1
Republic of the Philippines gave rise to the subject incident, hence they prayed for the dismissal of the
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
complaint plus an award of damages in their favor by way of a counterclaim.
On July 29, 1988, the trial court rendered a decision, effectively in favor of
petitioners, with this decretal portion:
IN VIEW OF ALL THE FOREGOING, judgment is hereby
pronounced that Pedrito Cudiamat was negligent, which
negligence was the proximate cause of his death. Nonetheless,
defendants in equity, are hereby ordered to pay the heirs of
Pedrito Cudiamat the sum of P10,000.00 which approximates
the amount defendants initially offered said heirs for the
amicable settlement of the case. No costs.
SO ORDERED. 2
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
2
court are contrary to those of the trial court, in which case a reexamination of
the facts and evidence may be undertaken. 6
In the case at bar, the trial court and the Court of Appeal have discordant
positions as to who between the petitioners an the victim is guilty of negligence.
Perforce, we have had to conduct an evaluation of the evidence in this case for
the prope calibration of their conflicting factual findings and legal conclusions.
The lower court, in declaring that the victim was negligent, made the following
findings:
This Court is satisfied that Pedrito Cudiamat was negligent in
trying to board a moving vehicle, especially with one of his
hands holding an umbrella. And, without having given the driver
or the conductor any indication that he wishes to board the bus.
But defendants can also be found wanting of the necessary
diligence. In this connection, it is safe to assume that when the
deceased Cudiamat attempted to board defendants' bus, the
vehicle's door was open instead of being closed. This should be
so, for it is hard to believe that one would even attempt to
board a vehicle (i)n motion if the door of said vehicle is closed.
Here lies the defendant's lack of diligence. Under such
circumstances, equity demands that there must be something
given to the heirs of the victim to assuage their feelings. This,
also considering that initially, defendant common carrier had
made overtures to amicably settle the case. It did offer a
certain monetary consideration to the victim's heirs. 7
However, respondent court, in arriving at a different opinion, declares that:
From the testimony of appellees'own witness in the person of
Vitaliano Safarita, it is evident that the subject bus was at full
stop when the victim Pedrito Cudiamat boarded the same as it
was precisely on this instance where a certain Miss Abenoja
alighted from the bus. Moreover, contrary to the assertion of
the appellees, the victim did indicate his intention to board the
bus as can be seen from the testimony of the said witness when
he declared that Pedrito Cudiamat was no longer walking and
made a sign to board the bus when the latter was still at a
distance from him. It was at the instance when Pedrito
Cudiamat was closing his umbrella at the platform of the bus
when the latter made a sudden jerk movement (as) the driver
commenced to accelerate the bus.
Evidently, the incident took place due to the gross negligence of
the appellee-driver in prematurely stepping on the accelerator
and in not waiting for the passenger to first secure his seat
especially so when we take into account that the platform of
the bus was at the time slippery and wet because of a drizzle.
The defendants-appellees utterly failed to observe their duty
and obligation as common carrier to the end that they should
observe extra-ordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them
according to the circumstances of each case (Article 1733, New
Civil Code). 8
After a careful review of the evidence on record, we find no reason to disturb
the above holding of the Court of Appeals. Its aforesaid findings are supported
by the testimony of petitioners' own witnesses. One of them, Virginia Abalos,
testified on cross-examination as follows:
Q It is not a fact Madam witness, that at
bunkhouse 54, that is before the place of the
incident, there is a crossing?
A The way going to the mines but it is not
being pass(ed) by the bus.
Q And the incident happened before
bunkhouse 56, is that not correct?
A It happened between 54 and 53
bunkhouses. 9
The bus conductor, Martin Anglog, also declared:
Q When you arrived at Lepanto on March 25,
1985, will you please inform this Honorable
Court if there was anv unusual incident that
occurred?
3
A When we delivered a baggage at Marivic
because a person alighted there between
Bunkhouse 53 and 54.
Q What happened when you delivered this
passenger at this particular place in Lepanto?
A When we reached the place, a passenger
alighted and I signalled my driver. When we
stopped we went out because I saw an
umbrella about a split second and I signalled
again the driver, so the driver stopped and we
went down and we saw Pedrito Cudiamat asking
for help because he was lying down.
Q How far away was this certain person,
Pedrito Cudiamat, when you saw him lying down
from the bus how far was he?
A It is about two to three meters.
Q On what direction of the bus was he found
about three meters from the bus, was it at
the front or at the back?
A At the back, sir. 10 (Emphasis supplied.)
The foregoing testimonies show that the place of the accident and the place
where one of the passengers alighted were both between Bunkhouses 53 and 54,
hence the finding of the Court of Appeals that the bus was at full stop when the
victim boarded the same is correct. They further confirm the conclusion that
the victim fell from the platform of the bus when it suddenly accelerated
forward and was run over by the rear right tires of the vehicle, as shown by the
physical evidence on where he was thereafter found in relation to the bus when
it stopped. Under such circumstances, it cannot be said that the deceased was
guilty of negligence.
The contention of petitioners that the driver and the conductor had no
knowledge that the victim would ride on the bus, since the latter had supposedly
not manifested his intention to board the same, does not merit consideration.
When the bus is not in motion there is no necessity for a person who wants to
ride the same to signal his intention to board. A public utility bus, once it stops,
is in effect making a continuous offer to bus riders. Hence, it becomes the duty
of the driver and the conductor, every time the bus stops, to do no act that
would have the effect of increasing the peril to a passenger while he was
attempting to board the same. The premature acceleration of the bus in this
case was a breach of such duty. 11
It is the duty of common carriers of passengers, including common carriers by
railroad train, streetcar, or motorbus, to stop their conveyances a reasonable
length of time in order to afford passengers an opportunity to board and enter,
and they are liable for injuries suffered by boarding passengers resulting from
the sudden starting up or jerking of their conveyances while they are doing
so. 12
Further, even assuming that the bus was moving, the act of the victim in
boarding the same cannot be considered negligent under the circumstances. As
clearly explained in the testimony of the aforestated witness for petitioners,
Virginia Abalos, th bus had "just started" and "was still in slow motion" at the
point where the victim had boarded and was on its platform. 13
It is not negligence per se, or as a matter of law, for one attempt to board a
train or streetcar which is moving slowly. 14 An ordinarily prudent person would
have made the attempt board the moving conveyance under the same or similar
circumstances. The fact that passengers board and alight from slowly moving
vehicle is a matter of common experience both the driver and conductor in this
case could not have been unaware of such an ordinary practice.
The victim herein, by stepping and standing on the platform of the bus, is
already considered a passenger and is entitled all the rights and protection
pertaining to such a contractual relation. Hence, it has been held that the duty
which the carrier passengers owes to its patrons extends to persons boarding
cars as well as to those alighting therefrom. 15
Common carriers, from the nature of their business and reasons of public policy,
are bound to observe extraordina diligence for the safety of the passengers
transported by the according to all the circumstances of each case. 16 A
common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence very cautious persons, with a
due regard for all the circumstances. 17
It has also been repeatedly held that in an action based on a contract of
carriage, the court need not make an express finding of fault or negligence on
the part of the carrier in order to hold it responsible to pay the damages sought
4

by the passenger. By contract of carriage, the carrier assumes the express the refrigerator, I also asked somebody to call
obligation to transport the passenger to his destination safely and observe the family of Mr. Cudiamat.
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 COURT:
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 Q Why did you ask somebody to call the family
prove that it has exercised extraordinary diligence as prescribed in Articles of Mr. Cudiamat?
1733 and 1755 of the Civil Code. 18
A Because Mr. Cudiamat met an accident, so I
Moreover, the circumstances under which the driver and the conductor failed to ask somebody to call for the family of Mr.
bring the gravely injured victim immediately to the hospital for medical Cudiamat.
treatment is a patent and incontrovertible proof of their negligence. It defies
understanding and can even be stigmatized as callous indifference. The evidence Q But nobody ask(ed) you to call for the family
shows that after the accident the bus could have forthwith turned at Bunk 56 of Mr. Cudiamat?
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
A No sir. 21
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
With respect to the award of damages, an oversight was, however, committed by
confuted by respondent court:
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
... The pretension of the appellees that the delay was due to the
victim of a tort is not the loss of the entire earnings, but rather the loss of that
fact that they had to wait for about twenty minutes for
portion of the earnings which the beneficiary would have received. In other
Inocencia Cudiamat to get dressed deserves scant
words, only net earnings, not gross earnings, are to be considered, that is, the
consideration. It is rather scandalous and deplorable for a wife
total of the earnings less expenses necessary in the creation of such earnings or
whose husband is at the verge of dying to have the luxury of
income and minus living and other incidental expenses. 22
dressing herself up for about twenty minutes before attending
to help her distressed and helpless husband. 19
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
Further, it cannot be said that the main intention of petitioner Lardizabal in
year. In adjudicating the actual or compensatory damages, respondent court
going to Bunk 70 was to inform the victim's family of the mishap, since it was not
found that the deceased was 48 years old, in good health with a remaining
said bus driver nor the conductor but the companion of the victim who informed
productive life expectancy of 12 years, and then earning P24,000.00 a year.
his family thereof. 20 In fact, it was only after the refrigerator was unloaded
Using the gross annual income as the basis, and multiplying the same by 12 years,
that one of the passengers thought of sending somebody to the house of the
it accordingly awarded P288,000. Applying the aforestated rule on computation
victim, as shown by the testimony of Virginia Abalos again, to wit:
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,
Q Why, what happened to your refrigerator at the death indemnity is hereby increased to P50,000.00. 23
that particular time?

WHEREFORE, subject to the above modifications, the challenged judgment and

A I asked them to bring it down because that resolution of respondent Court of Appeals are hereby AFFIRMED in all other
is the nearest place to our house and when I respects.
went down and asked somebody to bring down

SO ORDERED.
5

Republic of the Philippines the first to get down the bus, followed by his wife and his children.
SUPREME COURT Mariano led his companions to a shaded spot on the left pedestrians side
Manila of the road about four or five meters away from the vehicle.
Afterwards, he returned to the bus in controversy to get his
EN BANC other bayong, which he had left behind, but in so doing, his daughter
Raquel followed him, unnoticed by her father. While said Mariano
G.R. No. L-20761 July 27, 1966 Beltran was on the running board of the bus waiting for the conductor
to hand him his bayong which he left under one of its seats near the
LA MALLORCA, petitioner, door, the bus, whose motor was not shut off while unloading, suddenly
vs. started moving forward, evidently to resume its trip, notwithstanding
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET the fact that the conductor has not given the driver the customary
AL., respondents. signal to start, since said conductor was still attending to the baggage
left behind by Mariano Beltran. Incidentally, when the bus was again
placed into a complete stop, it had travelled about ten meters from the
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.
point where the plaintiffs had gotten off.
Ahmed Garcia for respondents.

Sensing that the bus was again in motion, Mariano Beltran immediately
BARRERA, J.:
jumped from the running board without getting his bayong from the
conductor. He landed on the side of the road almost in front of the
La Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R.
shaded place where he left his wife and children. At that precise time,
No. 23267-R, holding it liable for quasi-delict and ordering it to pay to
he saw people beginning to gather around the body of a child lying
respondents Mariano Beltran, et al., P6,000.00 for the death of his minor
prostrate on the ground, her skull crushed, and without life. The child
daughter Raquel Beltran, plus P400.00 as actual damages.
was none other than his daughter Raquel, who was run over by the bus in
which she rode earlier together with her parents.
The facts of the case as found by the Court of Appeals, briefly are:
For the death of their said child, the plaintiffs commenced the present
On December 20, 1953, at about noontime, plaintiffs, husband and wife, suit against the defendant seeking to recover from the latter an
together with their minor daughters, namely, Milagros, 13 years old, aggregate amount of P16,000 to cover moral damages and actual
Raquel, about 4 years old, and Fe, over 2 years old, boarded the damages sustained as a result thereof and attorney's fees. After trial
Pambusco Bus No. 352, bearing plate TPU No. 757 (1953 Pampanga), on the merits, the court below rendered the judgment in question.
owned and operated by the defendant, at San Fernando, Pampanga,
bound for Anao, Mexico, Pampanga. At the time, they were carrying with
On the basis of these facts, the trial court found defendant liable for breach of
them four pieces of baggages containing their personal belonging. The
contract of carriage and sentenced it to pay P3,000.00 for the death of the
conductor of the bus, who happened to be a half-brother of plaintiff
child and P400.00 as compensatory damages representing burial expenses and
Mariano Beltran, issued three tickets (Exhs. A, B, & C) covering the full
costs.
fares of the plaintiff and their eldest child, Milagros. No fare was
charged on Raquel and Fe, since both were below the height at which
On appeal to the Court of Appeals, La Mallorca claimed that there could not be a
fare is charged in accordance with the appellant's rules and regulations.
breach of contract in the case, for the reason that when the child met her
death, she was no longer a passenger of the bus involved in the incident and,
After about an hour's trip, the bus reached Anao whereat it stopped to
therefore, the contract of carriage had already terminated. Although the Court
allow the passengers bound therefor, among whom were the plaintiffs
of Appeals sustained this theory, it nevertheless found the defendant-appellant
and their children to get off. With respect to the group of the
guilty of quasi-delict and held the latter liable for damages, for the negligence
plaintiffs, Mariano Beltran, then carrying some of their baggages, was
6
of its driver, in accordance with Article 2180 of the Civil Code. And, the Court of
Appeals did not only find the petitioner liable, but increased the damages
awarded the plaintiffs-appellees to P6,000.00, instead of P3,000.00 granted by
the trial court.
In its brief before us, La Mallorca contends that the Court of Appeals erred (1)
in holding it liable for quasi-delict, considering that respondents complaint was
one for breach of contract, and (2) in raising the award of damages from
P3,000.00 to P6,000.00 although respondents did not appeal from the decision of
the lower court.
Under the facts as found by the Court of Appeals, we have to sustain the
judgement holding petitioner liable for damages for the death of the child,
Raquel Beltran. It may be pointed out that although it is true that respondent
Mariano Beltran, his wife, and their children (including the deceased child) had
alighted from the bus at a place designated for disembarking or unloading of
passengers, it was also established that the father had to return to the vehicle
(which was still at a stop) to get one of his bags or bayong that was left under
one of the seats of the bus. There can be no controversy that as far as the
father is concerned, when he returned to the bus for his bayong which was not
unloaded, the relation of passenger and carrier between him and the petitioner
remained subsisting. For, the relation of carrier and passenger does not
necessarily cease where the latter, after alighting from the car, aids the
carrier's servant or employee in removing his baggage from the car.1 The issue to
be determined here is whether as to the child, who was already led by the
father to a place about 5 meters away from the bus, the liability of the carrier
for her safety under the contract of carriage also persisted.
It has been recognized as a rule that the relation of carrier and passenger does
not cease at the moment the passenger alights from the carrier's vehicle at a
place selected by the carrier at the point of destination, but continues until the
passenger has had a reasonable time or a reasonable opportunity to leave the
carrier's premises. And, what is a reasonable time or a reasonable delay within
this rule is to be determined from all the circumstances. Thus, a person who,
after alighting from a train, walks along the station platform is considered still a
passenger.2 So also, where a passenger has alighted at his destination and is
proceeding by the usual way to leave the company's premises, but before actually
doing so is halted by the report that his brother, a fellow passenger, has been
shot, and he in good faith and without intent of engaging in the difficulty,
returns to relieve his brother, he is deemed reasonably and necessarily delayed
and thus continues to be a passenger entitled as such to the protection of the
railroad and company and its agents.3
In the present case, the father returned to the bus to get one of his baggages
which was not unloaded when they alighted from the bus. Raquel, the child that
she was, must have followed the father. However, although the father was still
on the running board of the bus awaiting for the conductor to hand him the bag
or bayong, the bus started to run, so that even he (the father) had to jump down
from the moving vehicle. It was at this instance that the child, who must be near
the bus, was run over and killed. In the circumstances, it cannot be claimed that
the carrier's agent had exercised the "utmost diligence" of a "very cautions
person" required by Article 1755 of the Civil Code to be observed by a common
carrier in the discharge of its obligation to transport safely its passengers. In
the first place, the driver, although stopping the bus, nevertheless did not put
off the engine. Secondly, he started to run the bus even before the bus
conductor gave him the signal to go and while the latter was still unloading part
of the baggages of the passengers Mariano Beltran and family. The presence of
said passengers near the bus was not unreasonable and they are, therefore, to
be considered still as passengers of the carrier, entitled to the protection under
their contract of carriage.
But even assuming arguendo that the contract of carriage has already
terminated, herein petitioner can be held liable for the negligence of its driver,
as ruled by the Court of Appeals, pursuant to Article 2180 of the Civil Code.
Paragraph 7 of the complaint, which reads
That aside from the aforesaid breach of contract, the death of Raquel
Beltran, plaintiffs' daughter, was caused by the negligence and want of
exercise of the utmost diligence of a very cautious person on the part
of the defendants and their agent, necessary to transport plaintiffs and
their daughter safely as far as human care and foresight can provide in
the operation of their vehicle.
is clearly an allegation for quasi-delict. The inclusion of this averment for quasi-
delict, while incompatible with the other claim under the contract of carriage, is
permissible under Section 2 of Rule 8 of the New Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they compatible with
each other or not, to the end that the real matter in controversy may be
resolved and determined.4
The plaintiffs sufficiently pleaded the culpa or negligence upon which the claim
was predicated when it was alleged in the complaint that "the death of Raquel
Beltran, plaintiffs' daughter, was caused by the negligence and want of exercise
of the utmost diligence of a very cautious person on the part of the defendants
and their agent." This allegation was also proved when it was established during
7
the trial that the driver, even before receiving the proper signal from the
conductor, and while there were still persons on the running board of the bus and
near it, started to run off the vehicle. The presentation of proof of the
negligence of its employee gave rise to the presumption that the defendant
employer did not exercise the diligence of a good father of the family in the
selection and supervision of its employees. And this presumption, as the Court of
Appeals found, petitioner had failed to overcome. Consequently, petitioner must
be adjudged peculiarily liable for the death of the child Raquel Beltran.
The increase of the award of damages from P3,000.00 to P6,000.00 by the Court
of Appeals, however, cannot be sustained. Generally, the appellate court can only
pass upon and consider questions or issues raised and argued in appellant's brief.
Plaintiffs did not appeal from that portion of the judgment of the trial court
awarding them on P3,000.00 damages for the death of their daughter. Neither
does it appear that, as appellees in the Court of Appeals, plaintiffs have pointed
out in their brief the inadequacy of the award, or that the inclusion of the figure
P3,000.00 was merely a clerical error, in order that the matter may be treated
as an exception to the general rule.5 Herein petitioner's contention, therefore,
that the Court of Appeals committed error in raising the amount of the award
for damages is, evidently, meritorious.1wph1.t instantaneously.
Wherefore, the decision of the Court of Appeals is hereby modified by
sentencing, the petitioner to pay to the respondents Mariano Beltran, et al., the
sum of P3,000.00 for the death of the child, Raquel Beltran, and the amount of
P400.00 as actual damages. No costs in this instance. So ordered.
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
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;
8
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:
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
9
Navidad to all the rights and protection under a contractual relation, and that
the appellate court had correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence imposed upon a common
carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of
its business and for reasons of public policy, is burdened with the duty of
exercising utmost diligence in ensuring the safety of passengers.4 The Civil Code,
governing the liability of a common carrier for death of or injury to its
passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed in articles 1733 and
1755."
"Article 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the formers employees,
although such employees may have acted beyond the scope of their authority or
in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other passengers or of
strangers, if the common 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.5 Such
duty of a common carrier to provide safety to its passengers so obligates it not
only during the course of the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to the contract of
carriage.6 The statutory provisions render a common carrier liable for death of
or injury to passengers (a) through the negligence or wilful acts of its employees
or b) on account of wilful acts or negligence of other passengers or of strangers
if the common carriers employees through the exercise of due diligence could
have prevented or stopped the act or omission.7 In case of such death or injury,
a carrier is presumed to have been at fault or been negligent, and8 by simple
proof of injury, the passenger is relieved of the duty to still establish the fault
or negligence of the carrier or of its employees and the burden shifts upon the
carrier to prove that the injury is due to an unforeseen event or to force
majeure.9 In the absence of satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the appellate court, have
failed to show, the presumption would be that it has been at fault,10 an exception
from the general rule that negligence must be proved.11
The foundation of 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 217612 and related provisions, in conjunction
with Article 2180,13 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 219414 of the Civil Code can
well apply.15 In fine, a liability for tort may arise even under a contract, where
tort is that which breaches the contract.16 Stated differently, when an act
which constitutes a breach of contract would have itself constituted the source
of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules
on tort to apply.17
10
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the
late Nicanor Navidad, this Court is concluded by the factual finding of the Court
of Appeals that "there is nothing to link (Prudent) to the death of Nicanor
(Navidad), for the reason that the negligence of its employee, Escartin, has not
been duly proven x x x." This finding of the appellate court is not without
substantial justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty
of any culpable act or omission, he must also be absolved from liability. Needless
to say, the contractual tie between the LRT and Navidad is not itself a juridical
relation between the latter and Roman; thus, Roman can be made liable only for
his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable.
Nominal damages are adjudicated in order that a right of the plaintiff, which has
been violated or invaded by the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any loss suffered by
him.18 It is an established rule that nominal damages cannot co-exist with
compensatory damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with
MODIFICATION but only in that (a) the award of nominal damages is DELETED
and (b) petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 84458 November 6, 1989
ABOITIZ SHIPPING CORPORATION, petitioner,
vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. VIANA,
SPS. ANTONIO VIANA and GORGONIA VIANA, and PIONEER
STEVEDORING CORPORATION, respondents.
Herenio E. Martinez for petitioner.
M.R. Villaluz Law Office for private respondent.
REGALADO, J.:
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a
review of the decision 1 of respondent Court of Appeals, dated July 29, 1988,
the decretal portion of which reads:
WHEREFORE, the judgment appealed from as modified by the
order of October 27, 1982, is hereby affirmed with the
modification that appellant Aboitiz Shipping is hereby ordered
to pay plaintiff-appellees the amount of P30,000.00 for the
death of Anacleto Viana; actual damages of P9,800.00;
P150,000.00 for unearned income; P7,200.00 as support for
deceased's parents; P20,000.00 as moral damages; P10,000.00
as attorney's fees; and to pay the costs.
The undisputed facts of the case, as found by the court a quo and adopted by
respondent court, are as follows: .
The evidence disclosed that on May 11, 1975, Anacleto Viana
boarded the vessel M/V Antonia, owned by defendant, at the
port at San Jose, Occidental Mindoro, bound for Manila, having
purchased a ticket (No. 117392) in the sum of P23.10 (Exh. 'B').
On May 12, 1975, said vessel arrived at Pier 4, North Harbor,
Manila, and the passengers therein disembarked, a gangplank
having been provided connecting the side of the vessel to the
pier. Instead of using said gangplank Anacleto Viana
disembarked on the third deck which was on the level with the
pier. After said vessel had landed, the Pioneer Stevedoring
Corporation took over the exclusive control of the cargoes
loaded on said vessel pursuant to the Memorandum of
Agreement dated July 26, 1975 (Exh. '2') between the third
party defendant Pioneer Stevedoring Corporation and
defendant Aboitiz Shipping Corporation.
The crane owned by the third party defendant and operated by
its crane operator Alejo Figueroa was placed alongside the
vessel and one (1) hour after the passengers of said vessel had
disembarked, it started operation by unloading the cargoes
11
from said vessel. While the crane was being operated, Anacleto
Viana who had already disembarked from said vessel obviously
remembering that some of his cargoes were still loaded in the
vessel, went back to the vessel, and it was while he was pointing
to the crew of the said vessel to the place where his cargoes
were loaded that the crane hit him, pinning him between the
side of the vessel and the crane. He was thereafter brought to
the hospital where he later expired three (3) days thereafter,
on May 15, 1975, the cause of his death according to the Death
Certificate (Exh. "C") being "hypostatic pneumonia secondary to
traumatic fracture of the pubic bone lacerating the urinary
bladder" (See also Exh. "B"). For his hospitalization, medical,
burial and other miscellaneous expenses, Anacleto's wife,
herein plaintiff, spent a total of P9,800.00 (Exhibits "E", "E-1",
to "E-5"). Anacleto Viana who was only forty (40) years old
when he met said fateful accident (Exh. 'E') was in good health.
His average annual income as a farmer or a farm supervisor was
400 cavans of palay annually. His parents, herein plaintiffs
Antonio and Gorgonia Viana, prior to his death had been
recipient of twenty (20) cavans of palay as support or P120.00
monthly. Because of Anacleto's death, plaintiffs suffered
mental anguish and extreme worry or moral damages. For the
filing of the instant case, they had to hire a lawyer for an
agreed fee of ten thousand (P10,000.00) pesos. 2
Private respondents Vianas filed a complaint 3 for damages against petitioner
corporation (Aboitiz, for brevity) for breach of contract of carriage.
In its answer. 4 Aboitiz denied responsibility contending that at the time of the
accident, the vessel was completely under the control of respondent Pioneer
Stevedoring Corporation (Pioneer, for short) as the exclusive stevedoring
contractor of Aboitiz, which handled the unloading of cargoes from the vessel of
Aboitiz. It is also averred that since the crane operator was not an employee of
Aboitiz, the latter cannot be held liable under the fellow-servant rule.
Thereafter, Aboitiz, as third-party plaintiff, filed a third-party
complaint 5 against Pioneer imputing liability thereto for Anacleto Viana's death
as having been allegedly caused by the negligence of the crane operator who was
an employee of Pioneer under its exclusive control and supervision.
Pioneer, in its answer to the third-party complaint, 6 raised the defenses that
Aboitiz had no cause of action against Pioneer considering that Aboitiz is being
sued by the Vianas for breach of contract of carriage to which Pioneer is not a
party; that Pioneer had observed the diligence of a good father of a family both
in the selection and supervision of its employees as well as in the prevention of
damage or injury to anyone including the victim Anacleto Viana; that Anacleto
Viana's gross negligence was the direct and proximate cause of his death; and
that the filing of the third-party complaint was premature by reason of the
pendency of the criminal case for homicide through reckless imprudence filed
against the crane operator, Alejo Figueroa.
In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was ordered
to pay the Vianas for damages incurred, and Pioneer was ordered to reimburse
Aboitiz for whatever amount the latter paid the Vianas. The dispositive portion
of said decision provides:
WHEREFORE, judgment is hereby rendered in favor of the
plantiffs:
(1) ordering defendant Aboitiz Shipping Corporation to pay to
plaintiffs the sum of P12,000.00 for the death of Anacleto
Viana P9,800.00 as actual damages; P533,200.00 value of the
10,664 cavans of palay computed at P50.00 per cavan;
P10,000.00 as attorney's fees; F 5,000.00, value of the 100
cavans of palay as support for five (5) years for deceased (sic)
parents, herein plaintiffs Antonio and Gorgonia Viana computed
at P50.00 per cavan; P7,200.00 as support for deceased's
parents computed at P120.00 a month for five years pursuant to
Art. 2206, Par. 2, of the Civil Code; P20,000.00 as moral
damages, and costs; and
(2) ordering the third party defendant Pioneer Stevedoring
Corporation to reimburse defendant and third party plaintiff
Aboitiz Shipping Corporation the said amounts that it is
ordered to pay to herein plaintiffs.
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein
they similarly raised the trial court's failure to declare that Anacleto Viana
acted with gross negligence despite the overwhelming evidence presented in
support thereof. In addition, Aboitiz alleged, in opposition to Pioneer's motion,
that under the memorandum of agreement the liability of Pioneer as contractor
is automatic for any damages or losses whatsoever occasioned by and arising
from the operation of its arrastre and stevedoring service.
12
In an order dated October 27, 1982, 8 the trial court absolved Pioneer from
liability for failure of the Vianas and Aboitiz to preponderantly establish a case
of negligence against the crane operator which the court a quo ruled is never
presumed, aside from the fact that the memorandum of agreement supposedly
refers only to Pioneer's liability in case of loss or damage to goods handled by it
but not in the case of personal injuries, and, finally that Aboitiz cannot properly
invoke the fellow-servant rule simply because its liability stems from a breach of
contract of carriage. The dispositive portion of said order reads:
WHEREFORE, judgment is hereby modified insofar as third
party defendant Pioneer Stevedoring Corporation is concerned
rendered in favor of the plaintiffs-,:
(1) Ordering defendant Aboitiz Shipping Corporation to pay the
plaintiffs the sum of P12,000.00 for the death of Anacleto
Viana; P9,000.00 (sic) as actual damages; P533,200.00 value of
the 10,664 cavans of palay computed at P50.00 per cavan;
P10,000.00 as attorney's fees; P5,000.00 value of the 100
cavans of palay as support for five (5) years for deceased's
parents, herein plaintiffs Antonio and Gorgonia Viana,computed
at P50.00 per cavan; P7,200.00 as support for deceased's
parents computed at P120.00 a month for five years pursuant to
Art. 2206, Par. 2, of the Civil Code; P20,000.00 as moral
damages, and costs; and
(2) Absolving third-party defendant Pioneer Stevedoring
Corporation for (sic) any liability for the death of Anacleto
Viana the passenger of M/V Antonia owned by defendant third
party plaintiff Aboitiz Shipping Corporation it appearing that
the negligence of its crane operator has not been established
therein.
Not satisfied with the modified judgment of the trial court, Aboitiz appealed
the same to respondent Court of Appeals which affirmed the findings of of the
trial court except as to the amount of damages awarded to the Vianas.
Hence, this petition wherein petitioner Aboitiz postulates that respondent court
erred:
(A) In holding that the doctrine laid down by this honorable
Court in La Mallorca vs. Court of Appeals, et al. (17 SCRA 739,
July 27, 1966) is applicable to the case in the face of the
undisputable fact that the factual situation under the La
Mallorca case is radically different from the facts obtaining in
this case;
(B) In holding petitioner liable for damages in the face of the
finding of the court a quo and confirmed by the Honorable
respondent court of Appeals that the deceased, Anacleto Viana
was guilty of contributory negligence, which, We respectfully
submit contributory negligence was the proximate cause of his
death; specifically the honorable respondent Court of Appeals
failed to apply Art. 1762 of the New Civil Code;
(C) In the alternative assuming the holding of the Honorable
respondent Court of Appears that petitioner may be legally
condemned to pay damages to the private respondents we
respectfully submit that it committed a reversible error when
it dismissed petitioner's third party complaint against private
respondent Pioneer Stevedoring Corporation instead of
compelling the latter to reimburse the petitioner for whatever
damages it may be compelled to pay to the private respondents
Vianas. 9
At threshold, it is to be observed that both the trial court and respondent Court
of Appeals found the victim Anacleto Viana guilty of contributory negligence, but
holding that it was the negligence of Aboitiz in prematurely turning over the
vessel to the arrastre operator for the unloading of cargoes which was the
direct, immediate and proximate cause of the victim's death.
I. Petitioner contends that since one (1) hour had already elapsed from the time
Anacleto Viana disembarked from the vessel and that he was given more than
ample opportunity to unload his cargoes prior to the operation of the crane, his
presence on the vessel was no longer reasonable e and he consequently ceased to
be a passenger. Corollarily, it insists that the doctrine in La Mallorca vs. Court of
Appeals, et al. 10 is not applicable to the case at bar.
The rule is that the relation of carrier and passenger continues until the
passenger has been landed at the port of destination and has left the vessel
owner's dock or premises. 11 Once created, the relationship will not ordinarily
terminate until the passenger has, after reaching his destination, safely alighted
from the carrier's conveyance or had a reasonable opportunity to leave the
carrier's premises. All persons who remain on the premises a reasonable time
after leaving the conveyance are to be deemed passengers, and what is a
13
reasonable time or a reasonable delay within this rule is to be determined from
all the circumstances, and includes a reasonable time to see after his baggage
and prepare for his departure. 12 The carrier-passenger relationship is not
terminated merely by the fact that the person transported has been carried to
his destination if, for example, such person remains in the carrier's premises to
claim his baggage. 13
It was in accordance with this rationale that the doctrine in the aforesaid case
of La Mallorca was enunciated, to wit:
It has been recognized as a rule that the relation of carrier and
passenger does not cease at the moment the passenger alights
from the carrier's vehicle at a place selected by the carrier at
the point of destination, but continues until the passenger has
had a reasonable time or a reasonable opportunity to leave the
carrier's premises. And, what is a reasonable time or a
reasonable delay within this rule is to be determined from all
the circumstances. Thus, a person who, after alighting from a
train, walks along the station platform is considered still a
passenger. So also, where a passenger has alighted at his
destination and is proceeding by the usual way to leave the
company's premises, but before actually doing so is halted by
the report that his brother, a fellow passenger, has been shot,
and he in good faith and without intent of engaging in the
difficulty, returns to relieve his brother, he is deemed
reasonably and necessarily delayed and thus continues to be a
passenger entitled as such to the protection of the railroad
company and its agents.
In the present case, the father returned to the bus to get one
of his baggages which was not unloaded when they alighted
from the bus. Racquel, the child that she was, must have
followed the father. However, although the father was still on
the running board of the bus waiting for the conductor to hand
him the bag or bayong, the bus started to run, so that even he
(the father) had to jump down from the moving vehicle. It was
at this instance that the child, who must be near the bus, was
run over and killed. In the circumstances, it cannot be claimed
that the carrier's agent had exercised the 'utmost diligence'
of a 'very cautious person' required by Article 1755 of the Civil
Code to be observed by a common carrier in the discharge of its
obligation to transport safely its passengers. ... The presence of
said passengers near the bus was not unreasonable and they
are, therefore, to be considered still as passengers of the
carrier, entitled to the protection under their contract of
carriage. 14
It is apparent from the foregoing that what prompted the Court to rule as it did
in said case is the fact of the passenger's reasonable presence within the
carrier's premises. That reasonableness of time should be made to depend on
the attending circumstances of the case, such as the kind of common carrier, the
nature of its business, the customs of the place, and so forth, and therefore
precludes a consideration of the time element per se without taking into account
such other factors. It is thus of no moment whether in the cited case of La
Mallorca there was no appreciable interregnum for the passenger therein to
leave the carrier's premises whereas in the case at bar, an interval of one (1)
hour had elapsed before the victim met the accident. The primary factor to be
considered is the existence of a reasonable cause as will justify the presence of
the victim on or near the petitioner's vessel. We believe there exists such a
justifiable cause.
It is of common knowledge that, by the very nature of petitioner's business as a
shipper, the passengers of vessels are allotted a longer period of time to
disembark from the ship than other common carriers such as a passenger bus.
With respect to the bulk of cargoes and the number of passengers it can load,
such vessels are capable of accommodating a bigger volume of both as compared
to the capacity of a regular commuter bus. Consequently, a ship passenger will
need at least an hour as is the usual practice, to disembark from the vessel and
claim his baggage whereas a bus passenger can easily get off the bus and
retrieve his luggage in a very short period of time. Verily, petitioner cannot
categorically claim, through the bare expedient of comparing the period of time
entailed in getting the passenger's cargoes, that the ruling in La Mallorca is
inapplicable to the case at bar. On the contrary, if we are to apply the doctrine
enunciated therein to the instant petition, we cannot in reason doubt that the
victim Anacleto Viana was still a passenger at the time of the incident. When the
accident occurred, the victim was in the act of unloading his cargoes, which he
had every right to do, from petitioner's vessel. As earlier stated, a carrier is
duty bound not only to bring its passengers safely to their destination but also to
afford them a reasonable time to claim their baggage.
It is not definitely shown that one (1) hour prior to the incident, the victim had
already disembarked from the vessel. Petitioner failed to prove this. What is
clear to us is that at the time the victim was taking his cargoes, the vessel had
already docked an hour earlier. In consonance with common shipping procedure as
14
to the minimum time of one (1) hour allowed for the passengers to disembark, it
may be presumed that the victim had just gotten off the vessel when he went to
retrieve his baggage. Yet, even if he had already disembarked an hour earlier, his
presence in petitioner's premises was not without cause. The victim had to claim
his baggage which was possible only one (1) hour after the vessel arrived since it
was admittedly standard procedure in the case of petitioner's vessels that the
unloading operations shall start only after that time. Consequently, under the
foregoing circumstances, the victim Anacleto Viana is still deemed a passenger of
said carrier at the time of his tragic death.
II. Under the law, common carriers are, from the nature of their business and
for reasons of public policy, bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case. 15 More particularly, a
common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a
due regard for all the circumstances. 16 Thus, where a passenger dies or is
injured, the common carrier is presumed to have been at fault or to have acted
negligently. 17 This gives rise to an action for breach of contract of carriage
where all that is required of plaintiff is to prove the existence of the contract
of carriage and its non-performance by the carrier, that is, the failure of the
carrier to carry the passenger safely to his destination, 18 which, in the instant
case, necessarily includes its failure to safeguard its passenger with
extraordinary diligence while such relation subsists.
The presumption is, therefore, established by law that in case of a passenger's
death or injury the operator of the vessel was at fault or negligent, having failed
to exercise extraordinary diligence, and it is incumbent upon it to rebut the
same. This is in consonance with the avowed policy of the State to afford full
protection to the passengers of common carriers which can be carried out only
by imposing a stringent statutory obligation upon the latter. Concomitantly, this
Court has likewise adopted a rigid posture in the application of the law by
exacting the highest degree of care and diligence from common carriers, bearing
utmost in mind the welfare of the passengers who often become hapless victims
of indifferent and profit-oriented carriers. We cannot in reason deny that
petitioner failed to rebut the presumption against it. Under the facts obtaining
in the present case, it cannot be gainsaid that petitioner had inadequately
complied with the required degree of diligence to prevent the accident from
happening.
As found by the Court of Appeals, the evidence does not show that there was a
cordon of drums around the perimeter of the crane, as claimed by petitioner. It
also adverted to the fact that the alleged presence of visible warning signs in
the vicinity was disputable and not indubitably established. Thus, we are not
inclined to accept petitioner's explanation that the victim and other passengers
were sufficiently warned that merely venturing into the area in question was
fraught with serious peril. Definitely, even assuming the existence of the
supposed cordon of drums loosely placed around the unloading area and the
guard's admonitions against entry therein, these were at most insufficient
precautions which pale into insignificance if considered vis-a-vis the gravity of
the danger to which the deceased was exposed. There is no showing that
petitioner was extraordinarily diligent in requiring or seeing to it that said
precautionary measures were strictly and actually enforced to subserve their
purpose of preventing entry into the forbidden area. By no stretch of liberal
evaluation can such perfunctory acts approximate the "utmost diligence of very
cautious persons" to be exercised "as far as human care and foresight can
provide" which is required by law of common carriers with respect to their
passengers.
While the victim was admittedly contributorily negligent, still petitioner's
aforesaid failure to exercise extraordinary diligence was the proximate and
direct cause of, because it could definitely have prevented, the former's death.
Moreover, in paragraph 5.6 of its petition, at bar, 19 petitioner has expressly
conceded the factual finding of respondent Court of Appeals that petitioner did
not present sufficient evidence in support of its submission that the deceased
Anacleto Viana was guilty of gross negligence. Petitioner cannot now be heard to
claim otherwise.
No excepting circumstance being present, we are likewise bound by respondent
court's declaration that there was no negligence on the part of Pioneer
Stevedoring Corporation, a confirmation of the trial court's finding to that
effect, hence our conformity to Pioneer's being absolved of any liability.
As correctly observed by both courts, Aboitiz joined Pioneer in proving the
alleged gross negligence of the victim, hence its present contention that the
death of the passenger was due to the negligence of the crane operator cannot
be sustained both on grounds, of estoppel and for lack of evidence on its present
theory. Even in its answer filed in the court below it readily alleged that Pioneer
had taken the necessary safeguards insofar as its unloading operations were
concerned, a fact which appears to have been accepted by the plaintiff therein
by not impleading Pioneer as a defendant, and likewise inceptively by Aboitiz by
filing its third-party complaint only after ten (10) months from the institution of
the suit against it. Parenthetically, Pioneer is not within the ambit of the rule on
extraordinary diligence required of, and the corresponding presumption of
15

negligence foisted on, common carriers like Aboitiz. This, of course, does not
detract from what we have said that no negligence can be imputed to Pioneer
but, that on the contrary, the failure of Aboitiz to exercise extraordinary
diligence for the safety of its passenger is the rationale for our finding on its
liability.
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The
assailed Decision of the lower court is hereby AFFIRMED with the aforesaid
modification regarding the award of death penalty.
The Resolution of August 6, 1999 denied reconsideration.[2]

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

SO ORDERED.
The events leading to this Petition were summarized by the Court of Appeals
THIRD DIVISION as follows:

It appears from the records that at around 2:00 oclock [o]n the afternoon of
August 9, 1986, Ananias Sumayang was riding a motorcycle along the national
[G.R. No. 139875. December 4, 2000] highway in Ilihan, Tabagon, Cebu. Riding with him was his friend Manuel
Romagos. As they came upon a junction where the highway connected with the
road leading to Tabagon, they were hit by a passenger bus driven by [Petitioner]
Gregorio Pestao and owned by [Petitioner] Metro Cebu Autobus Corporation
GREGORIO PESTAO and METRO CEBU AUTOBUS (Metro Cebu, for brevity), which had tried to overtake them, sending the
CORPORATION, petitioners, vs. Spouses TEOTIMO SUMAYANG and motorcycle and its passengers hurtling upon the pavement. Both Ananias
PAZ C. SUMAYANG, respondents. Sumayang and Manuel Romagos were rushed to the hospital in Sogod, where
Sumayang was pronounced dead on arrival. Romagos was transferred to the Cebu
D E C I S I O N Doctors Hospital, but he succumbed to his injuries the day after.

PANGANIBAN, J.:
Apart from the institution of criminal charges against Gregorio Pestao,
[Respondents] Teotimo and Paz Sumayang, as heirs of Ananias Sumayang, filed
Factual findings of the Court of Appeals, affirming those of the trial judge,
this civil action for damages against Gregorio Pestao, as driver of the passenger
are binding on this Court. In quasi-delicts, such findings are crucial because
bus that rammed the deceaseds motorcycle, Metro Cebu, as owner and operator
negligence is largely a matter of evidence. In computing an award for lost earning
of the said bus, and Perla Compania de Seguros, as insurer of Metro Cebu. The
capacity, the life expectancy of the deceased, not that of the heir, is used as
case was docketed as Civil Case No. CEB-6108.
basis.

On November 9, 1987, upon motion of [Petitioner] Pestao, Judge Pedro C. Son

The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, assailing the April 21, 1999 Decision and the August 6, 1999 Resolution of
the Court of Appeals[1] (CA) in CA-GR CV No. 30289. The questioned Decision
disposed as follows:
ordered the consolidation of the said case with Criminal Case No. 10624, pending
in Branch 16 of the same Court, involving the criminal prosecution of Gregorio
Pestao for [d]ouble [h]omicide thru [r]eckless [i]mprudence. Joint trial of the
two cases thereafter ensued, where the following assertions were made:
[Respondents] rely mainly on the testimonies of Ignacio Neis, Pat. Aquilino Dinoy
and Teotimo Sumayang, father of the deceased. Neis declared that he saw the
incident while he was sitting on a bench beside the highway; that both vehicles
c[a]me from the North; that as the motorcycle approached the junction to
16
Tab[a]gon, the driver Ananias Sumayang signalled with his left arm to indicate
that he was taking the Tab[a]gon Road; that the motorcycle did turn left but as
it did so, it was bumped by an overspeeding bus; that the force of the impact
threw Ananias Sumayang and his companion Manuel Romagos about 14 meters
away. The motorcycle, Neis continued, was badly damaged as it was dragged by
the bus.
On the other hand, Pat. Dinoy testified that he was in the nearby house of Ruben
Tiu [when] he heard the sound or noise caused by the collision; that he
immediately went to the scene where he found Ananias Sumayang and Manuel
Romagos lying on the road bleeding and badly injured; that he requested the
driver of a PU vehicle to take them to a hospital; that he took note of the
various distances which he included in his sketch (Exh. J) that the probable point
of impact was at the left lane of the highway and right at the junction to
Tab[a]gon (Exh J-11); that he based his conclusion on the scratches caused by
the motorcycles footrest on the asphalt pavement; that he described the
damage caused to the motorcycle in his sketch (Exh J); that on the part of the
bus, the right end of its front bumper was bent and the right portion of the
radiator grill was dented. Pat. Dinoy acknowledged that he met at the scene
Ignacio Neis who informed him that he saw the incident.
On the contrary, Pestao blamed Sumayang for the accident. He testified that
when he first blew the horn the motorcycle which was about 15 or 20 meters
ahead went to the right side of the highway that he again blew the horn and
accelerated in order to overtake the motorcycle; that when he was just one
meter behind, the motorcycle suddenly turned left towards the Tab[a]gon [R]oad
and was bumped by his bus; that he was able to apply his break only after the
impact. Pestaos testimony was corroborated by Ireneo Casilia who declared that
he was one of the passengers of the bus; that the motorcycle suddenly turned
left towards Tab[a]gon [R]oad without giving any signal to indicate its maneuver;
that the bus was going at 40 kph when the accident occurred.
To substantiate its defense of bonos pater familias [petitioner] [c]orporation
recalled to the witness box Gregorio Pestao who explained how his driving
experience and ability were tested by the company before he was hired. He
further declared that the management gave regular lectures to drivers and
conductors touching on various topics like speeding, parking, loading and
treatment of passengers, and that before he took to the road at 2:30 AM of
that day he checked together with the mechanic the tires, brake, signal lights as
well as the tools to be brought along. He did the same thing before commencing
his return trip from Hagnaya, San Remegio later in the day.
The corporation also presented its maintenance supervisor, Agustin Pugeda, Jr.,
and its manager, Alfonso Corominas, Jr. who corroborated Pestaos testimony
that his driving ability was thoroughly tested, and that all drivers underwent
periodic lecture on various aspects of safety driving including pertinent traffic
regulations. They also confirmed the thorough checkup of every vehicle before it
would depart and that the performance of the drivers was being monitored by
several inspectors posted at random places along the route.
In judgment, the lower court found [petitioners] liable to the [respondents], in
the amounts of P30,000.00 for death indemnity, P829,079 for loss of earning
capacity of the deceased Ananias Sumayang, and P36,000.00 for necessary
interment expenses. The liability of defendant Perla Compania de Seguros, Inc.,
however, was limited only to the amount stipulated in the insurance policy, which
[was] P12,000 for death indemnity and P4,500.00 for burial expenses.
In so ruling, the lower court found [Petitioner] Pestao to have been negligent in
driving the passenger bus that hit the deceased. It was shown that Pestao
negligently attempted to overtake the motorcycle at a dangerous speed as they
were coming upon a junction in the road, and as the motorcycle was about to turn
left towards Tabagon. The court likewise found Metro Cebu directly and
primarily liable, along with Pestao, the latters employer under Article 2180 of
the Civil Code, as [Petitioner] Metro Cebu failed to present evidence to prove
that it had observed x x x [the] diligence of a good father of a family to prevent
damage. Nor has Metro Cebu proven that it had exercised due diligence in the
supervision of its employees and in the maintenance of vehicles.[3]
Ruling of the Court of Appeals
The CA affirmed respondents liability for the accident and for Sumayangs
death. Pestao was negligent when he tried to overtake the victims motorcycle at
the Tabagon junction. As a professional driver operating a public transport vehicle,
he should have taken extra precaution to avoid accidents, knowing that it was
perilous to overtake at a junction, where adjoining roads had brought about
merging and diverging traffic.
The appellate court opined that Metro Cebu had shown laxity in the conduct
of its operations and in the supervision of its employees.By allowing the bus to ply
its route despite the defective speedometer, said petitioner showed its
indifference towards the proper maintenance of its vehicles. Having failed to
observe the extraordinary diligence required of public transportation companies,
it was held vicariously liable to the victims of the vehicular accident.
17
In accordance with prevailing jurisprudence, the CA raised to P50,000 the
granted indemnity for the death of the victim. It also affirmed the award of loss
of earning capacity based on his life expectancy. Such liability was assessed, not
as a pension for the claiming heirs, but as a penalty and an indemnity for the
drivers negligent act.
Hence, this Petition.[4]
Issues
Petitioners submit the following issues[5] for our consideration:
1. The Court of Appeals misapplied facts of weight and substance affecting the
result of the case.
2. The Court of Appeals misapplied R.A. 4136 as regards the behavior of the
deceased at the time of the accident.
3. The Court of Appeals erred in ruling that the award of damages representing
income that deceased could have earned be considered a penalty.
4. The Court of Appeals, contrary to Article 2204, Civil Code, raised the award
of P30,000.00 damages representing indemnity for death to P50,000.00.
5. The Court of Appeals used as basis for the loss of earning capacity, the life
expectancy of the [d]eceased instead of that of the respondents which was
shorter.[6]
In short, they raise these questions: whether the CA erred (1) in applying
Section 45 of RA 4136 when it ruled that negligence in driving was the proximate
cause of the accident; (2) in increasing the civil indemnity from P30,000 to
P50,000; and (3) in using the life expectancy of the deceased instead of the life
expectancies of respondents.
The Courts Ruling
The Petition has no merit.
First Issue: Negligence
Petitioners contend that Pestao was not under any obligation to slow down
when he overtook the motorcycle, because the deceased had given way to him upon
hearing the bus horn. Seeing that the left side of the road was clearly visible and
free of oncoming traffic, Pestao accelerated his speed to pass the
motorcycle. Having given way to the bus, the motorcycle driver should have slowed
down until he had been overtaken.
They further contend that the motorcycle was not in the middle of the road
nearest to the junction as found by the trial and the appellate courts, but was on
the inner lane. This explains why the damage on the bus were all on the right side
the right end of the bumper and the right portion of the radiator grill were bent
and dented. Hence, they insist that it was the victim who was negligent.
We disagree. Petitioners are raising a question of fact based on Pestaos
testimony contradicting that of Eyewitness Ignacio Neis and on the location of
the dents on the bumper and the grill. Neis testified that as the two vehicles
approached the junction, the victim raised his left arm to signal that he was
turning left to Tabagon, but that the latter and his companion were thrown off
the motorcycle after it was bumped by the overspeeding bus.
These contentions have already been passed upon by the trial and the
appellate courts. We find no cogent reason to reverse or modify their factual
findings. The CA agreed with the trial court that the vehicular collision was caused
by Pestaos negligence when he attempted to overtake the motorcycle. As a
professional driver operating a public transport bus, he should have anticipated
that overtaking at a junction was a perilous maneuver and should thus have
exercised extreme caution.
Factual findings of the CA affirming those of the trial court are conclusive
and binding on this Court. Petitioners failed to demonstrate that this case falls
under any of the recognized exceptions to this rule.[7] Indeed, the issue of
negligence is basically factual and, in quasi-delicts, crucial in the award of damages.
Petitioners aver that the CA was wrong in attributing the accident to a faulty
speedometer and in implying that the accident could have been avoided had this
instrument been properly functioning.
This contention has no factual basis. Under Articles 2180 and 2176 of the
Civil Code, owners and managers are responsible for damages caused by their
employees. When an injury is caused by the negligence of a servant or an employee,
the master or employer is presumed to be negligent either in the selection or in
the supervision of that employee. This presumption may be overcome only by
18
satisfactorily showing that the employer exercised the care and the diligence of
a good father of a family in the selection and the supervision of its employee.[8]
The CA said that allowing Pestao to ply his route with a defective
speedometer showed laxity on the part of Metro Cebu in the operation of its
business and in the supervision of its employees. The negligence alluded to here is
in its supervision over its driver, not in that which directly caused the
accident. The fact that Pestao was able to use a bus with a faulty speedometer
shows that Metro Cebu was remiss in the supervision of its employees and in the
proper care of its vehicles. It had thus failed to conduct its business with the
diligence required by law.
Second Issue: Life Indemnity
Petitioners aver that the CA erred in increasing the award for life indemnity
from P30,000 to P50,000, without specifying any aggravating circumstance to
justify the increment as provided in the Civil Code.[9]
This contention is untenable. The indemnity for death caused by a quasi-
delict used to be pegged at P3,000, based on Article 2206 of the Civil
Code. However, the amount has been gradually increased through the years
because of the declining value of our currency.At present, prevailing jurisprudence
fixes the amount at P50,000.[10]
Third Issue: Loss of Earning Capacity
Petitioners cite Villa Rey Transit, Inc. v. Court of Appeals,[11] which held:
The determination of the indemnity to be awarded to the heirs of a deceased
person has therefore no fixed basis. x x x The life expectancy of the deceased
or of the beneficiary, whichever is shorter, is an important factor. x x x.
They contend that the CA used the wrong basis for its computation of earning
capacity.
We disagree. The Court has consistently computed the loss of earning
capacity based on the life expectancy of the deceased,[12] and not on that of the
heir.[13] Even Villa Rey Transit did likewise.
The award for loss of earning capacity is based on two factors: (1) the number
of years on which the computation of damages is based and (2) the rate at which
the loss sustained by the heirs is fixed.[14] The first factor refers to the life
expectancy, which takes into consideration the nature of the victims work,
lifestyle, age and state of health prior to the accident. The second refers to the
victims earning capacity minus the necessary living expenses. Stated otherwise,
the amount recoverable is that portion of the earnings of the deceased which the
beneficiary would have received -- the net earnings of the deceased.[15]
WHEREFORE, the Petition is DENIED and the assailed Decision and
Resolution AFFIRMED. Cost against petitioners.
SO ORDERED.
SECOND DIVISION
[G.R. No. 128607. January 31, 2000]
ALFREDO MALLARI SR. and ALFREDO MALLARI JR., petitioners, vs.
COURT OF APPEALS and BULLETIN PUBLISHING
CORPORATION, respondents.
D E C I S I O N
BELLOSILLO, J.:
ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review
on certiorari seek to set aside the Decision of the Court of Appeals[1] which
reversed the court a quo and adjudged petitioners to be liable for damages due
to negligence as a common carrier resulting in the death of a passenger.
On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney
driven by petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo
Mallari Sr. collided with the delivery van of respondent Bulletin Publishing Corp.
(BULLETIN, for brevity) along the National Highway in Barangay San Pablo,
Dinalupihan, Bataan. Petitioner Mallari Jr. testified that he went to the left lane
of the highway and overtook a Fiera which had stopped on the right lane. Before
he passed by the Fiera, he saw the van of respondent BULLETIN coming from
the opposite direction. It was driven by one Felix Angeles. The sketch of the
accident showed that the collision occurred after Mallari Jr. overtook the Fiera
while negotiating a curve in the highway. The points of collision were the left
rear portion of the passenger jeepney and the left front side of the delivery van
of BULLETIN. The two (2) right wheels of the delivery van were on the right
19
shoulder of the road and pieces of debris from the accident were found
scattered along the shoulder of the road up to a certain portion of the lane
travelled by the passenger jeepney. The impact caused the jeepney to turn
around and fall on its left side resulting in injuries to its passengers one of whom
was Israel Reyes who eventually died due to the gravity of his injuries. Manikan
On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a
complaint for damages with the Regional Trial Court of Olongapo City against
Alfredo Mallari Sr. and Alfredo Mallari Jr., and also against BULLETIN, its
driver Felix Angeles, and the N.V. Netherlands Insurance Company. The
complaint alleged that the collision which resulted in the death of Israel Reyes
was caused by the fault and negligence of both drivers of the passenger jeepney
and the Bulletin Isuzu delivery van. The complaint also prayed that the
defendants be ordered jointly and severally to pay plaintiff P1,006,777.40 in
compensatory damages, P40,000.00 for hospital and medical
expenses, P18,270.00 for burial expenses plus such amounts as may be fixed by
the trial court for exemplary damages and attorneys fees.
The trial court found that the proximate cause of the collision was the
negligence of Felix Angeles, driver of the Bulletin delivery van, considering the
fact that the left front portion of the delivery truck driven by Felix Angeles hit
and bumped the left rear portion of the passenger jeepney driven by Alfredo
Mallari Jr. Hence, the trial court ordered BULLETIN and Felix Angeles to pay
jointly and severally Claudia G. Reyes, widow of the deceased victim, the sums
of P42,106.93 for medical expenses; P8,600.00 for funeral and burial
expenses; P1,006,777.40 for loss of earning capacity; P5,000.00 for moral
damages and P10,000.00 for attorneys fees. The trial court also ordered N.V.
Netherlands Insurance Company to indemnify Claudia G. Reyes P12,000.00 as
death indemnity and P2,500.00 for funeral expenses which when paid should be
deducted from the liabilities of respondent BULLETIN and its driver Felix
Angeles to the plaintiff. It also dismissed the complaint against the other
defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.
On appeal the Court of Appeals modified the decision of the trial court and
found no negligence on the part of Angeles and consequently of his employer,
respondent BULLETIN. Instead, the appellate court ruled that the collision was
caused by the sole negligence of petitioner Alfredo Mallari Jr. who admitted
that immediately before the collision and after he rounded a curve on the
highway, he overtook a Fiera which had stopped on his lane and that he had seen
the van driven by Angeles before overtaking the Fiera. The Court of Appeals
ordered petitioners Mallari Jr. and Mallari Sr. to compensate Claudia G.
Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as indemnity for
death and P10,000.00 for attorneys fees. It absolved from any liability
respondent BULLETIN, Felix Angeles and N.V. Netherlands Insurance Company.
Hence this petition. Oldmis o
Petitioners contend that there is no evidence to show that petitioner Mallari Jr.
overtook a vehicle at a curve on the road at the time of the accident and that
the testimony of Angeles on the overtaking made by Mallari Jr. was not credible
and unreliable. Petitioner also submits that the trial court was in a better
position than the Court of Appeals to assess the evidence and observe the
witnesses as well as determine their credibility; hence, its finding that the
proximate cause of the collision was the negligence of respondent Angeles,
driver of the delivery van owned by respondent BULLETIN, should be given more
weight and consideration.
We cannot sustain petitioners. Contrary to their allegation that there was no
evidence whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve on
the road at the time of or before the accident, the same petitioner himself
testified that such fact indeed did occur -
Q:.......And what was that accident all about?
A:.......Well, what happened, sir, is that at about that time 5:00
oclock in that morning of October 14 while I was negotiating on
the highway at San Pablo, Dinalupihan, Bataan, I was then
following a blue Ford Fierra and my distance behind was about
twenty (20) feet and then I passed that blue Ford Fierra. I
overtook and when I was almost on the right lane of the
highway towards Olongapo City there was an oncoming delivery
van of the Bulletin Publishing Corporation which bumped the
left rear portion of the jeepney which I was driving and as a
result of which the jeepney x x x turned around and fell on its
left side and as a result of which some of my passengers
including me were injured, sir x x x x
Q:.......Before you overtook the Ford Fierra jeepney did you look
x x x whether there was any vehicle coming towards you?
A:.......Yes, sir.
Q:.......Did you see the Bulletin van or the Press van coming
towards you?
20
A:.......Yes, sir.
Q:.......At the moment the Ford Fierra xxx stop(ped) and in
overtaking the Fierra, did you not have an option to stop and not
to overtake the Ford Fierra?
A:.......Well, at the time when the Ford Fierra stopped in front
of me I slowed down with the intention of applying the brake,
however, when I saw the oncoming vehicle which is the Press
van is very far x x x which is 100 feet distance, x x x it is
sufficient to overtake the Ford Fierra so I overt(ook) it x x x x
Q:.......You said that you took into consideration the speed of
the oncoming Press van but you also could not estimate the
speed of the press van because it was dark at that time, which
of these statements are true? Ncm
A:.......What I wanted to say, I took into consideration the speed
of the oncoming vehicle, the Press van, although at the moment
I could not estimate the speed of the oncoming vehicle x x x
x[2]
The Court of Appeals correctly found, based on the sketch and spot report of
the police authorities which were not disputed by petitioners, that the collision
occurred immediately after petitioner Mallari Jr. overtook a vehicle in front of
it while traversing a curve on the highway.[3] This act of overtaking was in clear
violation of Sec. 41, pars. (a) and (b), of RA 4136 as amended, otherwise known
as The Land Transportation and Traffic Code which provides:
Sec. 41. Restrictions on overtaking and passing. - (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.
(b) The driver of a vehicle shall not overtake or pass another
vehicle proceeding in the same direction when approaching the
crest of a grade, nor upon a curve in the highway, where the
drivers view along the highway is obstructed within a distance
of five hundred feet ahead 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:
Provided That on a highway, within a business or residential
district, having two or more lanes for movement of traffic in
one direction, the driver of a vehicle may overtake or pass
another vehicle on the right.
The rule is settled that a driver abandoning his proper lane for the purpose of
overtaking another vehicle in an ordinary situation has the duty to see to it that
the road is clear and not to proceed if he cannot do so in safety.[4] 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 does not have the right to drive on
the left hand side relying upon having time to turn to the right if a car
approaching from the opposite direction comes into view.[5] Ncmmis
In the instant case, by his own admission, petitioner Mallari Jr. already saw that
the BULLETIN delivery van was coming from the opposite direction and failing to
consider the speed thereof since it was still dark at 5:00 o'clock in the morning
mindlessly occupied the left lane and overtook two (2) vehicles in front of it at a
curve in the highway. Clearly, the proximate cause of the collision resulting in the
death of Israel Reyes, a passenger of the jeepney, was the sole negligence of
the driver of the passenger jeepney, petitioner Alfredo Mallari Jr., who
recklessly operated and drove his jeepney in a lane where overtaking was not
allowed by traffic rules. Under Art. 2185 of the Civil Code, 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 a traffic regulation. As
found by the appellate court, petitioners failed to present satisfactory evidence
to overcome this legal presumption.
The negligence and recklessness of the driver of the passenger jeepney is
binding against petitioner Mallari Sr., who admittedly was the owner of the
passenger jeepney engaged as a common carrier, considering the fact that in an
action based on 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 damages sought by the passenger. Under Art. 1755 of the
Civil Code, 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. Moreover, under Art. 1756 of
the Civil Code, in case of death or injuries to passengers, a common carrier is
presumed to have been at fault or to have acted negligently, unless it proves
that it observed extraordinary diligence. Further, pursuant to Art. 1759 of the
21
same Code, it is liable for the death of or injuries to passengers through the
negligence or willful acts of the formers employees. This liability of the common
carrier does not cease upon proof that it exercised all the diligence of a good
father of a family in the selection of its employees. Clearly, by the contract of
carriage, the carrier jeepney owned by Mallari Sr. assumed the express
obligation to transport the passengers to their destination safely and to observe
extraordinary diligence with due regard for all the circumstances, and any injury
or death that might be suffered by its passengers is right away attributable to
the fault or negligence of the carrier. Scnc m
The monetary award ordered by the appellate court to be paid by petitioners to
the widow of the deceased passenger Israel M. Reyes of P1,006,777.50 for loss
of earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for
attorneys fees, all of which were not disputed by petitioners, is a factual matter
binding and conclusive upon this Court.
WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals
dated 20 September 1995 reversing the decision of the trial court being in
accord with law and evidence is AFFIRMED. Consequently, petitioners are
ordered jointly and severally to pay Claudia G. Reyes P1,006,777.50 for loss of
earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for
attorneys fees. Costs against petitioners.
SO ORDERED.
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:
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;
22
2. Ordering further defendant transportation
company to pay the sum of P 5,000.00,
Philippine Currency, to the plaintiff as moral
and exemplary damages;
3. Ordering furthermore, defendant
transportation company to reimburse plaintiff
the sum of P 300.00 for his medical expenses
and attorney's fees in the sum of P 1,000.00,
Philippine Currency; and
4. To pay the costs.
SO ORDERED 1
From the judgment, private respondent appealed to the Court of Appeals where
the appeal was docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court
of Appeals, in a Special Division of Five, rendered judgment reversing and setting
aside the judgment of the court a quo.
Hence the present petition.
In seeking a reversal of the decision of the Court of Appeals, petitioner
contends that said court has decided the issue not in accord with law.
Specifically, petitioner argues that the nature of the business of a
transportation company requires the assumption of certain risks, and the stoning
of the bus by a stranger resulting in injury to petitioner-passenger is one such
risk from which the common carrier may not exempt itself from liability.
We do not agree.
In consideration of the right granted to it by the public to engage in the
business of transporting passengers and goods, a common carrier does not give
its consent to become an insurer of any and all risks to passengers and goods. It
merely undertakes to perform certain duties to the public as the law imposes,
and holds itself liable for any breach thereof.
Under Article 1733 of the Civil Code, common carriers are required to observe
extraordinary diligence for the safety of the passenger transported by them,
according to all the circumstances of each case. The requirement of
extraordinary diligence imposed upon common carriers is restated in Article
1755: "A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious
persons, with due regard for all the circumstances." Further, in case of death of
or injuries to passengers, the law presumes said common carriers to be at fault
or to have acted negligently. 2
While the law requires the highest degree of diligence from common carriers in
the safe transport of their passengers and creates a presumption of negligence
against them, it does not, however, make the carrier an insurer of the absolute
safety of its passengers. 3
Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance
and precaution in the carriage of passengers by common carriers to only such as
human care and foresight can provide. what constitutes compliance with said
duty is adjudged with due regard to all the circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence on
the part of the common carrier when its passenger is injured, merely relieves
the latter, for the time being, from introducing evidence to fasten the
negligence on the former, because the presumption stands in the place of
evidence. Being a mere presumption, however, the same is rebuttable by proof
that the common carrier had exercised extraordinary diligence as required by
law in the performance of its contractual obligation, or that the injury suffered
by the passenger was solely due to a fortuitous event. 4
In fine, we can only infer from the law the intention of the Code Commission and
Congress to curb the recklessness of drivers and operators of common carriers
in the conduct of their business.
Thus, it is clear that neither the law nor the nature of the business of a
transportation company makes it an insurer of the passenger's safety, but that
its liability for personal injuries sustained by its passenger rests upon its
5
negligence, its failure 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.
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
23
diligence required by law or the injury suffered by the passenger was due to a
fortuitous event. Where, as in the instant case, the injury sustained by the
petitioner was in no way due to any defect in the means of transport or in the
method of transporting or to the negligent or willful acts of private
respondent's employees, and therefore involving no issue of negligence in its
duty to provide safe and suitable cars as well as competent employees, with the
injury arising wholly from causes created by strangers over which the carrier
had no control or even knowledge or could not have prevented, the presumption is
rebutted and the carrier is not and ought not to be held liable. To rule otherwise
would make the common carrier the insurer of the absolute safety of its
passengers which is not the intention of the lawmakers.
Second, while as a general rule, common carriers are bound to exercise
extraordinary diligence in the safe transport of their passengers, it would seem
that this is not the standard by which its liability is to be determined when
intervening acts of strangers is to be determined directly cause the injury, while
the contract of carriage Article 1763 governs:
Article 1763. A common carrier is responsible for injuries
suffered by a passenger on account of the wilful acts or
negligence of other passengers or of strangers, if the common
carrier's employees through the exercise of the diligence of a
good father of a family could have prevented or stopped the
act or omission.
Clearly under the above provision, a tort committed by a stranger which causes
injury to a passenger does not accord the latter a cause of action against the
carrier. The negligence for which a common carrier is held responsible is the
negligent omission by the carrier's employees to prevent the tort from being
committed when the same could have been foreseen and prevented by them.
Further, under the same provision, it is to be noted that when the violation of
the contract is due to the willful acts of strangers, as in the instant case, the
degree of care essential to be exercised by the common carrier for the
protection of its passenger is only that of a good father of a family.
Petitioner has charged respondent carrier of negligence on the ground that the
injury complained of could have been prevented by the common carrier if
something like mesh-work grills had covered the windows of its bus.
We do not agree.
Although the suggested precaution could have prevented the injury complained
of, the rule of ordinary care and prudence is not so exacting as to require one
charged with its exercise to take doubtful or unreasonable precautions to guard
against unlawful acts of strangers. The carrier is not charged with the duty of
providing or maintaining vehicles as to absolutely prevent any and all injuries to
passengers. Where the carrier uses cars of the most approved type, in general
use by others engaged in the same occupation, and exercises a high degree of
care in maintaining them in suitable condition, the carrier cannot be charged with
negligence in this respect. 6
Finally, petitioner contends that it is to the greater interest of the State if a
carrier were made liable for such stone-throwing incidents rather than have the
bus riding public lose confidence in the transportation system.
Sad to say, we are not in a position to so hold; such a policy would be better left
to the consideration of Congress which is empowered to enact laws to protect
the public from the increasing risks and dangers of lawlessness in society.
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
SO ORDERED.
SECOND DIVISION
[G.R. No. 119756. March 18, 1999]
FORTUNE EXPRESS, INC., petitioner, vs. COURT OF APPEALS, PAULIE U.
CAORONG, and minor children YASSER KING CAORONG, ROSE
HEINNI and PRINCE ALEXANDER, all surnamed CAORONG, and
represented by their mother PAULIE U. CAORONG, respondents.
D E C I S I O N
MENDOZA, J.:
This is an appeal by petition for review on certiorari of the decision, dated
July 29, 1994, of the Court of Appeals, which reversed the decision of the Regional
Trial Court, Branch VI, Iligan City. The aforesaid decision of the trial court
dismissed the complaint of private respondents against petitioner for damages for
breach of contract of carriage filed on the ground that petitioner had not
exercised the required degree of diligence in the operation of one of its
buses. Atty. Talib Caorong, whose heirs are private respondents herein, was a
passenger of the bus and was killed in the ambush involving said bus.
The facts of the instant case are as follows:
24
Petitioner is a bus company in northern Mindanao. Private respondent Paulie
Caorong is the widow of Atty. Caorong, while private respondents Yasser King, Rose
Heinni, and Prince Alexander are their minor children.
On November 18, 1989, a bus of petitioner figured in an accident with a
jeepney in Kauswagan, Lanao del Norte, resulting in the death of several
passengers of the jeepney, including two Maranaos. Crisanto Generalao, a
volunteer field agent of the Constabulary Regional Security Unit No. X, conducted
an investigation of the accident. He found that the owner of the jeepney was a
Maranao residing in Delabayan, Lanao del Norte and that certain Maranaos were
planning to take revenge on the petitioner by burning some of its buses. Generalao
rendered a report on his findings to Sgt. Reynaldo Bastasa of the Philippine
Constabulary Regional Hearquarters at Cagayan de Oro. Upon the instruction of
Sgt. Bastasa, he went to see Diosdado Bravo, operations manager of petitioner, at
its main office in Cagayan de Oro City. Bravo assured him that the necessary
precautions to insure the safety of lives and property would be taken.[1]
At about 6:45 P.M. on November 22, 1989, three armed Maranaos who
pretended to be passengers, seized a bus of petitioner at Linamon, Lanao del Norte
while on its way to Iligan City. Among the passengers of the bus was Atty.
Caorong. The leader of the Maranaos, identified as one Bashier Mananggolo,
ordered the driver, Godofredo Cabatuan, to stop the bus on the side of the
highway. Mananggolo then shot Cabatuan on the arm, which caused him to slump on
the steering wheel. Then one of the companions of Mananggolo started pouring
gasoline inside the bus, as the other held the passengers at bay with a
handgun. Mananggolo then ordered the passengers to get off the bus. The
passengers, including Atty. Caorong, stepped out of the bus and went behind the
bushes in a field some distance from the highway.[2]
However, Atty. Caorong returned to the bus to retrieve something from the
overhead rack. At that time, one of the armed men was pouring gasoline on the
head of the driver. Cabatuan, who had meantime regained consciousness, heard
Atty. Caorong pleading with the armed men to spare the driver as he was innocent
of any wrong doing and was only trying to make a living. The armed men were,
however, adamant as they repeated their warning that they were going to burn the
bus along with its driver. During this exchange between Atty. Caorong and the
assailants, Cabatuan climbed out of the left window of the bus and crawled to the
canal on the opposite side of the highway. He heard shots from inside the
bus. Larry de la Cruz, one of the passengers, saw that Atty. Caorong was hit. Then
the bus was set on fire. Some of the passengers were able to pull Atty. Caorong
out of the burning bus and rush him to the Mercy Community Hospital in Iligan
City, but he died while undergoing operation.[3]
The private respondents brought this suit for breach of contract of carriage
in the Regional Trial Court, Branch VI, Iligan City. In his decision, dated December
28, 1990, the trial court dismissed the complaint, holding as follows:
The fact that defendant, through Operations Manager Diosdado Bravo, was
informed of the rumors that the Moslems intended to take revenge by burning
five buses of defendant is established since the latter also utilized Crisanto
Generalaos as a witness. Yet despite this information, the plaintiffs charge,
defendant did not take proper precautions. . . . Consequently, plaintiffs now fault
the defendant for ignoring the report. Their position is that the defendant
should have provided its buses with security guards. Does the law require
common carriers to install security guards in its buses for the protection and
safety of its passengers? Is the failure to post guards an omission of the duty to
exercise the diligence of a good father of the family which could have prevented
the killing of Atty. Caorong? To our mind, the diligence demanded by law does not
include the posting of security guards in buses. It is an obligation that properly
belongs to the State. Besides, will the presence of one or two security guards
suffice to deter a determined assault of the lawless and thus prevent the injury
complained of? Maybe so, but again, perhaps not. In other words, the presence
of a security guard is not a guarantee that the killing of Atty. Caorong would
have been definitely avoided.
.
Accordingly, the failure of defendant to accord faith and credit to the report of
Mr. Generalao and the fact that it did not provide security to its buses cannot, in
the light of the circumstances, be characterized as negligence.
Finally, the evidence clearly shows that the assailants did not have the least
intention of harming any of the passengers. They ordered all the passengers to
alight and set fire on the bus only after all the passengers were out of danger.
The death of Atty. Caorong was an unexpected and unforseen occurrence over
which defendant had no control. Atty. Caorong performed an act of charity and
heroism in coming to the succor of the driver even in the face of danger. He
deserves the undying gratitude of the driver whose life he saved. No one should
blame him for an act of extraordinary charity and altruism which cost his
life. But neither should any blame be laid on the doorstep of defendant. His
death was solely due to the willful acts of the lawless which defendant could
neither prevent nor stop.
.
25
WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For
lack of merit, the counter-claim is likewise dismissed. No cost.[4]
On appeal, however, the Court of Appeals reversed. It held:
In the case at bench, how did defendant-appellee react to the tip or information
that certain Maranao hotheads were planning to burn five of its buses out of
revenge for the deaths of two Maranaos in an earlier collision involving appellees
bus? Except for the remarks of appellees operations manager that we will have
our action . . . . and Ill be the one to settle it personally, nothing concrete
whatsoever was taken by appellee or its employees to prevent the execution of
the threat. Defendant-appellee never adopted even a single safety measure for
the protection of its paying passengers. Were there available safeguards? Of
course, there were: one was frisking passengers particularly those en route to
the area where the threats were likely to be carried out such as where the
earlier accident occurred or the place of influence of the victims or their
locality. If frisking was resorted to, even temporarily, . . . . appellee might be
legally excused from liability. Frisking of passengers picked up along the route
could have been implemented by the bus conductor; for those boarding at the
bus terminal, frisking could have been conducted by him and perhaps by
additional personnel of defendant-appellee. On hindsight, the handguns and
especially the gallon of gasoline used by the felons all of which were brought
inside the bus would have been discovered, thus preventing the burning of the
bus and the fatal shooting of the victim.
Appellees argument that there is no law requiring it to provide guards on its
buses and that the safety of citizens is the duty of the government, is not well
taken. To be sure, appellee is not expected to assign security guards on all of its
buses; if at all, it has the duty to post guards only on its buses plying
predominantly Maranao areas. As discussed in the next preceding paragraph, the
least appellee could have done in response to the report was to adopt a system of
verification such as frisking of passengers boarding its buses. Nothing, and to
repeat, nothing at all, was done by defendant-appellee to protect its innocent
passengers from the danger arising from the Maranao threats. It must be
observed that frisking is not a novelty as a safety measure in our
society. Sensitive places in fact, nearly all important places have applied this
method of security enhancement. Gadgets and devices are available in the
market for this purpose. It would not have weighed much against the budget of
the bus company if such items were made available to its personnel to cope up
with situations such as the Maranao threats.
In view of the constitutional right to personal privacy, our pronouncement in this
decision should not be construed as an advocacy of mandatory frisking in all
public conveyances. What we are saying is that given the circumstances obtaining
in the case at bench that: (a) two Maranaos died because of a vehicular collision
involving one of appellees vehicles; (b) appellee received a written report from a
member of the Regional Security Unit, Constabulary Security Group, that the
tribal/ethnic group of the two deceased were planning to burn five buses of
appellee out of revenge; and (c) appellee did nothing absolutely nothing for the
safety of its passengers travelling in the area of influence of the victims,
appellee has failed to exercise the degree of diligence required of common
carriers. Hence, appellee must be adjudged liable.
.
WHEREFORE, the decision appealed from is hereby REVERSED and another
rendered ordering defendant-appellee to pay plaintiffs-appellants the following:
1) P3,399,649.20 as death indemnity;
2) P50,000.00 and P500.00 per appearance as attorneys fees; and
Costs against defendant-appellee.[5]
Hence, this appeal. Petitioner contends:
(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE
DECISION OF THE REGIONAL TRIAL COURT DATED
DECEMBER 28, 1990 DISMISSING THE COMPLAINT AS WELL
AS THE COUNTERCLAIM, AND FINDING FOR PRIVATE
RESPONDENTS BY ORDERING PETITIONER TO PAY THE
GARGANTUAN SUM OF P3,449,649.20 PLUS P500.00 PER
APPEARANCE AS ATTORNEYS FEES, AS WELL AS DENYING
PETITIONERS MOTION FOR RECONSIDERATION AND THE
SUPPLEMENT TO SAID MOTION, WHILE HOLDING, AMONG
OTHERS, THAT PETITIONER BREACHED THE CONTRACT OF
CARIAGE BY ITS FAILURE TO EXERCISE THE REQUIRED
DEGREE OF DILIGENCE;
(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO
GRAVE, IRRESISTIBLE, VIOLENT, AND FORCEFUL, AS TO BE
REGARDED AS CASO FORTUITO; AND
26
(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY
ERRED IN HOLDING THAT PETITIONER COULD HAVE
PROVIDED ADEQUATE SECURITY IN PREDOMINANTLY
MUSLIM AREAS AS PART OF ITS DUTY TO OBSERVE EXTRA-
ORDINARY DILIGENCE AS A COMMON CARRIER.
The instant petition has no merit.
First. Petitioners Breach of the Contract of Carriage
Art. 1763 of the Civil Code provides that a common carrier is responsible for
injuries suffered by a passenger on account of the wilful acts of other passengers,
if the employees of the common carrier could have prevented the act the exercise
of the diligence of a good father of a family. In the present case, it is clear that
because of the negligence of petitioners employees, the seizure of the bus by
Mananggolo and his men was made possible.
Despite warning by the Philippine Constabulary at Cagayan de Oro that the
Maranaos were planning to take revenge on the petitioner by burning some of its
buses and the assurance of petitioners operation manager, Diosdado Bravo, that
the necessary precautions would be taken, petitioner did nothing to protect the
safety of its passengers.
Had petitioner and its employees been vigilant they would not have failed to
see that the malefactors had a large quantity of gasoline with them.Under the
circumstances, simple precautionary measures to protect the safety of
passengers, such as frisking passengers and inspecting their baggages, preferably
with non-intrusive gadgets such as metal detectors, before allowing them on board
could have been employed without violating the passengers constitutional
rights. As this Court intimated in Gacal v. Philippine Air Lines, Inc.,[6] a common
carrier can be held liable for failing to prevent a hijacking by frisking passengers
and inspecting their baggages.
From the foregoing, it is evident that petitioners employees failed to prevent
the attack on one of petitioners buses because they did not exercise the diligence
of a good father of a family. Hence, petitioner should be held liable for the death
of Atty. Caorong.
Second. Seizure of Petitioners Bus not a Case of Force Majeure
The petitioner contends that the seizure of its bus by the armed assailants
was a fortuitous event for which it could not be held liable.
Art. 1174 of the Civil Code defines a fortuitous even as an occurrence which
could not be foreseen or which though foreseen, is inevitable. In Yobido v. Court
of Appeals,[7] we held that to be considered as force majeure, it is necessary that:
(1) the cause of the breach of the obligation must be independent of the human
will; (2) the event must be either unforeseeable or unavoidable; (3) the occurrence
must be such as to render it impossible for the debtor to fulfill the obligation in
a normal manner; and (4) the obligor must be free of participation in, or
aggravation of, the injury to the creditor. The absence of any of the requisites
mentioned above would prevent the obligor from being excused from liability.
Thus, in Vasquez v. Court of Appeals,[8] it was held that the common carrier
was liable for its failure to take the necessary precautions against an approaching
typhoon, of which it was warned, resulting in the loss of the lives of several
passengers. The event was foreseeable, and, thus, the second requisite mentioned
above was not fulfilled. This ruling applies by analogy to the present case. Despite
the report of PC agent Generalao that the Maranaos were going to attack its
buses, petitioner took no steps to safeguard the lives and properties of its
passengers. The seizure of the bus of the petitioner was foreseeable and,
therefore, was not a fortuitous event which would exempt petitioner from liability.
Petitioner invokes the ruling in Pilapil v. Court of Appeals[9] and De Guzman v.
Court of Appeals[10] in support of its contention that the seizure of its bus by the
assailants constitutes force majeure. In Pilapil v. Court of Appeals,[11] it was held
that a common carrier is not liable for failing to install window grills on its buses
to protect passengers from injuries caused by rocks hurled at the bus by lawless
elements. On the other hand, in De Guzman v. Court of Appeals,[12] it was ruled
that a common carrier is not responsible for goods lost as a result of a robbery
which is attended by grave or irresistible threat, violence, or force.
It is clear that the cases of Pilapil and De Guzman do not apply to the present
case. Art. 1755 of the Civil Code provides that a common carrier is bound to carry
the passengers as far as human care and foresight can provide, using the utmost
diligence of very cautious person, with due regard for all the circumstances. Thus,
we held in Pilapil and De Guzman that the respondents therein were not negligent
in failing to take special precautions against threats to the safety of passengers
which could not be foreseen, such as tortious or criminal acts of third persons. In
the present case, this factor of unforeseeablility (the second requisite for an
event to be considered force majeure) is lacking. As already stated, despite the
report of PC agent Generalao that the Maranaos were planning to burn some of
petitioners buses and the assurance of petitioners operations manager (Diosdado
27
Bravo) that the necessary precautions would be taken, nothing was really done by
petitioner to protect the safety of passengers.
Third. Deceased not Guilty of Contributory Negligence
The petitioner contends that Atty. Caorong was guilty of contributory
negligence in returning to the bus to retrieve something. But Atty. Caorong did not
act recklessly. It should be pointed out that the intended targets of the violence
were petitioner and its employees, not its passengers. The assailants motive was
to retaliate for the loss of life of two Maranaos as a result of the collision between
petitioners bus and the jeepney in which the two Maranaos were
riding. Mananggolo, the leader of the group which had hijacked the bus, ordered
the passengers to get off the bus as they intended to burn it and its driver. The
armed men actually allowed Atty. Caorong to retrieve something from the
bus. What apparently angered them was his attempt to help the driver of the bus
by pleading for his life. He was playing the role of the good Samaritan. Certainly,
this act cannot be considered an act of negligence, let alone recklessness.
Fourth. Petitioner Liable to Private Respondents for Damages
We now consider the question of damages that the heirs of Atty. Caorong,
private respondents herein, are entitled to recover from the petitioner.
Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides for the payment of indemnity for the death of passengers
caused by the breached of contract of carriage by a common carrier. Initially
fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death has
through the years been gradually increased in view of the declining value of the
peso. It is presently fixed at P50,000.00.[13]Private respondents are entitled to
this amount.
Actual damages. Art. 2199 provides that Except as provided by law or by
stipulation, one is entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. The trial court found that the private
respondents spent P30,000.00 for the wake and burial of Atty. Caorong.[14] Since
petitioner does not question this finding of the trial court, it is liable to private
respondents in the said amount as actual damages.
Moral Damages. Under Art. 2206, the spouse, legitimate and illegitimate
descendants and ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased. The trial court found that
private respondent Paulie Caorong suffered pain from the death of her husband
and worry on how to provide support for their minor children, private respondents
Yasser King, Rose Heinni, and Prince Alexander.[15]The petitioner likewise does not
question this finding of the trial court. Thus, in accordance with recent decisions
of this Court,[16] we hold that the petitioner is liable to the private respondents in
the amount of P100,000.00 as moral damages for the death of Atty. Caorong.
Exemplary Damages. Art. 2232 provides that in contracts and quasi-
contracts, the court may award exemplary damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner. In the present
case, the petitioner acted in a wanton and reckless manner. Despite warning that
the Maranaos were planning to take revenge against the petitioner by burning some
of its buses, and contrary to the assurance made by its operations manager that
the necessary precautions would be taken, the petitioner and its employees did
nothing to protect the safety of passengers.Under the circumstances, we deem it
reasonable to award private respondents exemplary damages in the amount
of P100,000.00.[17]
Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered
when, as in the instant case, exemplary damages are awarded. In the recent case
of Sulpicio Lines, Inc. v. Court of Appeals,[18] we held an award of P50,000.00 as
attorneys fees to be reasonable. Hence, the private respondents are entitled to
attorneys fees in that amount.
Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in
relation to Art. 2206 thereof, provides that in addition to the indemnity for death
arising from the breach of contract of carriage by a common carrier, the
defendant shall be liable for the loss of the earning capacity of the deceased, and
the indemnity shall be paid to the heirs of the latter. The formula established in
decided cases for computing net earning capacity is as follows:[19]
Gross Necessary
Net earning = Life x Annual - Living
Capacity Expectancy Income Expenses
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference
of eighty (80) and the age of the deceased.[20] Since Atty. Caorong was 37 years
old at the time of his death,[21] he had a life expectancy of 28 2/3 more
years.[22] His projected gross annual income, computed based on his monthly salary
of P11,385.00[23] as a lawyer in the Department of Agrarian Reform at the time of
his death, was P148,005.00.[24] allowing for necessary living expenses of fifty
percent (50%)[25]of his projected gross annual income, his total earning capacity
amounts to P2,121,404.90.[26]Hence, the petitioner is liable to the private
respondents in the said amount as compensation for loss of earning capacity.
28
WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is
hereby AFFIRMED with the MODIFICATION that petitioner Fortune Express,
Inc. is ordered to pay the following amounts to private respondents Paulie, Yasser
King, Rose Heinni, and Prince Alexander Caorong:
1. death indemnity in the amount of fifty thousand pesos (P50,000.00);
2. actual damages in the amount of thirty thousand pesos (P30,000.00);
3. moral damages in the amount of one hundred thousand
pesos(P100,000.00);
4. exemplary damages in the amount of one hundred thousand pesos
(P100,000.00);
5. attorneys fees in the amount of fifty thousand pesos (P50,000.00);
6. compensation for loss of earning capacity in the amount of two million
one hundred twenty-one thousand four hundred four pesos and ninety
centavos (P2,121,404.90); and
7) costs of suits.
SO ORDERED.
SECOND DIVISION
[G.R. No. 120262. July 17, 1997]
PHILIPPINE AIRLINES, INC., petitioner, vs. COURT OF APPEALS and
LEOVIGILDO A. PANTEJO, respondents.
D E C I S I O N
REGALADO, J.:
In this appeal by certiorari, petitioner Philippine Airlines, Inc. (PAL) seeks to
set aside the decision of respondent Court of Appeals,[1]promulgated on December
29, 1994, which affirmed the award for damages made by the trial court in favor
of herein private respondent Leovegildo A. Pantejo.
On October 23, 1988, private respondent Pantejo, then City Fiscal of Surigao
City, boarded a PAL plane in Manila and disembarked in Cebu City where he was
supposed to take his connecting flight to Surigao City. However, due to
typhoon Osang, the connecting flight to Surigao City was cancelled.
To accommodate the needs of its stranded passengers, PAL initially gave out
cash assistance of P100.00 and, the next day, P200.00, for their expected stay of
two days in Cebu. Respondent Pantejo requested instead that he be billeted in a
hotel at PALs expense because he did not have cash with him at that time, but PAL
refused. Thus, respondent Pantejo was forced to seek and accept the generosity
of a co-passenger, an engineer named Andoni Dumlao, and he shared a room with
the latter at Sky View Hotel with the promise to pay his share of the expenses
upon reaching Surigao.
On October 25, 1988 when the flight for Surigao was resumed, respondent
Pantejo came to know that the hotel expenses of his co-passengers, one
Superintendent Ernesto Gonzales and a certain Mrs. Gloria Rocha, an auditor of
the Philippine National Bank, were reimbursed by PAL. At this point, respondent
Pantejo informed Oscar Jereza, PALs Manager for Departure Services at Mactan
Airport and who was in charge of cancelled flights, that he was going to sue the
airline for discriminating against him. It was only then that Jereza offered to pay
respondent Pantejo P300.00 which, due to the ordeal and anguish he had
undergone, the latter declined.
On March 18, 199l, the Regional Trial Court of Surigao City, Branch 30,
rendered judgment in the action for damages filed by respondent Pantejo against
herein petitioner, Philippine Airlines, Inc., ordering the latter to pay
Pantejo P300.00 for actual damages, P150,000.00 as moral damages, P100,000.00
as exemplary damages, P15,000.00 as attorneys fees, and 6% interest from the
time of the filing of the complaint until said amounts shall have been fully paid,
plus costs of suit.[2] On appeal, respondent court affirmed the decision of the
court a quo, but with the exclusion of the award of attorneys fees and litigation
expenses.
The main issue posed for resolution is whether petitioner airlines acted in
bad faith when it failed and refused to provide hotel accommodations for
respondent Pantejo or to reimburse him for hotel expenses incurred by reason of
the cancellation of its connecting flight to Surigao City due to force majeure.
To begin with, it must be emphasized that a contract to transport passengers
is quite different in kind and degree from any other contractual relation, and this
is because of the relation which an air carrier sustains with the public. Its business
is mainly with the travelling public. It invites people to avail of the comforts and
advantages it offers. The contract of air carriage, therefore, generates a relation
attended with a public duty. Neglect or malfeasance of the carriers employees
naturally could give ground for an action for damages.[3]
In ruling for respondent Pantejo, both the trial court and the Court of
Appeals found that herein petitioner acted in bad faith in refusing to provide hotel
accommodations for respondent Pantejo or to reimburse him for hotel expenses
incurred despite and in contrast to the fact that other passengers were so
favored.
29
In declaring that bad faith existed, respondent court took into consideration
the following factual circumstances:
1. Contrary to petitioners claim that cash assistance was given instead because
of non-availability of rooms in hotels where petitioner had existing tie-ups, the
evidence shows that Sky View Hotel, where respondent Pantejo was billeted, had
plenty of rooms available.
2. It is not true that the P300.00 paid to Ernesto Gonzales, a co-passenger of
respondent, was a refund for his plane ticket, the truth being that it was a
reimbursement for hotel and meal expenses.
3. It is likewise not denied that said Gonzales and herein respondent came to
know about the reimbursements only because another passenger, Mrs. Rocha,
informed them that she was able to obtain the refund for her own hotel
expenses.
4. Petitioner offered to pay P300.00 to private respondent only after he had
confronted the airlines manager about the discrimination committed against him,
which the latter realized was an actionable wrong.
5. Service Voucher No. 199351, presented by petitioner to prove that it gave
cash assistance to its passengers, was based merely on the list of passengers
already given cash assistance and was purportedly prepared at around 10:00 A.M.
of October 23, 1988. This was two hours beforerespondent came to know of the
cancellation of his flight to Surigao, hence private respondent could not have
possibly refused the same.[4]
It must be stressed that these factual findings, which are supported by
substantial evidence, are binding, final and conclusive upon this Court absent any
reason, and we find none, why this settled evidential rule should not apply.
Petitioner theorizes that the hotel accommodations or cash assistance given
in case a flight is cancelled is in the nature of an amenity and is merely a privilege
that may be extended at its own discretion, but never a right that may be
demanded by its passengers.Thus, when respondent Pantejo was offered cash
assistance and he refused it, petitioner cannot be held liable for whatever befell
respondent Pantejo on that fateful day, because it was merely exercising its
discretion when it opted to just give cash assistance to its passengers.
Assuming arguendo that the airline passengers have no vested right to these
amenities in case a flight is cancelled due to force majeure, what makes petitioner
liable for damages in this particular case and under the facts obtaining herein is
its blatant refusal to accord the so-called amenities equally to all its stranded
passengers who were bound for Surigao City. No compelling or justifying reason
was advanced for such discriminatory and prejudicial conduct.
More importantly, it has been sufficiently established that it is petitioners
standard company policy, whenever a flight has been cancelled, to extend to its
hapless passengers cash assistance or to provide them accommodations in hotels
with which it has existing tie-ups. In fact, petitioners Mactan Airport Manager
for departure services, Oscar Jereza, admitted that PAL has an existing
arrangement with hotels to accommodate stranded passengers,[5] and that the
hotel bills of Ernesto Gonzales were reimbursed[6] obviously pursuant to that
policy.
Also, two witnesses presented by respondent, Teresita Azarcon and Nerie
Bol, testified that sometime in November, 1988, when their flight from Cebu to
Surigao was cancelled, they were billeted at Rajah Hotel for two nights and three
days at the expense of PAL.[7] This was never denied by PAL.
Further, Ernesto Gonzales, the aforementioned co-passenger of respondent
on that fateful flight, testified that based on his previous experience hotel
accommodations were extended by PAL to its stranded passengers either in
Magellan or Rajah Hotels, or even in Cebu Plaza. Thus, we view as impressed with
dubiety PALs present attempt to represent such emergency assistance as being
merely ex gratia and not ex debito.
While petitioner now insists that the passengers were duly informed that
they would be reimbursed for their hotel expenses, it miserably and significantly
failed to explain why the other passengers were given reimbursements while
private respondent was not.Although Gonzales was subsequently given a refund,
this was only so because he came to know about it by accident through Mrs. Rocha,
as earlier explained.
Petitioner could only offer the strained and flimsy pretext that possibly the
passengers were not listening when the announcement was made. This is absurd
because when respondent Pantejo came to know that his flight had been cancelled,
he immediately proceeded to petitioners office and requested for hotel
accommodations. He was not only refused accommodations, but he was not even
informed that he may later on be reimbursed for his hotel expenses. This explains
why his co-passenger, Andoni Dumlao, offered to answer for respondents hotel bill
and the latter promised to pay him when they arrive in Surigao. Had both known
that they would be reimbursed by the airline, such arrangement would not have
been necessary.
Respondent Court of Appeals thus correctly concluded that the refund of
hotel expenses was surreptitiously and discriminatorily made by herein petitioner
30
since the same was not made known to everyone, except through word of mouth to
a handful of passengers.This is a sad commentary on the quality of service and
professionalism of an airline company, which is the countrys flag carrier at that.
On the bases of all the foregoing, the inescapable conclusion is that
petitioner acted in bad faith in disregarding its duties as a common carrier to its
passengers and in discriminating against herein respondent Pantejo. It was even
oblivious to the fact that this respondent was exposed to humiliation and
embarrassment especially because of his government position and social
prominence, which altogether necessarily subjected him to ridicule, shame and
anguish. It remains uncontroverted that at the time of the incident, herein
respondent was then the City Prosecutor of Surigao City, and that he is a member
of the Philippine Jaycee Senate, past Lt. Governor of the Kiwanis Club of Surigao,
a past Master of the Mount Diwata Lodge of Free Masons of the Philippines,
member of the Philippine National Red Cross, Surigao Chapter, and past Chairman
of the Boy Scouts of the Philippines, Surigao del Norte Chapter.[8]
It is likewise claimed that the moral and exemplary damages awarded to
respondent Pantejo are excessive and unwarranted on the ground that respondent
is not totally blameless because of his refusal to accept the P100.00 cash
assistance which was inceptively offered to him. It bears emphasis that
respondent Pantejo had every right to make such refusal since it evidently could
not meet his needs and that was all that PAL claimed it could offer.
His refusal to accept the P300.00 proffered as an afterthought when he
threatened suit was justified by his resentment when he belatedly found out that
his co-passengers were reimbursed for hotel expenses and he was not. Worse, he
would not even have known about it were it not for a co-passenger who verbally
told him that she was reimbursed by the airline for hotel and meal expenses. It
may even be said that the amounts, the time and the circumstances under which
those amounts were offered could not salve the moral wounds inflicted by PAL on
private respondent but even approximated insult added to injury.
The discriminatory act of petitioner against respondent ineludibly makes the
former liable for moral damages under Article 21 in relation to Article 2219 (10)
of the Civil Code.[9] As held in Alitalia Airways vs. CA, et al.,[10] such inattention to
and lack of care by petitioner airline for the interest of its passengers who are
entitled to its utmost consideration, particularly as to their convenience, amount
to bad faith which entitles the passenger to the award of moral damages.
Moral damages are emphatically not intended to enrich a plaintiff at the
expense of the defendant. They are awarded only to allow the former to obtain
means, diversion, or amusements that will serve to alleviate the moral suffering
he has undergone due to the defendants culpable action and must, perforce, be
proportional to the suffering inflicted.[11] However, substantial damages do not
translate into excessive damages.[12] Except for attorneys fees and costs of suit,
it will be noted that the Court of Appeals affirmed point by point the factual
findings of the lower court upon which the award of damages had been
based.[13] We, therefore, see no reason to modify the award of damages made by
the trial court.
Under the peculiar circumstances of this case, we are convinced that the
awards for actual, moral and exemplary damages granted in the judgment of
respondent court, for the reasons meticulously analyzed and thoroughly explained
in its decision, are just and equitable. It is high time that the travelling public is
afforded protection and that the duties of common carriers, long detailed in our
previous laws and jurisprudence and thereafter collated and specifically
catalogued in our Civil Code in 1950, be enforced through appropriate sanctions.
We agree, however, with the contention that the interest of 6% imposed by
respondent court should be computed from the date of rendition of judgment and
not from the filing of the complaint. The rule has been laid down in Eastern
Shipping Lines, Inc. vs. Court of Appeals, et al.[14] that:
When an obligation, not constituting a loan or forbearance of money, is breached,
an interest on the amount of damages awarded may be imposed at the discretion
of the court at the rate of 6% per annum. No interest, however, shall be
adjudged on unliquidated claims or damages except when or until the demand can
be established with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to run from the
time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but
when such certainty cannot be so reasonably established at the time the demand
is made, the interest shall begin to run only from the date the judgment of the
court is made (at which time the quantification of damages may be deemed to
have been reasonably ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally adjudged.
This is because at the time of the filing of the complaint, the amount of
damages to which plaintiff may be entitled remains unliquidated and not known,
until it is definitely ascertained, assessed and determined by the court, and only
after the presentation of proof thereon.[15]
WHEREFORE, the challenged judgment of respondent Court of Appeals is
hereby AFFIRMED, subject to the MODIFICATIONregarding the computation of
the 6% legal rate of interest on the monetary awards granted therein to private
respondent.
SO ORDERED.