FORTUITOUS EVENTS CASES

G.R. No. L-47822 December 22, 1988

PEDRO DE GUZMAN, petitioner,

vs.
COURT OF APPEALS and ERNESTO CENDANA, respondents.

Vicente D. Millora for petitioner.

Jacinto Callanta for private respondent.

FELICIANO, J.:

Respondent Ernesto Cendana, a junk dealer, was engaged in buying up used bottles
and scrap metal in Pangasinan. Upon gathering sufficient quantities of such scrap
material, respondent would bring such material to Manila for resale. He utilized two (2)
six-wheeler trucks which he owned for hauling the material to Manila. On the return trip
to Pangasinan, respondent would load his vehicles with cargo which various merchants
wanted delivered to differing establishments in Pangasinan. For that service,
respondent charged freight rates which were commonly lower than regular commercial
rates.

Sometime in November 1970, petitioner Pedro de Guzman a merchant and authorized

dealer of General Milk Company (Philippines), Inc. in Urdaneta, Pangasinan, contracted
with respondent for the hauling of 750 cartons of Liberty filled milk from a warehouse
of General Milk in Makati, Rizal, to petitioner's establishment in Urdaneta on or before 4
December 1970. Accordingly, on 1 December 1970, respondent loaded in Makati the
merchandise on to his trucks: 150 cartons were loaded on a truck driven by respondent
himself, while 600 cartons were placed on board the other truck which was driven by
Manuel Estrada, respondent's driver and employee.

Only 150 boxes of Liberty filled milk were delivered to petitioner. The other 600 boxes
never reached petitioner, since the truck which carried these boxes was hijacked
somewhere along the MacArthur Highway in Paniqui, Tarlac, by armed men who took
with them the truck, its driver, his helper and the cargo.

On 6 January 1971, petitioner commenced action against private respondent in the

Court of First Instance of Pangasinan, demanding payment of P 22,150.00, the claimed
value of the lost merchandise, plus damages and attorney's fees. Petitioner argued that
private respondent, being a common carrier, and having failed to exercise the
extraordinary diligence required of him by the law, should be held liable for the value of
the undelivered goods.

In his Answer, private respondent denied that he was a common carrier and argued
that he could not be held responsible for the value of the lost goods, such loss having
been due to force majeure.

On 10 December 1975, the trial court rendered a Decision 1 finding private respondent
to be a common carrier and holding him liable for the value of the undelivered goods (P
22,150.00) as well as for P 4,000.00 as damages and P 2,000.00 as attorney's fees.
On appeal before the Court of Appeals, respondent urged that the trial court had erred
in considering him a common carrier; in finding that he had habitually offered trucking
services to the public; in not exempting him from liability on the ground of force
majeure; and in ordering him to pay damages and attorney's fees.

The Court of Appeals reversed the judgment of the trial court and held that respondent
had been engaged in transporting return loads of freight "as a casual
occupation — a sideline to his scrap iron business" and not as a common carrier.
Petitioner came to this Court by way of a Petition for Review assigning as errors the
following conclusions of the Court of Appeals:

1. that private respondent was not a common carrier;

2. that the hijacking of respondent's truck was force majeure; and

3. that respondent was not liable for the value of the undelivered cargo.
(Rollo, p. 111)

We consider first the issue of whether or not private respondent Ernesto Cendana may,
under the facts earlier set forth, be properly characterized as a common carrier.

The Civil Code defines "common carriers" in the following terms:

Article 1732. Common carriers are persons, corporations, firms or

associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for compensation,
offering their services to the public.

The above article makes no distinction between one whose principal business activity is
the carrying of persons or goods or both, and one who does such carrying only as
an ancillary activity (in local Idiom as "a sideline"). Article 1732 also carefully avoids
making any distinction between a person or enterprise offering transportation service
on a regular or scheduled basis and one offering such service on an occasional, episodic
or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering
its services to the "general public," i.e., the general community or population, and one
who offers services or solicits business only from a narrow segment of the general
population. We think that Article 1733 deliberaom making such distinctions.

So understood, the concept of "common carrier" under Article 1732 may be seen to
coincide neatly with the notion of "public service," under the Public Service Act
(Commonwealth Act No. 1416, as amended) which at least partially supplements the
law on common carriers set forth in the Civil Code. Under Section 13, paragraph (b) of
the Public Service Act, "public service" includes:

... every person that now or hereafter may own, operate, manage, or
control in the Philippines, for hire or compensation, with general or limited
clientele, whether permanent, occasional or accidental, and done for
general business purposes, any common carrier, railroad, street railway,
traction railway, subway motor vehicle, either for freight or passenger, or
both, with or without fixed route and whatever may be its classification,
freight or carrier service of any class, express service, steamboat, or
steamship line, pontines, ferries and water craft, engaged in the
transportation of passengers or freight or both, shipyard, marine repair
shop, wharf or dock, ice plant,
ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and
power, water supply and power petroleum, sewerage system, wire or
wireless communications systems, wire or wireless broadcasting stations
and other similar public services. ... (Emphasis supplied)
It appears to the Court that private respondent is properly characterized as a common
carrier even though he merely "back-hauled" goods for other merchants from Manila to
Pangasinan, although such back-hauling was done on a periodic or occasional rather
than regular or scheduled manner, and even though private
respondent's principal occupation was not the carriage of goods for others. There is no
dispute that private respondent charged his customers a fee for hauling their goods;
that fee frequently fell below commercial freight rates is not relevant here.

The Court of Appeals referred to the fact that private respondent held no certificate of
public convenience, and concluded he was not a common carrier. This is palpable error.
A certificate of public convenience is not a requisite for the incurring of liability under
the Civil Code provisions governing common carriers. That liability arises the moment a
person or firm acts as a common carrier, without regard to whether or not such carrier
has also complied with the requirements of the applicable regulatory statute and
implementing regulations and has been granted a certificate of public convenience or
other franchise. To exempt private respondent from the liabilities of a common carrier
because he has not secured the necessary certificate of public convenience, would be
offensive to sound public policy; that would be to reward private respondent precisely
for failing to comply with applicable statutory requirements. The business of a common
carrier impinges directly and intimately upon the safety and well being and property of
those members of the general community who happen to deal with such carrier. The
law imposes duties and liabilities upon common carriers for the safety and protection of
those who utilize their services and the law cannot allow a common carrier to render
such duties and liabilities merely facultative by simply failing to obtain the necessary
permits and authorizations.

We turn then to the liability of private respondent as a common carrier.

Common carriers, "by the nature of their business and for reasons of public policy" 2 are
held to a very high degree of care and diligence ("extraordinary diligence") in the
carriage of goods as well as of passengers. The specific import of extraordinary
diligence in the care of goods transported by a common carrier is, according to Article
1733, "further expressed in Articles 1734,1735 and 1745, numbers 5, 6 and 7" of the
Civil Code.

Article 1734 establishes the general rule that common carriers are responsible for the
loss, destruction or deterioration of the goods which they carry, "unless the same is due
to any of the following causes only:

(1) Flood, storm, earthquake, lightning or other natural

disaster or calamity;
(2) Act of the public enemy in war, whether international or
civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character-of the goods or defects in the packing or-
in the containers; and
(5) Order or act of competent public authority.

It is important to point out that the above list of causes of loss, destruction or
deterioration which exempt the common carrier for responsibility therefor, is a closed
list. Causes falling outside the foregoing list, even if they appear to constitute a species
of force majeure fall within the scope of Article 1735, which provides as follows:

In all cases other than those mentioned in numbers 1, 2, 3, 4 and 5 of the

preceding article, if the goods are lost, destroyed or deteriorated, common
carriers are presumed to have been at fault or to have acted negligently,
unless they prove that they observed extraordinary diligence as required
in Article 1733. (Emphasis supplied)
Applying the above-quoted Articles 1734 and 1735, we note firstly that the specific
cause alleged in the instant case — the hijacking of the carrier's truck — does not fall
within any of the five (5) categories of exempting causes listed in Article 1734. It would
follow, therefore, that the hijacking of the carrier's vehicle must be dealt with under the
provisions of Article 1735, in other words, that the private respondent as common
carrier is presumed to have been at fault or to have acted negligently. This
presumption, however, may be overthrown by proof of extraordinary diligence on the
part of private respondent.

Petitioner insists that private respondent had not observed extraordinary diligence in
the care of petitioner's goods. Petitioner argues that in the circumstances of this case,
private respondent should have hired a security guard presumably to ride with the truck
carrying the 600 cartons of Liberty filled milk. We do not believe, however, that in the
instant case, the standard of extraordinary diligence required private respondent to
retain a security guard to ride with the truck and to engage brigands in a firelight at the
risk of his own life and the lives of the driver and his helper.

The precise issue that we address here relates to the specific requirements of the duty
of extraordinary diligence in the vigilance over the goods carried in the specific context
of hijacking or armed robbery.

As noted earlier, the duty of extraordinary diligence in the vigilance over goods is,
under Article 1733, given additional specification not only by Articles 1734 and 1735 but
also by Article 1745, numbers 4, 5 and 6, Article 1745 provides in relevant part:

Any of the following or similar stipulations shall be considered

unreasonable, unjust and contrary to public policy:

xxx xxx xxx

(5) that the common carrier shall not be responsible for the
acts or omissions of his or its employees;

(6) that the common carrier's liability for acts committed by

thieves, or of robbers who do not act with grave or
irresistible threat, violence or force, is dispensed with or
diminished; and

(7) that the common carrier shall not responsible for the
loss, destruction or deterioration of goods on account of the
defective condition of the car vehicle, ship, airplane or other
equipment used in the contract of carriage. (Emphasis
supplied)

Under Article 1745 (6) above, a common carrier is held responsible — and will not be
allowed to divest or to diminish such responsibility — even for acts of strangers like
thieves or robbers, except where such thieves or robbers in fact acted "with grave or
irresistible threat, violence or force." We believe and so hold that the limits of the duty
of extraordinary diligence in the vigilance over the goods carried are reached where the
goods are lost as a result of a robbery which is attended by "grave or irresistible threat,
violence or force."

In the instant case, armed men held up the second truck owned by private respondent
which carried petitioner's cargo. The record shows that an information for robbery in
band was filed in the Court of First Instance of Tarlac, Branch 2, in Criminal Case No.
198 entitled "People of the Philippines v. Felipe Boncorno, Napoleon Presno, Armando
Mesina, Oscar Oria and one John Doe." There, the accused were charged with willfully
and unlawfully taking and carrying away with them the second truck, driven by Manuel
Estrada and loaded with the 600 cartons of Liberty filled milk destined for delivery at
petitioner's store in Urdaneta, Pangasinan. The decision of the trial court shows that the
accused acted with grave, if not irresistible, threat, violence or force. 3 Three (3) of the
five (5) hold-uppers were armed with firearms. The robbers not only took away the
truck and its cargo but also kidnapped the driver and his helper, detaining them for
several days and later releasing them in another province (in Zambales). The hijacked
truck was subsequently found by the police in Quezon City. The Court of First Instance
convicted all the accused of robbery, though not of robbery in band. 4

In these circumstances, we hold that the occurrence of the loss must reasonably be
regarded as quite beyond the control of the common carrier and properly regarded as a
fortuitous event. It is necessary to recall that even common carriers are not made
absolute insurers against all risks of travel and of transport of goods, and are not held
liable for acts or events which cannot be foreseen or are inevitable, provided that they
shall have complied with the rigorous standard of extraordinary diligence.

We, therefore, agree with the result reached by the Court of Appeals that private
respondent Cendana is not liable for the value of the undelivered merchandise which
was lost because of an event entirely beyond private respondent's control.

ACCORDINGLY, the Petition for Review on certiorari is hereby DENIED and the Decision
of the Court of Appeals dated 3 August 1977 is AFFIRMED. No pronouncement as to
costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

[G.R. No. 126389. July 10, 1998]

SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA

DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS
DIMAANO, CONSOLACION DIMAANO and MILAGROS
DIMAANO, respondents.

DECISION
PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision[1] promulgated on July 31, 1996, and Resolution[2] dated September 12, 1996
of the Court of Appeals[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de
Dimaano, et al. vs. Southeastern College, Inc., which reduced the moral damages
awarded below from P1,000,000.00 to P200,000.00.[4] The Resolution under attack
denied petitioners motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On October
11, 1989, at about 6:30 in the morning, a powerful typhoon Saling hit Metro
Manila. Buffeted by very strong winds, the roof of petitioners building was partly ripped
off and blown away, landing on and destroying portions of the roofing of private
respondents house. After the typhoon had passed, an ocular inspection of the
destroyed buildings was conducted by a team of engineers headed by the city building
official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Report[5] dated October
18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the
buildings in the area and the general direction of the wind. Situated in the peripheral lot
is an almost U-shaped formation of 4-storey building. Thus, with the strong winds
having a westerly direction, the general formation of the buildings becomes a big
funnel-like structure, the one situated along College Road, receiving the heaviest impact
of the strong winds. Hence, there are portions of the roofing, those located on both
ends of the building, which remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofings
structural trusses is the improper anchorage of the said trusses to the roof beams. The
1/2 diameter steel bars embedded on the concrete roof beams which serve as truss
anchorage are not bolted nor nailed to the trusses. Still, there are other steel bars
which were not even bent to the trusses, thus, those trusses are not anchored at all to
the roof beams.

It then recommended that to avoid any further loss and damage to lives, limbs and
property of persons living in the vicinity, the fourth floor of subject school building be
declared as astructural hazard.
In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage to
their house rendered the same uninhabitable, forcing them to stay temporarily in others
houses. And so they sought to recover from petitioner P117,116.00, as actual
damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages
and P100,000.00, for and as attorneys fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any portion
thereof giving way; that it has not been remiss in its responsibility to see to it that said
school building, which houses school children, faculty members, and employees, is in
tip-top condition; and furthermore, typhoon Saling was an act of God and therefore
beyond human control such that petitioner cannot be answerable for the damages
wrought thereby, absent any negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that
subject school building had a defective roofing structure, found that, while typhoon
Saling was accompanied by strong winds, the damage to private respondents house
could have been avoided if the construction of the roof of [petitioners] building was not
faulty. The dispositive portion of the lower courts decision[7] reads thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the
plaintiff (sic) and against the defendants, (sic) ordering the latter to pay jointly and
severally the former as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did
not act in a wanton fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors,[8] that:

I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN
ACT OF GOD, IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-
OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4)
STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE
ROOF OF DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING
THE ADMISSION THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE
AS TYPHOON SALING WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE
INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES
AS WELL AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF
SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT
ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING
EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the
trial courts disposition by reducing the award of moral damages from P1,000,000.00
to P200,000.00.Hence, petitioners resort to this Court, raising for resolution the issues
of:
1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the
basis of speculation or conjecture, without proof or receipts of actual
damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the
latter having suffered, actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property,
subject matter of the case, during its pendency, has the right to pursue their complaint
against petitioner when the case was already rendered moot and academic by the sale
of the property to third party.

4. Whether or not the award of attorneys fees when the case was already moot and
academic [sic] legally justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling
being an act of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or

without hearing, has support in law.

The pivot of inquiry here, determinative of the other issues, is whether the damage
on the roof of the building of private respondents resulting from the impact of the
falling portions of the school buildings roof ripped off by the strong winds of typhoon
Saling, was, within legal contemplation, due to fortuitous event? If so, petitioner cannot
be held liable for the damages suffered by the private respondents. This conclusion
finds support in Article 1174 of the Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise
declared by stipulation, or when the nature of the obligation requires the assumption of
risk, no person shall be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which
defines it as an event which takes place by accident and could not have been
foreseen.[9] Escriche elaborates it as an unexpected event or act of God which could
neither be foreseen nor resisted.[10] Civilist Arturo M. Tolentino adds that [f]ortuitous
events may be produced by two general causes: (1) by nature, such as earthquakes,
storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed
invasion, attack by bandits, governmental prohibitions, robbery, etc.[11]
In order that a fortuitous event may exempt a person from liability, it is necessary
that he be free from any previous negligence or misconduct by reason of which the loss
may have been occasioned.[12] An act of God cannot be invoked for the protection of a
person who has been guilty of gross negligence in not trying to forestall its possible
adverse consequences.When a persons negligence concurs with an act of God in
producing damage or injury to another, such person is not exempt from liability by
showing that the immediate or proximate causeof the damage or injury was a fortuitous
event. When the effect is found to be partly the result of the participation of man
whether it be from active intervention, or neglect, or failure to act the whole occurrence
is hereby humanized, and removed from the rules applicable to acts of God.[13]
In the case under consideration, the lower court accorded full credence to the
finding of the investigating team that subject school buildings roofing had no sufficient
anchorage to hold it in position especially when battered by strong winds. Based on
such finding, the trial court imputed negligence to petitioner and adjudged it liable for
damages to private respondents.
 After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trial court,
especially when affirmed by the appellate court, are binding and conclusive upon this
Court.[14] After a careful scrutiny of the records and the pleadings submitted by the
parties, we find exception to this rule and hold that the lower courts misappreciated the
evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural
occurrence which may be foreseen but is unavoidable despite any amount of foresight,
diligence or care.[15]In order to be exempt from liability arising from any adverse
consequence engendered thereby, there should have been no human participation
amounting to a negligent act.[16] In other words, the person seeking exoneration from
liability must not be guilty of negligence. Negligence, as commonly understood, is
conduct which naturally or reasonably creates undue risk or harm to others. It may be
the failure to observe that degree of care, precaution, and vigilance which the
circumstances justly demand,[17] or the omission to do something which a prudent and
reasonable man, guided by considerations which ordinarily regulate the conduct of
human affairs, would do.[18] From these premises, we proceed to determine whether
petitioner was negligent, such that if it were not, the damage caused to private
respondents house could have been avoided?
At the outset, it bears emphasizing that a person claiming damages for the
negligence of another has the burden of proving the existence of fault or negligence
causative of his injury or loss. The facts constitutive of negligence must be affirmatively
established by competent evidence,[19] not merely by presumptions and conclusions
without basis in fact. Private respondents, in establishing the culpability of petitioner,
merely relied on the aforementioned report submitted by a team which made an
ocular inspection of petitioners school building after the typhoon. As the term imparts,
an ocular inspection is one by means of actual sight or viewing.[20] What is visual to the
eye though, is not always reflective of the real cause behind. For instance, one who
hears a gunshot and then sees a wounded person, cannot always definitely conclude
that a third person shot the victim. It could have been self-inflicted or caused
accidentally by a stray bullet. The relationship of cause and effect must be clearly
shown.
In the present case, other than the said ocular inspection, no investigation was
conducted to determine the real cause of the partial unroofing of petitioners school
building. Private respondents did not even show that the plans, specifications and
design of said school building were deficient and defective. Neither did they prove any
substantial deviation from the approved plans and specifications. Nor did they
conclusively establish that the construction of such building was basically flawed.[21]
On the other hand, petitioner elicited from one of the witnesses of private
respondents, city building official Jesus Reyna, that the original plans and design of
petitioners school building were approved prior to its construction. Engr. Reyna
admitted that it was a legal requirement before the construction of any building to
obtain a permit from the city building official (city engineer, prior to the passage of the
Building Act of 1977). In like manner, after construction of the building, a certification
must be secured from the same official attesting to the readiness for occupancy of the
edifice. Having obtained both building permit and certificate of occupancy, these are, at
the very least, prima facie evidence of the regular and proper construction of subject
school building.[22]
Furthermore, when part of its roof needed repairs of the damage inflicted by
typhoon Saling, the same city official gave the go-signal for such repairs without any
deviation from the original design and subsequently, authorized the use of the entire
fourth floor of the same building. These only prove that subject building suffers from no
structural defect, contrary to the report that its U-shaped form was structurally
defective. Having given his unqualified imprimatur, the city building official is presumed
to have properly performed his duties[23] in connection therewith.
 In addition, petitioner presented its vice president for finance and administration
who testified that an annual maintenance inspection and repair of subject school
building were regularly undertaken. Petitioner was even willing to present its
maintenance supervisor to attest to the extent of such regular inspection but private
respondents agreed to dispense with his testimony and simply stipulated that it would
be corroborative of the vice presidents narration.
Moreover, the city building official, who has been in the city government service
since 1974, admitted in open court that no complaint regarding any defect on the same
structure has ever been lodged before his office prior to the institution of the case at
bench. It is a matter of judicial notice that typhoons are common occurrences in this
country. If subject school buildings roofing was not firmly anchored to its trusses,
obviously, it could not have withstood long years and several typhoons even stronger
than Saling.
In light of the foregoing, we find no clear and convincing evidence to sustain the
judgment of the appellate court. We thus hold that petitioner has not been shown
negligent or at fault regarding the construction and maintenance of its school building
in question and that typhoon Saling was the proximate cause of the damage suffered
by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and
moral damages as well as attorneys fees must fail.[24] Petitioner cannot be made to
answer for a purely fortuitous event.[25] More so because no bad faith or willful act to
cause damage was alleged and proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the
pecuniary loss they actually incurred.[26] It is not enough that the damage be capable of
proof but must be actually proved with a reasonable degree of certainty, pointing out
specific facts that afford a basis for measuring whatever compensatory damages are
borne.[27] Private respondents merely submitted an estimated amount needed for the
repair of the roof of their subject building. What is more, whether the necessary repairs
were caused ONLY by petitioners alleged negligence in the maintenance of its school
building, or included the ordinary wear and tear of the house itself, is an essential
question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by
the trial court is hereby nullified and set aside. Private respondents are ordered to
reimburse any amount or return to petitioner any property which they may have
received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is
REVERSED. The complaint of private respondents in Civil Case No. 7314 before the trial
court a quo is ordered DISMISSED and the writ of execution issued on April 1, 1993 in
said case is SET ASIDE. Accordingly, private respondents are ORDERED to return to
petitioner any amount or property received by them by virtue of said writ. Costs against
the private respondents.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.
G.R. No. L-45637 May 31, 1985

ROBERTO JUNTILLA, petitioner,

vs.
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL
CAMORO, respondents.

Valentin A. Zozobrado for petitioner.

Ruperto N. Alfarara for respondents.

GUTIERREZ, JR., J.:

This is a petition for review, on questions of law, of the decision of the Court of First
Instance of Cebu which reversed the decision of the City Court of Cebu and exonerated
the respondents from any liability arising from a vehicular accident.

The background facts which led to the filing of a complaint for breach of contract and
damages against the respondents are summarized by the Court of First Instance of
Cebu as follows:

The facts established after trial show that the plaintiff was a passenger of
the public utility jeepney bearing plate No. PUJ-71-7 on the course of the
trip from Danao City to Cebu City. The jeepney was driven by defendant
Berfol Camoro. It was registered under the franchise of defendant
Clemente Fontanar but was actually owned by defendant Fernando
Banzon. When the jeepney reached Mandaue City, the right rear tire
exploded causing the vehicle to turn turtle. In the process, the plaintiff
who was sitting at the front seat was thrown out of the vehicle. Upon
landing on the ground, the plaintiff momentarily lost consciousness. When
he came to his senses, he found that he had a lacerated wound on his
right palm. Aside from this, he suffered injuries on his left arm, right thigh
and on his back. (Exh. "D"). Because of his shock and injuries, he went
back to Danao City but on the way, he discovered that his "Omega" wrist
watch was lost. Upon his arrival in Danao City, he immediately entered the
Danao City Hospital to attend to his injuries, and also requested his
father-in-law to proceed immediately to the place of the accident and look
for the watch. In spite of the efforts of his father-in-law, the wrist watch,
which he bought for P 852.70 (Exh. "B") could no longer be found.

xxx xxx xxx

Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with
damages before the City Court of Cebu City, Branch I against Clemente Fontanar,
Fernando Banzon and Berfol Camoro.

The respondents filed their answer, alleging inter alia that the accident that caused
losses to the petitioner was beyond the control of the respondents taking into account
that the tire that exploded was newly bought and was only slightly used at the time it
blew up.

After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in
favor of the petitioner and against the respondents. The dispositive portion of the
decision reads:
 WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants and the latter are hereby ordered, jointly and
severally, to pay the plaintiff the sum of P750.00 as reimbursement for
the lost Omega wrist watch, the sum of P246.64 as unrealized salary of
the plaintiff from his employer, the further sum of P100.00 for the doctor's
fees and medicine, an additional sum of P300.00 for attorney's fees and
the costs.

The respondents appealed to the Court of First Instance of Cebu, Branch XIV.

Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a
finding that the accident in question was due to a fortuitous event. The dispositive
portion of the decision reads:

WHEREFORE, judgment is hereby rendered exonerating the defendants

from any liability to the plaintiff without pronouncement as to costs.

A motion for reconsideration was denied by the Court of First Instance.

The petitioner raises the following alleged errors committed by the Court of First
Instance of Cebu on appeal—

a. The Honorable Court below committed grave abuse of discretion in

failing to take cognizance of the fact that defendants and/or their
employee failed to exercise "utmost and/or extraordinary diligence"
required of common carriers contemplated under Art. 1755 of the Civil
Code of the Philippines.

b. The Honorable Court below committed grave abuse of discretion by

deciding the case contrary to the doctrine laid down by the Honorable
Supreme Court in the case of Necesito et al. v. Paras, et al.

We find the petition impressed with merit.

The City Court and the Court of First Instance of Cebu found that the right rear tire of
the passenger jeepney in which the petitioner was riding blew up causing the vehicle to
fall on its side. The petitioner questions the conclusion of the respondent court drawn
from this finding of fact.

The Court of First Instance of Cebu erred when it absolved the carrier from any liability
upon a finding that the tire blow out is a fortuitous event. The Court of First Instance of
Cebu ruled that:

After reviewing the records of the case, this Court finds that the accident
in question was due to a fortuitous event. A tire blow-out, such as what
happened in the case at bar, is an inevitable accident that exempts the
carrier from liability, there being absence of a showing that there was
misconduct or negligence on the part of the operator in the operation and
maintenance of the vehicle involved. The fact that the right rear tire
exploded, despite being brand new, constitutes a clear case of caso
fortuito which can be a proper basis for exonerating the defendants from
liability. ...

The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v.
Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, where the Court of
Appeals ruled that:
 A tire blow-out does not constitute negligence unless the tire was already
old and should not have been used at all. Indeed, this would be a clear
case of fortuitous event.

The foregoing conclusions of the Court of First Instance of Cebu are based on a
misapprehension of overall facts from which a conclusion should be drawn. The reliance
of the Court of First Instance on the Rodriguez case is not in order. In La Mallorca and
Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:

Petitioner maintains that a tire blow-out is a fortuitous event and gives

rise to no liability for negligence, citing the rulings of the Court of Appeals
in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December
29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27, 1958.
These rulings, however, not only are not binding on this Court but were
based on considerations quite different from those that obtain in the case
at bar. The appellate court there made no findings of any specific acts of
negligence on the part of the defendants and confined itself to the
question of whether or not a tire blow-out, by itself alone and without a
showing as to the causative factors, would generate liability. ...

In the case at bar, there are specific acts of negligence on the part of the respondents.
The records show that the passenger jeepney turned turtle and jumped into a ditch
immediately after its right rear tire exploded. The evidence shows that the passenger
jeepney was running at a very fast speed before the accident. We agree with the
observation of the petitioner that a public utility jeep running at a regular and safe
speed will not jump into a ditch when its right rear tire blows up. There is also evidence
to show that the passenger jeepney was overloaded at the time of the accident. The
petitioner stated that there were three (3) passengers in the front seat and fourteen
(14) passengers in the rear.

While it may be true that the tire that blew-up was still good because the grooves of
the tire were still visible, this fact alone does not make the explosion of the tire a
fortuitous event. No evidence was presented to show that the accident was due to
adverse road conditions or that precautions were taken by the jeepney driver to
compensate for any conditions liable to cause accidents. The sudden blowing-up,
therefore, could have been caused by too much air pressure injected into the tire
coupled by the fact that the jeepney was overloaded and speeding at the time of the
accident.

In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of
caso fortuito:

xxx xxx xxx

... In a legal sense and, consequently, also in relation to contracts, a caso

fortuito presents the following essential characteristics: (1) The cause of
the unforeseen and unexpected occurrence, or of the failure of the debtor
to comply with his obligation, must be independent of the human will. (2)
It must be impossible to foresee the event which constitutes the caso
fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The
occurrence must be such as to render it impossible for the debtor to fulfill
his obligation in a normal manner. And (4) the obligor (debtor) must be
free from any participation in the aggravation of the injury resulting to the
creditor. (5 Encyclopedia Juridica Espanola, 309.)

In the case at bar, the cause of the unforeseen and unexpected occurrence was not
independent of the human will. The accident was caused either through the negligence
of the driver or because of mechanical defects in the tire. Common carriers should
teach their drivers not to overload their vehicles, not to exceed safe and legal speed
limits, and to know the correct measures to take when a tire blows up thus insuring the
safety of passengers at all times. Relative to the contingency of mechanical defects, we
held in Necesito, et al. v. Paras, et al. (104 Phil. 75), that:

... The preponderance of authority is in favor of the doctrine that a

passenger is entitled to recover damages from a carrier for an injury
resulting from a defect in an appliance purchased from a manufacturer,
whenever it appears that the defect would have been discovered by the
carrier if it had exercised the degree of care which under the
circumstances was incumbent upon it, with regard to inspection and
application of the necessary tests. For the purposes of this doctrine, the
manufacturer is considered as being in law the agent or servant of the
carrier, as far as regards the work of constructing the appliance.
According to this theory, the good repute of the manufacturer will not
relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also
Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co.
v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann.
Cas. 1916E 929).

The rationale of the carrier's liability is the fact that the passenger has
neither choice nor control over the carrier in the selection and use of the
equipment and appliances in use by the carrier. Having no privity
whatever with the manufacturer or vendor of the defective equipment, the
passenger has no remedy against him, while the carrier usually has. It is
but logical, therefore, that the carrier, while not an insurer of the safety of
his passengers, should nevertheless be held to answer for the flaws of his
equipment if such flaws were at all discoverable. ...

It is sufficient to reiterate that the source of a common carrier's legal liability is the
contract of carriage, and by entering into the said contract, it binds itself to carry the
passengers safely as far as human care and foresight can provide, using the utmost
diligence of a very cautious person, with a due regard for all the circumstances. The
records show that this obligation was not met by the respondents.

The respondents likewise argue that the petitioner cannot recover any amount for
failure to prove such damages during the trial. The respondents submit that if the
petitioner was really injured, why was he treated in Danao City and not in Mandaue City
where the accident took place. The respondents argue that the doctor who issued the
medical certificate was not presented during the trial, and hence not cross-examined.
The respondents also claim that the petitioner was not wearing any wrist watch during
the accident.

It should be noted that the City Court of Cebu found that the petitioner had a lacerated
wound on his right palm aside from injuries on his left arm, right thigh and on his back,
and that on his way back to Danao City, he discovered that his "Omega" wrist watch
was lost. These are findings of facts of the City Court of Cebu which we find no reason
to disturb. More so when we consider the fact that the Court of First Instance of Cebu
impliedly concurred in these matters when it confined itself to the question of whether
or not the tire blow out was a fortuitous event.

WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed
from is hereby REVERSED and SET ASIDE, and the decision of the City Court of Cebu,
Branch I is REINSTATED, with the modification that the damages shall earn interest at
12% per annum and the attorney's fees are increased to SIX HUNDRED PESOS
(P600.00). Damages shall earn interests from January 27, 1975.

SO ORDERED.
G.R. No. L-19495 February 2, 1924

HONORIO LASAM, ET AL., plaintiffs-appellants,

vs.
FRANK SMITH, JR., defendant-appellant.

Palma and Leuterio for plaintiffs-appellants.

Mariano Alisangco for defendant-appellant.

OSTRAND, J.:

The plaintiff are husband and wife and this action is brought to recover damages in the
sum of P20,000 for physical injuries sustained by them in an automobile accident. The
trial court rendered a judgment in their favor for the sum of P1,254.10, with legal
interest from the date of the judgment. Both the plaintiffs and the defendant appeal,
the former maintaining that the damages awarded are insufficient while the latter
denies all liability for any damages whatever.

It appears from the evidence that on February 27, 1918, the defendant was the owner
of a public garage in the town of San Fernando, La Union, and engaged in the business
of carrying passengers for hire from the one point to another in the Province of La
Union and the surrounding provinces. On the date mentioned, he undertook to convey
the plaintiffs from San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On
leaving San Fernando, the automobile was operated by a licensed chauffeur, but after
having reached the town of San Juan, the chauffeur allowed his assistant, Remigio
Bueno, to drive the car. Bueno held no driver's license, but had some experience in
driving, and with the exception of some slight engine trouble while passing through the
town of Luna, the car functioned well until after the crossing of the Abra River in
Tagudin, when, according to the testimony of the witnesses for the plaintiffs, defects
developed in the steering gear so as to make accurate steering impossible, and after
zigzagging for a distance of about half a kilometer, the car left the road and went down
a steep embankment.

The defendant, in his testimony, maintains that there was no defect in the steering
gear, neither before nor after the accident, and expresses the opinion that the swaying
or zigzagging of the car must have been due to its having been driven at an excessive
rate of speed. This may possibly be true, but it is, from our point of view, immaterial
whether the accident was caused by negligence on the part of the defendant's
employees, or whether it was due to defects in the automobile; the result would be
practically the same in either event.

In going over the bank of the road, the automobile was overturned and the plaintiffs
pinned down under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib ,
but his wife, Joaquina Sanchez, received serious injuries, among which was a
compound fracture of one of the bones in her left wrist. She also appears to have
suffered a nervous breakdown from which she had not fully recovered at the time of
the trial.

The complaint in the case was filed about a year and a half after the occurrence above
related. It alleges, among other things, that the accident was due to defects in the
automobile as well as to the incompetence and negligence of the chauffeur, and the
case appears to have been tried largely upon the theory that it sounds in tort and that
the liability of the defendant is governed by article 1903 of the Civil Code. The trial
court held, however, that the cause of action rests on the defendant's breach of the
contract of carriage and that, consequently, articles 1101-1107 of the Civil Code, and
not article 1903, are applicable. The court further found that the breach of the contract
was not due to fortuitous events and that, therefore, the defendant was liable in
damages.
In our opinion, the conclusions of the court below are entirely correct. That upon the
facts stated the defendant's liability, if any, is contractual, is well settled by previous
decisions of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co.
(7 Phil., 359), and the distinction between extra-contractual liability and contractual
liability has been so ably and exhaustively discussed in various other cases, that nothing
further need here be said upon that subject. (See Cangco vs. Manila Railroad Co., 38
Phil., 768; Manila Railroad Co. vs. Compania Trasatlantica and Atlantic, Gulf & Pacific
Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706.) It is
sufficient to reiterate that the source of the defendant's legal liability is the contract of
carriage; that by entering into that contract he bound himself to carry the plaintiffs
safely and securely to their destination; and that having failed to do so he is liable in
damages unless he shows that the failure to fulfill his obligation was due to causes
mentioned in article 1105 of the Civil Code, which reads as follows:

No one shall be liable for events which could not be foreseen or which, even if
foreseen, were inevitable, with the exception of the cases in which the law
expressly provides otherwise and those in which the obligation itself imposes
such liability.

This brings us to the principal question in the case:

What is meant by "events which cannot be foreseen and which, having been foreseen,
are inevitable?" The Spanish authorities regard the language employed as an effort to
define the term caso fortuito and hold that the two expressions are synonymous.
(Manresa, Comentarios al Codigo Civil Español, vol. 8, pp. 88 et seq.; Scævola, Codigo
Civil, vol. 19, pp. 526 et seq.)

The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which
defines caso fortuito as "occasion que a case por aventura de que non se puede ante
ver. E son estos, derrivamientos de casas e fuego que se enciende a so ora, e
quebrantamiento de navio, fuerca de ladrones. . . . (An event that takes place by
accident and could not have been foreseen. Examples of this are destruction of houses,
unexpected fire, shipwreck, violence of robbers. . . .)"

Escriche defines caso fortuito as "an unexpected event or act of God which could either
be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning,
compulsion, insurrections, destructions, destruction of buildings by unforseen accidents
and other occurrences of a similar nature."

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica
Española says: "In a legal sense and, consequently, also in relation to contracts, a caso
fortuito presents the following essential characteristics: (1) The cause of the unforeseen
and unexpected occurrence, or of the failure of the debtor to comply with his obligation,
must be independent of the human will. (2) It must be impossible to foresee the event
which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to
avoid. (3) The occurrence must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from
any participation in the aggravation of the injury resulting to the creditor."
(5 Enciclopedia Juridica Española, 309.)

As will be seen, these authorities agree that some extraordinary circumstance

independent of the will of the obligor, or of his employees, is an essential element of
a caso fortuito. Turning to the present case, it is at once apparent that this element is
lacking. It is not suggested that the accident in question was due to an act of God or to
adverse road conditions which could not have been foreseen. As far as the records
shows, the accident was caused either by defects in the automobile or else through the
negligence of its driver. That is not a caso fortuito.
We agree with counsel that neither under the American nor Spanish law is a carrier of
passengers an absolute insurer against the risks of travel from which the passenger
may protect himself by exercising ordinary care and diligence. The case of Alba vs.
Sociedad Anonima de Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the
defendant in support of his contentions, affords a good illustration of the application of
this principle. In that case Alba, a passenger on a street car, was standing on the
platform of the car while it was in motion. The car rounded a curve causing Alba to lose
his balance and fall off the platform, sustaining severe injuries. In an action brought by
him to recover damages, the supreme court of Spain held that inasmuch as the car at
the time of the accident was travelling at a moderate rate of speed and there was no
infraction of the regulations, and the plaintiff was exposed to no greater danger than
that inherent in that particular mode of travel, the plaintiff could not recover, especially
so since he should have been on his guard against a contingency as natural as that of
losing his balance to a greater or less extent when the car rounded the curve.

But such is not the present case; here the passengers had no means of avoiding the
danger or escaping the injury.

The plaintiffs maintain that the evidence clearly establishes that they are entitled to
damages in the sum of P7,832.80 instead of P1,254.10 as found by the trial court, and
their assignments of error relate to this point only.

There can be no doubt that the expenses incurred by the plaintiffs as a result of the
accident greatly exceeded the amount of the damages awarded. But bearing in mind
that in determining the extent of the liability for losses or damages resulting from
negligence in the fulfillment of a contractual obligation, the courts have "a discretionary
power to moderate the liability according to the circumstances" (De Guia vs. Manila
Electric Railroad & Light Co., 40 Phil., 706; art. 1103, Civil Code), we do not think that
the evidence is such as to justify us in interfering with the discretion of the court below
in this respect. As pointed out by that court in its well-reasoned and well-considered
decision, by far the greater part of the damages claimed by the plaintiffs resulted from
the fracture of a bone in the left wrist of Joaquina Sanchez and from her objections to
having a decaying splinter of the bone removed by a surgical operation. As a
consequence of her refusal to submit such an operation, a series of infections ensued
and which required constant and expensive medical treatment for several years. We
agree with the court below that the defendant should not be charged with these
expenses.

For the reasons stated, the judgment appealed from is affirmed, wi