G.R. No.
89880 February 6, 1991
EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-
Litem of minors: ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC,
all surnamed BUSTAMANTE, Spouses SALVADOR JOCSON and
PATRIA BONE-JOCSON, Spouses JOSE RAMOS and ENRIQUETA
CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION
MARQUEZ-HIMAYA, and Spouses JOSE BERSAMINA and MA.
COMMEMORACION PEREA-BUSTAMANTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND
EDILBERTO MONTESIANO,respondents.
Dolorfino and Dominguez Law Offices for petitioners.
J.C. Baldoz & Associates for private respondents.
This is a petition for review on certiorari seeking the reversal of the
decision of the respondent Court of Appeals dated February 15,
1989 which reversed and set aside the decision of the Regional Trial
Court of Cavite, Branch XV ordering the defendants to pay jointly
and severally the plaintiffs indemnity for death and damages; and in
further dismissing the complaint insofar as defendants-appellants
Federico del Pilar and Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the motion for
reconsideration for lack of merit.
The facts giving rise to the controversy at bar are recounted by the
trial court as follows:
At about 6:30 in the morning of April 20, 1983, a collision
occurred between a gravel and sand truck, with Plate No.
DAP 717, and a Mazda passenger bus with Motor No.
Y2231 and Plate No. DVT 259 along the national road at
Calibuyo, Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck sideswiped the left side
wall of the passenger bus, ripping off the said wall from the
driver's seat to the last rear seat.
Due to the impact, several passengers of the bus were
thrown out and died as a result of the injuries they sustained,
Among those killed were the following:
1. Rogelio Bustamante, 40, husband of plaintiff Emma
Adriano Bustamante and father of plaintiffs Rossel, Gloria,
Yolanda, Ericson, and Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses
Salvador and Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose
and Enriqueta Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and
Adoracion Himaya; and
5. Noel Bersamina, 17, son of plaintiffs spouses Jose and
Ma. Commemoracion Bersamina. (Rollo, p. 48)
During the incident, the cargo truck was driven by defendant
Montesiano and owned by defendant Del Pilar; while the passenger
bus was driven by defendant Susulin. The vehicle was registered in
the name of defendant Novelo but was owned and/or operated as a
passenger bus jointly by defendants Magtibay and Serrado, under a
franchise, with a line from Naic, Cavite, to Baclaran, Paranaque,
Metro Manila, and vice versa, which Novelo sold to Magtibay on
November 8, 1981, and which the latter transferred to Serrado
(Cerrado) on January 18, 1983.
Immediately before the collision, the cargo truck and the passenger
bus were approaching each other, coming from the opposite
directions of the highway. While the truck was still about 30 meters
away, Susulin, the bus driver, saw the front wheels of the vehicle
wiggling. He also observed that the truck was heading towards his
lane. Not minding this circumstance due to his belief that the driver of
the truck was merely joking, Susulin shifted from fourth to third gear
in order to give more power and speed to the bus, which was
ascending the inclined part of the road, in order to overtake or pass a
Kubota hand tractor being pushed by a person along the shoulder of
the highway. While the bus was in the process of overtaking or
passing the hand tractor and the truck was approaching the bus, the
two vehicles sideswiped each other at each other's left side. After the
impact, the truck skidded towards the other side of the road and
landed on a nearby residential lot, hitting a coconut tree and felling
it." (Rollo, pp. 48-50)
After a careful perusal of the circumstances of the case, the trial
court reached the conclusion "that the negligent acts of both drivers
contributed to or combined with each other in directly causing the
accident which led to the death of the aforementioned persons. It
could not be determined from the evidence that it was only the
negligent act of one of them which was the proximate cause of the
collision. In view of this, the liability of the two drivers for their
negligence must be solidary. (Rollo, pp. 50-51) Accordingly, the trial
court rendered a decision on March 7, 1986, the dispositive portion is
hereunder quoted as follows:
WHEREFORE, defendants Valeriano Magtibay, Simplicio
Serrado, Ricardo Susulin, Efren Novelo, Federico del Pilar
and Edilberto Montesiano are hereby ordered to pay jointly
and severally to the plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and her minor
children, the sum of P30,000.00 as indemnity for the death
of Rogelio Bustamante; U.S. $127,680.00 as indemnity for
the loss of the earning capacity of the said deceased, at its
prevailing rate in pesos at the time this decision shall have
become final and executory; P10,000.00 as moral damages;
and P5,000.00 as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson, the sum of
P30,000.00 as indemnity for the death of their daughter,
Maria Corazon Jocson; P10,000.00 as moral damages; and
P5,000.00 as exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the sum of
P30,000.00 as indemnity for the death of their daughter,
Jolet Ramos; P10,000.00 as moral damages; and P5,000.00
as exemplary damages; and
4. To plaintiffs Narciso and Adoracion Himaya, the amount of
P30,000.00 as indemnity for the death of their son, Enrico
Himaya, P10,000.00 as moral damages; and P5,000.00 as
exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion Bersamina,
the sum of P30,000.00 as indemnity for the death of their
son, Noel Bersamina, P10,000.00 as moral damages and
P5,000.00 as exemplary damages.
The defendants are also required to pay the plaintiffs the
sum of P10,000.00 as attorney's fees and to pay the costs of
the suit.
The cross-claim of defendant Novelo is hereby allowed, and
defendants Magtibay and Serrado, the actual owners and/or
operators of the passenger bus concerned, are hereby
ordered to indemnify Novelo in such amount as he may be
required to pay as damages to the plaintiffs.
The cross-claims and counter-claims of the other defendants
are hereby dismissed for lack of merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del Pilar and Edilberto
Montesiano, owner and driver, respectively, of the sand and gravel
truck have interposed an appeal before the respondent Court of
Appeals. The Court of Appeals decided the appeal on a different
light. It rendered judgment on February 15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby
REVERSED and SET ASIDE and the complaint dismissed
insofar as defendants-appellants Federico del Pilar and
 Edilberto Montesiano are concerned. No costs in this
instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a motion for
reconsideration of the aforementioned Court of Appeals' decision.
However, respondent Court of Appeals in a resolution dated August
17, 1989 denied the motion for lack of merit. Hence, this petition.
Petitioners raised the following questions of law, namely:
First. Whether the respondent Court can legally and validly
absolve defendants-appellants from liability despite its own
finding, as well as that of the trial court that defendant-
appellant Edilberto Montesiano, the cargo truck driver, was
driving an old vehicle very fast, with its wheels already
wiggling, such that he had no more control of his truck.
Second. Whether the respondent court can validly and
legally disregard the findings of fact made by the trial court
which was in a better position to observe the conduct and
demeanor of the witnesses, particularly appellant Edilberto
Montesiano, cargo truck driver, and which conclusively found
appellant Montesiano as jointly and severally negligent in
driving his truck very fast and had lost control of his truck.
Third. Whether the respondent court has properly and legally
applied the doctrine of "last clear chance" in the present
case despite its own finding that appellant cargo truck driver
Edilberto Montesiano was admittedly negligent in driving his
cargo truck very fast on a descending road and in the
presence of the bus driver coming from the opposite
direction.
Fourth. Whether the respondent court has applied the
correct law and the correct doctrine so as to reverse and set
aside the judgment with respect to defendants-appellants.
(Rollo, pp. 133-134)
As a rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal, provided, they are
borne out by the record or are based on substantial evidence
However, this rule admits of certain exceptions, as when the findings
of facts are conclusions without citation of specific evidence on which
they are based; or the appellate court's findings are contrary to those
of the trial court. (Sese v. Intermediate Appellate Court, G.R. 66168,
31 July 1987, 152 SCRA 585).
Furthermore, only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Revised Rules of Court.
The jurisdiction of the Supreme Court in cases brought to it from the
Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive. It is not the
function of the Supreme Court to analyze or weigh such evidence all
over again, its jurisdiction being limited to reviewing errors of law that
might have been committed. Barring, therefore, a showing that the
findings complained of are totally devoid of support in the records, or
that they are so glaringly erroneous as to constitute serious abuse of
discretion, such findings must stand for the Supreme Court is not
expected or required to examine or contrast the oral and
documentary evidence submitted by the parties. (Andres v.
Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September
1989, 177 SCRA 618).
Bearing in mind these basic principles, We have opted to re-examine
the findings of fact mainly because the appellate court's findings are
contrary to those of the trial court.
The trial court, in declaring that the negligent acts of both drivers
directly caused the accident which led to the death of the
aforementioned persons, considered the following:
It was negligent on the part of driver Montesiano to have
driven his truck fast, considering that it was an old vehicle,
being a 1947 model as admitted by its owner, defendant Del
Pilar; that its front wheels were wiggling; that the road was
descending; and that there was a passenger bus
approaching it. Likewise, driver Susulin was also guilty of
 negligence in not taking the necessary precaution to avoid
the collision, in the light of his admission that, at a distance
of 30 meters, he already saw the front wheels of the truck
wiggling and that the vehicle was usurping his lane coming
towards his direction. Had he exercised ordinary prudence,
he could have stopped his bus or swerved it to the side of
the road even down to its shoulder. And yet, Susulin shifted
to third gear so as to, as claimed by him, give more power
and speed to his bus in overtaking or passing a hand tractor
which was being pushed along the shoulder of the road.
(Rollo, p. 50)
The respondent Court of Appeals ruling on the contrary, opined that
"the bus driver had the last clear chance to avoid the collision and his
reckless negligence in proceeding to overtake the hand tractor was
the proximate cause of the collision." (Rollo, p. 95). Said court also
noted that "the record also discloses that the bus driver was not a
competent and responsible driver. His driver's license was
confiscated for a traffic violation on April 17, 1983 and he was using
a ticket for said traffic violation on the day of the accident in question
(pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a
regular driver of the bus that figured in the mishap and was not given
any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CA-G.R. 11114-41-
CR, August 28, 1975 held that "We are not prepared to uphold the
trial court's finding that the truck was running fast before the impact.
The national road, from its direction, was descending. Courts can
take judicial notice of the fact that a motor vehicle going down or
descending is more liable to get out of control than one that is going
up or ascending for the simple reason that the one which is going
down gains added momentum while that which is going up loses its
initial speeding in so doing."
On the other hand, the trial court found and We are convinced that
the cargo truck was running fast. It did not overlook the fact that the
road was descending as in fact it mentioned this circumstance as
one of the factors disregarded by the cargo truck driver along with
the fact that he was driving an old 1947 cargo truck whose front
wheels are already wiggling and the fact that there is a passenger
bus approaching it. In holding that the driver of the cargo truck was
negligent, the trial court certainly took into account all these factors
so it was incorrect for the respondent court to disturb the factual
findings of the trial court, which is in a better position to decide the
question, having heard the witness themselves and observed their
deportment.
The respondent court adopted the doctrine of "last clear chance."
The doctrine, stated broadly, is that the negligence of the plaintiff
does not preclude a recovery for the negligence of the defendant
where it appears that the defendant, by exercising reasonable care
and prudence, might have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff's negligence. In other words, the
doctrine of last clear chance means that even though a person's own
acts may have placed him in a position of peril, and an injury results,
the injured person is entitled to recovery. As the doctrine is usually
stated, a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is
considered in law solely responsible for the consequences of the
accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is
held liable to a negligent plaintiff, or even to a plaintiff who has been
grossly negligent in placing himself in peril, if he, aware of the
plaintiffs peril, or according to some authorities, should have been
aware of it in the reasonable exercise of due case, had in fact an
opportunity later than that of the plaintiff to avoid an accident (57 Am.
Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate
Appellate Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the
Court citing the landmark decision held in the case of Anuran, et al.
v. Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear
chance" applies "in a suit between the owners and drivers of colliding
vehicles. It does not arise where a passenger demands responsibility
from the carrier to enforce its contractual obligations. For it would be
inequitable to exempt the negligent driver of the jeepney and its
owners on the ground that the other driver was likewise guilty of
negligence."
Furthermore, "as between defendants: The doctrine cannot be
extended into the field of joint tortfeasors as a test of whether only
one of them should be held liable to the injured person by reason of
his discovery of the latter's peril, and it cannot be invoked as
between defendants concurrently negligent. As against third
persons, a negligent actor cannot defend by pleading that another
had negligently failed to take action which could have avoided the
injury." (57 Am. Jur. 2d, pp. 806-807).

All premises considered, the Court is convinced that the respondent

Court committed an error of law in applying the doctrine of last clear
chance as between the defendants, since the case at bar is not a
suit between the owners and drivers of the colliding vehicles but a
suit brought by the heirs of the deceased passengers against both
owners and drivers of the colliding vehicles. Therefore, the
respondent court erred in absolving the owner and driver of the
cargo truck from liability.

Pursuant to the new policy of this Court to grant an increased death

indemnity to the heirs of the deceased, their respective awards of
P30,000.00 are hereby increased to P50,000.00.

ACCORDINGLY, the petition is GRANTED; the appealed judgment

and resolution of the Court of Appeals are hereby REVERSED and
SET ASIDE and the judgment of the lower court is REINSTATED
with the modification on the indemnity for death of each of the victims
which is hereby increased to P50,000.00 each. No pronouncement
as to costs.

SO ORDERED.
G.R. Nos. 66102-04 August 30, 1990
PHILIPPINE RABBIT BUS LINES, INC., petitioner,
vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO
PASCUA, ET AL., respondents.
Santiago & Santiago for petitioner.
Federico R. Vinluan for private respondents.
This is a petition for review on certiorari of the decision of the
Intermediate Appellate Court (now Court of Appeals) dated July 29,
1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887 which
reversed the decision of the Court of First Instance (now Regional
Trial Court) of Pangasinan dated December 27, 1978; and its
resolution dated November 28, 1983 denying the motion for
reconsideration.
It is an established principle that the factual findings of the Court of
Appeals are final and may not be reviewed by this Court on appeal.
However, this principle is subject to certain exceptions. One of these
is when the findings of the appellate court are contrary to those of
the trial court (see Sabinosa v. The Honorable Court of Appeals, et
al., G.R. No. L-47981, July 24, 1989) in which case, a re-examination
of the facts and evidence may be undertaken. This is Our task now.
The antecedent facts are as follows:
About 11:00 o'clock in the morning on December 24, 1966, Catalina
Pascua, Caridad Pascua, Adelaida Estomo, Erlinda Meriales,
Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas boarded
the jeepney owned by spouses Isidro Mangune and Guillerma
Carreon and driven by Tranquilino Manalo at Dau, Mabalacat,
Pampanga bound for Carmen, Rosales, Pangasinan to spend
Christmas at their respective homes. Although they usually ride in
buses, they had to ride in a jeepney that day because the buses
were full. Their contract with Manalo was for them to pay P24.00 for
the trip. The private respondents' testimonial evidence on this
contractual relationship was not controverted by Mangune, Carreon
and Manalo, nor by Filriters Guaranty Assurance Corporation, Inc.,
the insurer of the jeepney, with contrary evidence. Purportedly riding
on the front seat with Manalo was Mercedes Lorenzo. On the left
rear passenger seat were Caridad Pascua, Alejandro Morales and
Zenaida Parejas. On the right rear passenger seat were Catalina
Pascua, Adelaida Estomo, and Erlinda Meriales. After a brief
stopover at Moncada, Tarlac for refreshment, the jeepney proceeded
towards Carmen, Rosales, Pangasinan.
Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear
wheel of the jeepney was detached, so it was running in an
unbalanced position. Manalo stepped on the brake, as a result of
which, the jeepney which was then running on the eastern lane (its
right of way) made a U-turn, invading and eventually stopping on the
western lane of the road in such a manner that the jeepney's front
faced the south (from where it came) and its rear faced the north
(towards where it was going). The jeepney practically occupied and
blocked the greater portion of the western lane, which is the right of
way of vehicles coming from the north, among which was Bus No.
753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by
Tomas delos Reyes. Almost at the time when the jeepney made a
sudden U-turn and encroached on the western lane of the highway
as claimed by Rabbit and delos Reyes, or after stopping for a couple
of minutes as claimed by Mangune, Carreon and Manalo, the bus
bumped from behind the right rear portion of the jeepney. As a result
of the collision, three passengers of the jeepney (Catalina Pascua,
Erlinda Meriales and Adelaida Estomo) died while the other jeepney
passengers sustained physical injuries. What could have been a
festive Christmas turned out to be tragic.
The causes of the death of the three jeepney passengers were as
follows (p. 101, Record on Appeal):
The deceased Catalina Pascua suffered the
following injuries, to wit: fracture of the left parietal
and temporal regions of the skull; fracture of the left
mandible; fracture of the right humenous; compound
fracture of the left radious and ullma middle third and
lower third; fracture of the upper third of the right
tibia and fillnea; avulsion of the head, left internal;
and multiple abrasions. The cause of her death was
 shock, secondary to fracture and multiple
hemorrhage. The fractures were produced as a
result of the hitting of the victim by a strong force.
The abrasions could be produced when a person
falls from a moving vehicles (sic) and rubs parts of
her body against a cement road pavement. . . .
Erlinda Mariles (sic) sustained external lesions such
as contusion on the left parietal region of the skull;
hematoma on the right upper lid; and abrasions (sic)
on the left knee. Her internal lesions were:
hematoma on the left thorax; multiple lacerations of
the left lower lobe of the lungs; contusions on the left
lower lobe of the lungs; and simple fractures of the
2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs, left. The
forcible impact of the jeep caused the above injuries
which resulted in her death. . . .
The cause of death of Erlinda or Florida Estomo
(also called as per autopsy of Dr. Panlasiqui was
due to shock due to internal hemorrhage, ruptured
spleen and trauma. . . .
Caridad Pascua suffered physical injuries as follows (p. 101, Record
on Appeal):
. . . lacerated wound on the forehead and occipital
region, hematoma on the forehead, multiple
abrasions on the forearm, right upper arm, back and
right leg. . . .
The police investigators of Tacpal and policemen of San Manuel,
Tarlac, Tarlac, upon arrival at the scene of the mishap, prepared a
sketch (common exhibit "K" for private respondents "19" for Rabbit)
showing the relative positions of the two vehicles as well as the
alleged point of impact (p. 100, Record on Appeal):
. . . The point of collision was a cement pave-portion
of the Highway, about six (6) meters wide, with
narrow shoulders with grasses beyond which are
canals on both sides. The road was straight and
points 200 meters north and south of the point of
collision are visible and unobstructed. Purportedly,
the point of impact or collision (Exh. "K-4", Pascua
on the sketch Exh. "K"-Pascua) was on the western
lane of the highway about 3 feet (or one yard) from
the center line as shown by the bedris (sic), dirt and
soil (obviously from the undercarriage of both
vehicles) as well as paint, marron (sic) from the
Rabbit bus and greenish from the jeepney. The point
of impact encircled and marked with the letter "X" in
Exh. "K"-4 Pascua, had a diameter of two meters,
the center of which was about two meters from the
western edge of cement pavement of the roadway.
Pictures taken by witness Bisquera in the course of
the investigation showed the relative positions of the
point of impact and center line (Exh. "P"-Pascua) the
back of the Rabbit bus (Exh. "P"-1-Pascua"), the
lifeless body of Catalina Pascua (Exh. "P-2
Pascua"), and the damaged front part of the Rabbit
bus (Exh. "P-3 Pascua"). No skid marks of the
Rabbit bus was found in the vicinity of the collision,
before or after the point of impact. On the other
hand, there was a skid mark about 45 meters long
purportedly of the jeepney from the eastern shoulder
of the road south of, and extending up to the point of
impact.
At the time and in the vicinity of the accident, there were no vehicles
following the jeepney, neither were there oncoming vehicles except
the bus. The weather condition of that day was fair.
After conducting the investigation, the police filed with the Municipal
Court of San Manuel, Tarlac, a criminal complaint against the two
drivers for Multiple Homicide. At the preliminary investigation, a
probable cause was found with respect to the case of Manalo, thus,
his case was elevated to the Court of First Instance. However,
finding no sufficiency of evidence as regards the case of delos
Reyes, the Court dismissed it. Manalo was convicted and sentenced
to suffer imprisonment. Not having appealed, he served his
sentence.
Complaints for recovery of damages were then filed before the Court
of First Instance of Pangasinan. In Civil Case No. 1136, spouses
Casiano Pascua and Juana Valdez sued as heirs of Catalina Pascua
while Caridad Pascua sued in her behalf. In Civil Case No. 1139,
spouses Manuel Millares and Fidencia Arcica sued as heirs of
Erlinda Meriales. In Civil Case No. 1140, spouses Mariano Estomo
and Dionisia Sarmiento also sued as heirs of Adelaida Estomo.
In all three cases, spouses Mangune and Carreon, Manalo, Rabbit
and delos Reyes were all impleaded as defendants. Plaintiffs
anchored their suits against spouses Mangune and Carreon and
Manalo on their contractual liability. As against Rabbit and delos
Reyes, plaintiffs based their suits on their culpability for a quasi-
delict. Filriters Guaranty Assurance Corporation, Inc. was also
impleaded as additional defendant in Civil Case No. 1136 only.
For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136
sought to collect the aggregate amount of P70,060.00 in damages,
itemized as follows: P500.00 for burial expenses; P12,000.00 for loss
of wages for 24 years; P10,000.00 for exemplary damages;
P10,000.00 for moral damages; and P3,000.00 for attorney's fees. In
the same case, plaintiff Caridad Pascua claimed P550.00 for medical
expenses; P240.00 for loss of wages for two months; P2,000.00 for
disfigurement of her face; P3,000.00 for physical pain and suffering;
P2,500.00 as exemplary damages and P2,000.00 for attorney's fees
and expenses of litigation.
In Civil Case No. 1139, plaintiffs demanded P500.00 for burial
expenses; P6,000.00 for the death of Erlinda, P63,000.00 for loss of
income; P10,000.00 for moral damages and P3,000.00 for attorney's
fees or total of P80,000.00.
In Civil Case No. 1140, plaintiffs claimed P500.00 for burial
expenses; P6,000.00 for the death of Adelaide, P56,160.00 for loss
of her income or earning capacity; P10,000.00 for moral damages;
and P3,000.00 for attorney's fees.
Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's
fees and expenses of litigation. On the other hand, spouses
Mangune and Carreon filed a cross-claim in the amount of P6,168.00
for the repair of the jeepney and P3,000.00 for its non-use during the
period of repairs.
On December 27, 1978, the trial court rendered its decision finding
Manalo negligent, the dispositive portion of which reads (pp. 113-
114, Record on Appeal):
PREMISES CONSIDERED, this Court is of the opinion and so holds:
1) That defendants Isidro Mangune, Guillerma
Carreon and Tranquilino Manalo thru their
negligence, breached contract of carriage with their
passengers the plaintiffs' and/or their heirs, and this
Court renders judgment ordering said defendants,
jointly and severally, to pay the plaintiffs —
a) In Civil Case No. 1136, for the death of Catalina
Pascua, to pay her heirs the amounts of P12,000.00
for indemnity for loss of her life; P41,760.00 for loss
of earnings; P324.40 for actual expenses and
P2,000.00 for moral damages;
b) In the same Civil Case No.1136 for the injuries of
Caridad Pascua, to pay her the amounts of P240.00
for loss of wages, P328.20 for actual expenses and
P500.00 for moral damages;
c) In Civil Case No.1139 for the death of Erlinda
Meriales, to pay her heirs (the plaintiffs) the amount
of P12,000.00 — for indemnity for loss of her life;
P622.00 for actual expenses, P60,480.00 for loss of
wages or income and P2,000.00 for moral damages;
d) In Civil Case No. 1140, for the death of Erlinda
(also called Florida or Adelaida Estomo), to pay her
heirs (the plaintiff the amount of P12,000.00 for
 indemnity for the loss of her life; P580.00 for actual
expenses; P53,160.00 for loss of wages or income
and P2,000.00 for moral damages.
2) The defendant Filriters Guaranty Insurance Co.,
having contracted to ensure and answer for the
obligations of defendants Mangune and Carreon for
damages due their passengers, this Court renders
judgment against the said defendants Filriters
Guaranty Insurance Co., jointly and severally with
said defendants (Mangune and Carreon) to pay the
plaintiffs the amount herein above adjudicated in
their favor in Civil Case No. 1136 only. All the
amounts awarded said plaintiff, as set forth in
paragraph one (1) hereinabove;
3) On the cross claim of Phil. Rabbit Bus Lines, Inc.
ordering the defendant, Isidro Mangune, Guillerma
Carreon and Tranquilino Manalo, to pay jointly and
severally, cross-claimant Phil. Rabbit Bus Lines,
Inc., the amounts of P216.27 as actual damages to
its Bus No. 753 and P2,173.60 for loss of its earning.
All of the above amount, shall bear legal interest
from the filing of the complaints.
Costs are adjudged against defendants Mangune,
Carreon and Manalo and Filriters Guaranty.
SO ORDERED
On appeal, the Intermediate Appellate Court reversed the above-
quoted decision by finding delos Reyes negligent, the dispositive
portion of which reads (pp. 55-57, Rollo):
WHEREFORE, PREMISES CONSIDERED, the
lower court's decision is hereby REVERSED as to
item No. 3 of the decision which reads:
3) On the cross claim of Philippine Rabbit Bus Lines,
Inc. ordering the defendants Isidro Mangune,
Guillerma Carreon and Tranquilino Manalo, to pay
jointly and severally, the amounts of P216.27 as
actual damages to its Bus No. 753 and P2,173.60
for loss of its earnings.
and another judgment is hereby rendered in favor of
plaintiffs-appellants Casiana Pascua, Juan Valdez
and Caridad Pascua, ordering the Philippine Rabbit
Bus Lines, Inc. and its driver Tomas delos Reyes to
pay the former jointly and severally damages in
amounts awarded as follows:
For the death of Catalina Pascua, the parents and/or
heirs are awarded
Civil Case No. 1136 —
a) Indemnity for the loss of life — P12,000.00
b) Loss of Salaries or earning capacity — 14,000.00
c) Actual damages (burial expenses) — 800.00
d) For moral damages — 10,000.00
e) Exemplary damages — 3,000.00
f) For attorney's fees — 3,000.00
Total — P38,200.00 (sic)
For the physical injuries suffered by Caridad Pascua:
Civil Case No. 1136
a) Actual damages (hospitalization expenses) — P550.00
b) Moral damages (disfigurement of the
face and physical suffering — 8,000.00 With costs against the Philippine Rabbit Bus Lines,
Inc.
c) Exemplary damages — 2,000.00
SO ORDERED.
Total — P10,550.00

For the death of Erlinda Arcega Meriales. the parents and/or heirs:
Civil Case No. 1139
a) Indemnity for loss of life — P12,000.00
b) Loss of Salary or Earning Capacity — 20,000.00
c) Actual damages (burial expenses) — 500.00
The motion for reconsideration was denied. Hence, the
present petition.
The issue is who is liable for the death and physical injuries suffered
by the passengers of the jeepney?
The trial court, in declaring that Manalo was negligent, considered
the following (p. 106, Record on Appeal):

d) Moral damages — 15,000.00 (1) That the unrebutted testimony of his passenger
plaintiff Caridad Pascua that a long ways (sic) before
e) Exemplary damages — 15,000.00
reaching the point of collision, the Mangune jeepney
f) Attorney's fees — 3,000.00 was "running fast" that his passengers cautioned
driver Manalo to slow down but did not heed the
Total — P65,500.00 warning: that the right rear wheel was detached
causing the jeepney to run to the eastern shoulder of
For the death of Florida Sarmiento Estomo: the road then back to the concrete pavement; that
driver Manalo applied the brakes after which the
Civil Case No. 1140 jeepney made a U-turn (half-turn) in such a manner
that it inverted its direction making it face South
a) Indemnity for loss of life — P12,000.00 instead of north; that the jeepney stopped on the
western lane of the road on the right of way of the
b) Loss of Salary or Earning capacity — 20,000.00
oncoming Phil. Rabbit Bus where it was bumped by
c) Actual damages (burial expenses) — 500.00 the latter;

d) Moral damages — 3,000.00 (2) The likewise unrebutted testimony of Police

Investigator Tacpal of the San Manuel (Tarlac)
e) Exemplary damages — 3,000.00 Police who, upon responding to the reported
collission, found the real evidence thereat indicate in
f) Attorney's fees — 3,000.00 his sketch (Exh. K, Pascua ), the tracks of the
jeepney of defendant Mangune and Carreon running
Total — P41,500.00
on the Eastern shoulder (outside the concrete paved
road) until it returned to the concrete road at a sharp
angle, crossing the Eastern lane and the (imaginary)
 center line and encroaching fully into the western
lane where the collision took place as evidenced by
the point of impact;
(3) The observation of witness Police Corporal
Cacalda also of the San Manuel Police that the path
of the jeepney they found on the road and indicated
in the sketch (Exh. K-Pascua) was shown by skid
marks which he described as "scratches on the road
caused by the iron of the jeep, after its wheel was
removed;"
(4) His conviction for the crime of Multiple Homicide
and Multiple Serious Physical Injuries with Damage
to Property thru Reckless Imprudence by the Court
of First Instance of Tarlac (Exh. 24-Rabbit) upon the
criminal Information by the Provincial Fiscal of Tarlac
(Exh. 23-Rabbit), as a result of the collision, and his
commitment to prison and service of his sentence
(Exh. 25-Rabbit) upon the finality of the decision and
his failure to appeal therefrom; and
(5) The application of the doctrine of res-ipsa
loquitar (sic) attesting to the circumstance that the
collision occured (sic) on the right of way of the Phil.
Rabbit Bus.
The respondent court had a contrary opinion. Applying primarily (1)
the doctrine of last clear chance, (2) the presumption that drivers
who bump the rear of another vehicle guilty and the cause of the
accident unless contradicted by other evidence, and (3) the
substantial factor test. concluded that delos Reyes was negligent.
The misappreciation of the facts and evidence and the
misapplication of the laws by the respondent court warrant a reversal
of its questioned decision and resolution.
We reiterate that "[t]he principle about "the last clear" chance, would
call for application in a suit between the owners and drivers of the
two colliding vehicles. It does not arise where a passenger demands
responsibility from the carrier to enforce its contractual obligations.
For it would be inequitable to exempt the negligent driver of the
jeepney and its owners on the ground that the other driver was
likewise guilty of negligence." This was Our ruling in Anuran, et al. v.
Buño et al., G.R. Nos. L-21353 and L-21354, May 20, 1966, 17
SCRA 224. 1 Thus, the respondent court erred in applying said
doctrine.
On the presumption that drivers who bump the rear of another
vehicle guilty and the cause of the accident, unless contradicted by
other evidence, the respondent court said (p. 49, Rollo):
. . . the jeepney had already executed a complete
turnabout and at the time of impact was already
facing the western side of the road. Thus the
jeepney assumed a new frontal position vis a vis, the
bus, and the bus assumed a new role of defensive
driving. The spirit behind the presumption of guilt on
one who bumps the rear end of another vehicle is for
the driver following a vehicle to be at all times
prepared of a pending accident should the driver in
front suddenly come to a full stop, or change its
course either through change of mind of the front
driver, mechanical trouble, or to avoid an accident.
The rear vehicle is given the responsibility of
avoiding a collision with the front vehicle for it is the
rear vehicle who has full control of the situation as it
is in a position to observe the vehicle in front of it.
The above discussion would have been correct were it not for the
undisputed fact that the U-turn made by the jeepney was abrupt
(Exhibit "K," Pascua). The jeepney, which was then traveling on the
eastern shoulder, making a straight, skid mark of approximately 35
meters, crossed the eastern lane at a sharp angle, making a skid
mark of approximately 15 meters from the eastern shoulder to the
point of impact (Exhibit "K" Pascua). Hence, delos Reyes could not
have anticipated the sudden U-turn executed by Manalo. The
respondent court did not realize that the presumption was rebutted
by this piece of evidence.
With regard to the substantial factor test, it was the opinion of the
respondent court that (p. 52, Rollo):
. . . It is the rule under the substantial factor test that
if the actor's conduct is a substantial factor in
bringing about harm to another, the fact that the
actor neither foresaw nor should have foreseen the
extent of the harm or the manner in which it
occurred does not prevent him from being liable
(Restatement, Torts, 2d). Here, We find defendant
bus running at a fast speed when the accident
occurred and did not even make the slightest effort
to avoid the accident, . . . . The bus driver's conduct
is thus a substantial factor in bringing about harm to
the passengers of the jeepney, not only because he
was driving fast and did not even attempt to avoid
the mishap but also because it was the bus which
was the physical force which brought about the
injury and death to the passengers of the jeepney.
The speed of the bus was calculated by respondent court as follows
(pp. 54-55, Rollo):
According to the record of the case, the bus
departed from Laoag, Ilocos Norte, at 4:00 o'clock
A.M. and the accident took place at approximately
around 12:30 P.M., after travelling roughly for 8
hours and 30 minutes. Deduct from this the actual
stopover time of two Hours (computed from the
testimony of the driver that he made three 40-minute
stop-overs), We will have an actual travelling time of
6 hours and 30 minutes.
Under the circumstances, We calculate that the
Laoag-Tarlac route (365 kms.) driving at an average
of 56 km. per hour would take 6 hours and 30
minutes. Therefore, the average speed of the bus,
give and take 10 minutes, from the point of impact
on the highway with excellent visibility factor would
be 80 to 90 kms. per hour, as this is the place where
buses would make up for lost time in traversing busy
city streets.
Still, We are not convinced. It cannot be said that the bus was
travelling at a fast speed when the accident occurred because the
speed of 80 to 90 kilometers per hour, assuming such calculation to
be correct, is yet within the speed limit allowed in highways. We
cannot even fault delos Reyes for not having avoided the collision.
As aforestated, the jeepney left a skid mark of about 45 meters,
measured from the time its right rear wheel was detached up to the
point of collision. Delos Reyes must have noticed the perilous
condition of the jeepney from the time its right rear wheel was
detached or some 90 meters away, considering that the road was
straight and points 200 meters north and south of the point of
collision, visible and unobstructed. Delos Reyes admitted that he
was running more or less 50 kilometers per hour at the time of the
accident. Using this speed, delos Reyes covered the distance of 45
meters in 3.24 seconds. If We adopt the speed of 80 kilometers per
hour, delos Reyes would have covered that distance in only 2.025
seconds. Verily, he had little time to react to the situation. To require
delos Reyes to avoid the collision is to ask too much from him. Aside
from the time element involved, there were no options available to
him. As the trial court remarked (pp. 107-108, Record on Appeal):
. . . They (plaintiffs) tried to impress this Court that
defendant de los Reyes, could have taken either of
two options: (1) to swerve to its right (western
shoulder) or (2) to swerve to its left (eastern lane),
and thus steer clear of the Mangune jeepney. This
Court does not so believe, considering the existing
exigencies of space and time.
As to the first option, Phil. Rabbit's evidence is
convincing and unrebutted that the Western
shoulder of the road was narrow and had tall
grasses which would indicate that it was not
passable. Even plaintiffs own evidence, the pictures
(Exhs. P and P-2, Pascua) are mute confirmation of
such fact. Indeed, it can be noticed in the picture
 (Exh. P-2, Pascua) after the Rabbit bus came to a
full stop, it was tilted to right front side, its front
wheels resting most probably on a canal on a much
lower elevation that of the shoulder or paved road. It
too shows that all of the wheels of the Rabbit bus
were clear of the roadway except the outer left rear
wheel. These observation appearing in said picture
(Exh P-2, Pascua) clearly shows coupled with the
finding the Rabbit bus came to a full stop only five
meters from the point of impact (see sketch, Exh. K-
Pascua) clearly show that driver de los Reyes
veered his Rabbit bus to the right attempt to avoid
hitting the Mangune's jeepney. That it was not
successful in fully clearing the Mangune jeepney as
its (Rabbit's) left front hit said jeepney (see picture
Exh. 10-A-Rabbit) must have been due to limitations
of space and time.
Plaintiffs alternatively claim that defendant delos
Reyes of the Rabbit bus could also have swerved to
its left (eastern lane) to avoid bumping the Mangune
jeepney which was then on the western lane. Such a
claim is premised on the hypothesis (sic) that the
eastern lane was then empty. This claim would
appear to be good copy of it were based alone on
the sketch made after the collision. Nonetheless, it
loses force it one were to consider the time element
involved, for moments before that, the Mangune
jeepney was crossing that very eastern lane at a
sharp angle. Under such a situation then, for driver
delos Reyes to swerve to the eastern lane, he would
run the greater risk of running smack in the
Mangune jeepney either head on or broadside.
After a minute scrutiny of the factual matters and duly proven
evidence, We find that the proximate cause of the accident was the
negligence of Manalo and spouses Mangune and Carreon. They all
failed to exercise the precautions that are needed precisely pro hac
vice.
In culpa contractual, the moment a passenger dies or is injured, the
carrier is presumed to have been at fault or to have acted
negligently, and this disputable presumption may only be overcome
by evidence that he had observed extra-ordinary diligence as
prescribed in Articles 1733, 1755 and 1756 of the New Civil
Code 2 or that the death or injury of the passenger was due to a
fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).
The negligence of Manalo was proven during the trial by the
unrebutted testimonies of Caridad Pascua, Police Investigator
Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the
crime of Multiple Homicide and Multiple Serious Injuries with
Damage to Property thru Reckless Imprudence, and the application
of the doctrine ofres ipsa loquitur supra. The negligence of spouses
Mangune and Carreon was likewise proven during the trial (p. 110,
Record on Appeal):
To escape liability, defendants Mangune and
Carreon offered to show thru their witness Natalio
Navarro, an alleged mechanic, that he periodically
checks and maintains the jeepney of said
defendants, the last on Dec. 23, the day before the
collision, which included the tightening of the bolts.
This notwithstanding the right rear wheel of the
vehicle was detached while in transit. As to the
cause thereof no evidence was offered. Said
defendant did not even attempt to explain, much
less establish, it to be one caused by a caso fortuito.
...
In any event, "[i]n an action for damages against the carrier
for his failure to safely carry his passenger to his destination,
an accident caused either by defects in the automobile or
through the negligence of its driver, is not a caso
fortuito which would avoid the carriers liability for damages
(Son v. Cebu Autobus Company, 94 Phil. 892 citing Lasam,
et al. v. Smith, Jr., 45 Phil. 657; Necesito, etc. v. Paras, et
al., 104 Phil. 75).
The trial court was therefore right in finding that Manalo and spouses
Mangune and Carreon were negligent. However, its ruling that
spouses Mangune and Carreon are jointly and severally liable with
Manalo is erroneous The driver cannot be held jointly and severally
liable with the carrier in case of breach of the contract of carriage.
The rationale behind this is readily discernible. Firstly, the contract of
carriage is between the carrier and the passenger, and in the event
of contractual liability, the carrier is exclusively responsible therefore
to the passenger, even if such breach be due to the negligence of his
driver (see Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-
81, April 29, 1966, 16 SCRA 742). In other words, the carrier can
neither shift his liability on the contract to his driver nor share it with
him, for his driver's negligence is his. 4 Secondly, if We make the
driver jointly and severally liable with the carrier, that would make the
carrier's liability personal instead of merely vicarious and
consequently, entitled to recover only the share which corresponds
to the driver, 5 contradictory to the explicit provision of Article 2181 of
the New Civil Code. 6

We affirm the amount of damages adjudged by the trial court, except

with respect to the indemnity for loss of life. Under Article 1764 in
relation to Article 2206 of the New Civil Code, the amount of
damages for the death of a passenger is at least three thousand
pesos (P3,000.00). The prevailing jurisprudence has increased the
amount of P3,000.00 to P30,000.00 (see Heirs of Amparo delos
Santos, et al. v. Honorable Court of Appeals, et al., G.R. No. 51165,
June 21, 1990 citing De Lima v. Laguna Tayabas Co., G.R. Nos. L-
35697-99, April 15, 1988, 160 SCRA 70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of

the Intermediate Appellate Court dated July 29, 1983 and its
resolution dated November 28, 1983 are SET ASIDE. The decision
of the Court of First Instance dated December 27, 1978 is
REINSTATED MODIFICATION that only Isidro Mangune, Guillerma
Carreon and Filriters Guaranty Assurance Corporation, Inc. are liable
to the victims or their heirs and that the amount of indemnity for loss
of life is increased to thirty thousand pesos (P30,000.00).

SO ORDERED.
G.R. No. L-9907 June 30, 1958
LOURDES J. LARA, ET AL., plaintiffs-appellants,
vs.
BRIGIDO R. VALENCIA, defendant-appellant.
Castillo, Cervantes, Occeña, Lozano, Montana, Cunanan, Sison and
Castillo and Eligio G. Lagman for defendant-appellant.
Donato C. Endriga and Emigdio Dakanay for plaintiffs-appellants.
This is an action for damages brought by plaintiffs against defendant
in the Court of First Instance of Davao for the death of one Demetrio
Lara, Sr. allegedly caused by the negligent act of defendant.
Defendant denied the charge of negligence and set up certain
affirmative defenses and a counterclaim.
The court after hearing rendered judgment ordering defendant to pay
the plaintiffs the following amount: (a) P10,000 as moral damages;
(b) P3,000 as exemplary damages; and (c) P1,000 as attorney's
fees, in addition to the costs of action. Both parties appealed to this
Court because the damages claimed in the complaint exceed the
sum of P50,000.
In their appeal, plaintiffs claim that the court a quo erred in
disregarding their claim of P41,400 as actual or compensatory
damages and in awarding as attorneys' fees only the sum of P1,000
instead of P3,000 as agreed upon between plaintiffs and their
counsel. Defendant, on the other hand, disputes the finding of the
court a quo that the oath of Demetrio Lara, Sr. was due to the
negligence of defendant and the portion of the judgment which
orders dependant to pay to plaintiffs moral and exemplary damages
as well as attorneys' fees, said defendant contending that the court
should have declared that the death of Lara was due to unavoidable
accident.
The deceased was an inspector of the Bureau of Forestry stationed
in Davao with an annual salary of P1,800. The defendant is engaged
in the business of exporting logs from his lumber concession in
Cotabato. Lara went to said concession upon instructions of his chief
to classify the logs of defendant which were about to be loaded on a
ship anchored in the port of Parang. The work Lara of lasted for six
days during which he contracted malaria fever. In the morning of
January 9, 1954, Lara who then in a hurry to return to Davao asked
defendant if he could take him in his pick-up as there was then no
other means of transportation, to which defendant agreed, and in
that same morning the pick-up left Parang bound for Davao taking
along six passengers, including Lara.
The pick-up has a front seat where the driver and two passengers
can be accommodated and the back has a steel flooring enclosed
with a steel walling of 16 to 17 inches tall on the sides and with a 19
inches tall walling at the back. Before leaving Parang, the sitting
arrangement was as follows: defendant was at the wheel and seated
with him in the front seat were Mrs. Valencia and Nicanor Quinain;
on the back of the pick-up were two improvised benches placed on
each side, and seated on the right bench were Ricardo Alojipan and
Antonio Lagahit, and on the left one Bernardo and Pastor Geronimo.
A person by the name of Leoning was seated on a box located on
the left side while in the middle Lara sat on a bag. Before leaving
Parang, defendant invited Lara to sit with him on the front seat but
Lara declined. It was their understanding that upon reaching barrio
Samoay, Cotabato, the passengers were to alight and take a bus
bound for Davao, but when they arrived at that place, only Bernardo
alighted and the other passengers requested defendant to allow
them to ride with him up to Davao because there was then no
available bus that they could take in going to that place. Defendant
again accommodated the passengers.
When they continued their trip, the sitting arrangement of the
passengers remained the same, Lara being seated on a bag in the
middle with his arms on a suitcase and his head cove red by a
jacket. Upon reaching Km. 96, barrio Catidtuan, Lara accidentally fell
from the pick-up and as a result he suffered serious injuries.
Valencia 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 avail. They brought Lara to the nearest place where
they could find a doctor and not having found any they took him to
St. Joseph's Clinic 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 circumstances surrounding the death of Lara but no
criminal action was taken against defendant.
It should be noted that the deceased went to the lumber concession
of defendant in Parang, Cotabato upon instructions of his chief in
order to classify the logs of defendant which were then ready to be
exported and to be loaded on a ship anchored in the port of Parang.
It took Lara six days to do his work during which he contracted
malaria fever and for that reason he evinced a desire to return
immediately to Davao. At that time, there was no available bus that
could take him back to Davao and so he requested the defendant if
he could take him in his own pick-up. Defendant agreed and,
together with Lara, other passengers tagged along, most of them
were employees of the Government. Defendant merely
accommodated them and did not charge them any fee for the
service. It was also their understanding that upon reaching barrio
Samoay, the passengers would alight and transfer to a bus that
regularly makes the trip to Davao but unfortunately there was none
available at the time and so the same passengers, including Lara,
again requested the defendant to drive them to Davao. Defendant
again accommodated them and upon reaching Km. 96, Lara
accidentally fell suffering fatal injuries.
It therefore appears that the deceased, as well his companions who
rode in the pick-up of defendant, were merely accommodation
passengers who paid nothing for the service and so they can be
considered as invited guests within the meaning of the law. As
accommodation passengers or invited guests, defendant as owner
and driver of the pick-up owes to them merely the duty to exercise
reasonable care so that they may be transported safely to their
destination. Thus, "The rule is established by the weight of authority
that the owner or operator of an automobile owes the duty to
an invited guest to exercise reasonable care in its operation, and not
unreasonably to expose him to danger and injury by increasing the
hazard of travel. This rule, as frequently stated by the courts, is that
an owner of an automobile owes a guest the duty to exercise
ordinary or reasonable care to avoid injuring him. Since one riding in
an automobile is no less a guest because he asked for the privilege
of doing so, the same obligation of care is imposed upon the driver
as in the case of one expressly invited to ride" (5 Am. Jur., 626-627).
Defendant, therefore, is only required to observe ordinary care, and
is not in duty bound to exercise extraordinary diligence as required of
a common carrier by our law (Articles 1755 and 1756, new Civil
Code).
The question that now arises is: Is there enough evidence to show
that defendant failed to observe ordinary care or diligence in
transporting the deceased from Parang to Davao on the date in
question?
The trial court answered the question in the affirmative but in so
doing it took into account only the following facts:
No debe perderse de vista el hecho, que los negocios de
exportacion de trozos del demandado tiene un volumen de
P1,200. Lara era empleado de la Oficina de Montes,
asalariado por el gobierno, no pagado por el demandado
para classificar los trozos exportados; debido a los trabajos
de classificacion que duro 6 dias, en su ultimo dia Lara no
durmio toda la noche, al dia siguiente, Lara fue atacado de
malaria, tenia inflamada la cara y cuerpo, sufria dolores de
cabeza con erupciones en la cara y cuerpo; que en la
manana, del dia 2 de enero de 1954, fecha en que Lara
salio de Davao para Parang, en aeroplano para clasificar los
trozos del demandado, el automobil de este condujo a aquel
al aerodromo de Davao.
El viaje de Cotabato a Davao no es menos de 8 horas, su
carretera esta en malas condiciones, desnivelada, con
piedras salientes y baches, que hacen del vehiculo no
estable en su marcha. Lara estaba enfermo de cierta
gravedad, tenia el cuerpo y cara inflamados, atacado de
malaria, con dolores de cabeza y con erupciones en la cara
y cuerpo.
A la vista de estos hechos, el demandado debia de saber
que era sumamente peligroso llevar 5 pasajeros en la parte
trasera del pick-up; particularmente, para la salud de Lara; el
permitirlo, el demandado no ha tomado las precausiones,
 para evitar un posible accidente fatal. La negative de Lara
de ocupar el asiento delantero del pick-up no constituye a
juicio del Juzgado una defensa, pues el demendado
conociendo el estado delicado de salud de Lara, no debio de
haber permitido que aquel regrese a Davao en su pick-up; si
querria prestar a aquel un favor, debio de haver provisto a
Lara de un automobil para su regrese a Davao, ya que el
demendado es un millionario; si no podia prestar a aquel
este favor, debio de haver dejado a Lara en Samuay para
coger aquel un camion de pasajero de Cotabato a Davao.
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.
time the deceased was half asleep and must have fallen from the
pick-up when it ran into some stones causing it to jerk considering
that the road was then bumpy, rough and full of stones.
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.
All things considered, we are persuaded to conclude that the
accident occurred not due to the negligence of defendant but to
circumstances beyond his control and so he should be exempt from
liability.
Wherefore, the decision appealed from is reversed, without
pronouncement as to costs.

There is every reason to believe that the unfortunate happening was

only due to an unforeseen accident accused by the fact that at the
G.R. No. L-10605 June 30, 1958
PRECILLANO NECESITO, ETC., plaintiff-appellant,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
G.R. No. L-10606 June 30, 1958
GERMAN NECESITO, ET AL., plaintiffs-appellants,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
Tomas Besa and Federico Agrava for appellants.
Jose W. Diokno for appellees.
These cases involve ex contractu against the owners and operators
of the common carrier known as Philippine Rabbit Bus Lines, filed by
one passenger, and the heirs of another, who injured as a result of
the fall into a river of the vehicle in which they were riding.
In the morning of January 28, 1964, Severina Garces and her one-
year old son, Precillano Necesito, carrying vegetables, boarded
passenger auto truck or bus No. 199 of the Philippine Rabbit Bus
Lines at Agno, Pangasinan. The passenger truck, driven by
Francisco Bandonell, then proceeded on its regular run from Agno to
Manila. After passing Mangatarem, Pangasinan truck No. 199
entered a wooden bridge, but the front wheels swerved to the right;
the driver lost control, and after wrecking the bridge's wooden rails,
the truck fell on its right side into a creek where water was breast
deep. The mother, Severina Garces, was drowned; the son,
Precillano Necesito, was injured, suffering abrasions and fracture of
the left femur. He was brought to the Provincial Hospital at Dagupan,
where the fracture was set but with fragments one centimeter out of
line. The money, wrist watch and cargo of vegetables were lost.
Two actions for damages and attorney's fees totalling over P85,000
having been filed in the Court of First Instance of Tarlac (Cases Nos.
908 and 909) against the carrier, the latter pleaded that the accident
was due to "engine or mechanical trouble" independent or beyond
the control of the defendants or of the driver Bandonell.
After joint trial, the Court of First Instance found that the bus was
proceeding slowly due to the bad condition of the road; that the
accident was caused by the fracture of the right steering knuckle,
which was defective in that its center or core was not compact but
"bubbled and cellulous", a condition that could not be known or
ascertained by the carrier despite the fact that regular thirty-day
inspections were made of the steering knuckle, since the steel
exterior was smooth and shiny to the depth of 3/16 of an inch all
around; that the knuckles are designed and manufactured for heavy
duty and may last up to ten years; that the knuckle of bus No. 199
that broke on January 28, 1954, was last inspected on January 5,
1954, and was due to be inspected again on February 5th. Hence,
the trial court, holding that the accident was exclusively due to
fortuitous event, dismissed both actions. Plaintiffs appealed directly
to this Court in view of the amount in controversy.
We are inclined to agree with the trial court that it is not likely that
bus No. 199 of the Philippine Rabbit Lines was driven over the
deeply rutted road leading to the bridge at a speed of 50 miles per
hour, as testified for the plaintiffs. Such conduct on the part of the
driver would have provoked instant and vehement protest on the part
of the passengers because of the attendant discomfort, and there is
no trace of any such complaint in the records. We are thus forced to
assume that the proximate cause of the accident was the reduced
strength of the steering knuckle of the vehicle caused by defects in
casting it. While appellants hint that the broken knuckle exhibited in
court was not the real fitting attached to the truck at the time of the
accident, the records they registered no objection on that ground at
the trial below. The issue is thus reduced to the question whether or
not the carrier is liable for the manufacturing defect of the steering
knuckle, and whether the evidence discloses that in regard thereto
the carrier exercised the diligence required by law (Art. 1755, new
Civil Code).
ART. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons,
with a due regard for the all the circumstances.
It is clear that the carrier is not an insurer of the passengers' safety.
His liability rests upon negligence, his failure to exercise the "utmost"
degree of diligence that the law requires, and by Art. 1756, in case of
a passenger's death or injury the carrier bears the burden of
satisfying the court that he has duly discharged the duty of prudence
required. In the American law, where the carrier is held to the same
degree of diligence as under the new Civil Code, the rule on the
liability of carriers for defects of equipment is thus expressed: "The
preponderance of authority is in favor of the doctrine that a
passenger is entitled to recover damages from a carrier for an injury
resulting from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect would have been
discovered by the carrier if it had exercised the degree of care which
under the circumstances was incumbent upon it, with regard to
inspection and application of the necessary tests. For the purposes
of this doctrine, the manufacturer is considered as being in law the
agent or servant of the carrier, as far as regards the work of
constructing the appliance. According to this theory, the good repute
of the manufacturer will not relieve the carrier from liability" (10 Am.
Jur. 205, s, 1324; see also Pennsylvania R. Co. vs. Roy, 102 U. S.
451; 20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42
Fed. 2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger
has neither choice nor control over the carrier in the selection and
use of the equipment and appliances in use by the carrier. Having no
privity whatever with the manufacturer or vendor of the defective
equipment, the passenger has no remedy against him, while the
carrier usually has. It is but logical, therefore, that the carrier, while
not in insurer of the safety of his passengers, should nevertheless be
held to answer for the flaws of his equipment if such flaws were at all
discoverable. Thus Hannen, J., in Francis vs. Cockrell, LR 5 Q. B.
184, said:
In the ordinary course of things, the passenger does not
know whether the carrier has himself manufactured the
means of carriage, or contracted with someone else for its
manufacture. If the carrier has contracted with someone else
the passenger does not usually know who that person is,
and in no case has he any share in the selection. The liability
of the manufacturer must depend on the terms of the
contract between him and the carrier, of which the
passenger has no knowledge, and over which he can have
no control, while the carrier can introduce what stipulations
and take what securities he may think proper. For injury
resulting to the carrier himself by the manufacturer's want of
care, the carrier has a remedy against the manufacturer; but
the passenger has no remedy against the manufacturer for
damage arising from a mere breach of contract with the
carrier . . . . Unless, therefore, the presumed intention of the
parties be that the passenger should, in the event of his
being injured by the breach of the manufacturer's contract, of
which he has no knowledge, be without remedy, the only
way in which effect can be given to a different intention is by
supposing that the carrier is to be responsible to the
passenger, and to look for his indemnity to the person whom
he selected and whose breach of contract has caused the
mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15
LRA (NS) 790, 16 Ann. Cas. 608, the Court, in holding the carrier
responsible for damages caused by the fracture of a car axle, due to
a "sand hole" in the course of moulding the axle, made the following
observations.
The carrier, in consideration of certain well-known and highly
valuable rights granted to it by the public, undertakes certain
duties toward the public, among them being to provide itself
with suitable and safe cars and vehicles in which carry the
traveling public. There is no such duty on the manufacturer
of the cars. There is no reciprocal legal relation between him
and the public in this respect. When the carrier elects to
have another build its cars, it ought not to be absolved by
that facts from its duty to the public to furnish safe cars. The
carrier cannot lessen its responsibility by shifting its
undertaking to another's shoulders. Its duty to furnish safe
cars is side by side with its duty to furnish safe track, and to
operate them in a safe manner. None of its duties in these
respects can be sublet so as to relieve it from the full
measure primarily exacted of it by law. The carrier selects
the manufacturer of its cars, if it does not itself construct
them, precisely as it does those who grade its road, and lay
its tracks, and operate its trains. That it does not exercise
control over the former is because it elects to place that
matter in the hands of the manufacturer, instead of retaining
the supervising control itself. The manufacturer should be
deemed the agent of the carrier as respects its duty to select
the material out of which its cars and locomotive are built, as
well as in inspecting each step of their construction. If there
be tests known to the crafts of car builders, or iron moulders,
by which such defects might be discovered before the part
was incorporated into the car, then the failure of the
manufacturer to make the test will be deemed a failure by
the carrier to make it. This is not a vicarious responsibility. It
extends, as the necessity of this business demands, the rule
of respondeat superior to a situation which falls clearly within
its scope and spirit. Where an injury is inflicted upon a
passenger by the breaking or wrecking of a part of the train
on which he is riding, it is presumably the result of
negligence at some point by the carrier. As stated by Judge
Story, in Story on Bailments, sec. 601a: "When the injury or
damage happens to the passenger by the breaking down or
overturning of the coach, or by any other accident occurring
on the ground, the presumption prima facie is that it occurred
by the negligence of the coachmen, and onus probandi is on
the proprietors of the coach to establish that there has been
no negligence whatever, and that the damage or injury has
been occasioned by inevitable casualty, or by some cause
which human care and foresight could not prevent; for the
law will, in tenderness to human life and limb, hold the
proprietors liable for the slightest negligence, and will compel
them to repel by satisfactory proofs every imputation
thereof." When the passenger has proved his injury as the
result of a breakage in the car or the wrecking of the train on
which he was being carried, whether the defect was in the
particular car in which he was riding or not, the burden is
then cast upon the carrier to show that it was due to a cause
or causes which the exercise of the utmost human skill and
foresight could not prevent. And the carrier in this connection
must show, if the accident was due to a latent defect in the
material or construction of the car, that not only could it not
have discovered the defect by the exercise of such care, but
that the builders could not by the exercise of the same care
have discovered the defect or foreseen the result. This rule
applies the same whether the defective car belonged to the
carrier or not.
In the case now before us, the record is to the effect that the only
test applied to the steering knuckle in question was a purely visual
inspection every thirty days, to see if any cracks developed. It
nowhere appears that either the manufacturer or the carrier at any
time tested the steering knuckle to ascertain whether its strength was
up to standard, or that it had no hidden flaws would impair that
strength. And yet the carrier must have been aware of the critical
importance of the knuckle's resistance; that its failure or breakage
would result in loss of balance and steering control of the bus, with
disastrous effects upon the passengers. No argument is required to
establish that a visual inspection could not directly determine
whether the resistance of this critically important part was not
impaired. Nor has it been shown that the weakening of the knuckle
was impossible to detect by any known test; on the contrary, there is
testimony that it could be detected. We are satisfied that the
periodical visual inspection of the steering knuckle as practiced by
the carrier's agents did not measure up to the required legal standard
of "utmost diligence of very cautious persons" — "as far as human
care and foresight can provide", and therefore that the knuckle's
failure can not be considered a fortuitous event that exempts the
carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs.
Cebu Autobus Co., 94 Phil., 892.)
It may be impracticable, as appellee argues, to require of carriers to
test the strength of each and every part of its vehicles before each
trip; but we are of the opinion that a due regard for the carrier's
obligations toward the traveling public demands adequate periodical
tests to determine the condition and strength of those vehicle
portions the failure of which may endanger the safe of the
passengers.
As to the damages suffered by the plaintiffs, we agree with appellee
that no allowance may be made for moral damages, since under
Article 2220 of the new Civil Code, in case of suits for breach of
contract, moral damages are recoverable only where the defendant
acted fraudulently or in bad faith, and there is none in the case
before us. As to exemplary damages, the carrier has not acted in a
"wanton, fraudulent, reckless, oppressive or malevolent manner" to
warrant their award. Hence, we believe that for the minor Precillano
Necesito (G. R. No. L-10605), an indemnity of P5,000 would be
adequate for the abrasions and fracture of the femur, including
medical and hospitalization expenses, there being no evidence that
there would be any permanent impairment of his faculties or bodily
functions, beyond the lack of anatomical symmetry. As for the death
of Severina Garces (G. R. No. L-10606) who was 33 years old, with
seven minor children when she died, her heirs are obviously entitled
to indemnity not only for the incidental loses of property (cash, wrist
watch and merchandise) worth P394 that she carried at the time of
the accident and for the burial expenses of P490, but also for the
loss of her earnings (shown to average P120 a month) and for the
deprivation of her protection, guidance and company. In our
judgment, an award of P15,000 would be adequate (cf Alcantara vs.
Surro, 49 Off. Gaz. 2769; 93 Phil., 472).
The low income of the plaintiffs-appellants makes an award for
attorney's fees just and equitable (Civil Code, Art. 2208, par. 11).
Considering that he two cases filed were tried jointly, a fee of P3,500
would be reasonable.
In view of the foregoing, the decision appealed from is reversed, and
the defendants-appellees are sentenced to indemnify the plaintiffs-
appellants in the following amounts: P5,000 to Precillano Necesito,
and P15,000 to the heirs of the deceased Severina Garces, plus
P3,500 by way of attorney's fees and litigation expenses. Costs
against defendants-appellees. So ordered.
RESOLUTION
September 11, 1958
Defendants-appellees have Submitted a motion asking this Court to
reconsider its decision of June 30, 1958, and that the same be
modified with respect to (1) its holding the carrier liable for the
breakage of the steering knuckle that caused the autobus No. 199 to
overturn, whereby the passengers riding in it were injured; (2) the
damages awarded, that appellees argue to be excessive; and (3) the
award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in previous
decisions of this Court, cited in our main opinion, is that a carrier is
liable to its passengers for damages caused by mechanical defects
of the conveyance. As early as 1924, in Lasam vs. Smith, 45 Phil.
659 this Court ruled:
As far as the record shows, the accident was caused either
by defects in the automobile or else through the negligence
of its driver. That is not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court
held a common carrier liable in damages to passenger for injuries
cause by an accident due to the breakage of a faulty drag-link spring.
It can be seen that while the courts of the United States are at
variance on the question of a carrier's liability for latent mechanical
defects, the rule in this jurisdiction has been consistent in holding the
carrier responsible. This Court has quoted from American and
English decisions, not because it felt bound to follow the same, but
merely in approval of the rationale of the rule as expressed therein,
since the previous Philippine cases did not enlarge on the ideas
underlying the doctrine established thereby.
The new evidence sought to be introduced do not warrant the grant
of a new trial, since the proposed proof available when the original
trial was held. Said evidence is not newly discovered.
(2) With regard to the indemnity awarded to the child Precilliano
Necesito, the injuries suffered by him are incapable of accurate
pecuniary estimation, particularly because the full effect of the injury
is not ascertainable immediately. This uncertainty, however, does not
preclude the right to an indemnity, since the injury is patent and not
denied (Civil Code, Art. 2224). The reasons behind this award are
expounded by the Code Commission in its report:
There are cases where from the nature of the case, definite
proof of pecuniary loss cannot be offered, although the court
is convinced that there has been such loss. For instance,
injury to one's commercial credit or to the goodwill of a
business firm is often hard to show with certainty in terms of
money. Should damages be denied for that reason? The
judge should be empowered to calculate moderate damages
in such cases, rather than that the plaintiff should suffer,
without redress, from the defendant's wrongful act." (Report
of the Code Commission, p. 75)
In awarding to the heirs of the deceased Severina Garces an
indemnity for the loss of her "guidance, protection and company,"
although it is but moral damage, the Court took into account that the
case of a passenger who dies in the course of an accident, due to
the carrier's negligence constitutes an exception to the general rule.
While, as pointed out in the main decision, under Article 2220 of the
new Civil Code there can be no recovery of moral damages for a
breach of contract in the absence of fraud malice or bad faith, the
case of a violation of the contract of carriage leading to a
passenger's death escapes this general rule, in view of Article 1764
in connection with Article 2206, No. 3 of the new Civil Code.
ART. 1764. Damages in cases comprised in this Section
shall be awarded in accordance with Title XVIII of this Book,
concerning Damages. Article 2206 shall also apply to the
death of a passenger caused by the breach of contract by a
comman carrier. ART. 2206. . . .
(3) The spouse, legitimate and eligimate descendants and
ascendants of the deceased may demand moral damages
for mental anguish by reason of the death of the deceased.
Being a special rule limited to cases of fatal injuries, these articles
prevail over the general rule of Art. 2220. Special provisions control
general ones (Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancio vs.
Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in case of accident
due to a carrier's negligence, the heirs of a deceased passenger may
recover moral damages, even though a passenger who is injured,
but manages to survive, is not entitled to them. There is, therefore,
no conflict between our main decision in the instant case and that
of Cachero vs. Manila Yellow Taxi Cab Co., 101 Phil., 523, where
the passenger suffered injuries, but did not lose his life.
(3) In the Cachero case this Court disallowed attorneys' fees to the
injured plaintiff because the litigation arose out of his exaggerated
and unreasonable deeds for an indemnity that was out of proportion
with the compensatory damages to which he was solely entitled. But
in the present case, plaintiffs' original claims can not be deemed a
priori wholly unreasonable, since they had a right to indemnity for
moral damages besides compensatory ones, and moral damages
are not determined by set and invariable bounds.
Neither does the fact that the contract between the passengers and
their counsel was on a contingent basis affect the former's right to
counsel fees. As pointed out for appellants, the Court's award is an
party and not to counsel. A litigant who improvidently stipulate higher
counsel fees than those to which he is lawfully entitled, does not for
that reason earn the right to a larger indemnity; but, by parity of
reasoning, he should not be deprived of counsel fees if by law he is
entitled to recover them.
We find no reason to alter the main decision heretofore rendered.
Ultimately, the position taken by this Court is that a common carrier's
contract is not to be regarded as a game of chance wherein the
passenger stakes his limb and life against the carrier's property and
profits.
Wherefore, the motion for reconsideration is hereby denied. So
ordered.
G.R. No. 118664 August 7, 1998
JAPAN AIRLINES, petitioner,
vs.
THE COURT OF APPEALS, ENRIQUE AGANA., MARIA ANGELA NINA
AGANA, ADALIA B. FRANCISCO and JOSE MIRANDA, respondents.
Before us is an appeal by certiorari filed by petitioner Japan Airlines,
Inc. (JAL) seeking the reversal of the decision of the Court of
Appeals, 1 which affirmed with modification the award of damages
made by the trial court in favor of herein private respondents Enrique
Agana, Maria Angela Nina Agana, Adelia Francisco and Jose
Miranda.
On June 13, 1991, private respondent Jose Miranda boarded JAL
flight No. JL 001 in San Francisco, California bound for Manila.
Likewise, on the same day private respondents Enrique Agana,
Maria Angela Nina Agana and Adelia Francisco left Los Angeles,
California for Manila via JAL flight No. JL 061. As an incentive for
travelling on the said airline, both flights were to make an overnight
stopover at Narita, Japan, at the airlines' expense, thereafter
proceeding to Manila the following day.
Upon arrival at Narita, Japan on June 14, 1991, private respondents
were billeted at Hotel Nikko Narita for the night. The next day, private
respondents, on the final leg of their journey, went to the airport to
take their flight to Manila. However, due to the Mt. Pinatubo eruption,
unrelenting ashfall blanketed Ninoy Aquino International Airport
(NAIA), rendering it inaccessible to airline traffic. Hence, private
respondents' trip to Manila was cancelled indefinitely.
To accommodate the needs of its stranded passengers, JAL
rebooked all the Manila-bound passengers on flight No. 741 due to
depart on June 16, 1991 and also paid for the hotel expenses for
their unexpected overnight stay. On June 16, 1991, much to the
dismay of the private respondents, their long anticipated flight to
Manila was again cancelled due to NAIA's indefinite closure. At this
point, JAL informed the private respondents that it would no longer
defray their hotel and accommodation expense during their stay in
Narita.
Since NAIA was only reopened to airline traffic on June 22, 1991,
private respondents were forced to pay for their accommodations
and meal expenses from their personal funds from June 16 to June
21, 1991. Their unexpected stay in Narita ended on June 22, 1991
when they arrived in Manila on board JL flight No. 741.
Obviously, still reeling from the experience, private respondents, on
July 25, 1991, commenced an action for damages against JAL
before the Regional Trial Court of Quezon City, Branch 104. 2 To
support their claim, private respondents asserted that JAL failed to
live up to its duty to provide care and comfort to its stranded
passengers when it refused to pay for their hotel and
accommodation expenses from June 16 to 21, 1991 at Narita,
Japan. In other words, they insisted that JAL was obligated to
shoulder their expenses as long as they were still stranded in Narita.
On the other hand, JAL denied this allegation and averred that airline
passengers have no vested right to these amenities in case a flight is
cancelled due to "force majeure."
On June 18, 1992, the trial court rendered its judgment in favor of
private respondents holding JAL liable for damages, viz.:
WHEREFORE, judgment is rendered in favor of
plaintiffs ordering the defendant Japan Airlines to
pay the plaintiffs Enrique Agana, Adalia B. Francisco
and Maria Angela Nina Agana the sum of One
million Two Hundred forty-six Thousand Nine
Hundred Thirty-Six Pesos (P1,246,936.00) and Jose
Miranda the sum of Three Hundred Twenty
Thousand Six Hundred sixteen and 31/100
(P320,616.31) as actual, moral and exemplary
damages and pay attorney's fees in the amount of
Two Hundred Thousand Pesos (P200,000.00), and
to pay the costs of suit.
Undaunted, JAL appealed the decision before the Court of Appeals,
which, however, with the exception of lowering the damages
awarded affirmed the trial court's finding, 3 thus:
Thus, the award of moral damages should be as it is
hereby reduced to P200,000.00 for each of the
plaintiffs, the exemplary damages to P300,000.00
and the attorney's fees to P100,000.00 plus the
costs.
WHEREFORE, with the foregoing Modification, the
judgment appealed from is hereby AFFIRMED in all
other respects.
JAL filed a motion for reconsideration which proved futile and
unavailing. 4
Failing in its bid to reconsider the decision, JAL has now filed this
instant petition.
The issue to be resolved is whether JAL, as a common carrier has
the obligation to shoulder the hotel and meal expenses of its
stranded passengers until they have reached their final destination,
even if the delay were caused by "force majeure."
To begin with, there is no dispute that the Mt. Pinatubo eruption
prevented JAL from proceeding to Manila on schedule. Likewise,
private respondents concede that such event can be considered as
"force majeure" since their delayed arrival in Manila was not
imputable to JAL. 5
However, private respondents contend that while JAL cannot be held
responsible for the delayed arrival in Manila, it was nevertheless
liable for their living expenses during their unexpected stay in Narita
since airlines have the obligation to ensure the comfort and
convenience of its passengers. While we sympathize with the private
respondents' plight, we are unable to accept this contention.
We are not unmindful of the fact that in a plethora of cases we have
consistently ruled that a contract to transport passengers is quite
different in kind, and degree from any other contractual relation. It is
safe to conclude that it is a relationship imbued with public interest.
Failure on the part of the common carrier to live up to the exacting
standards of care and diligence renders it liable for any damages
that may be sustained by its passengers. However, this is not to say
that common carriers are absolutely responsible for all injuries or
damages even if the same were caused by a fortuitous event. To
rule otherwise would render the defense of "force majeure," as an
exception from any liability, illusory and ineffective.
Accordingly, there is no question that when a party is unable to fulfill
his obligation because of "force majeure," the general rule is that he
cannot be held liable for damages for non-performance.6 Corollarily,
when JAL was prevented from resuming its flight to Manila due to the
effects of Mt. Pinatubo eruption, whatever losses or damages in the
form of hotel and meal expenses the stranded passengers incurred,
cannot be charged to JAL. Yet it is undeniable that JAL assumed the
hotel expenses of respondents for their unexpected overnight stay
on June 15, 1991.
Admittedly, to be stranded for almost a week in a foreign land was an
exasperating experience for the private respondents. To be sure,
they underwent distress and anxiety during their unanticipated stay
in Narita, but their predicament was not due to the fault or negligence
of JAL but the closure of NAIA to international flights. Indeed, to hold
JAL, in the absence of bad faith or negligence, liable for the
amenities of its stranded passengers by reason of a fortuitous event
is too much of a burden to assume.
Furthermore, it has been held that airline passengers must take such
risks incident to the mode of travel. 7 In this regard, adverse weather
conditions or extreme climatic changes are some of the perils
involved in air travel, the consequences of which the passenger must
assume or expect. After all, common carriers are not the insurer of
all risks. 8
Paradoxically, the Court of Appeals, despite the presence of "force
majeure," still ruled against JAL relying in our decision in PAL v.
Court of Appeals, 9 thus:
The position taken by PAL in this case clearly
illustrates its failure to grasp the exacting standard
required by law. Undisputably, PAL's diversion of its
flight due to inclement weather was a fortuitous
event. Nonetheless, such occurrence did not
terminate PAL's contract with its passengers. Being
in the business of air carriage and the sole one to
operate in the country, PAL is deemed equipped to
deal with situations as in the case at bar. What we
said in one case once again must be stressed, i.e.,
the relation of carrier and passenger continues until
the latter has been landed at the port of destination
and has left the carrier's premises. Hence, PAL
necessarily would still have to exercise extraordinary
diligence in safeguarding the comfort, convenience
and safety of its stranded passengers until they have
reached their final destination. On this score, PAL
grossly failed considering the then ongoing battle
between government forces and Muslim rebels in
Cotabato City and the fact that the private
respondent was a stranger to the place.
The reliance is misplaced. The factual background of the PAL case
is different from the instant petition. In that case there was indeed a
fortuitous event resulting in the diversion of the PAL flight. However,
the unforeseen diversion was worsened when "private respondents
(passenger) was left at the airport and could not even hitch a ride in
a Ford Fiera loaded with PAL personnel," 10 not to mention the
apparent apathy of the PAL station manager as to the predicament
of the stranded passengers. 11 In light of these circumstances, we
held that if the fortuitous event was accompanied by neglect and
malfeasance by the carrier's employees, an action for damages
against the carrier is permissible. Unfortunately, for private
respondents, none of these conditions are present in the instant
petition.
We are not prepared, however, to completely absolve petitioner JAL
from any liability. It must be noted that private respondents bought
tickets from the United States with Manila as their final destination.
While JAL was no longer required to defray private respondents'
living expenses during their stay in Narita on account of the fortuitous
event, JAL had the duty to make the necessary arrangements to
transport private respondents on the first available connecting flight
to Manila. Petitioner JAL reneged on its obligation to look after the
comfort and convenience of its passengers when it declassified
private respondents from "transit passengers" to "new passengers"
as a result of which private respondents were obliged to make the
necessary arrangements themselves for the next flight to Manila.
Private respondents were placed on the waiting list from June 20 to
June 24. To assure themselves of a seat on an available flight, they
were compelled to stay in the airport the whole day of June 22, 1991
and it was only at 8:00 p.m. of the aforesaid date that they were
advised that they could be accommodated in said flight which flew at
about 9:00 a.m. the next day.
We are not oblivious to the fact that the cancellation of JAL flights to
Manila from June 15 to June 21, 1991 caused considerable
disruption in passenger booking and reservation. In fact, it would be
unreasonable to expect, considering NAIA's closure, that JAL flight
operations would be normal on the days affected. Nevertheless, this
does not excuse JAL from its obligation to make the necessary
arrangements to transport private respondents on its first available
flight to Manila. After all, it had a contract to transport private
respondents from the United States to Manila as their final
destination.
Consequently, the award of nominal damages is in order. Nominal
damages are adjudicated in order that a right of a plaintiff, which has
been violated or invaded by the defendant, may be vindicated or
recognized and not for the purpose of indemnifying any loss suffered
by him. 12 The court may award nominal damages in every obligation
arising from any source enumerated in article 1157, or in every case
where any property right has been invaded. 13
WHEREFORE, in view of the foregoing, the decision of the Court of
Appeals dated December 22, 1993 is hereby MODIFIED. The award
of actual, moral and exemplary damages is hereby DELETED.
Petitioner JAL is ordered to pay each of the private respondents
nominal damages in the sum of P100,000.00 each including attorney'
s fees of P50,000.00 plus costs.

SO ORDERED.
G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and
TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.
Assailed in this petition for review on certiorari are 1) the decision 1 of
the then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055,
entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo
Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party Defendant-
Appellant, "which reversed and set aside the decision 3 of the
Regional Trial Court, Third Judicial Region, Branch XXVI,
Cabanatuan City, and also dismissed the complaint, third party
complaint, and the counter claims of the parties and 2) the
resolution 4 denying the plaintiff-appellee's (herein petitioner) motion
for reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted by the
appellate court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages
against Godofredo Isidro, alleging that on May 15,
1979 while at Baretbet, Bagabag, Nueva Vizcaya,
the Plaintiff and a companion were repairing the tire
of their cargo truck with Plate No. SU-730 which was
parked along the right side of the National Highway;
that defendant's truck bearing Plate No. PW-583,
driven recklessly by Daniel Serrano bumped the
plaintiff, that as a result, plaintiff was injured and
hospitalized at Dr. Paulino J. Garcia Research and
Medical Center and the Our Lady of Lourdes
Hospital; that he spent TEN THOUSAND PESOS
(Pl0,000.00) and will incur more expenses as he
recuperates from said injuries; that because of said
injuries he would be deprived of a lifetime income in
the sum of SEVENTY THOUSAND PESOS
(P70,000.00); and that he agreed to pay his lawyer
the sum of TEN THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court
declared the defendant in default on October 12,
1979, and plaintiff's evidence was received ex-
parte on January 11, 1978 and February 19, 1980.
The decision on behalf of the plaintiff was set aside
to give a chance to the defendant to file his answer
and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle
involved in the accident driven by Daniel Serrano.
Defendant countered that the plaintiff was merely a
bystander, not a truck helper being a brother-in-law
law of the driver of said truck; that the truck allegedly
being repaired was parked, occupying almost half of
the right lane towards Solano, Nueva Vizcaya, right
after the curve; that the proximate cause of the
incident was the failure of the driver of the parked
truck in installing the early warning device, hence
the driver of the parked car should be liable for
damages sustained by the truck of the herein
defendant in the amount of more than P20,000.00;
that plaintiff being a mere bystander and hitchhiker
must suffer all the damages he incurred. By way of
counterclaim defendant alleged that due to plaintiffs
baseless complaint he was constrained to engage
the services of counsel for P5,000.00 and P200.00
per court appearance; that he suffered sleepless
nights, humiliation, wounded feelings which may be
estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed
by the defendant against his insurer, the Travellers
Multi Indemnity Corporation; that the third-party
plaintiff, without admitting his liability to the plaintiff,
claimed that the third-party defendant is liable to the
former for contribution, indemnity and subrogation
by virtue of their contract under Insurance Policy No.
11723 which covers the insurer's liability for
damages arising from death, bodily injuries and
damage to property.
Third-party defendant answered that, even
assuming that the subject matter of the complaint is
covered by a valid and existing insurance policy, its
liability shall in no case exceed the limit defined
under the terms and conditions stated therein; that
the complaint is premature as no claim has been
submitted to the third party defendant as prescribed
under the Insurance Code; that the accident in
question was approximately caused by the
carelessness and gross negligence of the plaintiff-,
that by reason of the third-party complaint, third-
party defendant was constrained to engage the
services of counsel for a fee of P3,000.00.
Pedro Layugan declared that he is a married man
with one (1) child. He was employed as security
guard in Mandaluyong, Metro Manila, with a salary
of SIX HUNDRED PESOS (600.00) a month. When
he is off-duty, he worked as a truck helper and while
working as such, he sustained injuries as a result of
the bumping of the cargo truck they were repairing
at Baretbet, Bagabag, Nueva Vizcaya by the driver
of the defendant. He used to earn TWO HUNDRED
PESOS (P200.00) to THREE HUNDRED PESOS
(P300.00) monthly, at the rate of ONE HUNDRED
PESOS (Pl00.00) per trip. Due to said injuries, his
left leg was amputated so he had to use crutches to
walk. Prior to the incident, he supported his family
sufficiently, but after getting injured, his family is now
being supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party
plaintiff, testified that his truck involved in this
vehicular accident is insured with the Travellers Multi
Indemnity Corporation covering own damage and
third-party liability, under vehicle policy No. 11723
(Exh. "1") dated May 30, 1978; that after he filed the
insurance claim the insurance company paid him the
sum of P18,000.00 for the damages sustained by
this truck but not the third party liability.
DANIEL SERRANO, defendant driver, declared that
he gave a statement before the municipal police of
Bagabag, Nueva Vizcaya on May 16, 1979; that he
knew the responsibilities of a driver; that before
leaving, he checked the truck. The truck owner used
to instruct him to be careful in driving. He bumped
the truck being repaired by Pedro Layugan, plaintiff,
while the same was at a stop position. From the
evidence presented, it has been established clearly
that the injuries sustained by the plaintiff was caused
by defendant's driver, Daniel Serrano. The police
report confirmed the allegation of the plaintiff and
admitted by Daniel Serrano on cross-examination.
The collision dislodged the jack from the parked
truck and pinned the plaintiff to the ground. As a
result thereof, plaintiff sustained injuries on his left
forearm and left foot. The left leg of the plaintiff from
below the knee was later on amputated (Exh. "C")
when gangrene had set in, thereby rendering him
incapacitated for work depriving him of his income.
(pp. 118 to 120, Record on Appeal.)
Upon such findings, amply supported by the evidence on record, the
trial court rendered its decision, the dispositive part of which reads as
follows: 6
WHEREFORE, premises considered, the defendant
is hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and itself).<äre||anº•1àw> Corollary thereto, is the question as to who is
compensatory damages; negligent, if the doctrine is inapplicable.

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees; The respondent corporation stresses that the issues raised in the
petition being factual, the same is not reviewable by this Court in a
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and petition for review by certiorari. 9
d) To pay the costs of this suit. On the third-party complaint, the third-
party defendant is ordered to indemnify the defendant/third party Indeed, it is an elementary rule in the review of decisions of the
Court of Appeals that its findings of fact are entitled to great respect
plaintiff-.
and will not ordinarily be disturbed by this Court. 10 For if we have to
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and review every question of fact elevated to us, we would hardly have
any more time left for the weightier issues compelling and deserving
compensatory damages; and
our preferential attention.11 Be that as it may, this rule is not
b) The costs of this suit. inflexible. Surely there are established exceptions 12 —when the
Court should review and rectify the findings of fact of the lower court,
The Intermediate Appellate Court as earlier stated reversed the decision of such as:
the trial court and dismissed the complaint, the third-party complaint, and
the counter- claims of both appellants. 7 1) when the conclusion is a finding grounded entirely on speculation,
surmise, or conjecture; 2) the inference made is manifestly mistaken;
3) there is grave abuse of discretion; 4) the judgment is based on
Hence, this petition. misapprehension of facts; 5) the Court of Appeals went beyond the
issues of the case if the findings are contrary to the admission of
The petitioner alleges the following errors. 8 both the appellant and the appellee; 6) the findings of the Court of
Appeals are contrary to those of the trial court; 7) the said findings of
1. WHETHER UPON THE GIVEN FACTS, THE fact are conclusions without citation of specific evidence on which
INTERMEDIATE APPELLATE COURT ACTED they are based; 8) the facts set forth in the petition as well as in the
CORRECTLY IN REVERSING AND SETTING petitioner's main and reply briefs are not disputed by the
ASIDE AND DISMISSING THE PLAINTIFF- respondents; and 9) when the findings of fact of the Court of Appeals
APPELLEE'S COMPLAINT. are premised on the absence of evidence and are contradicted on
record.
2. WHETHER THE INTERMEDIATE APPELLATE
COURT ACTED CORRECTLY IN APPLYING THE Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a
DOCTRINE OF "RES IPSA LOQUITUR" WITH deviation from the general rule.
PROPER JURIS- PRUDENTIAL (sic) BASIS.
From its finding that the parked truck was loaded with ten (10) big
The crux of the controversy lies in the correctness or error of the round logs 13 the Court of Appeals inferred that because of its weight
decision of the respondent court finding the petitioner negligent the truck could not have been driven to the shoulder of the road and
under the doctrine of Res ipsa loquitur (The thing speaks for concluded that the same was parked on a portion of the road 14 at
the time of the accident. Consequently, the respondent court inferred
that the mishap was due to the negligence of the driver of the parked
truck.15 The inference or conclusion is manifestly erroneous. In a
large measure, it is grounded on speculation, surmise, or conjecture.
How the respondent court could have reversed the finding of the trial
court that a warning device was installed 16 escapes us because it is
evident from the record that really such a device, in the form of a
lighted kerosene lamp, was installed by the driver of the parked truck
three to four meters from the rear of his parked truck.17 We see this
negative finding of the respondent appellate court as a misreading of
the facts and the evidence on record and directly contravening the
positive finding of the trial court that an early warning device was in
proper place when the accident happened and that the driver of the
private respondent was the one negligent. On the other hand, the
respondent court, in refusing to give its "imprimatur to the trial court's
finding and conclusion that Daniel Serrano (private respondent
Isidro's driver) was negligent in driving the truck that bumped the
parked truck", did not cite specific evidence to support its conclusion.
In cavalier fashion, it simply and nebulously adverted to unspecified
"scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation
would want us to dismiss this petition on the ground that it was filed
out of time. It must be noted that there was a motion for
extension, 19 albeit filed erroneously with the respondent court, dated
March 19, 1986, requesting for 30 days from March 20, 1986, to file
the necessary petition or pleading before the Supreme Court". Also,
on April 1, 1986, an appearance of a new lawyer for the petitioner
before the Supreme Court" with motion 20 was filed, again
erroneously, with the Court of Appeals, requesting for 20 days
extension "to file the Petition for Review on Certiorari." Likewise a
similar motion 21 was filed with this Court also on April 1, 1986. On
the other hand, the instant petition for review was filed on April 17,
1986 22 but it was only after three months, on August 1, 1986, in its
comment 23 that the respondent corporation raised the issue of
tardiness. The respondent corporation should not have waited in
ambush before the comment was required and before due course
was given. In any event, to exact its "a pound of flesh", so to speak,
at this very late stage, would cause a grave miscarriage of justice.
Parenthetically, it must be noted that private respondent Isidro did
not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the
omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and
reasonable man would not do24 or as Judge Cooley defines it, "(T)he
failure to observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers
injury.25
In Picart vs. Smith, 26 decided more than seventy years ago but still a
sound rule, we held:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
an ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The Law
considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by
that.
Respondent Isidro posits that any immobile object along the
highway, like a parked truck, poses serious danger to a moving
vehicle which has the right to be on the highway. He argues that
since the parked cargo truck in this case was a threat to life and limb
and property, it was incumbent upon the driver as well as the
petitioner, who claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road would be
properly forewarned of the peril of a parked vehicle. Isidro submits
that the burden of proving that care and diligence were observed is
shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu
truck had a right to be on the road, while the immobile cargo truck
had no business, so to speak, to be there. Likewise, Isidro proffers
that the petitioner must show to the satisfaction of a reasonable mind
that the driver and he (petitioner) himself, provided an early warning
device, like that required by law, or, by some other adequate means
that would properly forewarn vehicles of the impending danger that
the parked vehicle posed considering the time, place, and other
peculiar circumstances of the occasion. Absent such proof of care,
as in the case at bar, Isidro concludes, would, under the doctrine of
Res ipsa loquitur, evoke the presumption of negligence on the part of
the driver of the parked cargo truck as well as his helper, the
petitioner herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the
rear of the parked truck, a lighted kerosene lamp was
placed.28 Moreover, there is the admission of respondent Isidro's
driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)—
Will you narrate to me in brief how the accident
happens (sic) if you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May
1979 while driving Isuzu truck at
Baretbet, Bagabag, Nueva Vizcaya
and at KM 285, I met another
vehicle who (sic) did not dim his
(sic) lights which cause (sic) me to
be blinded with intense glare of the
light that's why I did not notice a
parked truck who (sic) was repairing
a front flat tire. When I was a few
meters away, I saw the truck which
was loaded with round logs. I
step (sic) on my foot brakes but it
did not function with my many
attempts. I have (sic) found out later
that the fluid pipe on the rear right
was cut that's why the breaks did
not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the
shoulder of the right side of the road would be of no moment taking
into account the warning device consisting of the lighted kerosene
lamp placed three or four meters from the back of the truck. 30 But
despite this warning which we rule as sufficient, the Isuzu truck
driven by Daniel Serrano, an employee of the private respondent,
still bumped the rear of the parked cargo truck. As a direct
consequence of such accident the petitioner sustained injuries on his
left forearm and left foot. His left leg was later amputated from below
the knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of
care of Daniel Serrano has been established by clear and convincing
evidence. It follows that in stamping its imprimatur upon the
invocation by respondent Isidro of the doctrine of Res ipsa loquitur to
escape liability for the negligence of his employee, the respondent
court committed reversible error.
The respondent court ruled: 32
In addition to this, we agree with the following
arguments of appellant Godofredo Isidro which
would show that the accident was caused due to the
negligence of the driver of the cargo truck:
... In the case at bar the burden of
proving that care and diligence was
(sic) observed is shifted evidently to
the plaintiff, for, as adverted to, the
motorists have the right to be on the
road, while the immobile truck has
no business, so to speak, to be
there. It is thus for the plaintiff to
show to the satisfaction of a
 reasonable mind that the driver and
he himself did employ early warning
device such as that required by law
or by some other adequate means
or device that would properly
forewarn vehicles of the impending
danger that the parked vehicle
posed considering the time, place
and other peculiar circumstances of
the occasion. Absent such proof of
care, as in the case at bar, will
evoke the presumption of
negligence under the doctrine of res
ipsa loquitur, on the part of the
driver of the parked cargo truck as
well as plaintiff who was fixing the
flat tire of said truck. (pp. 14-17,
Appellant's Brief). (Emphasis
supplied).
At this juncture, it may be enlightening and helpful in the proper
resolution of the issue of negligence to examine the doctrine of Res
ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is
shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen
if those who have the management use proper care, it affords
reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care. 33 Or as Black's
Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself
Rebuttable presumption or inference that defendant
was negligent, which arises upon proof that
instrumentality causing injury was in defendant's
exclusive control, and that the accident was one
which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence
whereby negligence of alleged wrongdoer may be
inferred from mere fact that accident happened
provided character of accident and circumstances
attending it lead reasonably to belief that in absence
of negligence it would not have occurred and that
thing which caused injury is shown to have been
under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ.
App., 484 S.W. 2d 133, 155. Under doctrine of "res
ipsa loquitur" the happening of an injury permits an
inference of negligence where plaintiff produces
substantial evidence that injury was caused by an
agency or instrumentality under exclusive control
and management of defendant, and that the
occurrence was such that in the ordinary course of
things would not happen if reasonable care had
been used.
In this jurisdiction we have applied this doctrine in quite a number of
cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest
is in the case of F.F. Cruz and Co., Inc. vs. CA.36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to
the law of negligence which recognizes that prima facie negligence
may be established without direct proof and furnishes a substitute for
specific proof of negligence. 37 The doctrine is not a rule of
substantive law 38 but merely a mode of proof or a mere procedural
convenience. 39 The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not
dispense with the requirement of proof of culpable negligence on the
part of the party charged. 40 It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care.41 The doctrine
can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily
available. 42 Hence, it has generally been held that the presumption
of inference arising from the doctrine cannot be availed of, or is
overcome, where plaintiff has knowledge and testifies or presents
evidence as to the specific act of negligence which is the cause of
the injury complained of or where there is direct evidence as to the
precise cause of the accident and all the facts and circumstances
attendant on the occurrence clearly appear. 43 Finally, once the
actual cause of injury is established beyond controversy, whether by
the plaintiff or by the defendant, no presumptions will be involved
and the doctrine becomes inapplicable when the circumstances have
been so completely eludicated that no inference of defendant's
liability can reasonably be made, whatever the source of the
evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art.
2180, paragraph 5, of the Civil Code. In the latter, when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part of
the master or employer either in the selection of the servant or
employee, or in supervision over him after selection, or both. Such
presumption is juris tantum and not juris et de jure and consequently,
may be rebutted. If follows necessarily that if the employer shows to
the satisfaction of the court that in the selection and in the
supervision he has exercised the care and diligence of a good father
of a family, the presumption is overcome and he is relieved from
liability. 45 In disclaiming liability for the incident, the private
respondent stresses that the negligence of his employee has already
been adequately overcome by his driver's statement that he knew his
responsibilities as a driver and that the truck owner used to instruct
him to be careful in driving. 46
failed to prove that the diligence of a good father of a family in the
supervision of his employees which would exculpate him from
solidary liability with his driver to the petitioner. But even if we
concede that the diligence of a good father of a family was observed
by Isidro in the supervision of his driver, there is not an iota of
evidence on record of the observance by Isidro of the same quantum
of diligence in the supervision of his mechanic, if any, who would be
directly in charge in maintaining the road worthiness of his (Isidro's)
truck. But that is not all. There is paucity of proof that Isidro
exercised the diligence of a good father of a family in the selection of
his driver, Daniel Serrano, as well as in the selection of his
mechanic, if any, in order to insure the safe operation of his truck
and thus prevent damage to others. Accordingly, the responsibility of
Isidro as employer treated in Article 2180, paragraph 5, of the Civil
Code has not ceased.
WHEREFORE, the petition is hereby GRANTED. The Decision of
the respondent court as well as its Resolution denying the
petitioner's motion for reconsideration are hereby SET ASIDE and
the decision of the trial court, dated January 20, 1983, is hereby
REINSTATED in toto. With costs against the private respondents.
SO ORDERED.

We do not agree with the private respondent in his submission. In

the first place, it is clear that the driver did not know his
responsibilities because he apparently did not check his vehicle
before he took it on the road. If he did he could have discovered
earlier that the brake fluid pipe on the right was cut, and could have
repaired it and thus the accident could have been avoided.
Moveover, to our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the driver was
licensed, and the fact that he had no record of any accident, as
found by the respondent court, are not sufficient to destroy the
finding of negligence of the Regional Trial Court given the facts
established at the trial 47 The private respondent or his mechanic,
who must be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to drive it. In the
light of the circumstances obtaining in the case, we hold that Isidro
G.R. No. L-28256 March 17, 1982
SEVERO DEL CASTILLO, plaintiff-appellant,
vs.
LORENZO JAYMALIN MANUEL SABIT and BITRANCO and A. L.
AMMEN TRANS. CO., INC., defendants-appellees.
A direct appeal from the Decision, dated January 25, 1967, of the
Court of First Instance of Sorsogon, Branch 1, dismissing this case
for Damages (Civil Case No. 1784 below) by reason of plaintiff
Severo del Castillo's death.
On June 29, 1960, Mario del Castillo, a deaf-mute, son of plaintiff
Severo del Castillo, and a paying passenger of defendant Bicol
Transportation Company (Bitranco), operated by A.L. Ammen
Transportation Co., Inc. (ALATCO) at Casiguran, Sorsogon, fell upon
alighting from Bus No. 624 of said companies and died as a result.
On September 5, 1962, an action for the recovery of damages for
Mario's death was filed by his father, Severo, plaintiff herein, against
the driver and conductor of the bus, and the transportation
companies. The Complaint alleged that Severo, a widower, was the
sole heir.
Defendant transportation companies traversed the complaint by
stating that the passenger bus involved was owned by Bicol
Transportation Co. alone; that the two companies had always
exercised due diligence in the selection and supervision of their
employees; and that the proximate cause of Mario's death was his
recklessness and gross negligence in jumping out of the bus while in
motion.
Trial ensued with plaintiff having been able to present his evidence
and rest his case. Defendants proceeded with the presentation of
their witnesses until July 9, 1966 when they filed a "Motion for
Annulment of Proceedings after February 1, 1965", having learned
that plaintiff Severo had died on February 1, 1965, at which time
plaintiff had not yet rested his case having done so only on January
28, 1966. the Court a quo directed plaintiff's counsel to verify the
existence of heirs and whether they were willing to be substituted as
parties-plaintiffs."
On August 6, 1966, plaintiff's counsel filed a "Motion to Admit
Amended Complaint" substituting Severo's son-in-law, one
Wenceslao Haloc, as party plaintiff. This was in virtue of a "Deed of
Assignment" dated August 13, 1960, thumbmarked by Severo, and
reading as follows:
KNOW ALL MEN BY THESE PRESENTS:
That I, SEVERO DEL CASTILLO, of age, a widower
and a resident of Casiguran, Sorsogon, Philippines,
for reasons of my health and old age, do hereby
transfer and assigned (sic) and by these presents do
hereby assign and transfer unto the said
WENCESLAO (sic) HALOC, my son in-law, of Barrio
Storom Casiguran, Sorsogon, Philippines, my rights,
privileges and all its accessory rights as such an heir
to me (sic) for and in my behalf (sic) the case I
originally instituted for indemnity for the death of my
son the late Mario Castillo, who died while a
passenger in an Alatco Bus No. 624, June 29, 1960
at about 7:00 P.M. more or less at Barrio Storom,
Casiguran, Sorsogon.
That I hereby declare that from this date August 13,
1960 on, my son-in-law Wenceslao Haloc, of legal
age will be my assignee as aforesaid.
(Sgd.) Thumb mark SEVERO DEL CASTILLO Res.
Cert. No. A2920570 Issued on July 5, 1960 at
Casiguran. Sorsogon
The Amended Complaint was admitted by the trial Court for lack of
objection thereto on August 20, 1966.
Trial proceeded with defendants closing their evidence on November
25, 1966.
On January 26, 1967, the trial Court rendered judgment in
defendants' favor dismissing the original and the amended
Complaints upon the following ratiocination
... Since Severo del Castillo died before the
conclusion of this case, this action died with him.
Wenceslao Haloc is without personality to continue
this case. He is not even an heir of Severo del
Castillo.
Wenceslao Haloc appealed as a pauper directly to this Court
contending that the Decision is "contrary to law."
Before this instance, it is urged that the trial Court erred:
1) In construing the Deed of Assignment as not a
deed that transfers any benefit to the transferee.
2) In dismissing the case in virtue of the death of
Severo del Castillo after the deed of assignment was
executed and further still after the evidence
testimonial and documentary were already
presented.
We find merit in the foregoing contentions.
This is not a case where the provisions of Section 17, Rule 3 of the
Rules of Court on "death of a party" are applicable. Rather, it is a
situation where plaintiff, while alive, had assigned his rights to
another, in which case, the proper procedure would have been for
the transferee to have been substituted for the transferor as
plaintiff. 1 The rights of Severo to claim damages for his son were
transferable. Severo had transferred his rights as plaintiff to
Wenceslao Haloc but after the assignment the case continued in
Severo's name and there was no immediate and formal substitution
of party plaintiff. This is but a formality, however, and the fact
remains that, after the assignment, the substantial plaintiff and real
party in interest became Haloc, with Severo as a sort of trustee of
whatever fruits the litigation would bring
It was reversible error, therefore, for the trial Court to have dismissed
the case by virtue of Severo's death. The action did not die with him.
In point is the following ruling of this Court:
... where an assignable right has been transferred
before action brought, the proceeding ought to be
instituted in the name of the assignee; and where an
assignment is effect pendente lite, it is proper to
have the assignee substituted for the original
plaintiff. If such substitution should not be effected
and the transfer of the right of action should not be
brought to the attention of the court, the original
plaintiff, if successful in the litigation, would hold the
fruits of the action as a sort of trustee for the use
and benefit of his assignee. ... 2
Relative to the aspect of damages, the trial Court ruled:
Common carriers are responsible for the death of
their passengers (Articles 1764 and 2206 of the Civil
Code). This liability includes the loss of the earning
capacity of the deceased. It appears proven that the
defendant corporations failed to exercise the
diligence that was their duty to observe according to
Articles 1733 and 1755. The conductor was apprised
of the fact that Mario del Castillo was deaf and
dumb. With this knowledge the conductor should
have taken extra-ordinary care for the safety of the
said passenger. In this he failed.
The trial Court then concluded that "under the circumstances
obtaining in the case, the plaintiff Severo del Castillo would be
entitled to actual and moral damages but did not determine the
amount of damages because it dismissed the case.
Technicality would require a remand of this case to the Court a quo,
for a determination of the amount of damages [the total amount of
P41,000.00 (P6,000.00 as damages for death, and P35,000.00 for
loss of earning capacity), and attorney's fees of P5,000.00, were
claimed]. Considering, however, the pendency of this case for 13
years and in order to put an end to the controversy, we determine
the damages at P12,000.00 for the death of the victim, without
interest, and P2,000.00 for attorney's fees. Loss of earning capacity
in the amount of P35,000.00 has not been proven specially
considering that the victim was a deaf-mute.

WHEREFORE, the judgment appealed from is hereby reversed, and

defendants hereby ordered jointly and severally, to pay Wenceslao
Haloc, the amount of P12,000.00 as damages for death, without
interest, and P2,000.00 as attorney's fees.

No costs.

SO ORDERED.

G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner,
vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.
Pedro G. Peralta for petitioner.
Florentino G. Libatique for private respondent.
At noon time on 11 July 1973, petitioner Reynalda Gatchalian
boarded, as a paying passenger, respondent's "Thames" mini bus at
a point in San Eugenio, Aringay, La Union, bound for Bauang, of the
same province. On the way, while the bus was running along the
highway in Barrio Payocpoc, Bauang, Union, "a snapping sound"
was suddenly heard at one part of the bus and, shortly thereafter, the
vehicle bumped a cement flower pot on the side of the road, went off
the road, turned turtle and fell into a ditch. Several passengers,
including petitioner Gatchalian, were injured. They were promptly
taken to Bethany Hospital at San Fernando, La Union, for medical
treatment. Upon medical examination, petitioner was found to have
sustained physical injuries on the leg, arm and forehead, specifically
described as follows: lacerated wound, forehead; abrasion, elbow,
left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1
On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of
respondent, visited them and later paid for their hospitalization and medical expenses. She also gave
petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However,
before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint
Affidavit which stated, among other things:
That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the
said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while passing
through the National Highway No. 3;
That after a thorough investigation the said Thames met the accident due to mechanical
defect and went off the road and turned turtle to the east canal of the road into a creek
causing physical injuries to us;
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.
Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union
an action extra contractu to recover compensatory and moral damages. She alleged in the complaint that
her injuries sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1
by 1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that
as a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar
diminished her facial beauty and deprived her of opportunities for employment. She prayed for an award
of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic surgery
for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner
had already been paid and moreover had waived any right to institute any action against him (private
respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed
the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she may have had
against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a
valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages:
We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the
complaint, although we conform to the trial court's disposition of the case — its dismissal.
 IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower
court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is hereby
affirmed.
Without special pronouncement as to costs.
SO ORDERED. 3
In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of
Appeals and ask this Court to award her actual or compensatory damages as well as moral damages.
We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action
had been made by petitioner. The relevant language of the Joint Affidavit may be quoted again:
That we are no longer interested to file a complaint, criminal or civil against the said driver
and owner of the said Thames, because it was an accident and the said driver and owner of
the said Thames have gone to the extent of helping us to be treated upon our injuries.
(Emphasis supplied)
A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which
leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to
him. 4
A waiver may not casually be attributed to a person when the
terms thereof do not explicitly and clearly evidence an intent to
abandon a right vested in such person.
The degree of explicitness which this Court has required in purported
waivers is illustrated in Yepes and Susaya v. Samar Express Transit
(supra), where the Court in reading and rejecting a purported waiver
said:
. . . It appears that before their transfer to the Leyte
Provincial Hospital, appellees were asked to sign as, in fact,
they signed the document Exhibit I wherein they stated that
"in consideration of the expenses which said operator has
incurred in properly giving us the proper medical
treatment, we hereby manifest our desire to waive any and
all claims against the operator of the Samar Express
Transit."
Even a cursory examination of the document mentioned
above will readily show that appellees did not actually waive
their right to claim damages from appellant for the latter's
failure to comply with their contract of carriage. All that said
document proves is that they expressed a "desire" to make
the waiver — which obviously is not the same as making an
actual waiver of their right. A waiver of the kind invoked by
appellant must be clear and unequivocal (Decision of the
Supreme Court of Spain of July 8, 1887) — which is not the
case of the one relied upon in this appeal. (Emphasis
supplied)
If we apply the standard used in Yepes and Susaya, we would have
to conclude that the terms of the Joint Affidavit in the instant case
cannot be regarded as a waiver cast in "clear and unequivocal"
terms. Moreover, the circumstances under which the Joint Affidavit
was signed by petitioner Gatchalian need to be considered.
Petitioner testified that she was still reeling from the effects of the
vehicular accident, having been in the hospital for only three days,
when the purported waiver in the form of the Joint Affidavit was
presented to her for signing; that while reading the same, she
experienced dizziness but that, seeing the other passengers who
had also suffered injuries sign the document, she too signed without
bothering to read the Joint Affidavit in its entirety. Considering these
circumstances there appears substantial doubt whether petitioner
understood fully the import of the Joint Affidavit (prepared by or at
the instance of private respondent) she signed and whether she
actually intended thereby to waive any right of action against private
respondent.
Finally, because what is involved here is the liability of a common
carrier for injuries sustained by passengers in respect of whose
safety a common carrier must exercise extraordinary diligence, we
must construe any such purported waiver most strictly against the
common carrier. For a waiver to be valid and effective, it must not be
contrary to law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to claim
damages by an injured passenger, under circumstances like those
exhibited in this case, would be to dilute and weaken the standard of
extraordinary diligence exacted by the law from common carriers and
hence to render that standard unenforceable. 6 We believe such a
purported waiver is offensive to public policy.
Petitioner Gatchalian also argues that the Court of Appeals, having
by majority vote held that there was no enforceable waiver of her
right of action, should have awarded her actual or compensatory and
moral damages as a matter of course.
We have already noted that a duty to exercise extraordinary
diligence in protecting the safety of its passengers is imposed upon a
common carrier. 7 In case of death or injuries to passengers, a
statutory presumption arises that the common carrier was at fault or
had acted negligently "unless it proves that it [had] observed
extraordinary diligence as prescribed in Articles 1733 and 1755." 8 In
fact, because of this statutory presumption, it has been held that a
court need not even make an express finding of fault or negligence
on the part of the common carrier in order to hold it liable. 9 To
overcome this presumption, the common carrier must slow to the
court that it had exercised extraordinary diligence to prevent the
injuries. 10 The standard of extraordinary diligence imposed upon
common carriers is considerably more demanding than the standard
of ordinary diligence, i.e., the diligence of a
good paterfamilias established in respect of the ordinary relations
between members of society. A common carrier is bound to carry its
passengers safely" as far as human care and foresight can provide,
using the utmost diligence of a very cautious person, with due regard
to all the circumstances". 11
Thus, the question which must be addressed is whether or not private respondent has successfully proved
that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records
before the Court are bereft of any evidence showing that respondent had exercised the extraordinary
diligence required by law. Curiously, respondent did not even attempt, during the trial before the court a
quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to
exculpate himself from liability by alleging that the mishap was the result of force majeure. But allegation is
not proof and here again, respondent utterly failed to substantiate his defense offorce majeure. To exempt
a common carrier from liability for death or physical injuries to passengers upon the ground of force
majeure, the carrier must clearly show not only that the efficient cause of the casualty was entirely
independent of the human will, but also that it was impossible to avoid. Any participation by the common
carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine
Steam Navigation Company, 12
the Court summed up the essential
characteristics of force majeure by quoting with approval from
the Enciclopedia Juridica Española:
Thus, where fortuitous event or force majeure is the
immediate and proximate cause of the loss, the obligor is
exempt from liability non-performance. The Partidas, the
antecedent of Article 1174 of the Civil Code, defines "caso
fortuito" as 'an event that takes place by accident and could
not have been foreseen. Examples of this are destruction of
houses, unexpected fire, shipwreck, violence of robber.
In its dissertation on the phrase "caso fortuito" the
Enciclopedia Juridica Española says: 'In legal sense and,
consequently, also in relation to contracts, a "caso fortuito"
presents the following essential characteristics: (1) the cause
of the unforeseen and unexpected occurence, or of the
failure of the debtor to comply with his obligation, must be
independent of the human will; (2) it must be impossible to
foresee the event which constitutes the "caso fortuito", or if it
can be foreseen, it must be impossible to avoid; (3) the
occurrence must be such as to render it impossible for the
debtor to fulfill his obligation in a normal manner; and (4) the
obligor must be free from any participation in the aggravation
of the injury resulting to the creditor.
Upon the other hand, the record yields affirmative evidence of fault
or negligence on the part of respondent common carrier. In her direct
examination, petitioner Gatchalian narrated that shortly before the
vehicle went off the road and into a ditch, a "snapping sound" was
suddenly heard at one part of the bus. One of the passengers, an old
woman, cried out, "What happened?" ("Apay addan samet
nadadaelen?"). The driver replied, nonchalantly, "That is only
normal" ("Ugali ti makina dayta"). The driver did not stop to check if
anything had gone wrong with the bus. Moreover, the driver's reply
necessarily indicated that the same "snapping sound" had been
heard in the bus on previous occasions. This could only mean that
the bus had not been checked physically or mechanically to
determine what was causing the "snapping sound" which had
occurred so frequently that the driver had gotten accustomed to it.
Such a sound is obviously alien to a motor vehicle in good operating
condition, and even a modicum of concern for life and limb of
passengers dictated that the bus be checked and repaired. The
obvious continued failure of respondent to look after the
roadworthiness and safety of the bus, coupled with the driver's
refusal or neglect to stop the mini-bus after he had heard once again
the "snapping sound" and the cry of alarm from one of the
passengers, constituted wanton disregard of the physical safety of
the passengers, and hence gross negligence on the part of
respondent and his driver.
We turn to petitioner's claim for damages. The first item in that claim
relates to revenue which petitioner said she failed to realize because
of the effects of the vehicular mishap. Petitioner maintains that on
the day that the mini-bus went off the road, she was supposed to
confer with the district supervisor of public schools for a substitute
teacher's job, a job which she had held off and on as a "casual
employee." The Court of Appeals, however, found that at the time of
the accident, she was no longer employed in a public school since,
being a casual employee and not a Civil Service eligible, she had
been laid off. Her employment as a substitute teacher was
occasional and episodic, contingent upon the availability of
vacancies for substitute teachers. In view of her employment status
as such, the Court of Appeals held that she could not be said to have
in fact lost any employment after and by reason of the
accident. 13 Such was the factual finding of the Court of Appeals, a
finding entitled to due respect from this Court. Petitioner Gatchalian
has not submitted any basis for overturning this finding of fact, and
she may not be awarded damages on the basis of speculation or
conjecture. 14
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter.
A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished,
actual injury is suffered for which actual or compensatory damages are due and assessable. Petitioner
Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A
scar, especially one on the face of the woman, resulting from the infliction of injury upon her, is a violation
of bodily integrity, giving raise to a legitimate claim for restoration to her conditio ante. If the scar is
relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be
correspondingly modest. In Araneta, et al. vs. Areglado, et al., 15 this Court awarded actual or
compensatory damages for, among other things, the surgical removal of the scar on the face of a young
boy who had been injured in a vehicular collision. The Court there held:
We agree with the appellants that the damages awarded by the lower court for the injuries
suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as
compensation for the "permanent deformity and — something like an inferiority complex" as
well as for the "pathological condition on the left side of the jaw" caused to said plaintiff, the
court below overlooked the clear evidence on record that to arrest the degenerative process
taking place in the mandible and restore the injured boy to a nearly normal condition, surgical
intervention was needed, for which the doctor's charges would amount to P3,000.00,
exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation,
according to Dr. Diño, would probably have to be repeated in order to effectuate a complete
cure, while removal of the scar on the face obviously demanded plastic surgery.
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
P10,000.00 to P15,000.00. 16
Upon the other hand, Dr. Fe Tayao Lasam, a
witness presented as an expert by petitioner, testified that the cost
would probably be between P5,000.00 to P10,000.00. 17 In view of
this testimony, and the fact that a considerable amount of time has
lapsed since the mishap in 1973 which may be expected to increase
not only the cost but also very probably the difficulty of removing the
scar, we consider that the amount of P15,000.00 to cover the cost of
such plastic surgery is not unreasonable.

Turning to petitioner's claim for moral damages, the long-established

rule is that moral damages may be awarded where gross negligence
on the part of the common carrier is shown. 18 Since we have earlier
concluded that respondent common carrier and his driver had been
grossly negligent in connection with the bus mishap which had
injured petitioner and other passengers, and recalling the aggressive
manuevers of respondent, through his wife, to get the victims to
waive their right to recover damages even as they were still
hospitalized for their injuries, petitioner must be held entitled to such
moral damages. Considering the extent of pain and anxiety which
petitioner must have suffered as a result of her physical injuries
including the permanent scar on her forehead, we believe that the
amount of P30,000.00 would be a reasonable award. Petitioner's
claim for P1,000.00 as atttorney's fees is in fact even more
modest. 19

WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the
then Court of First Instance of La Union dated 4 December 1975 are hereby REVERSED and SET
ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1)
P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the
scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the
aggregate amount to bear interest at the legal rate of 6% per annum counting from the promulgation of
this decision until full payment thereof. Costs against private respondent.

SO ORDERED.