did not file
3

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a separate petition for review to set aside that portion of the Court of Appeals'decision which deleted the grant by the trial court of exemplary damages. It is settled, however, that issues which must be resolved if substantial justice is to be rendered to the parties, may and should be considered and decided by this Court even if those issues had not been 13 explicitly raised by the party affected. In the instant case, it is not only the demands of substantial justice but also the compelling considerations of public policy noted above, which impel us to the conclusion that the trial court's award of exemplary damages was erroneously deleted and must be restored and brought more nearly to the level which public policy and substantial justice require. In much the same vein, we believe that the award by the trial court of P15,000.00 as attorney's fees and litigation expenses, 14 deleted by the Court of Appeals, should similarly be restored, being both authorized by law and demanded by substantial justice in the instant case. WHEREFORE, the Petition for Review on certiorari is DENIED for lack of merit and the Decision of the Court of Appeals is hereby AFFIRMED, except (1) that the award of exemplary damages to Dionisio Shinyo shall be restored and increased from P10,000.00 to P25,000.00, and (2) that the grant of attorney's fees and litigation expenses in the sum of P15,000.00 to Dionisio Shinyo shall similarly be restored. Costs against petitioner. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Footnotes 1 Record, pp. 63-65. 2 Rollo, p. 34. 3 Article 2185, Civil Code. 4 Section 42 (a) of Republic Act No. 4136, as amended: "Sec. 42. Right of way. 4a) When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise hereinafter provided. The driver of any vehicle traveling at any unlawful speed shall forfeit any right of way which he might otherwise have hereunder ." (Emphasis supplied) 5 The other grounds adduced by Kapalaran in its petition for review of the Court of Appeals' decision are clearly insubstantial and require no discussion. 6 Petition for Review, p. 15; Rollo, p. 16. 7 Phoenix Construction, Inc. v. Intermediate Appellate court, 148 SCRA 370 (1987); Poblete v. Fabros, 93 SCRA 202 (1979); Umali v. Bacani, 69 SCRA 263 (1976). 8 Article 2181, Civil Code. 9 Bienvenido Galisan v. Benito Alday, 154 SCRA 388 (1987); Rufo Mauricio Construction v. intermediate Appellate Court, 1555 SCRA 713 (1987); Malipol v. Tan, 55 SCRA 214 (1974). 10 Article 1255, Civil Code. 11 Nucom v. Laguna Tayabas Bus Company, 30 SCAR 69 (1969). 12 Under Executive Order No. 202, dated 19 June 1987 (83 Official Gazette No. 27, p. 3122-B [6 July 19871), the Land Transportation Franchising and Regulatory Board is authorized, among other things: "k. To formulate, promulgate, administer, implement and enforce rules and regulations on land transportation, public utilities, standards of measurements and/or design and rules and regulations requiring operators of any public land transportation service to equip, install and provide in their utilities and in their stations such devices, equipment, facilities and operating procedures and techniques as may promote safety, protection, comfort and convenience to persons and property in their charges as well as safety of persons and property within their areas of operations; x x x x x x x x x"

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(Emphasis supplied) 13 Heirs of Enrique Zambales v. Court of Appeals, 120 SCRA 897 (1983); Miguel v. Court of Appeals, 29 SCRA 760 (1969); Saura Import and Export Co., Inc. v. Philippine International Surety Go., Inc., 8 SCRA 148 (1963). 14 Article 2208 (1), (2) and (5), Civil Code. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-16086 May 29, 1964

M. RUIZ HIGHWAY TRANSIT, INC. and MARTIN BUENA, petitioners, vs. COURT OF APPEALS, GUILLERMO MONSERRAT and MARTA CONSIGNADO, respondents. T. F. Cachero for petitioners. Godofredo C. Montesines for respondents. BENGZON, C.J.: Appeal by certiorari from a decision of the Court of Appeals. In the Laguna court of first instance, the spouses Guillermo Monserrat and Marta Consignado sued M. Ruiz Highway Transit, Inc., and Martin Buena to recover damages for the death of their four-year old daughter Victoria. In the morning of May 22, 1954, said child and her parents were paying passengers in a bus of defendant transportation company driven by co-defendant Buena, bound for Antipolo, Rizal. In Sta. Rosa, Laguna, while the bus was running, a rear tire exploded, blasting a hole in the very place where Victoria was standing in front of her mother. As a result, the child fell through the hole, and died that same morning from injuries sustained in the fall. 1wph1.t The court of first instance dismissed the complaint on the ground that (1) the accident was not due to negligence of the carrier, but was an act of God; and (2) even if negligence was attributable to defendants, their liability had been discharged, 1 as evidenced by Exhibits 2 and 3 quoted in the footnote. On appeal by plaintiffs, the Court of Appeals reversed the judgment, upon the finding that (1) defendants failed to prove the extraordinary diligence required of carriers; and (2) Exhibits 2 and 3 did not effect a waiver of plaintiffs' right to damages. Said appellate court, therefore, required defendants to pay plaintiffs P6,000.00 as indemnity for the child's death; P2,000.00 as moral damages and P500.00 as attorney's fees, with interest from the date of its decision, (minus the P150.00 that had been given to plaintiff Guillermo Monserrat, thru Exhibit 3). In their petition for review by certiorari, the carrier and the driver raise the following issues: (1) whether in a contract of carriage breached by the passenger's death, his parents may be granted moral damages; and (2) whether the sum of P6,000.00 may be awarded as death indemnity for a child passenger. In their brief, they pose the following questions in addition to the above issues; (3) was there a contract of carriage between the deceased child and petitioner transportation company; (4) have petitioners rebutted the presumption that they have been negligent; (5) was the bus crowded; (6) was the bus running fast when the tire exploded; (7) what caused the bursting of the tire; (8) was the bus floor weak; (9) was the blow-out of the tire caso fortuito; and (10) was petitioners' liability cancelled by Exhibits 2 and 3? The alleged lack of a contract of carriage between the deceased child and petitioner transportation company, if true, is a complete defense against claimants' cause of action. However, the issue is now inarguable, it being partly factual, on which the appellate court made its finding. Respondents and the child were paying passengers in the bus; petitioners were duty bound to transport them, using the utmost diligence of very cautious persons (Art. 1755, New Civil Code). Therein they failed. The child died because the floor of the bus gave way; this reinforces the presumption that petitioners had neglected to provide a safe conveyance (Art. 1756, New Civil Code). Evidence of the required extraordinary diligence was not introduced to rebut the presumption. On the contrary, the appellate court found that the bus was overcrowded and overspeeding, and the floor thereof was weak persuasive indications of negligence; and reasoned out that the tire exploded due to one or a combination of the following: "The tire was not strong and safe; the air pressure was not properly checked; the load was heavy; the excessive speed of the bus must have overstrained the tire; and the high velocity generated heat in the tire which could have 2 expanded the already compressed air therein."

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Petitioners venture to guess that it was due either to accidental puncture by a sharp instrument, as a nail, or to latent defect in the tire. Evidence should have been but was not presented to establish such defense. Even conceding that the tire blow-out was accidental, we could still hold the carrier liable for failure to provide a safe floor in the bus. Exhibits 2 and 3 are not proof that petitioners have discharged their legal liability to claimants. What is expressed there is the latter's belief clearly erroneous that petitioners are not liable to them and acknowledgment of the voluntary help extended by petitioner transportation company. The belief is baseless. That respondents entertained such an ill-founded impression is not to be wondered at. They are ignorant, illiterate, indigent, and, at the time they signed Exhibits 2 and 3, thoroughly confused and distracted by the death of their child. The minimum death indemnity is P3,000 , although this Court has in various instances granted P6,000.00. As for moral damages, the carrier is liable therefor to the parents of a child who meets death while a passenger in any of the carrier's vehicles (Arts. 2206 and 1764, New Civil Code). Since respondents are indigents, and have litigated as paupers, they should be allowed attorney's fees of P500.00. FOR THESE REASONS, the appealed decision is affirmed, with costs. Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala and Makalintal, JJ., concur. Padilla, Labrador and Dizon, JJ., took no part. Footnotes
1 3

Exhibits 2 and 3, executed on the same morning the child died, say: xxx xxx xxx

"We, spouses Guillermo Monserrat and Maria Consignado hereby say that on the 22nd day of the month of May, 1954, we were riding in the truck of M. Ruiz Highway Transit, No. 102, driven by Martin Buena. That due to unforeseen events, the left rear tire directly where we were sitting burst and destroyed the floor of the truck which caused the death of our child. Because what happened could not be attributed to anybody's fault and could be considered as an act of God, we cannot claim and likewise do not claim anything before any court of justice. Our only request is that the management of the truck give us a little help they may be willing to extend to us. "Party of the Second Part: "In view of the statement of the Party of the First Part, we are agreeable to their request to the amount within our means. ..." (Signatures omitted) "KNOW ALL MEN BY THESE PRESENTS: "I, Guillermo Monserrat, certify that today, Saturday, May 22, 1954, I received from Mrs. Maria Ruiz, owner of the M. Ruiz Transportation the amount of One Hundred Fifty Pesos (P150.00). "I also certify that I am the father of the child Victoria Monserrat who died in the Truck No. 102 of M. Ruiz Transportation this day, Saturday, May 22, 1954, in Sta. Rosa, Laguna. "To my entire satisfaction on account of the help given to me by the owner of the transportation, I sign my name hereinbelow, in this town of Sta. Cruz, Laguna, this 22nd of May, 1954, in the presence of these witnesses." (Signature omitted)
2

These factual findings cannot be reviewed by this Court. Stanvac vs. Tan, L-13048, Feb. 27, 1960; Natividad vs. Court of Appeals, L-14887, Jan. 31, 1961: Pornellosa vs. Land Tenure Administration, L-14040, Jan. 31, 1961; Lota vs. Court of Appeals L-14803, June 30, 1961; Galang vs. Court of Appeals, L-17248, Jan. 28, 1962.
3

Art. 2206, New Civil Code.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. 74387-90 November 14, 1988 BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON, petitioners, vs. INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE PAMFILO, THE HEIRS OF NORMA NERI, and BAYLON SALES and NENA VDA. DE ROSALES, respondents. Sibal, Custodia, Santos & Nofuente for petitioners. Restituto L. Opis for respondents Pamfilos and Rosaleses. Citizens Legal Assistance Office for N. Neri and Baylon Sales.

PARAS, J.: Before Us is a Petition to Review by Certiorari, the decision of the respondent appellate court which affirmed with modification the joint decision of the trial court in four (4) cases involving similar facts and issues, finding favorably for the plaintiffs (private respondents herein), the dispositive portion of said appellate judgment reading as follows: WHEREFORE, with the modification that the death indemnity is raised to P30,000.00 to each set of the victims' heirs, the rest of the judgment appealed from is hereby affirmed in toto. Costs against the defendants-appellants. SO ORDERED. (p. 20, Rollo) From the records of the case We have gathered the following antecedent facts: The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company (BLTB, for brevity) driven by Armando Pon and Bus No. 404 of Superlines Transportation Company (Superlines, for brevity) driven by Ruben Dasco took place at the highway traversing Barangay Isabong, Tayabas, Quezon in the afternoon of August 11, 1978, which collision resulted in the death of Aniceto Rosales, Francisco Pamfilo and Romeo Neri and in several injuries to Nena Rosales (wife of Anecito) and Baylon Sales, all passengers of the BLTB Bus No. 1046. The evidence shows that as BLTB Bus No. 1046 was negotiating the bend of the highway, it tried to overtake a Ford Fiera car just as Bus No. 404 of Superlines was coming from the opposite direction. Seeing thus, Armando Pon (driver of the BLTB Bus) made a belated attempt to slacken the speed of his bus and tried to return to his proper lane. It was an unsuccessful try as the two (2) buses collided with each other. Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased Francisco Pamfilo, Aniceto Rosales and Romeo Neri instituted separate cases in the Court of First Instance of Marinduque against BLTB and Superlines together with their respective drivers praying for damages, attorney's fees and litigation expenses plus costs. Criminal cases against the drivers of the two buses were filed in the Court of First Instance of Quezon. Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied liability by claiming that they exercised due care and diligence and shifted the fault, against each other. They all interposed counterclaims against the plaintiffs and crossclaims against each other. After trial on the merits, the lower court exonerated defendants Superlines and its driver Dasco from liability and attributed sole responsibility to defendants BLTB and its driver Pon, and ordered them jointly and severally to pay damages to the plaintiffs. Defendants BLTB and Armando Pon appealed from the decision of the lower court to respondent appellate court which affirmed with modification the judgment of the lower court as earlier stated. Hence, this petition to review by certiorari of defendant BLTB assigning a lone error, to wit: THE INTERMEDIATE APPELLATE COURT ERRED IN ADJUDGING THAT THE ACTIONS OF PRIVATE RESPONDENTS ARE BASED ON CULPA CONTRACTUAL. (p. 12, Rollo) It is argued by petitioners that if the intention of private respondents were to file an action based on culpa contractual or breach of contract of carriage, they could have done so by merely impleading BLTB and its driver Pon. As it was in the trial court, private respondents filed an action against all the defendants basing their action on culpa aquiliana or tort.
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Petitioners' contentions deserve no merit. A reading of the respondent court's decision shows that it anchored petitioners' liability both on culpa contractual and culpa aquiliana, to wit: The proximate cause of the collision resulting in the death of three and injuries to two of the passengers of BLTB was the negligence of the driver of the BLTB bus, who recklessly operated and drove said bus by overtaking a Ford Fiera car as he was negotiating the ascending bend of the highway (tsn, October 4, 1979, pp. 9-10, 35, 36, 61; Exhibit 6 Superlines, p. 47) which was divided into two lanes by a continuous yellow strip (tsn, October 4, 1979, p. 36). The driver of the BLTB bus admitted in his cross-examination that the continuous yellow line on the ascending bend of the highway signifies a no-overtaking zone (tsn, October 4, 1979, p. 36). It is no surprise then that the driver of the Superlines bus was exonerated by the lower court. He had a valid reason to presuppose that no one would overtake in such a dangerous situation. These facts show that patient imprudence of the BLTB driver. It is well settled that a driver abandoning his proper lane for the purpose of overtaking another vehicle in ordinary situation has the duty to see that the road is clear and not to proceed if he can not do so in safety (People v. Enriquez, 40 O.G. No. 5, 984). ... Before attempting to pass the vehicle ahead, the rear driver must see that the road is clear and if there is no sufficient room for a safe passage, or the driver ahead does not turn out so as to afford opportunity to pass, or if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot make the passage in safety, the latter must slacken his speed so as to avoid the danger of a collision, even bringing his car to a stop if necessary. (3-4 Huddy Encyclopedia of Automobile Law, Sec. 212, p. 195). The above rule becomes more particularly applicable in this case when the overtaking took place on an ascending curved highway divided into two lanes by a continuous yellow line. Appellant Pon should have remembered that: When a motor vehicle is approaching or rounding a curve there is special necessity for keeping to the right side of the road and the driver has not the right to drive on the left hand side relying upon having time to turn to the right if a car is approaching from the opposite direction comes into view. (42 C.J. 42 906). Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. (Art. 2165, Civil Code). In failing to observe these simple precautions, BLTB's driver undoubtedly failed to act with the diligence demanded by the circumstances. We now come to the subject of liability of the appellants. For his own negligence in recklessly driving the truck owned by his employer, appellant Armando Pon is primarily liable (Article 2176, Civil Code).<re||an1w> On the other hand the liability of Pon's employer, appellant BLTB, is also primary, direct and immediate in view of the fact that the death of or injuries to its passengers was through the negligence of its employee (Marahan v. Mendoza, 24 SCRA 888, 894), and such liability does not cease even upon proof that BLTB had exercised all the diligence of a good father of a family in the selection and supervision of its employees (Article 1759, Civil Code). The common carrier's liability for the death of or injuries to its passengers is based on its contractual obligation to carry its passengers safely to their destination. That obligation is so serious that the Civil Code requires "utmost diligence of very cautious person (Article 1755, Civil Code). They are presumed to have been at fault or to have acted negligently unless they prove that they have observed extraordinary diligence" (Article 1756, Civil Code). In the present case, the appellants have failed to prove extraordinary diligence. Indeed, this legal presumption was confirmed by the fact that the bus driver of BLTB was negligent. It must follow that both the driver and the owner must answer for injuries or death to its passengers. The liability of BLTB is also solidarily with its driver (Viluan v. Court of Appeals, 16 SCRA 742, 747) even though the liability of the driver springs from quasi delict while that of the bus company from contract. (pp. 17-19, Rollo) Conclusively therefore in consideration of the foregoing findings of the respondent appellate court it is settled that the proximate cause of the collision resulting in the death of three and injuries to two of the passengers of BLTB was the sole negligence of the driver of the BLTB Bus, who recklessly operated and drove said bus in a lane where overtaking is not allowed by Traffic Rules and Regulations. Such negligence and recklessness is binding against petitioner BLTB, more so when We consider the fact that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of the damages sought by the

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passenger. By the contract of carriage, the carrier BLTB assumed the express obligation to transport the passengers to their destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by its passengers is right away attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code). Petitioners also contend that "a common carrier is not an absolute insurer against all risks of travel and are not liable for acts or accidents which cannot be foreseen or inevitable and that responsibility of a common carrier for the safety of its passenger prescribed in Articles 1733 and 1755 of the New Civil Code is not susceptible of a precise and definite formulation." (p. 13, Rollo) Petitioners' contention holds no water because they had totally failed to point out any factual basis for their defense of force majeure in the light of the undisputed fact that the cause of the collision was the sole negligence and recklessness of petitioner Armando Pon. For the defense of force majeure or act of God to prosper the accident must be due to natural causes and exclusively without human intervention. WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED. SO ORDERED. Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes 1 Penned by Justice Crisolito Pascual, concurred in by Justices Jose C. Campos, Jr., Serafin E. Camilon and Desiderio P. Jurado.