Beruflich Dokumente
Kultur Dokumente
2. After the plane had taken off, Florencio O. Contending that the "aforesaid loss is a result of breach of ... (PAL's)
Villarin, a Senior NBI Agent who was also a contractual obligation to carry ... (them) and their belongings and
passenger of the said plane, noticed a certain effects to their Manila destination without loss or damage, and
'Zaldy,' a suspect in the killing of Judge Valdez, constitutes a serious dereliction of ... (PAL's) legal duty to exercise
seated at the front seat near the door leading to extraordinary diligence in the vigilance over the same." , Quisumbing
the cockpit of the plane. A check by Villarin with and Loeffler brought suit against PAL in the Court of First Instance of
the passenger's ticket in the possession of flight Rizal, as stated in this opinion's opening paragraph, to recover the
Stewardess Annie Bontigao, who was seated at value of the property lost by them to the robbers as well as moral and
the last seat right row, revealed that 'Zaldy' had exemplary damages, attorney's fees and expenses of litigation. 3 The
used the name 'Cardente,' one of his aliases plaintiffs declared that their suit was instituted "... pursuant to Civil
known to Villarin. Villarin also came to know from Code articles 1754, 998, 2000 and 2001 and on the ground that in
the stewardess that 'Zaldy' had three companions relation to said Civil Code article 2001 the complained-of act of the
on board the plane." armed robbers is not a force majeure, as the 'use of arms' or
'irresistible force' was not taken advantage of by said armed robbers
3. Villarin then scribbled a note addressed to the in gaining entrance to defendant's ill-fated plane in questions. And,
pilot of the plane requesting the latter to contact with respect to said Civil Code article 1998, it is not essential that the
NBI duty agents in Manila for the said agents to lost effects and belongings of plaintiffs were actually delivered to
ask the Director of the NBI to send about six NBI defendant's plane personnel or that the latter were notified thereof
agents to meet the plane because the suspect in (De los Santos v. Tamn Khey, [CA] 58 O.G. 7693)."4
the killing of Judge Valdez was on board (Exh.
'G'). The said note was handed by Villarin to the PAL filed answer denying liability, alleging inter alia that the robbery
stewardess who in tum gave the same to the during the flight and after the aircraft was forcibly landed at the
pilot. Manila Airport did indeed constitute force majeure, and neither of the
plaintiffs had notified PAL "or its crew or employees that they were in
4. After receiving the note, which was about 15 possession of cash, German marks and valuable jewelries and
minutes after take off, the pilot of the plane, Capt. watches" or surrendered said items to "the crew or personnel on
Luis Bonnevie, Jr., came out of the cockpit and board the aircraft."5
sat beside Villarin at the rear portion of the plane
and explained that he could not send the After trial, the Court of First Instance rendered judgment 'dismissing
message because it would be heard by all plaintiffs' complaint with costs against ... (them)." 6 The Court opined
ground aircraft stations. Villarin, however, told the that since the plaintiffs "did not notify defendant or its employees that
pilot of the danger of commission of violent acts they were in possession of the cash, jewelries, and the wallet they
are now claiming," the very provision of law invoked by them, Article
1998 of the Civil Code, denies them any recourse against PAL. The passengers from hijackers' acts. We merely state
Court also pointed out that- that where the defendant has faithfully complied
with the requirements of government agencies
... while it is true that the use of gems was not and adhered to the established procedures and
taken advantage of by the robbers in gaining precautions of the airline industry at any
entrance to defendant's ill-fated plane, the armed particular time, its failure to take certain steps
robbery that took place constitutes force that a passenger in hindsight believes should
majeure for which defendant is not liable because have been taken is not the negligence or
the robbers were able to gain entrance to the misconduct which mingles with force majeure as
plane with the guns they used already in their an active and cooperative cause.
possession, which fact could not have been
prevented nor avoided by the defendant since it Under the circumstance of the instant case, the
was not authorized to search its passengers for acts of the airline and its crew cannot be faulted
firearms and deadly weapons as shown in as negligence. The hijackers had already shown
Exhibits '6', '7', '8,' and '8-A.' As its robbery their willingness to kill. One passenger was in
constitutes force majeure, defendant is not liable. fact killed and another survived gunshot wounds.
The lives of the rest of the passengers and crew
The plaintiffs appealed to the Court of Appeals.7 The Court affirmed were more important than their properties.
the trial court's judgment.8 It rejected the argument that "the use of Cooperation with the hijackers until they released
arms or ... irresistible force" referred to in Article 2001 their hostages at the runway end near the South
constitutes force majeure only if resorted to gain entry into the Superhighway was dictated by the
airplane, and not if it attends "the robbery itself." The Court ruled that circumstances.
under the facts, "the highjacking-robbery was force majeure,"
observing that — Insisting that the evidence demonstrates negligence on the part of
the PAL crew "occurring before and exposing them to hijacking,"
... hijackers do not board an airplane through a Quisumbing and Loeffler have come up to this Court praying that the
blatant display of firepower and violent fury. judgments of the trial Court and the Court of Appeals be reversed
Firearms, hand-grenades, dynamite, and and another rendered in their favor. Once again, the issue will be
explosives are introduced into the airplane resolved against them.
surreptitiously and with the utmost cunning and
stealth, although there is an occasional use of A careful analysis of the record in relation to the memoranda and
innocent hostages who will be coldly murdered other pleadings of the parties, convinces this Court of the correctness
unless a plane is given to the hijackers' complete of the essential conclusion of both the trial and appellate courts that
disposal. The objective of modern-day hijackers the evidence does indeed fail to prove any want of diligence on the
is to display the irresistible force amounting to part of PAL, or that, more specifically, it had failed to comply with
force majeure only when it is most effective and applicable regulations or universally accepted and observed
that is when the jetliner is winging its way at procedures to preclude hijacking; and that the particular acts singled
Himalayan altitudes and ill-advised heroics by out by the petitioners as supposedly demonstrative of negligence
either crew or passengers would send the multi- were, in the light of the circumstances of the case, not in truth
million peso airplane and the priceless lives of all negligent acts "sufficient to overcome the force majeure nature of the
its occupants into certain death and destruction. armed robbery." The Court quite agrees, too, with the Appellate
... Tribunal's wry observation that PAL's "failure to take certain steps
that a passenger in hindsight believes should have been taken is not
The Appellate Court also ruled that in light of the evidence PAL could the negligence or misconduct which mingles with force majeure as an
not be faulted for want of diligence, particularly for failing "to take active and cooperative cause."
positive measures to implement Civil Aeronautics Administration
regulations prohibiting civilians from carrying firearms on board No success can therefore attend petitioners' appeal, not only
aircrafts;" and that "the absence of coded transmissions, the because they wish to have a review and modification of factual
amateurish behaviour of the pilot in dealing with the NBI agent, the conclusions of the Court of Appeals, which established and uniformly
allegedly open cockpit door, and the failure to return to Mactan, in the observed axiom proscribes, 10 but also because those factual
light of the circumstances of the case ..., were not negligent acts conclusions have in this Court's view been correctly drawn from the
sufficient to overcome the force majeure nature of the armed proofs on record.
robbery." In fact, the Court went on to says, 9
WHEREFORE, the petition is DENIED and the appealed Decision of
... it is illusive to assume that had these the Court of Appeals is AFFIRMED, with costs against petitioners.
precautions been taken, the hijacking or the
robbery would not have succeeded. The SO ORDERED.
mandatory use of the most sophisticated
electronic detection devices and magnetometers,
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
the imposition of severe penalties, the
development of screening procedures, the
compilation of hijacker behavioural profiles, the
assignment of sky marshals, and the weight of
outraged world opinion may have minimized
hijackings but all these have proved ineffective
against truly determined hijackers. World
experience shows that if a group of armed
hijackers want to take over a plane in flight, they
can elude the latest combined government and
airline industry measures. And as our own
experience in Zamboanga City illustrates, the use
of force to overcome hijackers, results in the
death and injury of innocent passengers and
crew members. We are not in the least bit
suggesting that the Philippine Airlines should not
do everything humanly possible to protect
Republic of the Philippines was run over by the bus in which she rode earlier together
SUPREME COURT with her parents.
Manila
For the death of their said child, the plaintiffs commenced
EN BANC the present suit against the defendant seeking to recover
from the latter an aggregate amount of P16,000 to cover
G.R. No. L-20761 July 27, 1966 moral damages and actual damages sustained as a result
thereof and attorney's fees. After trial on the merits, the
court below rendered the judgment in question.
LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET On the basis of these facts, the trial court found defendant liable for
AL., respondents. breach of contract of carriage and sentenced it to pay P3,000.00 for
the death of the child and P400.00 as compensatory damages
representing burial expenses and costs.
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.
Ahmed Garcia for respondents.
On appeal to the Court of Appeals, La Mallorca claimed that there
could not be a breach of contract in the case, for the reason that
BARRERA, J.:
when the child met her death, she was no longer a passenger of the
bus involved in the incident and, therefore, the contract of carriage
La Mallorca seeks the review of the decision of the Court of Appeals had already terminated. Although the Court of Appeals sustained this
in CA-G.R. No. 23267-R, holding it liable for quasi-delict and ordering theory, it nevertheless found the defendant-appellant guilty of quasi-
it to pay to respondents Mariano Beltran, et al., P6,000.00 for the delict and held the latter liable for damages, for the negligence of its
death of his minor daughter Raquel Beltran, plus P400.00 as actual driver, in accordance with Article 2180 of the Civil Code. And, the
damages. Court of Appeals did not only find the petitioner liable, but increased
the damages awarded the plaintiffs-appellees to P6,000.00, instead
The facts of the case as found by the Court of Appeals, briefly are: of P3,000.00 granted by the trial court.
On December 20, 1953, at about noontime, plaintiffs, In its brief before us, La Mallorca contends that the Court of Appeals
husband and wife, together with their minor daughters, erred (1) in holding it liable for quasi-delict, considering that
namely, Milagros, 13 years old, Raquel, about 4½ years respondents complaint was one for breach of contract, and (2) in
old, and Fe, over 2 years old, boarded the Pambusco Bus raising the award of damages from P3,000.00 to P6,000.00 although
No. 352, bearing plate TPU No. 757 (1953 Pampanga), respondents did not appeal from the decision of the lower court.
owned and operated by the defendant, at San Fernando,
Pampanga, bound for Anao, Mexico, Pampanga. At the Under the facts as found by the Court of Appeals, we have to sustain
time, they were carrying with them four pieces of baggages the judgement holding petitioner liable for damages for the death of
containing their personal belonging. The conductor of the the child, Raquel Beltran. It may be pointed out that although it is true
bus, who happened to be a half-brother of plaintiff Mariano that respondent Mariano Beltran, his wife, and their children
Beltran, issued three tickets (Exhs. A, B, & C) covering the (including the deceased child) had alighted from the bus at a place
full fares of the plaintiff and their eldest child, Milagros. No designated for disembarking or unloading of passengers, it was also
fare was charged on Raquel and Fe, since both were below established that the father had to return to the vehicle (which was still
the height at which fare is charged in accordance with the at a stop) to get one of his bags or bayong that was left under one of
appellant's rules and regulations. 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 bayongwhich
After about an hour's trip, the bus reached Anao whereat it was not unloaded, the relation of passenger and carrier between him
stopped to allow the passengers bound therefor, among and the petitioner remained subsisting. For, the relation of carrier and
whom were the plaintiffs and their children to get off. With passenger does not necessarily cease where the latter, after alighting
respect to the group of the plaintiffs, Mariano Beltran, then from the car, aids the carrier's servant or employee in removing his
carrying some of their baggages, was the first to get down baggage from the car.1 The issue to be determined here is whether
the bus, followed by his wife and his children. Mariano led as to the child, who was already led by the father to a place about 5
his companions to a shaded spot on the left pedestrians meters away from the bus, the liability of the carrier for her safety
side of the road about four or five meters away from the under the contract of carriage also persisted.
vehicle. Afterwards, he returned to the bus in controversy
to get his other bayong, which he had left behind, but in so It has been recognized as a rule that the relation of carrier and
doing, his daughter Raquel followed him, unnoticed by her passenger does not cease at the moment the passenger alights from
father. While said Mariano Beltran was on the running the carrier's vehicle at a place selected by the carrier at the point of
board of the bus waiting for the conductor to hand him destination, but continues until the passenger has had a reasonable
his bayong which he left under one of its seats near the time or a reasonable opportunity to leave the carrier's premises. And,
door, the bus, whose motor was not shut off while what is a reasonable time or a reasonable delay within this rule is to
unloading, suddenly started moving forward, evidently to be determined from all the circumstances. Thus, a person who, after
resume its trip, notwithstanding the fact that the conductor alighting from a train, walks along the station platform is considered
has not given the driver the customary signal to start, since still a passenger.2 So also, where a passenger has alighted at his
said conductor was still attending to the baggage left destination and is proceeding by the usual way to leave the
behind by Mariano Beltran. Incidentally, when the bus was company's premises, but before actually doing so is halted by the
again placed into a complete stop, it had travelled about report that his brother, a fellow passenger, has been shot, and he in
ten meters from the point where the plaintiffs had gotten good faith and without intent of engaging in the difficulty, returns to
off. relieve his brother, he is deemed reasonably and necessarily delayed
and thus continues to be a passenger entitled as such to the
Sensing that the bus was again in motion, Mariano Beltran protection of the railroad and company and its agents.3
immediately jumped from the running board without getting
his bayong from the conductor. He landed on the side of In the present case, the father returned to the bus to get one of his
the road almost in front of the shaded place where he left baggages which was not unloaded when they alighted from the bus.
his wife and children. At that precise time, he saw people Raquel, the child that she was, must have followed the father.
beginning to gather around the body of a child lying However, although the father was still on the running board of the
prostrate on the ground, her skull crushed, and without life. bus awaiting for the conductor to hand him the bag or bayong, the
The child was none other than his daughter Raquel, who 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 Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P.,
must be near the bus, was run over and killed. In the circumstances, Zaldivar, Sanchez and Castro, JJ., concur.
it cannot be claimed that the carrier's agent had exercised the Makalintal, J., concurs in the result.
"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.
Contrariwise, respondent Appellate Court believed that the calamity WHEREFORE, the appealed judgment is hereby REVERSED and
was caused solely and proximately by fortuitous event which not the judgment of the then Court of First Instance of Manila, Branch V,
even extraordinary diligence of the highest degree could have in Civil Case No. 67139, is hereby reinstated. No costs.
guarded against; and that there was no negligence on the part of the
common carrier in the discharge of its duties.
SO ORDERED.
Upon the evidence and the applicable law, we sustain the trial Court.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente
"To constitute a caso fortuito that would exempt a person from
and Patajo, JJ., concur.
responsibility, it is necessary that (1) the event must be independent
of the human will; (2) the occurrence must render it impossible for the
debtor to fulfill the obligation in a normal manner; and that (3) the
obligor must be free of participation in, or aggravation of, the injury to
the creditor." 1 In the language of the law, the event must have been
impossible to foresee, or if it could be foreseen, must have been
impossible to avoid. 2 There must be an entire exclusion of human
agency from the cause of injury or loss. 3
Turning to this case, before they sailed from the port of Manila, the
officers and crew were aware of typhoon "Klaring" that was reported
building up at 260 kms. east of Surigao. In fact, they had lashed all
the cargo in the hold before sailing in anticipation of strong winds and
rough waters.4 They proceeded on their way, as did other vessels
that day. Upon reaching Romblon, they received the weather report
that the typhoon was 154 kms. east southeast of Tacloban and was
moving west northwest.5 Since they were still not within the radius of
the typhoon and the weather was clear, they deliberated and decided
to proceed with the course. At Jintotolo Island, the typhoon was
already reported to be reaching the mainland of Samar. 6 They still
decided to proceed noting that the weather was still "good" although,
according to the Chief Forecaster of the Weather Bureau, they were
already within the typhoon zone. 7 At Tanguingui Island, about 2:00
A.M. of May 16, 1966, the typhoon was in an area quite close to
Catbalogan, placing Tanguingui also within the typhoon zone.
Despite knowledge of that fact, they again decided to proceed relying
on the forecast that the typhoon would weaken upon crossing the
mainland of Samar. 8 After about half an hour of navigation towards
Chocolate Island, there was a sudden fall of the barometer
accompanied by heavy downpour, big waves, and zero visibility. The
Captain of the vessel decided to reverse course and face the waves
in the open sea but because the visibility did not improve they were in
total darkness and, as a consequence, the vessel ran aground a reef
and sank on May 16, 1966 around 12:45 P.M. near Malapascua
Island somewhere north of the island of Cebu.
In the Laguna court of first instance, the spouses Guillermo Exhibits 2 and 3 are not proof that petitioners have discharged their
Monserrat and Marta Consignado sued M. Ruiz Highway Transit, legal liability to claimants. What is expressed there is the latter's
Inc., and Martin Buena to recover damages for the death of their four- belief — clearly erroneous — that petitioners are not liable to them
year old daughter Victoria. and acknowledgment of the voluntary help extended by petitioner
transportation company. The belief is baseless. That respondents
In the morning of May 22, 1954, said child and her parents were entertained such an ill-founded impression is not to be wondered at.
paying passengers in a bus of defendant transportation company They are ignorant, illiterate, indigent, and, at the time they signed
driven by co-defendant Buena, bound for Antipolo, Rizal. In Sta. Exhibits 2 and 3, thoroughly confused and distracted by the death of
Rosa, Laguna, while the bus was running, a rear tire exploded, their child.
blasting a hole in the very place where Victoria was standing in front
of her mother. As a result, the child fell through the hole, and died The minimum death indemnity is P3,0003, although this Court has in
that same morning from injuries sustained in the fall.1äwphï1.ñët various instances granted P6,000.00. As for moral damages, the
carrier is liable therefor to the parents of a child who meets death
The court of first instance dismissed the complaint on the ground that while a passenger in any of the carrier's vehicles (Arts. 2206 and
(1) the accident was not due to negligence of the carrier, but was an 1764, New Civil Code). Since respondents are indigents, and have
act of God; and (2) even if negligence was attributable to defendants, litigated as paupers, they should be allowed attorney's fees of
their liability had been discharged, as evidenced by Exhibits 2 and 3 P500.00.
quoted in the footnote. 1
FOR THESE REASONS, the appealed decision is affirmed, with
On appeal by plaintiffs, the Court of Appeals reversed the judgment, costs.
upon the finding that (1) defendants failed to prove the extraordinary
diligence required of carriers; and (2) Exhibits 2 and 3 did not effect a Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes,
waiver of plaintiffs' right to damages. Said appellate court, therefore, Regala and Makalintal, JJ., concur.
required defendants to pay plaintiffs P6,000.00 as indemnity for the Padilla, Labrador and Dizon, JJ., took no part.
child's death; P2,000.00 as moral damages and P500.00 as
attorney's fees, with interest from the date of its decision, (minus the
P150.00 that had been given to plaintiff Guillermo Monserrat, thru
Exhibit 3).
In their petition for review by certiorari, the carrier and the driver raise
the following issues: (1) whether in a contract of carriage breached
by the passenger's death, his parents may be granted moral
damages; and (2) whether the sum of P6,000.00 may be awarded as
death indemnity for a child passenger. In their brief, they pose the
following questions in addition to the above issues; (3) was there a
contract of carriage between the deceased child and petitioner
transportation company; (4) have petitioners rebutted the
presumption that they have been negligent; (5) was the bus crowded;
(6) was the bus running fast when the tire exploded; (7) what caused
the bursting of the tire; (8) was the bus floor weak; (9) was the blow-
out of the tire caso fortuito; and (10) was petitioners' liability cancelled
by Exhibits 2 and 3?
Ozaeta, Gibbs and Ozaeta and Domingo E. de Lara for petitioner. On appeal taken by the Caguimbals, the Court of Appeals reversed
Victoriano H. Endaya for respondents. said decision and rendered judgment for them, sentencing the BTCO,
Biñan and Ilagan to, jointly and severally, pay to the plaintiffs the
aggregate sum of P10,500.00 1 and the costs in both instances.
CONCEPCION, C.J.:
Hence, this appeal by BTCO, upon the ground that the Court of
Appeals erred: 1) in finding said appellant liable for damages; and 2)
Appeal by certiorari from a decision of the Court of Appeals. in awarding attorney's fees.
The main facts are set forth in said decision from which we quote: In connection with the first assignment of error, we note that the
recklessness of defendant was, manifestly, a major factor in the
There is no dispute at all that the deceased Pedro occurrence of the accident which resulted, inter alia, in the death of
Caguimbal, Barrio Lieutenant of Barrio Calansayan, San Pedro Caguimbal. Indeed, as driver of the Biñan bus, he overtook
Jose, Batangas, was a paying passenger of BTCO bus, Benito Makahiya's horse-driven rig or calesa and passed between
with plate TPU-507, going south on its regular route from the same and the BTCO bus despite the fact that the space available
Calamba, Laguna, to Batangas, Batangas, driven by was not big enough therefor, in view of which the Biñan bus hit the
Tomas Perez, its regular driver, at about 5:30 o'clock on left side of the BTCO bus and then the calesa. This notwithstanding,
the early morning of April 25, 1954. The deceased's the Court of Appeals rendered judgment against the BTCO upon the
destination was his residence at Calansayan, San Jose, ground that its driver, Tomas Perez, had failed to exercise the
Batangas. The bus of the Biñan Transportation Company, "extraordinary diligence," required in Article 1733 of the new Civil
bearing plate TPU-820, driven by Marciano Ilagan, was Code, "in the vigilance for the safety" of his passengers. 2
coming from the opposite direction (north-bound). Along
the national highway at Barrio Daraza, Tanauan, Batangas, The record shows that, in order to permit one of them to disembark,
on the date and hour above indicated, a horse-driven rig Perez drove his BTCO bus partly to the right shoulder of the road and
(calesa) managed by Benito Makahiya, which was then partly on the asphalted portion thereof. Yet, he could have and
ahead of the Biñan bus, was also coming from the opposite should have seen to it — had he exercised "extraordinary diligence"
direction, meaning proceeding towards the north. As to — that his bus was completely outside the asphalted portion of the
what transpired thereafter, the lower court chose to give road, and fully within the shoulder thereof, the width of which being
more credence to defendant Batangas Transportation more than sufficient to accommodate the bus. He could have and
Company's version which, in the words of the Court a quo, should have done this, because, when the aforementioned
is as follows: "As the BTCO bus was nearing a house, a passenger expressed his wish to alight from the bus, Ilagan had seen
passenger requested the conductor to stop as he was the aforementioned "calesa", driven by Makahiya, a few meters
going to alight, and when he heard the signal of the away, coming from the opposite direction, with the Biñan bus about
conductor, the driver Tomas Perez slowed down his bus 100 meters behind the rig cruising at a good speed. 3 When Perez
swerving it farther to the right in order to stop; at this slowed down his BTCO bus to permit said passenger to disembark,
juncture, a calesa, then driven by Benito Makahiya was at a he must have known, therefore, that the Biñan bus would overtake
distance of several meters facing the BTCO bus coming the calesa at about the time when the latter and BTCO bus would
from the opposite direction; that at the same time the Biñan probably be on the same line, on opposite sides of the asphalted
bus was about 100 meters away likewise going northward portions of the road, and that the space between the BTCO bus and
and following the direction of the calesa; that upon seeing the "calesa" would not be enough to allow the Biñan bus to go
the Biñan bus the driver of the BTCO bus dimmed his light through. It is true that the driver of the Biñan bus should have slowed
as established by Magno Ilaw, the very conductor of the down or stopped, and, hence, was reckless in not doing so; but, he
Biñan bus at the time of the accident; that as had no especial obligations toward the passengers of the BTCO
the calesa and the BTCO bus were passing each other unlike Perez whose duty was to exercise "utmost" or "extraordinary"
from the opposite directions, the Biñan bus following diligence for their safety. Perez was thus under obligation to avoid a
the calesa swerved to its left in an attempt to pass between situation which would be hazardous for his passengers, and, make
the BTCO bus and the calesa; that without diminishing its their safety dependent upon the diligence of the Biñan driver. Such
speed of about seventy (70) kilometers an hour, the Biñan obligation becomes more patent when we considered the fact — of
bus passed through the space between the BTCO bus and which the Court may take judicial cognizance — that our motor
the calesahitting first the left side of the BTCO bus with the vehicle drivers, particularly those of public service utilities, have not
left front corner of its body and then bumped and struck distinguished themselves for their concern over the safety, the
the calesa which was completely wrecked; that the driver comfort or the convenience of others. Besides, as correctly stated in
was seriously injured and the horse was killed; that the the syllabus to Brito Sy vs. Malate Taxicab & Garage, Inc., 4
second and all other posts supporting the top of the left
side of the BTCO bus were completely smashed and half of
In an action based on a contract of carriage, the court need
the back wall to the left was ripped open. (Exhibits 1 and
not make an express finding of fault or negligence on the
2). The BTCO bus suffered damages for the repair of its
part of the carrier in order to hold it responsible to pay the
damaged portion.
damages sought for by the passenger. By the contract of
carriage, the carrier assumes the express obligation to
As a consequence of this occurrence, two (2) passengers of BTCO transport the passenger to his destination safely and to
died, namely, Pedro Caguimbal and Guillermo Tolentino, apart from observe extraordinary diligence with a due regard for all the
others who were injured. The widow and children of Caguimbal circumstances, and any injury that might be suffered by the
instituted the present action, which was tried jointly with a similar passenger is right away attributable to the fault or
action of the Tolentinos, to recover damages from the Batangas negligence of the carrier (Article 1756, new Civil Code).
Transportation Company, hereinafter referred to as BTCO. The latter, This is an exception to the general rule that negligence
in turn, filed a third-party complaint against the Biñan Transportation must be proved, and it is therefore incumbent upon the
Company — hereinafter referred to as Biñan — and its driver, carrier to prove that it has exercised extraordinary
Marciano Ilagan. Subsequently, the Caguimbals amended their diligence as prescribed in Articles 1733 and 1755 of the
complaint, to include therein, as defendants, said Biñan and Ilagan. new Civil Code.
In the case at bar, BTCO has not proven the exercise of have acted negligently, unless they prove that they
extraordinary diligence on its part. For this reason, the case of Isaac observed extraordinary diligence as prescribed in articles
vs. A. L. Ammen Trans. Co., Inc. 5 relied upon by BTCO, is not in 1733 and 1755."
point, for, in said case, the public utility driver had done everything he
could to avoid the accident, and could not have possibly avoided it, 7"A common carrier is bound to carry the passengers safely
for he "swerved the bus to the very extreme right of the road," which as far as human care and foresight can provide, using the
the driver, in the present case, had failed to do. utmost diligence of very cautious persons, with due regard
for all the circumstances. This extraordinary diligence
As regards the second assignment of error, appellant argues that the required of common carriers is calculated to protect the
award of attorney's fees is not authorized by law, because, of the passengers from the tragic mishaps that frequently occur in
eleven (11) cases specified in Article 1208 of the new Civil Code, connection with rapid modern transportation. This high
only the fifth and the last are relevant to the one under consideration; standard of care is imperatively demanded by the
but the fifth case requires bad faith, which does not exist in the case preciousness of human life and by the consideration that
at bar. As regards the last case, which permits the award, "where the every person must in every way be safeguarded against all
court deems it just and equitable that attorney's fees . . . should be injury." (Report of the Code Commission, pp. 35-36.)
recovered," it is urged that the evidence on record does not show the
existence of such just and equitable grounds.
We, however, believe otherwise, for: (1) the accident in question took
place on April 25, 1954, and the Caguimbals have been constrained
to litigate for over thirteen (13) years to vindicate their rights; and (2)
it is high time to impress effectively upon public utility operators the
nature and extent of their responsibility in respect of the safety of
their passengers and their duty to exercise greater care in the
selection of drivers and conductor and in supervising the
performance of their duties, in accordance, not only with Article 1733
of the Civil Code of the Philippines, but, also, with Articles 1755 and
1756 thereof 6 and the spirit of these provisions, as disclosed by the
letter thereof, and elucidated by the Commission that drafted the
same. 7
Footnotes
P10,000
2"Art.
1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by
them, according to all the circumstances of each case."
ARSENIO DELIM and the HON. COURT OF already been paid and moreover had waived any right to institute any action against him (private
APPEALS, respondents. respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973.
Pedro G. Peralta for petitioner. After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed
the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she may have had
against respondent and the driver of the mini-bus.
Florentino G. Libatique for private respondent.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a
valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages:
FELICIANO, J.:
suddenly heard at one part of the bus and, shortly thereafter, the lower court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is
vehicle bumped a cement flower pot on the side of the road, went off hereby affirmed.
the road, turned turtle and fell into a ditch. Several passengers,
including petitioner Gatchalian, were injured. They were promptly Without special pronouncement as to costs.
taken to Bethany Hospital at San Fernando, La Union, for medical
treatment. Upon medical examination, petitioner was found to have
sustained physical injuries on the leg, arm and forehead, specifically
described as follows: lacerated wound, forehead; abrasion, elbow, SO ORDERED. 3
left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1
In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of
On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of
Appeals and ask this Court to award her actual or compensatory damages as well as moral damages.
respondent, visited them and later paid for their hospitalization and medical expenses. She also gave
petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However,
before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had
Affidavit which stated, among other things: been made by petitioner. The relevant language of the Joint Affidavit may be quoted again:
That we are no longer interested to file a complaint, criminal or civil against the said driver
and owner of the said Thames, because it was an accident and the said driver and owner of
the said Thames have gone to the extent of helping us to be treated upon our injuries.
(Emphasis supplied)
That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after
the said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while
passing through the National Highway No. 3;
That after a thorough investigation the said Thames met the accident due to mechanical A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which
defect and went off the road and turned turtle to the east canal of the road into a creek leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to
causing physical injuries to us; A waiver may not casually be attributed to a person when the
him. 4
That we are no longer interested to file a complaint, criminal or civil against the said driver The degree of explicitness which this Court has required in purported
and owner of the said Thames, because it was an accident and the said driver and owner of waivers is illustrated in Yepes and Susaya v. Samar Express Transit
the said Thames have gone to the extent of helping us to be treated upon our injuries. (supra), where the Court in reading and rejecting a purported waiver
said:
Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union Even a cursory examination of the document mentioned
an action extra contractu to recover compensatory and moral damages. She alleged in the complaint that above will readily show that appellees did not actually
her injuries sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1 by waive their right to claim damages from appellant for the
1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that as latter's failure to comply with their contract of carriage. All
a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar that said document proves is that they expressed a "desire"
diminished her facial beauty and deprived her of opportunities for employment. She prayed for an award to make the waiver — which obviously is not the same as
making an actual waiver of their right. A waiver of the kind Thus, where fortuitous event or force majeure is the
invoked by appellant must be clear and immediate and proximate cause of the loss, the obligor is
unequivocal (Decision of the Supreme Court of Spain of exempt from liability non-performance. The Partidas, the
July 8, 1887) — which is not the case of the one relied antecedent of Article 1174 of the Civil Code, defines "caso
upon in this appeal. (Emphasis supplied) fortuito" as 'an event that takes place by accident and could
not have been foreseen. Examples of this are destruction
If we apply the standard used in Yepes and Susaya, we would have of houses, unexpected fire, shipwreck, violence of robber.
to conclude that the terms of the Joint Affidavit in the instant case
cannot be regarded as a waiver cast in "clear and unequivocal" In its dissertation on the phrase "caso fortuito" the
terms. Moreover, the circumstances under which the Joint Affidavit Enciclopedia Juridica Española says: 'In legal sense and,
was signed by petitioner Gatchalian need to be considered. Petitioner consequently, also in relation to contracts, a "caso fortuito"
testified that she was still reeling from the effects of the vehicular presents the following essential characteristics: (1) the
accident, having been in the hospital for only three days, when the cause of the unforeseen and unexpected occurence, or of
purported waiver in the form of the Joint Affidavit was presented to the failure of the debtor to comply with his obligation, must
her for signing; that while reading the same, she experienced be independent of the human will; (2) it must be impossible
dizziness but that, seeing the other passengers who had also to foresee the event which constitutes the "caso fortuito", or
suffered injuries sign the document, she too signed without bothering if it can be foreseen, it must be impossible to avoid; (3) the
to read the Joint Affidavit in its entirety. Considering these occurrence must be such as to render it impossible for the
circumstances there appears substantial doubt whether petitioner debtor to fulfill his obligation in a normal manner; and (4)
understood fully the import of the Joint Affidavit (prepared by or at the the obligor must be free from any participation in the
instance of private respondent) she signed and whether she actually aggravation of the injury resulting to the creditor.
intended thereby to waive any right of action against private
respondent. Upon the other hand, the record yields affirmative evidence of fault or
negligence on the part of respondent common carrier. In her direct
Finally, because what is involved here is the liability of a common examination, petitioner Gatchalian narrated that shortly before the
carrier for injuries sustained by passengers in respect of whose vehicle went off the road and into a ditch, a "snapping sound" was
safety a common carrier must exercise extraordinary diligence, we suddenly heard at one part of the bus. One of the passengers, an old
must construe any such purported waiver most strictly against the woman, cried out, "What happened?" ("Apay addan samet
common carrier. For a waiver to be valid and effective, it must not be nadadaelen?"). The driver replied, nonchalantly, "That is only
contrary to law, morals, public policy or good normal" ("Ugali ti makina dayta"). The driver did not stop to check if
customs. 5 To uphold a supposed waiver of any right to claim anything had gone wrong with the bus. Moreover, the driver's reply
damages by an injured passenger, under circumstances like those necessarily indicated that the same "snapping sound" had been
exhibited in this case, would be to dilute and weaken the standard of heard in the bus on previous occasions. This could only mean that
extraordinary diligence exacted by the law from common carriers and the bus had not been checked physically or mechanically to
hence to render that standard unenforceable. 6 We believe such a determine what was causing the "snapping sound" which had
purported waiver is offensive to public policy. occurred so frequently that the driver had gotten accustomed to it.
Such a sound is obviously alien to a motor vehicle in good operating
Petitioner Gatchalian also argues that the Court of Appeals, having condition, and even a modicum of concern for life and limb of
by majority vote held that there was no enforceable waiver of her passengers dictated that the bus be checked and repaired. The
right of action, should have awarded her actual or compensatory and obvious continued failure of respondent to look after the
moral damages as a matter of course. roadworthiness and safety of the bus, coupled with the driver's
refusal or neglect to stop the mini-bus after he had heard once again
the "snapping sound" and the cry of alarm from one of the
We have already noted that a duty to exercise extraordinary diligence
passengers, constituted wanton disregard of the physical safety of
in protecting the safety of its passengers is imposed upon a common
the passengers, and hence gross negligence on the part of
carrier. 7 In case of death or injuries to passengers, a statutory
respondent and his driver.
presumption arises that the common carrier was at fault or had acted
negligently "unless it proves that it [had] observed extraordinary
diligence as prescribed in Articles 1733 and 1755." 8 In fact, because We turn to petitioner's claim for damages. The first item in that claim
of this statutory presumption, it has been held that a court need not relates to revenue which petitioner said she failed to realize because
even make an express finding of fault or negligence on the part of the of the effects of the vehicular mishap. Petitioner maintains that on the
common carrier in order to hold it liable. 9 To overcome this day that the mini-bus went off the road, she was supposed to confer
presumption, the common carrier must slow to the court that it had with the district supervisor of public schools for a substitute teacher's
exercised extraordinary diligence to prevent the injuries. 10 The job, a job which she had held off and on as a "casual employee." The
standard of extraordinary diligence imposed upon common carriers is Court of Appeals, however, found that at the time of the accident, she
considerably more demanding than the standard of ordinary was no longer employed in a public school since, being a casual
diligence, i.e., the diligence of a good paterfamilias established in employee and not a Civil Service eligible, she had been laid off. Her
respect of the ordinary relations between members of society. A employment as a substitute teacher was occasional and episodic,
common carrier is bound to carry its passengers safely" as far as contingent upon the availability of vacancies for substitute teachers.
human care and foresight can provide, using the utmost diligence of In view of her employment status as such, the Court of Appeals held
a very cautious person, with due regard to all the circumstances". 11 that she could not be said to have in fact lost any employment after
and by reason of the accident. 13 Such was the factual finding of the
Thus, the question which must be addressed is whether or not private respondent has successfully proved Court of Appeals, a finding entitled to due respect from this Court.
that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records Petitioner Gatchalian has not submitted any basis for overturning this
before the Court are bereft of any evidence showing that respondent had exercised the extraordinary finding of fact, and she may not be awarded damages on the basis of
diligence required by law. Curiously, respondent did not even attempt, during the trial before the court a speculation or conjecture. 14
quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to
exculpate himself from liability by alleging that the mishap was the result of force majeure. But allegation is Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter.
not proof and here again, respondent utterly failed to substantiate his defense offorce majeure. To exempt A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished,
a common carrier from liability for death or physical injuries to passengers upon the ground of force actual injury is suffered for which actual or compensatory damages are due and assessable. Petitioner
majeure, the carrier must clearly show not only that the efficient cause of the casualty was entirely Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A
independent of the human will, but also that it was impossible to avoid. Any participation by the common scar, especially one on the face of the woman, resulting from the infliction of injury upon her, is a violation
carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine of bodily integrity, giving raise to a legitimate claim for restoration to her conditio ante. If the scar is
relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be
the Court summed up the essential
Steam Navigation Company, 12
correspondingly modest. In Araneta, et al. vs. Areglado, et al., 15 this Court awarded actual or
characteristics of force majeure by quoting with approval from
compensatory damages for, among other things, the surgical removal of the scar on the face of a young
the Enciclopedia Juridica Española:
boy who had been injured in a vehicular collision. The Court there held:
We agree with the appellants that the damages awarded by the lower court for the injuries
suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as
compensation for the "permanent deformity and — something like an inferiority complex" as
well as for the "pathological condition on the left side of the jaw" caused to said plaintiff, the
court below overlooked the clear evidence on record that to arrest the degenerative process
taking place in the mandible and restore the injured boy to a nearly normal condition,
surgical intervention was needed, for which the doctor's charges would amount to
P3,000.00, exclusive of hospitalization fees, expenses and medicines. Furthermore, the
operation, according to Dr. Diño, would probably have to be repeated in order to effectuate
a complete cure, while removal of the scar on the face obviously demanded plastic surgery.
The father's failure to submit his son to a plastic operation as soon as possible does not
prove that such treatment is not called for. The damage to the jaw and the existence of the
scar in Benjamin Araneta's faceare physical facts that can not be reasoned out of
existence. That the injury should be treated in order to restore him as far as possible to his
original condition is undeniable. The father's delay, or even his negligence, should not be
allowed to prejudice the son who has no control over the parent's action nor impair his right
to a full indemnity.
. . . Still, taking into account the necessity and cost of corrective measures to fully repair the
damage; the pain suffered by the injured party; his feelings of inferiority due to
consciousness of his present deformity, as well as the voluntary character of the injury
inflicted; and further considering that a repair, however, skillfully conducted, is never
equivalent to the original state, we are of the opinion that the indemnity granted by the trial
court should be increased to a total of P18,000.00. (Emphasis supplied)
Petitioner estimated that the cost of having her scar surgically removed was somewhere between
WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the
then Court of First Instance of La Union dated 4 December 1975 are hereby REVERSED and SET
ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1)
P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the
scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the
aggregate amount to bear interest at the legal rate of 6% per annum counting from the promulgation of this
decision until full payment thereof. Costs against private respondent.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
G.R. No. L-10126 October 22, 1957 goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO Such extraordinary diligence in the vigilance over the
BATACLAN, represented by their Natural guardian, SALUD goods is further expressed in articles 1734, 1735, and
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, 1745, Nos. 5, 6, and 7, while the extra ordinary diligence
vs. for the safety of the passengers is further set forth in
MARIANO MEDINA, defendant-appellant. articles 1755 and 1756.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for ART. 1755. A common carrier is bound to carry the
plaintiffs-appellants. passengers safely as far as human care and foresight can
Fortunato Jose for defendant and appellant. provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
MONTEMAYOR, J.:
ART. 1756. In case of death of or injuries to passengers,
Shortly after midnight, on September 13, 1952 bus no. 30 of the common carriers are presumed to have been at fault or to
Medina Transportation, operated by its owner defendant Mariano have acted negligently, unless they prove that they
Medina under a certificate of public convenience, left the town of observed extraordinary diligence as prescribed in articles
Amadeo, Cavite, on its way to Pasay City, driven by its regular 1733 and 1755
chauffeur, Conrado Saylon. There were about eighteen passengers,
including the driver and conductor. Among the passengers were Juan ART. 1759. Common carriers are liable for the death of or
Bataclan, seated beside and to the right of the driver, Felipe Lara, injuries to passengers through the negligence or willful acts
sated to the right of Bataclan, another passenger apparently from the of the former's employees, although such employees may
Visayan Islands whom the witnesses just called Visaya, apparently have acted beyond the scope of their authority or in
not knowing his name, seated in the left side of the driver, and a violation of the order of the common carriers.
woman named Natalia Villanueva, seated just behind the four last
mentioned. At about 2:00 o'clock that same morning, while the bus This liability of the common carriers does not cease upon
was running within the jurisdiction of Imus, Cavite, one of the front proof that they exercised all the diligence of a good father
tires burst and the vehicle began to zig-zag until it fell into a canal or of a family in the selection and supervision of their
ditch on the right side of the road and turned turtle. Some of the employees.
passengers managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three passengers
ART. 1763. A common carrier responsible for injuries
seated beside the driver, named Bataclan, Lara and the Visayan and
suffered by a passenger on account of the willful acts or
the woman behind them named Natalia Villanueva, could not get out
negligence of other passengers or of strangers, if the
of the overturned bus. Some of the passengers, after they had
common carrier's employees through the exercise of the
clambered up to the road, heard groans and moans from inside the
diligence of a good father of a family could have prevented
bus, particularly, shouts for help from Bataclan and Lara, who said
or stopped the act or omission.
they could not get out of the bus. There is nothing in the evidence to
show whether or not the passengers already free from the wreck,
including the driver and the conductor, made any attempt to pull out We agree with the trial court that the case involves a breach of
or extricate and rescue the four passengers trapped inside the contract of transportation for hire, the Medina Transportation having
vehicle, but calls or shouts for help were made to the houses in the undertaken to carry Bataclan safely to his destination, Pasay City.
neighborhood. After half an hour, came about ten men, one of them We also agree with the trial court that there was negligence on the
carrying a lighted torch made of bamboo with a wick on one end, part of the defendant, through his agent, the driver Saylon. There is
evidently fueled with petroleum. These men presumably approach evidence to show that at the time of the blow out, the bus was
the overturned bus, and almost immediately, a fierce fire started, speeding, as testified to by one of the passengers, and as shown by
burning and all but consuming the bus, including the four passengers the fact that according to the testimony of the witnesses, including
trapped inside it. It would appear that as the bus overturned, gasoline that of the defense, from the point where one of the front tires burst
began to leak and escape from the gasoline tank on the side of the up to the canal where the bus overturned after zig-zaging, there was
chassis, spreading over and permeating the body of the bus and the a distance of about 150 meters. The chauffeur, after the blow-out,
ground under and around it, and that the lighted torch brought by one must have applied the brakes in order to stop the bus, but because of
of the men who answered the call for help set it on fire. the velocity at which the bus must have been running, its momentum
carried it over a distance of 150 meters before it fell into the canal
and turned turtle.
That same day, the charred bodies of the four deemed passengers
inside the bus were removed and duly identified that of Juan
Bataclan. By reason of his death, his widow, Salud Villanueva, in her There is no question that under the circumstances, the defendant
name and in behalf of her five minor children, brought the present carrier is liable. The only question is to what degree. The trial court
suit to recover from Mariano Medina compensatory, moral, and was of the opinion that the proximate cause of the death of Bataclan
exemplary damages and attorney's fees in the total amount of was not the overturning of the bus, but rather, the fire that burned the
P87,150. After trial, the Court of First Instance of Cavite awarded bus, including himself and his co-passengers who were unable to
P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the leave it; that at the time the fire started, Bataclan, though he must
value of the merchandise being carried by Bataclan to Pasay City for have suffered physical injuries, perhaps serious, was still alive, and
sale and which was lost in the fire. The plaintiffs and the defendants so damages were awarded, not for his death, but for the physical
appealed the decision to the Court of Appeals, but the latter injuries suffered by him. We disagree. A satisfactory definition of
endorsed the appeal to us because of the value involved in the claim proximate cause is found in Volume 38, pages 695-696 of American
in the complaint. jurisprudence, cited by plaintiffs-appellants in their brief. It is as
follows:
Our new Civil Code amply provides for the responsibility of common
carrier to its passengers and their goods. For purposes of reference, . . . 'that cause, which, in natural and continuous sequence,
we are reproducing the pertinent codal provisions: unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal
ART. 1733. Common carriers, from the nature of their
cause is that acting first and producing the injury, either
business and for reasons of public policy, are bound to
immediately or by setting other events in motion, all
observe extraordinary diligence in the vigilance over the
constituting a natural and continuous chain of events, each
having a close causal connection with its immediate
predecessor, the final event in the chain immediately and with his consent, was provisionally dismissed, because
effecting the injury as a natural and probable result of the according to the fiscal, the witnesses on whose testimony he was
cause which first acted, under such circumstances that the banking to support the complaint, either failed or appear or were
person responsible for the first event should, as an ordinary reluctant to testify. But the record of the case before us shows the
prudent and intelligent person, have reasonable ground to several witnesses, passengers, in that bus, willingly and
expect at the moment of his act or default that an injury to unhesitatingly testified in court to the effect of the said driver was
some person might probably result therefrom. negligent. In the public interest the prosecution of said erring driver
should be pursued, this, not only as a matter of justice, but for the
It may be that ordinarily, when a passenger bus overturns, and pins promotion of the safety of passengers on public utility buses. Let a
down a passenger, merely causing him physical injuries, if through copy of this decision be furnished the Department of Justice and the
some event, unexpected and extraordinary, the overturned bus is set Provincial Fiscal of Cavite.
on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one In view of the foregoing, with the modification that the damages
might still contend that the proximate cause of his death was the fire awarded by the trial court are increased from ONE THOUSAND
and not the overturning of the vehicle. But in the present case under (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
the circumstances obtaining in the same, we do not hesitate to hold SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for
that the proximate cause was the overturning of the bus, this for the the death of Bataclan and for the attorney's fees, respectively, the
reason that when the vehicle turned not only on its side but decision appealed is from hereby affirmed, with costs.
completely on its back, the leaking of the gasoline from the tank was
not unnatural or unexpected; that the coming of the men with a Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,
lighted torch was in response to the call for help, made not only by Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.
the passengers, but most probably, by the driver and the conductor
themselves, and that because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with them, and coming as
they did from a rural area where lanterns and flashlights were not
available; and what was more natural than that said rescuers should
innocently approach the vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men
with a torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and
the call for outside help. What is more, the burning of the bus can
also in part be attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness, the driver and the
conductor were on the road walking back and forth. They, or at least,
the driver should and must have known that in the position in which
the overturned bus was, gasoline could and must have leaked from
the gasoline tank and soaked the area in and around the bus, this
aside from the fact that gasoline when spilled, specially over a large
area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken
steps to warn the rescuers not to bring the lighted torch too near the
bus. Said negligence on the part of the agents of the carrier come
under the codal provisions above-reproduced, particularly, Articles
1733, 1759 and 1763.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of
the injuries suffered by her, was hospitalized, and while in the
hospital, she was visited by the defendant Mariano Medina, and in
the course of his visit, she overheard him speaking to one of his bus
inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of
fact, he had been telling the driver to change the said tires, but that
the driver did not follow his instructions. If this be true, it goes to
prove that the driver had not been diligent and had not taken the
necessary precautions to insure the safety of his passengers. Had he
changed the tires, specially those in front, with new ones, as he had
been instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in all, there
is reason to believe that the driver operated and drove his vehicle
negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their
goods, and yet the criminal case against him, on motion of the fiscal
G.R. No. 85691 July 31, 1990 1) To the heirs of Ornominio Beter, the amount of
Seventy Five Thousand Pesos (P75,000.00) in
BACHELOR EXPRESS, INCORPORATED, and CRESENCIO loss of earnings and support, moral damages,
RIVERA, petitioners, straight death indemnity and attorney's fees; and,
vs.
THE HONORABLE COURT OF APPEALS (Sixth Division), 2) To the heirs of Narcisa Rautraut, the amount
RICARDO BETER, SERGIA BETER, TEOFILO RAUTRAUT and of Forty Five Thousand Pesos (P45,000.00) for
ZOETERA RAUTRAUT, respondents. straight death indemnity, moral damages and
attorney's fees. Costs against appellees. (Rollo,
Aquino W. Gambe for petitioners. pp. 71-72)
Tranquilino O. Calo, Jr. for private respondents. The petitioners now pose the following questions
Q That is only your estimate by your experience? In accordance with Art. 1764 in conjunction with
Art. 2206 of the Civil Code, and established
A Yes, sir, estimate. jurisprudence, several factors may be considered
in determining the award of damages, namely: 1)
(Tsn., pp. 4-5, Oct. 17, 1983). life expectancy (considering the state of health of
the deceased and the mortality tables are
deemed conclusive) and loss of earning capacity;
At such speed of not less than 30 to 40 miles ...,
(2) pecuniary loss, loss of support and service;
or about 48 to 65 kilometers per hour, the speed
and (3) moral and mental suffering (Alcantara, et
of the bus could scarcely be considered slow
al. v. Surro, et al., 93 Phil. 470).
considering that according to Collango himself,
the bus had just come from a full stop after
picking a passenger (Tsn, p. 4, Id.) and that the In the case of People v. Daniel (No. L-66551,
bus was still on its second or third gear (Tsn., p. April 25, 1985, 136 SCRA 92, at page 104), the
12, Id.). High Tribunal, reiterating the rule in Villa Rey
Transit, Inc. v. Court of Appeals (31 SCRA 511),
stated that the amount of loss of earring capacity
In the light of the foregoing, the negligence of the
is based mainly on two factors, namely, (1) the
common carrier, through its employees,
number of years on the basis of which the
consisted of the lack of extraordinary diligence
damages shall be computed; and (2) the rate at
required of common carriers, in exercising
which the losses sustained by the heirs should be
vigilance and utmost care of the safety of its
fixed.
passengers, exemplified by the driver's belated
stop and the reckless opening of the doors of the
bus while the same was travelling at an As the formula adopted in the case of Davila v.
appreciably fast speed. At the same time, the Philippine Air Lines, 49 SCRA 497, at the age of
common carrier itself acknowledged, through its 30 one's normal life expectancy is 33-1/3 years
administrative officer, Benjamin Granada, that the based on the American Expectancy Table of
bus was commissioned to travel and take on Mortality (2/3 x 80-32).i•t•c-aüsl By taking into
passengers and the public at large, while account the pace and nature of the life of a
equipped with only a solitary door for a bus its carpenter, it is reasonable to make allowances
size and loading capacity, in contravention of for these circumstances and reduce the life
rules and regulations provided for under the Land expectancy of the deceased Ornominio Beter to
Transportation and Traffic Code (RA 4136 as 25 years (People v. Daniel, supra). To fix the rate
amended.) (Rollo, pp. 23-26) of losses it must be noted that Art. 2206 refers to
gross earnings less necessary living expenses of
the deceased, in other words, only net earnings
Considering the factual findings of the Court of Appeals-the bus
are to be considered (People v. Daniel, supra;
driver did not immediately stop the bus at the height of the
Villa Rey Transit, Inc. v. Court of Appeals, supra).
commotion; the bus was speeding from a full stop; the victims fell
from the bus door when it was opened or gave way while the bus
was still running; the conductor panicked and blew his whistle after Applying the foregoing rules with respect to
people had already fallen off the bus; and the bus was not properly Ornominio Beter, it is both just and reasonable,
equipped with doors in accordance with law-it is clear that the considering his social standing and position, to fix
petitioners have failed to overcome the presumption of fault and the deductible, living and incidental expenses at
negligence found in the law governing common carriers. the sum of Four Hundred Pesos (P400.00) a
month, or Four Thousand Eight Hundred Pesos
(P4,800.00) annually. As to his income,
The petitioners' argument that the petitioners "are not insurers of their
considering the irregular nature of the work of a
passengers" deserves no merit in view of the failure of the petitioners
daily wage carpenter which is seasonal, it is safe
to prove that the deaths of the two passengers were exclusively due
to assume that he shall have work for twenty (20)
to force majeure and not to the failure of the petitioners to observe
days a month at Twenty Five Pesos
extraordinary diligence in transporting safely the passengers to their
(P150,000.00) for twenty five years. Deducting
destinations as warranted by law. (See Batangas Laguna Tayabas
therefrom his necessary expenses, his heirs
Co. v. Intermediate Appellate Court, supra).
would be entitled to Thirty Thousand Pesos
(P30,000.00) representing loss of support and
The petitioners also contend that the private respondents failed to service (P150,000.00 less P120,000.00). In
show to the court that they are the parents of Ornominio Beter and addition, his heirs are entitled to Thirty Thousand
Narcisa Rautraut respectively and therefore have no legal personality Pesos (P30,000.00) as straight death indemnity
to sue the petitioners. This argument deserves scant consideration. pursuant to Article 2206 (People v. Daniel,
We find this argument a belated attempt on the part of the petitioners supra). For damages for their moral and mental
to avoid liability for the deaths of Beter and Rautraut. The private anguish, his heirs are entitled to the reasonable
respondents were Identified as the parents of the victims by
sum of P10,000.00 as an exception to the
general rule against moral damages in case of
breach of contract rule Art. 2200 (Necesito v.
Paras, 104 Phil. 75). As attorney's fees, Beter's
heirs are entitled to P5,000.00. All in all, the
plaintiff-appellants Ricardo and Sergia Beter as
heirs of their son Ornominio are entitled to an
indemnity of Seventy Five Thousand Pesos
(P75,000.00).
SO ORDERED.
G.R. No. L-9907 June 30, 1958 stopped the pick-up to see what happened to Lara. He sought the
help of the residents of that place and applied water to Lara but to no
LOURDES J. LARA, ET AL., plaintiffs-appellants, avail. They brought Lara to the nearest place where they could find a
vs. doctor and not having found any they took him to St. Joseph's Clinic
BRIGIDO R. VALENCIA, defendant-appellant. of Kidapawan. But when Lara arrived he was already dead. From
there they proceeded to Davao City and immediately notified the
local authorities. An investigation was made regarding the
Castillo, Cervantes, Occeña, Lozano, Montana, Cunanan, Sison and
circumstances surrounding the death of Lara but no criminal action
Castillo and Eligio G. Lagman for defendant-appellant.
was taken against defendant.
Donato C. Endriga and Emigdio Dakanay for plaintiffs-appellants.
Even if we admit as true the facts found by the trial court, still we find
that the same are not sufficient to show that defendant has failed to
take the precaution necessary to conduct his passengers safely to
their place of destination for there is nothing there to indicate that
defendant has acted with negligence or without taking the precaution
that an ordinary prudent man would have taken under similar
circumstances. It should be noted that Lara went to the lumber
concession of defendant in answer to a call of duty which he was
bound to perform because of the requirement of his office and he
contracted the malaria fever in the course of the performance of that
duty. It should also be noted that defendant was not in duty bound to
take the deceased in his own pick-up to Davao because from Parang
to Cotabato there was a line of transportation that regularly makes
trips for the public, and if defendant agreed to take the deceased in
his own car, it was only to accommodate him considering his feverish
condition and his request that he be so accommodated. It should also
be noted that the passengers who rode in the pick-up of defendant
took their respective seats therein at their own choice and not upon
indication of defendant with the particularity that defendant invited the
deceased to sit with him in the front seat but which invitation the
deceased declined. The reason for this can only be attributed to his
desire to be at the back so that he could sit on a bag and travel in a
reclining position because such was more convenient for him due to
his feverish condition. All the circumstances therefore clearly indicate
that defendant had done what a reasonable prudent man would have
done under the circumstances.
The finding of the trial court that the pick-up was running at more
than 40 kilometers per hour is not supported by the evidence. This is
a mere surmise made by the trial court considering the time the pick-
up left barrio Samoay and the time the accident occured in relation to
the distance covered by the pick-up. And even if this is correct, still
we say that such speed is not unreasonable considering that they
were traveling on a national road and the traffic then was not heavy.
We may rather attribute the incident to lack of care on the part of the
deceased considering that the pick-up was open and he was then in
a crouching position. Indeed, the law provides that "A passenger
must observe the diligence of a good father of a family to avoid injury
to himself" (Article 1761, new Civil Code), which means that if the
injury to the passenger has been proximately caused by his own
negligence, the carrier cannot be held liable.
The judgment was rendered upon the following stipulation of facts: "No one shall be liable for events which could not be
foreseen or which, even if foreseen, were inevitable, with
That at about 7:30 a.m., on the morning of April 1, 1946, the exception of the cases in which the law expressly
Lieut. Tomas Gillaco, husband of the plaintiff, was a provides otherwise and those in which the obligation itself
passenger in the early morning train of the Manila Railroad imposes such liability."
Company from Calamba, Laguna to Manila;
The act of guard Devesa in shooting passenger Gillaco (because of a
That when the train reached the Paco Railroad station, personal grudge nurtured against the latter since the Japanese
Emilio Devesa, a train guard of the Manila Railroad occupation) was entirely unforeseeable by the Manila Railroad Co.
Company assigned in the Manila-San Fernando, La Union The latter had no means to ascertain or anticipate that the two would
Line, happened to be in said station waiting for the same meet, nor could it reasonably foresee every personal rancor that
train which would take him to Tutuban Station, where he might exist between each one of its many employees and any one of
was going to report for duty; the thousands of eventual passengers riding in its trains. The
shooting in question was therefore "caso fortuito" within the definition
That Emilio Devesa had a long standing personal grudge of article 105 of the old Civil Code, being both unforeseeable and
against Tomas Gillaco, same dating back during the inevitable under the given circumstances; and pursuant to
Japanese occupation; established doctrine, the resulting breach of appellant's contract of
safe carriage with the late Tomas Gillaco was excused thereby.
That because of this personal grudge, Devesa shot Gillaco
with the carbine furnished to him by the Manila Railroad No doubt that a common carrier is held to a very high degree of care
Company for his use as such train guard, upon seeing him and diligence in the protection of its passengers; but, considering the
inside the train coach; vast and complex activities of modern rail transportation, to require of
appellant that it should guard against all possible misunderstanding
between each and every one of its employees and every passenger
That Tomas Gillaco died as a result of the would which he
that might chance to ride in its conveyances at any time, strikes us as
sustained from the shot fired by Devesa.
demanding diligence beyond what human care and foresight can
provide.
It is also undisputed that Devesa was convicted with homicide by
final judgment of the Court of Appeals.
The lower Court and the appellees both relied on the American
authorities that particularly hold carriers to be insurers of the safety of
Appellant's contention is that, on the foregoing facts, no liability their passengers against willful assault and intentional ill treatment on
attaches to it as employer of the killer, Emilio Devesa; that it is not the part of their servants, it being immaterial that the act should be
responsible subsidiary ex delicto, under Art. 103 of the Revised one of private retribution on the part of the servant, impelled by
Penal Code, because the crime was not committed while the slayer personal malice toward the passenger (10 Am. Jur. 108; Ed. Note to
was in the actual performance of his ordinary duties and service; nor Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But
is it responsible ex contractu, since the complaint did not aver as can be inferred from the previous jurisprudence of this Court , the
sufficient facts to establish such liability, and no negligence on Civil Code of 1889 did not impose such absolute liability
appellant's party was shown. The Court below held the Railroad (Lasam vs. Smith, supra). The liability of a carrier as an insurer was
company responsible on the ground that a contract of transportation not recognized in this jurisdiction (Government vs. Inchausti & Co.,
implies protection of the passengers against acts of personal 40 Phil., 219; Oriental Comm. Co. vs. Naviera Filipina, 38 Off. Gaz.,
violence by the agents or employees of the carrier. 1020).
There can be no quarrel with the principle that a passenger is entitled Another very important consideration that must be borne in mind is
to protection from personal violence by the carrier or its agents or that, when the crime took place, the guard Devesa had no duties to
employees, since the contract of transportation obligates the carrier discharge in connection with the transportation of the deceased from
to transport a passenger safely to his destination. But under the law Calamba to Manila. The stipulation of facts is clear that when Devesa
of the case, this responsibility extends only to those that the carrier shot and killed Gillaco, Devesa was assigned to guard the Manila-
could foresee or avoid through the exercise of the degree of car and San Fernando (La Union) trains, and he was at Paco Station awaiting
diligence required of it. transportation to Tutuban, the starting point of the train that he was
engaged to guard. In fact, his tour of duty was to start at 9:00 a.m.,
Discussing the basis of a carrier's liability under the old Civil Code of two hours after the commission of the crime. Devesa was therefore
1889 (which was in force in 1946, when Gillaco was shot) this Court under no obligation to safeguard the passenger of the Calamba-
said in Lasam vs. Smith (45 Phil., 657): Manila train, where the deceased was riding; and the killing of Gillaco
was not done in line of duty. The position of Devesa at the time was
In our opinion, the conclusions of the court below are that of another would be passenger, a stranger also awaiting
entirely correct. That upon the facts stated the defendant's transportation, and not that of an employee assigned to discharge
liability, if any, is contractual, is well settled by previous any of the duties that the Railroad had assumed by its contract with
the deceased. As a result, Devesa's assault cannot be deemed in law
a breach of Gillaco's contract of transportation by a servant or
employee of the carrier. We agree with the position taken by the
Supreme Court of Texas in a similar case, where it held:
The only good reason for making the carrier responsible for
the misconduct of the servant perpetrated in his own
interest, and not in that of his employer, or otherwise within
the scope of his employment, is that the servant is clothed
with the delegated authority, and charge with the duty by
the carrier, to execute his undertaking with the passenger.
And it cannot be said, we think, that there is any such
delegation to the employees at a station with reference to
passenger embarking at another or traveling on the train.
Of course, we are speaking only of the principle which
holds a carrier responsible for wrong done to passenger by
servants acting in their own interest, and not in that of the
employer. That principle is not the ordinary rule,respondent
superior, by which the employer is held responsible only for
act or omissions of the employee in the scope of his
employment; but the only reason in our opinion for a
broader liability arises from the fact that the servant, in
mistreating the passenger wholly for some private purpose
of his own, in the very act, violates the contractual
obligation of the employer for the performance of which he
has put the employee in his place. The reason does not
exist where the employee who committed the assault was
never in a position in which it became his duty to his
employer to represent him in discharging any duty of the
latter toward the passenger. The proposition that the carrier
clothes every employee engaged in the transportation
business with the comprehensive duty of protecting every
passenger with whom he may in any way come in contact,
and hereby makes himself liable for every assault
commited by such servant, without regard to the inquiry
whether or not the passenger has come within the sphere
of duty of that servant as indicated by the employment, is
regarded as not only not sustained by the authorities, but
as being unsound and oppressive both to the employer and
the employee. (Houston & T. C. R. Co. vs. Bush, 32 LRA
(NS), p. 1205.)
It was clearly established by the positive testimony of second mate, The Petition is not impressed with merit.
Aurelio Villacampa, Jr. on July 14, 1981 and the sketch prepared by
said witness (Exhibit 2) that the two vessels were in a crossing Well-settled to the point of being elementary is the doctrine that
situation. The vessel M/V Don Sulpicio was approaching on the the findings by the trial court are binding on the appellate court and
starboard or right side of the crossing vessel F/B Aquarius B. The will not be disturbed on appeal, unless the trial court has overlooked
applicable rules in such a crossing situation are Rules 19, 21, 22 and or ignored some fact or circumstance of sufficient weight or
23. We quote the above Rules as follows: significance which, if considered, would alter the situation.[8]
Rule 19. When two power driven vessels are crossing, so as to "Factual findings of the appellate court deemed conclusive. (Estonina
involve risk of collision, the vessel which has the other on her v. Court of Appeals, 266 SCRA 627)"
starboard side shall keep out of the way of the other.
It is a fundamental rule in criminal as well as in civil cases that in the
Rule 21. Where, by any of the Rules, one of two vessels is to keep matter of credibility of witnesses, the findings of the trial court are
out of the way, the other shall keep her course and speed. given great weight and highest degree of respect by the appellate
court. (Lee Eng Hong v. Court of Appeals, 241 SCRA 392 citing
Rule 22. Every vessel which is directed by these Rules to keep out of Pagsuyuin v. Intermediate Appellate Court, 193 SCRA 547)
the way of another vessel, so far as possible, take positive early
action to comply with this obligation, and shall, if the circumstance of xxx It is not the function of this Court to assess and evaluate all over
the case admit, avoid crossing ahead of the other. again the evidence, testimonial and evidentiary, adduced by the
parties particularly where, such as here, the findings of both the trial
Rule 23. Every power-driven vessel which is directed by these Rules court and the appellate court on the matter coincide. (South Sea
to keep out of the way of another vessel shall, on approaching her, if Surety and Insurance Company, Inc. v. Court of Appeals, 244 SCRA
necessary, slacken her speed or stop or reverse. 744)
The M/V DON SULPICIO was the privileged vessel and the F/B It is a settled principle of civil procedure that the conclusions of the
Aquarius B was the burdened vessel in the crossing situation trial court regarding the credibility of witnesses are entitled to great
(Exhibits 2, 3, 4, 9, 10). However, the F/B Aquarius B violated the respect from the appellate court xxx" (Limketkai Sons Milling, Inc. vs.
rules, did not keep out of the way, did not slacken speed but instead Court of Appeals, 250 SCRA 253, citing Serrano vs. Court of
went full ahead and crossed the bow of M/V DON SULPICIO. xxx Appeals, 196 SCRA 107)
xxx xxx xxx After a thorough review and examination of the evidence on
hand, we discern no ground or basis for disregarding the findings and
conclusion arrived at below.
In the case at bar F/B Aquarius B by failure to keep out of the way
and slacken her speed has allowed herself to come to close proximity Petitioners asserted that private respondent, through its patron,
to the vessel M/V DON SULPICIO bringing about the collision. admitted that the vessel had no lookout during the collision despite
the absolute rule provided in Rule 9 of the Rules of Road. To bolster
The award to private respondent of the sum of P564,448.80 as actual its stance, it contended that it was a privileged vessel pursuant to
loss is based on surmises and conjectures. No appraisal of the value Rules 19, 21, 22, 23 of the Regulations for the Prevention of
of the vessel F/B Aquarius B was presented to support said claim of Collisions at Sea.
total loss. The claim of P564,448.80 was derived after summarizing
up invoices and receipts of alleged purchases of materials, provisions Both the trial court and the respondent court found that M/V
Don Sulpicio was crossing at 15.5 knots per hour while F/B Aquarius
G was obeying a speed limit of 7.5 knots per hour. The weather was amounted to an admission of such allegation. The vessel was
clear and visibility was good. M/V Don Sulpicio was four (4) miles constructed in 1972 while the collision occurred in 1978. The
away when it first sighted F/B Aquarius G. All the time up to the remaining life span of F/B Aquarius G was therefore four (4)
collision, M/V Don Sulpicio maintained its speed of 16 knots. It was years. Conformably, computed at P10,000.00 per month for a period
only two (2) minutes before the collision when M/V Don Sulpicio of four (4) years, the unrealized profits/earnings involved, amounted
changed its course. to at most P480,000.00.
Whether or not the collision sued upon occurred in a crossing As regards the attorneys fees equivalent to 15% of all the
situation is immaterial as the Court of Appeals, relying on Rule 24-C, awards granted by the Regional Trial Court, the propriety thereof
Regulations for Preventing Collisions at the Sea, rules that the duty cannot be questioned. Gross and evident bad faith on the part of
to keep out of the way remained even if the overtaking vessel cannot petitioner in refusing to pay the claim sued upon constrained the
determine with certainty whether she is forward of or abaft more than private respondent to enlist the services of a lawyer to litigate.
2 points from the vessel. It is beyond cavil that M/V Don
Sulpicio must assume responsibility as it was in a better position to Petitioner must have placed reliance on the general rule that
avoid the collision. It should have blown its horn or give signs to warn attorneys fees cannot be recovered as part of damages because of
the other vessel that it was to overtake it. the policy that no premium should be placed on the right to
litigate. (Philtranco Service Enterprises, Inc. v. Court of Appeals, 273
Assuming argumenti ex gratia that F/B Aquarius G had no SCRA 562; Morales v. Court of Appeals, 274 SCRA 282). But the
lookout during the collision, the omission does not suffice to aforecited rule is inapplicable here in the face of the stubborn refusal
exculpate Sulpicio Lines from Liability. M/V Don Sulpicio cannot claim of petitioner to respect the valid claim of the private respondent.
that it was a privileged vessel being in the portside which can
maintain its course and speed during the collision. When it The payment of legal interest is also in order. But it should be
overtook F/B Aquarius G, it was duty bound during the computed from November 18, 1978, not from March 30, 1986, when
collision. When it overtook F/B Aquarius G, it was duty bound to the Regional Trial Court a quo came out with its Decision. It was from
slacken its speed and keep away from other vessel, which it failed to the time of the collision complained of that the private respondent
do. The stance of petitioners that F/B Aquarius G is a burdened began to be deprived of subject vessel.
vessel which should have kept out of the way of M/V Don Sulpicio is WHEREFORE, the Petition is DENIED and the Decision of the
not supported by facts. Court of Appeals in CA GR CV No. 15081 AFFIRMED, with the
Anent the award of actual damage in the amount MODIFICATION that the award for exemplary damages is deleted for
of P564,448.80, petitioners mere allegation that the award of actual want of legal basis, and the amount of unrealized profits awarded is
damages is exaggerated and speculative, without controverting the fixed at P480,000.00. No pronouncement as to cost.
receipts and invoices when the boat was constructed and which were SO ORDERED.
bases of accounting entries in the books of accounts presented by
the private respondent, are unavailing to defeat the award. To be Romero, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes,
sure, the private respondent amply established the compensatory JJ., concur.
damages it suffered by reason of the collision.
The award of fifteen (15%) percent of the total claim sued upon
as attorneys fees and the legal rate of interest adjudged are
proper. However, the P10,000.00 a month awarded by the trial court
and the respondent court for earnings that would have derived
from F/B Aquarius G, without indicating the material period is too
uncertain and onerous to deserve serious consideration.
In awarding P10,000.00 per month, representing the supposed
profits F/B Aquarius G could have netted, the trial court relied on the
sole testimony of Mr. Johnny L. Chua, who is in the employ of private
respondent.
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation Private respondents Vianas filed a complaint 3 for damages against
seeks a review of the decision 1 of respondent Court of Appeals, petitioner corporation (Aboitiz, for brevity) for breach of contract of
dated July 29, 1988, the decretal portion of which reads: carriage.
WHEREFORE, the judgment appealed from as In its answer. 4 Aboitiz denied responsibility contending that at the
modified by the order of October 27, 1982, is time of the accident, the vessel was completely under the control of
hereby affirmed with the modification that respondent Pioneer Stevedoring Corporation (Pioneer, for short) as
appellant Aboitiz Shipping is hereby ordered to the exclusive stevedoring contractor of Aboitiz, which handled the
pay plaintiff-appellees the amount of P30,000.00 unloading of cargoes from the vessel of Aboitiz. It is also averred that
for the death of Anacleto Viana; actual damages since the crane operator was not an employee of Aboitiz, the latter
of P9,800.00; P150,000.00 for unearned income; cannot be held liable under the fellow-servant rule.
P7,200.00 as support for deceased's parents;
P20,000.00 as moral damages; P10,000.00 as Thereafter, Aboitiz, as third-party plaintiff, filed a third-party
attorney's fees; and to pay the costs. complaint 5 against Pioneer imputing liability thereto for Anacleto
Viana's death as having been allegedly caused by the negligence of
The undisputed facts of the case, as found by the court a quo and the crane operator who was an employee of Pioneer under its
adopted by respondent court, are as follows: . exclusive control and supervision.
The evidence disclosed that on May 11, 1975, Pioneer, in its answer to the third-party complaint, 6 raised the
Anacleto Viana boarded the vessel M/V Antonia, defenses that Aboitiz had no cause of action against Pioneer
owned by defendant, at the port at San Jose, considering that Aboitiz is being sued by the Vianas for breach of
Occidental Mindoro, bound for Manila, having contract of carriage to which Pioneer is not a party; that Pioneer had
purchased a ticket (No. 117392) in the sum of observed the diligence of a good father of a family both in the
P23.10 (Exh. 'B'). On May 12, 1975, said vessel selection and supervision of its employees as well as in the
arrived at Pier 4, North Harbor, Manila, and the prevention of damage or injury to anyone including the victim
passengers therein disembarked, a gangplank Anacleto Viana; that Anacleto Viana's gross negligence was the
having been provided connecting the side of the direct and proximate cause of his death; and that the filing of the
vessel to the pier. Instead of using said third-party complaint was premature by reason of the pendency of
gangplank Anacleto Viana disembarked on the the criminal case for homicide through reckless imprudence filed
third deck which was on the level with the pier. against the crane operator, Alejo Figueroa.
After said vessel had landed, the Pioneer
Stevedoring Corporation took over the exclusive In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz
control of the cargoes loaded on said vessel was ordered to pay the Vianas for damages incurred, and Pioneer
pursuant to the Memorandum of Agreement was ordered to reimburse Aboitiz for whatever amount the latter paid
dated July 26, 1975 (Exh. '2') between the third the Vianas. The dispositive portion of said decision provides:
party defendant Pioneer Stevedoring Corporation
and defendant Aboitiz Shipping Corporation. WHEREFORE, judgment is hereby rendered in
favor of the plantiffs:
The crane owned by the third party defendant
and operated by its crane operator Alejo (1) ordering defendant Aboitiz Shipping
Figueroa was placed alongside the vessel and Corporation to pay to plaintiffs the sum of
one (1) hour after the passengers of said vessel P12,000.00 for the death of Anacleto Viana
had disembarked, it started operation by P9,800.00 as actual damages; P533,200.00
unloading the cargoes from said vessel. While value of the 10,664 cavans of palay computed at
the crane was being operated, Anacleto Viana P50.00 per cavan; P10,000.00 as attorney's fees;
who had already disembarked from said vessel F 5,000.00, value of the 100 cavans of palay as
obviously remembering that some of his cargoes support for five (5) years for deceased (sic)
were still loaded in the vessel, went back to the parents, herein plaintiffs Antonio and Gorgonia
vessel, and it was while he was pointing to the Viana computed at P50.00 per cavan; P7,200.00
crew of the said vessel to the place where his as support for deceased's parents computed at
cargoes were loaded that the crane hit him, P120.00 a month for five years pursuant to Art.
pinning him between the side of the vessel and 2206, Par. 2, of the Civil Code; P20,000.00 as
the crane. He was thereafter brought to the moral damages, and costs; and
hospital where he later expired three (3) days
thereafter, on May 15, 1975, the cause of his
(2) ordering the third party defendant Pioneer
death according to the Death Certificate (Exh.
Stevedoring Corporation to reimburse defendant
"C") being "hypostatic pneumonia secondary to
and third party plaintiff Aboitiz Shipping
traumatic fracture of the pubic bone lacerating
the urinary bladder" (See also Exh. "B"). For his
Corporation the said amounts that it is ordered to honorable respondent Court of Appeals failed to
pay to herein plaintiffs. apply Art. 1762 of the New Civil Code;
Both Aboitiz and Pioneer filed separate motions for reconsideration (C) In the alternative assuming the holding of the
wherein they similarly raised the trial court's failure to declare that Honorable respondent Court of Appears that
Anacleto Viana acted with gross negligence despite the petitioner may be legally condemned to pay
overwhelming evidence presented in support thereof. In addition, damages to the private respondents we
Aboitiz alleged, in opposition to Pioneer's motion, that under the respectfully submit that it committed a reversible
memorandum of agreement the liability of Pioneer as contractor is error when it dismissed petitioner's third party
automatic for any damages or losses whatsoever occasioned by and complaint against private respondent Pioneer
arising from the operation of its arrastre and stevedoring service. Stevedoring Corporation instead of compelling
the latter to reimburse the petitioner for whatever
In an order dated October 27, 1982, 8 the trial court absolved Pioneer damages it may be compelled to pay to the
from liability for failure of the Vianas and Aboitiz to preponderantly private respondents Vianas. 9
establish a case of negligence against the crane operator which the
court a quo ruled is never presumed, aside from the fact that the At threshold, it is to be observed that both the trial court and
memorandum of agreement supposedly refers only to Pioneer's respondent Court of Appeals found the victim Anacleto Viana guilty of
liability in case of loss or damage to goods handled by it but not in contributory negligence, but holding that it was the negligence of
the case of personal injuries, and, finally that Aboitiz cannot properly Aboitiz in prematurely turning over the vessel to the arrastre operator
invoke the fellow-servant rule simply because its liability stems from a for the unloading of cargoes which was the direct, immediate and
breach of contract of carriage. The dispositive portion of said order proximate cause of the victim's death.
reads:
I. Petitioner contends that since one (1) hour had already elapsed
WHEREFORE, judgment is hereby modified from the time Anacleto Viana disembarked from the vessel and that
insofar as third party defendant Pioneer he was given more than ample opportunity to unload his cargoes
Stevedoring Corporation is concerned rendered prior to the operation of the crane, his presence on the vessel was no
in favor of the plaintiffs-,: longer reasonable e and he consequently ceased to be a passenger.
Corollarily, it insists that the doctrine in La Mallorca vs. Court of
(1) Ordering defendant Aboitiz Shipping Appeals, et al. 10 is not applicable to the case at bar.
Corporation to pay the plaintiffs the sum of
P12,000.00 for the death of Anacleto Viana; The rule is that the relation of carrier and passenger continues until
P9,000.00 (sic) as actual damages; P533,200.00 the passenger has been landed at the port of destination and has left
value of the 10,664 cavans of palay computed at the vessel owner's dock or premises. 11 Once created, the
P50.00 per cavan; P10,000.00 as attorney's fees; relationship will not ordinarily terminate until the passenger has, after
P5,000.00 value of the 100 cavans of palay as reaching his destination, safely alighted from the carrier's
support for five (5) years for deceased's parents, conveyance or had a reasonable opportunity to leave the carrier's
herein plaintiffs Antonio and Gorgonia premises. All persons who remain on the premises a reasonable time
Viana,computed at P50.00 per cavan; P7,200.00 after leaving the conveyance are to be deemed passengers, and
as support for deceased's parents computed at what is a reasonable time or a reasonable delay within this rule is to
P120.00 a month for five years pursuant to Art. be determined from all the circumstances, and includes a reasonable
2206, Par. 2, of the Civil Code; P20,000.00 as time to see after his baggage and prepare for his departure.12 The
moral damages, and costs; and carrier-passenger relationship is not terminated merely by the fact
that the person transported has been carried to his destination if, for
(2) Absolving third-party defendant Pioneer example, such person remains in the carrier's premises to claim his
Stevedoring Corporation for (sic) any liability for baggage.13
the death of Anacleto Viana the passenger of
M/V Antonia owned by defendant third party It was in accordance with this rationale that the doctrine in the
plaintiff Aboitiz Shipping Corporation it appearing aforesaid case of La Mallorca was enunciated, to wit:
that the negligence of its crane operator has not
been established therein. It has been recognized as a rule that the relation
of carrier and passenger does not cease at the
Not satisfied with the modified judgment of the trial court, Aboitiz moment the passenger alights from the carrier's
appealed the same to respondent Court of Appeals which affirmed vehicle at a place selected by the carrier at the
the findings of of the trial court except as to the amount of damages point of destination, but continues until the
awarded to the Vianas. passenger has had a reasonable time or a
reasonable opportunity to leave the carrier's
Hence, this petition wherein petitioner Aboitiz postulates that premises. And, what is a reasonable time or a
respondent court erred: reasonable delay within this rule is to be
determined from all the circumstances. Thus, a
person who, after alighting from a train, walks
(A) In holding that the doctrine laid down by this
along the station platform is considered still a
honorable Court in La Mallorca vs. Court of
passenger. So also, where a passenger has
Appeals, et al. (17 SCRA 739, July 27, 1966) is
alighted at his destination and is proceeding by
applicable to the case in the face of the
the usual way to leave the company's premises,
undisputable fact that the factual situation under
but before actually doing so is halted by the
the La Mallorca case is radically different from
report that his brother, a fellow passenger, has
the facts obtaining in this case;
been shot, and he in good faith and without intent
of engaging in the difficulty, returns to relieve his
(B) In holding petitioner liable for damages in the brother, he is deemed reasonably and
face of the finding of the court a quo and necessarily delayed and thus continues to be a
confirmed by the Honorable respondent court of passenger entitled as such to the protection of
Appeals that the deceased, Anacleto Viana was the railroad company and its agents.
guilty of contributory negligence, which, We
respectfully submit contributory negligence was
In the present case, the father returned to the bus
the proximate cause of his death; specifically the
to get one of his baggages which was not
unloaded when they alighted from the bus. II. Under the law, common carriers are, from the nature of their
Racquel, the child that she was, must have business and for reasons of public policy, bound to observe
followed the father. However, although the father extraordinary diligence in the vigilance over the goods and for the
was still on the running board of the bus waiting safety of the passengers transported by them, according to all the
for the conductor to hand him the bag or bayong, circumstances of each case. 15 More particularly, a common carrier is
the bus started to run, so that even he (the bound to carry the passengers safely as far as human care and
father) had to jump down from the moving foresight can provide, using the utmost diligence of very cautious
vehicle. It was at this instance that the child, who persons, with a due regard for all the circumstances. 16 Thus, where
must be near the bus, was run over and killed. In a passenger dies or is injured, the common carrier is presumed to
the circumstances, it cannot be claimed that the have been at fault or to have acted negligently. 17 This gives rise to
carrier's agent had exercised the 'utmost an action for breach of contract of carriage where all that is required
diligence' of a 'very cautious person' required by of plaintiff is to prove the existence of the contract of carriage and its
Article 1755 of the Civil Code to be observed by a non-performance by the carrier, that is, the failure of the carrier to
common carrier in the discharge of its obligation carry the passenger safely to his destination, 18which, in the instant
to transport safely its passengers. ... The case, necessarily includes its failure to safeguard its passenger with
presence of said passengers near the bus was extraordinary diligence while such relation subsists.
not unreasonable and they are, therefore, to be
considered still as passengers of the carrier, The presumption is, therefore, established by law that in case of a
entitled to the protection under their contract of passenger's death or injury the operator of the vessel was at fault or
carriage. 14 negligent, having failed to exercise extraordinary diligence, and it is
incumbent upon it to rebut the same. This is in consonance with the
It is apparent from the foregoing that what prompted the Court to rule avowed policy of the State to afford full protection to the passengers
as it did in said case is the fact of the passenger's reasonable of common carriers which can be carried out only by imposing a
presence within the carrier's premises. That reasonableness of time stringent statutory obligation upon the latter. Concomitantly, this
should be made to depend on the attending circumstances of the Court has likewise adopted a rigid posture in the application of the
case, such as the kind of common carrier, the nature of its business, law by exacting the highest degree of care and diligence from
the customs of the place, and so forth, and therefore precludes a common carriers, bearing utmost in mind the welfare of the
consideration of the time element per se without taking into account passengers who often become hapless victims of indifferent and
such other factors. It is thus of no moment whether in the cited case profit-oriented carriers. We cannot in reason deny that petitioner
of La Mallorca there was no appreciable interregnum for the failed to rebut the presumption against it. Under the facts obtaining in
passenger therein to leave the carrier's premises whereas in the case the present case, it cannot be gainsaid that petitioner had
at bar, an interval of one (1) hour had elapsed before the victim met inadequately complied with the required degree of diligence to
the accident. The primary factor to be considered is the existence of prevent the accident from happening.
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 As found by the Court of Appeals, the evidence does not show that
cause. 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
It is of common knowledge that, by the very nature of petitioner's presence of visible warning signs in the vicinity was disputable and
business as a shipper, the passengers of vessels are allotted a not indubitably established. Thus, we are not inclined to accept
longer period of time to disembark from the ship than other common petitioner's explanation that the victim and other passengers were
carriers such as a passenger bus. With respect to the bulk of cargoes sufficiently warned that merely venturing into the area in question
and the number of passengers it can load, such vessels are capable was fraught with serious peril. Definitely, even assuming the
of accommodating a bigger volume of both as compared to the existence of the supposed cordon of drums loosely placed around
capacity of a regular commuter bus. Consequently, a ship passenger the unloading area and the guard's admonitions against entry therein,
will need at least an hour as is the usual practice, to disembark from these were at most insufficient precautions which pale into
the vessel and claim his baggage whereas a bus passenger can insignificance if considered vis-a-vis the gravity of the danger to
easily get off the bus and retrieve his luggage in a very short period which the deceased was exposed. There is no showing that
of time. Verily, petitioner cannot categorically claim, through the bare petitioner was extraordinarily diligent in requiring or seeing to it that
expedient of comparing the period of time entailed in getting the said precautionary measures were strictly and actually enforced to
passenger's cargoes, that the ruling in La Mallorca is inapplicable to subserve their purpose of preventing entry into the forbidden area. By
the case at bar. On the contrary, if we are to apply the doctrine no stretch of liberal evaluation can such perfunctory acts approximate
enunciated therein to the instant petition, we cannot in reason doubt the "utmost diligence of very cautious persons" to be exercised "as
that the victim Anacleto Viana was still a passenger at the time of the far as human care and foresight can provide" which is required by
incident. When the accident occurred, the victim was in the act of law of common carriers with respect to their passengers.
unloading his cargoes, which he had every right to do, from
petitioner's vessel. As earlier stated, a carrier is duty bound not only While the victim was admittedly contributorily negligent, still
to bring its passengers safely to their destination but also to afford petitioner's aforesaid failure to exercise extraordinary diligence was
them a reasonable time to claim their baggage. the proximate and direct cause of, because it could definitely have
prevented, the former's death. Moreover, in paragraph 5.6 of its
It is not definitely shown that one (1) hour prior to the incident, the petition, at bar, 19 petitioner has expressly conceded the factual
victim had already disembarked from the vessel. Petitioner failed to finding of respondent Court of Appeals that petitioner did not present
prove this. What is clear to us is that at the time the victim was taking sufficient evidence in support of its submission that the deceased
his cargoes, the vessel had already docked an hour earlier. In Anacleto Viana was guilty of gross negligence. Petitioner cannot now
consonance with common shipping procedure as to the minimum be heard to claim otherwise.
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 No excepting circumstance being present, we are likewise bound by
went to retrieve his baggage. Yet, even if he had already respondent court's declaration that there was no negligence on the
disembarked an hour earlier, his presence in petitioner's premises part of Pioneer Stevedoring Corporation, a confirmation of the trial
was not without cause. The victim had to claim his baggage which court's finding to that effect, hence our conformity to Pioneer's being
was possible only one (1) hour after the vessel arrived since it was absolved of any liability.
admittedly standard procedure in the case of petitioner's vessels that
the unloading operations shall start only after that time.
As correctly observed by both courts, Aboitiz joined Pioneer in
Consequently, under the foregoing circumstances, the victim
proving the alleged gross negligence of the victim, hence its present
Anacleto Viana is still deemed a passenger of said carrier at the time
contention that the death of the passenger was due to the negligence
of his tragic death.
of the crane operator cannot be sustained both on grounds, of
estoppel and for lack of evidence on its present theory. Even in its
answer filed in the court below it readily alleged that Pioneer had
taken the necessary safeguards insofar as its unloading operations
were concerned, a fact which appears to have been accepted by the
plaintiff therein by not impleading Pioneer as a defendant, and
likewise inceptively by Aboitiz by filing its third-party complaint only
after ten (10) months from the institution of the suit against it.
Parenthetically, Pioneer is not within the ambit of the rule on
extraordinary diligence required of, and the corresponding
presumption of negligence foisted on, common carriers like Aboitiz.
This, of course, does not detract from what we have said that no
negligence can be imputed to Pioneer but, that on the contrary, the
failure of Aboitiz to exercise extraordinary diligence for the safety of
its passenger is the rationale for our finding on its liability.
SO ORDERED.
Said driver and security guard cannot be Producers further asseverates that what should be applied is the rule
considered as employees of plaintiff-appellee in American President Lines vs. Clave, 8 to wit:
bank because it has no power to hire or to
dismiss said driver and security guard under the In determining the existence of employer-
contracts (Exhs. 8 and C) except only to ask for employee relationship, the following elements are
their replacements from the contractors.5 generally considered, namely: (1) the selection
and engagement of the employee; (2) the
On 20 June 1994, Fortune filed this petition for review on certiorari. It payment of wages; (3) the power of dismissal;
alleges that the trial court and the Court of Appeals erred in holding it and (4) the power to control the employee's
liable under the insurance policy because the loss falls within the conduct.
general exceptions clause considering that driver Magalong and
security guard Atiga were Producers' authorized representatives or Since under Producers' contract with PRC Management Systems it is
employees in the transfer of the money and payroll from its branch the latter which assigned Magalong as the driver of Producers'
office in Pasay City to its head office in Makati. armored car and was responsible for his faithful discharge of his
duties and responsibilities, and since Producers paid the monthly
According to Fortune, when Producers commissioned a guard and a compensation of P1,400.00 per driver to PRC Management Systems
driver to transfer its funds from one branch to another, they and not to Magalong, it is clear that Magalong was not Producers'
effectively and necessarily became its authorized representatives in employee. As to Atiga, Producers relies on the provision of its
the care and custody of the money. Assuming that they could not be contract with Unicorn Security Services which provides that the
considered authorized representatives, they were, nevertheless, guards of the latter "are in no sense employees of the CLIENT."
employees of Producers. It asserts that the existence of an employer-
employee relationship "is determined by law and being such, it There is merit in this petition.
cannot be the subject of agreement." Thus, if there was in reality an
employer-employee relationship between Producers, on the one
It should be noted that the insurance policy entered into by the
hand, and Magalong and Atiga, on the other, the provisions in the
parties is a theft or robbery insurance policy which is a form of
contracts of Producers with PRC Management System for Magalong
casualty insurance. Section 174 of the Insurance Code provides:
and with Unicorn Security Services for Atiga which state that
Producers is not their employer and that it is absolved from any
liability as an employer, would not obliterate the relationship. Sec. 174. Casualty insurance is insurance
covering loss or liability arising from accident or
mishap, excluding certain types of loss which by
Fortune points out that an employer-employee relationship depends
law or custom are considered as falling
upon four standards: (1) the manner of selection and engagement of
exclusively within the scope of insurance such as
the putative employee; (2) the mode of payment of wages; (3) the
fire or marine. It includes, but is not limited to,
presence or absence of a power to dismiss; and (4) the presence and
employer's liability insurance, public liability
absence of a power to control the putative employee's conduct. Of
insurance, motor vehicle liability insurance, plate
the four, the right-of-control test has been held to be the decisive
glass insurance, burglary and theft insurance,
factor. 6 It asserts that the power of control over Magalong and Atiga
personal accident and health insurance as written
was vested in and exercised by Producers. Fortune further insists
by non-life insurance companies, and other
that PRC Management System and Unicorn Security Services are
substantially similar kinds of insurance.
but "labor-only" contractors under Article 106 of the Labor Code
(emphases supplied)
which provides:
Except with respect to compulsory motor vehicle liability insurance,
Art. 106. Contractor or subcontractor. — There is
the Insurance Code contains no other provisions applicable to
"labor-only" contracting where the person
casualty insurance or to robbery insurance in particular. These
supplying workers to an employer does not have
contracts are, therefore, governed by the general provisions
substantial capital or investment in the form of
applicable to all types of insurance. Outside of these, the rights and
tools, equipment, machineries, work premises,
obligations of the parties must be determined by the terms of their
among others, and the workers recruited and
contract, taking into consideration its purpose and always in
placed by such persons are performing activities
accordance with the general principles of insurance law. 9
which are directly related to the principal
business of such employer. In such cases, the
person or intermediary shall be considered It has been aptly observed that in burglary, robbery, and theft
merely as an agent of the employer who shall be insurance, "the opportunity to defraud the insurer — the moral hazard
responsible to the workers in the same manner — is so great that insurers have found it necessary to fill up their
and extent as if the latter were directly employed policies with countless restrictions, many designed to reduce this
by him. hazard. Seldom does the insurer assume the risk of all losses due to
the hazards insured against." 10 Persons frequently excluded under
such provisions are those in the insured's service and
Fortune thus contends that Magalong and Atiga were employees of
employment. 11 The purpose of the exception is to guard against
Producers, following the ruling in International Timber
liability should the theft be committed by one having unrestricted
Corp. vs. NLRC 7 that a finding that a contractor is a "labor-only"
access to the property. 12 In such cases, the terms specifying the
contractor is equivalent to a finding that there is an employer-
excluded classes are to be given their meaning as understood in
employee relationship between the owner of the project and the
common speech. 13 The terms "service" and "employment" are
employees of the "labor-only" contractor.
generally associated with the idea of selection, control, and
compensation. 14
A contract of insurance is a contract of adhesion, thus any ambiguity P.D. No. 532, and the information therefor filed by the City
therein should be resolved against the insurer, 15 or it should be Fiscal of Pasay City, there is a paucity of evidence as to
construed liberally in favor of the insured and strictly against the whether the contracts between Producers and PRC
insurer. 16 Limitations of liability should be regarded with extreme Management Systems and Unicorn Security Services are
jealousy and must be construed "labor-only" contracts.
in such a way, as to preclude the insurer from non-compliance with
its obligation. 17 It goes without saying then that if the terms of the But even granting for the sake of argument that these contracts were
contract are clear and unambiguous, there is no room for not "labor-only" contracts, and PRC Management Systems and
construction and such terms cannot be enlarged or diminished by Unicorn Security Services were truly independent contractors, we are
judicial construction. 18 satisfied that Magalong and Atiga were, in respect of the transfer of
Producer's money from its Pasay City branch to its head office in
An insurance contract is a contract of indemnity upon the terms and Makati, its "authorized representatives" who served as such with its
conditions specified therein. 19 It is settled that the terms of the policy teller Maribeth Alampay. Howsoever viewed, Producers entrusted the
constitute the measure of the insurer's liability. 20 In the absence of three with the specific duty to safely transfer the money to its head
statutory prohibition to the contrary, insurance companies have the office, with Alampay to be responsible for its custody in transit;
same rights as individuals to limit their liability and to impose Magalong to drive the armored vehicle which would carry the money;
whatever conditions they deem best upon their obligations not and Atiga to provide the needed security for the money, the vehicle,
inconsistent with public policy. and his two other companions. In short, for these particular tasks, the
three acted as agents of Producers. A "representative" is defined as
With the foregoing principles in mind, it may now be asked whether one who represents or stands in the place of another; one who
Magalong and Atiga qualify as employees or authorized represents others or another in a special capacity, as an agent, and
representatives of Producers under paragraph (b) of the general is interchangeable with "agent." 23
exceptions clause of the policy which, for easy reference, is again
quoted: In view of the foregoing, Fortune is exempt from liability under the
general exceptions clause of the insurance policy.
GENERAL EXCEPTIONS
WHEREFORE , the instant petition is hereby GRANTED. The
The company shall not be liable under this policy decision of the Court of Appeals in CA-G.R. CV No. 32946 dated 3
in respect of May 1994 as well as that of Branch 146 of the Regional Trial Court of
Makati in Civil Case No. 1817 are REVERSED and SET ASIDE. The
complaint in Civil Case No. 1817 is DISMISSED.
xxx xxx xxx
No pronouncement as to costs.
(b) any loss caused by any
dishonest, fraudulent or
criminal act of the insured or SO ORDERED.
any officer, employee,
partner, director, trustee or Bellosillo and Kapunan, JJ., concur.
authorized representative of
the Insured whether acting Padilla, J., took no part.
alone or in conjunction with
others. . . . (emphases
Quiason, J., is on leave.
supplied)
The facts established by the prosecution and accepted by the Q What would you say death
respondent court as basis for the decision are summarized as would come?
follows:
A Instantaneous.
The evidence of the prosecution tends to show that in the afternoon
of January 6, 1957, Juanito Gesmundo bought a train ticket at the
Q How about the girl, the
railroad station in Tagkawayan, Quezon for his 55-year old mother
young girl about four years
Martina Bool and his 3-year old daughter Emelita Gesmundo, who
old, what could have caused
were bound for Barrio Lusacan, Tiaong, same province. At about
the death?
2:00 p.m., Train No. 522 left Tagkawayan with the old woman and
her granddaughter among the passengers. At Hondagua the train's
complement were relieved, with Victor Millan taking over as A Shock too.
engineman, Clemente Briñas as conductor, and Hermogenes
Buencamino as assistant conductor. Upon approaching Barrio Q What could have caused
Lagalag in Tiaong at about 8:00 p.m. of that same night, the train the shock?
slowed down and the conductor shouted 'Lusacan', 'Lusacan'.
Thereupon, the old woman walked towards the left front door facing A Compound fracture of the
the direction of Tiaong, carrying the child with one hand and holding skull and going out of the
her baggage with the other. When Martina and Emelita were near the brain.
door, the train suddenly picked up speed. As a result the old woman
and the child stumbled and they were seen no more. It took three Q What could have caused
minutes more before the train stopped at the next barrio, Lusacan, the fracture of the skull and
the going out of the brain?
A That is the impact against a "Lusacan, Lusacan", they stood up and proceeded to the nearest
steel object. (TSN., pp. 81- exit. It is also undisputed that the train unexpectedly resumed its
82, July 1, 1959) regular speed and as a result "the old woman and the child stumbled
and they were seen no more.
The Court of First Instance of Quezon convicted defendant-appellant
Clemente Briñas for double homicide thru reckless imprudence but In finding petitioner-appellant negligent, respondent
acquitted Hermogenes Buencamino and Victor Millan The dispositive Court têñ.£îhqwâ£
portion of the decision reads: têñ.£îhqwâ£
xxx xxx xxx
WHEREFORE, the court finds the defendant
Clemente Briñas guilty beyond doubt of the crime The appellant's announcement was premature
of double homicide thru reckless imprudence, and erroneous, for it took a full three minutes
defined and punished under Article 305 in more before the next barrio of Lusacan was
connection with Article 249 of the Revised Penal reached. In making the erroneous and premature
Code, and sentences him to suffer six (6) months announcement, appellant was negligent. He
and one (1) day ofprision correccional to ought to have known that train passengers
indemnify the heirs of the deceased Martina Bool invariably prepare to alight upon notice from the
and Emelita Gesmundo in the amounts of P6,000 conductor that the destination was reached and
and P3,000, respectively, with subsidiary that the train was about to stop. Upon the facts, it
imprisonment in case of insolvency not to exceed was the appellant's negligent act which led the
one-third of the principal penalty, and to pay the victims to the door. Said acts virtually exposed
costs. the victims to peril, for had not the appellant
mistakenly made the announcement, the victims
For lack of sufficient evidence against the would be safely ensconced in their seats when
defendant Hermogenes Buencamino and on the the train jerked while picking up speed, Although
ground of reasonable doubt in the case of it might be argued that the negligent act of the
defendant Victor Millan the court hereby acquits appellant was not the immediate cause of, or the
them of the crime charged in the information and cause nearest in time to, the injury, for the train
their bail bonds declared cancelled. jerked before the victims stumbled, yet in legal
contemplation appellant's negligent act was the
As to the responsibility of the Manila Railroad proximate cause of the injury. As this Court held
Company in this case, this will be the subject of in Tucker v. Milan, CA G.R. No. 7059-R, June 3,
court determination in another proceeding. 1953: 'The proximate cause of the injury is not
necessarily the immediate cause of, or the cause
nearest in time to, the injury. It is only when the
On appeal, the respondent Court of Appeals affirmed the judgment of
causes are independent of each other that the
the lower court.
nearest is to be charged with the disaster. So
long as there is a natural, direct and continuous
During the pendency of the criminal prosecution in the Court of First sequence between the negligent act the injury
Instance of Quezon, the heirs of the deceased victims filed with the (sic) that it can reasonably be said that but for the
same court, a separate civil action for damages against the Manila act the injury could not have occurred, such
Railroad Company entitled "Civil Case No. 5978, Manaleyo negligent act is the proximate cause of the injury,
Gesmundo, et al., v. Manila Railroad Company". The separate civil and whoever is responsible therefore is liable for
action was filed for the recovery of P30,350.00 from the Manila damages resulting therefrom. One who
Railroad Company as damages resulting from the accident. negligently creates a dangerous condition cannot
escape liability for the natural and probable
The accused-appellant alleges that the Court of Appeals made the consequences thereof, although the act of a third
following errors in its decision: person, or an act of God for which he is not
responsible intervenes to precipitate the loss.
I têñ.£îhqwâ£
xxx xxx xxx
THE HONORABLE COURT OF APPEALS
ERRED IN CONVICTING PETITIONER- It is a matter of common knowledge and experience about common
APPELLANT UNDER THE FACTS AS FOUND carriers like trains and buses that before reaching a station or
BY SAID COURT; and flagstop they slow down and the conductor announces the name of
the place. It is also a matter of common experience that as the train
II têñ.£îhqw⣠or bus slackens its speed, some passengers usually stand and
proceed to the nearest exit, ready to disembark as the train or bus
THE HONORABLE COURT OF APPEALS comes to a full stop. This is especially true of a train because
ERRED IN INCLUDING THE PAYMENT OF passengers feel that if the train resumes its run before they are able
DEATH INDEMNITY BY THE PETITIONER- to disembark, there is no way to stop it as a bus may be stopped.
APPELLANT, WITH SUBSIDIARY
IMPRISONMENT IN CASE OF INSOLVENCY, It was negligence on the conductor's part to announce the next flag
AFTER THE HEIRS OF THE DECEASED HAVE stop when said stop was still a full three minutes ahead. As the
ALREADY COMMENCED A SEPARATE CIVIL respondent Court of Appeals correctly observed, "the appellant's
ACTION FOR DAMAGES AGAINST THE announcement was premature and erroneous.
RAILROAD COMPANY ARISING FROM THE
SAME MISHAP. That the announcement was premature and erroneous is shown by
the fact that immediately after the train slowed down, it unexpectedly
We see no error in the factual findings of the respondent court and in accelerated to full speed. Petitioner-appellant failed to show any
the conclusion drawn from those findings. reason why the train suddenly resumed its regular speed. The
announcement was made while the train was still in Barrio Lagalag.
It is undisputed that the victims were on board the second coach
where the petitioner-appellant was assigned as conductor and that The proximate cause of the death of the victims was the premature
when the train slackened its speed and the conductor shouted and erroneous announcement of petitioner' appelant Briñas. This
announcement prompted the victims to stand and proceed to the SO ORDERED.1äwphï1.ñët
nearest exit. Without said announcement, the victims would have
been safely seated in their respective seats when the train jerked as Teehankee (Chairman), Melencio-Herrera; Plana and Relova, JJ.,
it picked up speed. The connection between the premature and concur.
erroneous announcement of petitioner-appellant and the deaths of
the victims is direct and natural, unbroken by any intervening efficient
causes.
The trial court acted within its jurisdiction when, despite the filing with
it of the separate civil action against the Manila Railroad Company, it
still awarded death indemnity in the judgment of conviction against
the petitioner-appellant.
ART. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extra ordinary
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.
G.R. No. L-9671 In this connection, appellant invokes the rule that, "when an action is
CESAR L. ISAAC, plaintiff-appellant, based on a contract of carriage, as in this case, all that is necessary
vs. to sustain recovery is proof of the existence of the contract of the
A. L. AMMEN TRANSPORTATION CO., INC., defendant-appellee. breach thereof by act or omission", and in support thereof, he cites
several Philippine cases.1 With the ruling in mind, appellant seems to
Angel S. Gamboa for appellant. imply that once the contract of carriage is established and there is
Manuel O. Chan for appellee. proof that the same was broken by failure of the carrier to transport
the passenger safely to his destination, the liability of the former
, J.: attaches. On the other hand, appellee claims that is a wrong
presentation of the rule. It claims that the decisions of this Court in
A. L. Ammen Transportation Co., Inc., hereinafter referred to as the cases cited do not warrant the construction sought to be placed
defendant, is a corporation engaged in the business of transporting upon, them by appellant for a mere perusal thereof would show that
passengers by land for compensation in the Bicol provinces and one the liability of the carrier was predicated not upon mere breach of its
of the lines it operates is the one connecting Legaspi City, Albay with contract of carriage but upon the finding that its negligence was
Naga City, Camarines Sur. One of the buses which defendant was found to be the direct or proximate cause of the injury complained of.
operating is Bus No. 31. On May 31, 1951, plaintiff boarded said bus Thus, appellee contends that "if there is no negligence on the part of
as a passenger paying the required fare from Ligao, Albay bound for the common carrier but that the accident resulting in injuries is due to
Pili, Camarines Sur, but before reaching his destination, the bus causes which are inevitable and which could not have been avoided
collided with a motor vehicle of the pick-up type coming from the or anticipated notwithstanding the exercise of that high degree of
opposite direction, as a result of which plaintiff's left arm was care and skill which the carrier is bound to exercise for the safety of
completely severed and the severed portion fell inside the bus. his passengers", neither the common carrier nor the driver is liable
Plaintiff was rushed to a hospital in Iriga, Camarines Sur where he therefor vipWZCFqQ.
was given blood transfusion to save his life. After four days, he was
transferred to another hospital in Tabaco, Albay, where he under We believe that the law concerning the liability of a common carrier
went treatment for three months. He was moved later to the has now suffered a substantial modification in view of the innovations
Orthopedic Hospital where he was operated on and stayed there for introduced by the new Civil Code. These innovations are the ones
another two months. For these services, he incurred expenses embodied in Articles 1733, 1755 and 1756 in so far as the relation
amounting to P623.40, excluding medical fees which were paid by between a common carrier and its passengers is concerned, which,
defendant. for ready reference, we quote hereunder:
As an aftermath, plaintiff brought this action against defendants for ART. 1733. Common carriers, from the nature of their business and
damages alleging that the collision which resulted in the loss of his for reasons of public policy, are bound to observe extra ordinary
left arm was mainly due to the gross incompetence and recklessness diligence in the vigilance over the goods and for the safety of the
of the driver of the bus operated by defendant and that defendant passengers transported by them according to all the circumstances
incurred in culpa contractual arising from its non-compliance with its of each case.
obligation to transport plaintiff safely to his, destination. Plaintiff prays
for judgment against defendant as follows: (1) P5,000 as expenses Such extraordinary diligence in the vigilance over the goods is further
for his medical treatment, and P3,000 as the cost of an artificial arm, expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while
or a total of P8,000; (2) P6,000 representing loss of earning; (3) the extraordinary diligence for the safety of the passengers is further
P75,000 for diminution of his earning capacity; (4) P50,000 as moral set forth in articles 1755 and 1756 Ooom.
damages; and (5) P10,000 as attorneys' fees and costs of suit.
ART. 1755. A common carrier is bound to carry the passengers
Defendant set up as special defense that the injury suffered by safely as far as human care and foresight can provide, using the
plaintiff was due entirely to the fault or negligence of the driver of the utmost diligence of very cautious persons, with a due regard for all
pick-up car which collided with the bus driven by its driver and to the the circumstances.
contributory negligence of plaintiff himself. Defendant further claims
that the accident which resulted in the injury of plaintiff is one which ART. 1756. In case of death of or injuries to passengers, common
defendant could not foresee or, though foreseen, was inevitable. carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
The after trial found that the collision occurred due to the negligence diligence as prescribed in articles 1733 and 1755.
of the driver of the pick-up car and not to that of the driver of the bus
it appearing that the latter did everything he could to avoid the same The Code Commission, in justifying this extraordinary diligence
but that notwithstanding his efforts, he was not able to avoid it. As a required of a common carrier, says the following:
consequence, the court dismissed complaint, with costs against
plaintiff. This is an appeal from said decision. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost deligence of
It appears that plaintiff boarded a bus of defendant as paying very cautions persons, with due regard for all circumstances. This
passenger from Ligao, Albay, bound for Pili, Camarines Sur, but extraordinary diligence required of common carriers is calculated to
before reaching his destination, the bus collided with a pick-up car protect the passengers from the tragic mishaps that frequently occur
which was coming from the opposite direction and, as a, result, his in connection with rapid modern transportation. This high standard of
left arm was completely severed and fell inside the back part of the care is imperatively demanded by the precariousness of human life
bus. Having this background in view, and considering that plaintiff and by the consideration that every person must in every way be
chose to hold defendant liable on its contractual obligation to carry safeguarded against all injury. (Report of the Code Commission, pp.
him safely to his place of destination, it becomes important to 35-36)" (Padilla, Civil Code of the Philippines, Vol. IV, 1956 ed., p.
determine the nature and extent of the liability of a common carrier to 197).
This is also a matter of appreciation of the situation on the part of the
From the above legal provisions, we can make the following driver. While the position taken by appellant appeals more to the
restatement of the principles governing the liability of a common sense of caution that one should observe in a given situation to avoid
carrier: (1) the liability of a carrier is contractual and arises upon an accident or mishap, such however can not always be expected
breach of its obligation. There is breach if it fails to exert from one who is placed suddenly in a predicament where he is not
extraordinary diligence according to all circumstances of each case; given enough time to take the course of action as he should under
(2) a carrier is obliged to carry its passenger with the utmost diligence ordinary circumstances. One who is placed in such a predicament
of a very cautious person, having due regard for all the cannot exercise such coolness or accuracy of judgment as is
circumstances; (3) a carrier is presumed to be at fault or to have required of him under ordinary circumstances and he cannot
acted negligently in case of death of, or injury to, passengers, it being therefore be expected to observe the same judgment, care and
its duty to prove that it exercised extraordinary diligence; and (4) the precaution as in the latter. For this reason, authorities abound where
carrier is not an insurer against all risks of travel. failure to observe the same degree of care that as ordinary prudent
man would exercise under ordinary circumstances when confronted
The question that now arises is: Has defendant observed with a sadden emergency was held to be warranted and a
extraordinary diligence or the utmost diligence of every cautious justification to exempt the carrier from liability. Thus, it was held that
person, having due regard for all circumstances, in avoiding the "where a carrier's employee is confronted with a sudden emergency,
collision which resulted in the injury caused to the plaintiff? the fact that he is obliged to act quickly and without a chance for
deliberation must be taken into account, and he is held to the some
After examining the evidence in connection with how the collision degree of care that he would otherwise be required to exercise in the
occurred, the lower court made the following finding: absence of such emergency but must exercise only such care as any
ordinary prudent person would exercise under like circumstances and
Hemos examinado muy detenidamente las pruebas presentadas en conditions, and the failure on his part to exercise the best judgment
la vista, principalmente, las declaraciones que hemos acotado arriba, the case renders possible does not establish lack of care and skill on
y hernos Ilegado a la conclusion de que el demandado ha hecho, his part which renders the company, liable. . . . (13 C. J. S., 1412; 10
todo cuanto estuviere de su parte para evitar el accidente, pero sin C.J.970). Considering all the circumstances, we are persuaded to
embargo, no ha podido evitarlo. conclude that the driver of the bus has done what a prudent man
could have done to avoid the collision and in our opinion this relieves
EI hecho de que el demandado, antes del choque, tuvo que hacer appellee from legibility under our law uK77hp8Rt8.
pasar su truck encima de los montones de grava que estaban
depositados en la orilla del camino, sin que haya ido mas alla, por el A circumstances which miliates against the stand of appellant is the
grave riesgo que corrian las vidas de sus pasajeros, es prueba fact borne out by the evidence that when he boarded the bus in
concluyente de lo que tenemos dicho, a saber: — que el cuanto question, he seated himself on the left side thereof resting his left
esuba de su parte, para evitar el accidente, sin que haya arm on the window sill but with his left elbow outside the window, this
podidoevitardo, por estar fuera de su control. being his position in the bus when the collision took place. It is for this
reason that the collision resulted in the severance of said left arm
The evidence would appear to support the above finding. Thus, it from the body of appellant thus doing him a great damage. It is
appears that Bus No. 31, immediately prior to the collision, was therefore apparent that appellant is guilty of contributory negligence.
running at a moderate speed because it had just stopped at the Had he not placed his left arm on the window sill with a portion
school zone of Matacong, Polangui, Albay. The pick-up car was at thereof protruding outside, perhaps the injury would have been
full speed and was running outside of its proper lane. The driver of avoided as is the case with the other passenger. It is to be noted that
the bus, upon seeing the manner in which the pick-up was then appellant was the only victim of the collision.
running, swerved the bus to the very extreme right of the road until its
front and rear wheels have gone over the pile of stones or gravel It is true that such contributory negligence cannot relieve appellee of
situated on the rampart of the road. Said driver could not move the its liability but will only entitle it to a reduction of the amount of
bus farther right and run over a greater portion of the pile, the peak of damage caused (Article 1762, new Civil Code), but this is a
which was about 3 feet high, without endangering the safety of his circumstance which further militates against the position taken by
passengers. And notwithstanding all these efforts, the rear left side of appellant in this case.
the bus was hit by the pick-up car.
It is the prevailing rule that it is negligence per se for a passenger on
Of course, this finding is disputed by appellant who cannot see eye to a railroad voluntarily or inadvertently to protrude his arm, hand,
eye with the evidence for the appellee and insists that the collision elbow, or any other part of his body through the window of a moving
took place because the driver of the bus was going at a fast speed. car beyond the outer edge of the window or outer surface of the car,
He contends that, having seen that a car was coming from the so as to come in contact with objects or obstacles near the track, and
opposite direction at a distance which allows the use of moderate that no recovery can be had for an injury which but for such
care and prudence to avoid an accident, and knowing that on the negligence would not have been sustained. (10 C. J. 1139)
side of the road along which he was going there was a pile of gravel,
the driver of the bus should have stopped and waited for the vehicle Plaintiff, (passenger) while riding on an interurban car, to flick the
from the opposite direction to pass, and should have proceeded only ashes, from his cigar, thrust his hand over the guard rail a sufficient
after the other vehicle had passed. In other words, according to distance beyond the side line of the car to bring it in contact with the
appellant, the act of the driver of the bus in squeezing his way trunk of a tree standing beside the track; the force of the blow
through of the bus in squeezing his way through between the breaking his wrist. Held, that he was guilty of contributory negligence
oncoming pick-up and the pile of gravel under the circumstances was as a matter of law. (Malakia vs. Rhode Island Co., 89 A., 337.)
considered negligent.
Wherefore, the decision appealed from is affirmed, with cost against
But this matter is one of credibility and evaluation of the evidence. appellant.
This is evidence. This is the function of the trial court. The trial court
has already spoken on this matter as we have pointed out above.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Labrador,
Concepcion, Endencia and Felix, JJ., concur.