transpo law cases new

8/7/2019 transpo law cases new

http://slidepdf.com/reader/full/transpo-law-cases-new 1/37



finition of article 105 of the old Civil Code, being both unforeseeable and inevitable under the given circumstances; and pursuantestablished doctrine, the resulting breach of appellant's contract of safe carriage with the late Tomas Gillaco was excused thereby.

o doubt that a common carrier is held to a very high degree of care and diligence in the protection of its passengers; but,nsidering the vast and complex activities of modern rail transportation, to require of appellant that it should guard against allssible misunderstanding between each and every one of its employees and every passenger that might chance to ride in itsnveyances at any time, strikes us as demanding diligence beyond what human care and foresight can provide.

e lower Court and the appellees both relied on the American authorities that particularly hold carriers to be insurers of the safetytheir passengers against willful assault and intentional ill treatment on the part of their servants, it being immaterial that the actould be one of private retribution on the part of the servant, impelled by personal malice toward the passenger (10 Am. Jur. 108;. Note to Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq .) But as can be inferred from the previous jurisprudence of s Court , the Civil Code of 1889 did not impose such absolute liability (Lasam vs. Smith, supra ). The liability of a carrier as an

surer was not recognized in this jurisdiction (Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm. Co. vs. Navieraipina, 38 Off. Gaz., 1020).

nother very important consideration that must be borne in mind is that, when the crime took place, the guard Devesa had no dutiesdischarge in connection with the transportation of the deceased from Calamba to Manila. The stipulation of facts is clear that when

evesa shot and killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and he was at Pacoation awaiting transportation to Tutuban, the starting point of the train that he was engaged to guard. In fact, his tour of duty was tort at 9:00 a.m., two hours after the commission of the crime. Devesa was therefore under no obligation to safeguard the passenger the Calamba-Manila train, where the deceased was riding; and the killing of Gillaco was not done in line of duty. The position of

evesa at the time was that of another would be passenger, a stranger also awaiting transportation, and not that of an employeesigned to discharge any of the duties that the Railroad had assumed by its contract with the deceased. As a result, Devesa's assaultnnot be deemed in law a breach of Gillaco's contract of transportation by a servant or employee of the carrier. We agree with thesition taken by the Supreme Court of Texas in a similar case, where it held:

The only good reason for making the carrier responsible for the misconduct of the servant perpetrated in his own interest,and not in that of his employer, or otherwise within the scope of his employment, is that the servant is clothed with thedelegated authority, and charge with the duty by the carrier, to execute his undertaking with the passenger. And it cannot besaid, we think, that there is any such delegation to the employees at a station with reference to passenger embarking atanother or traveling on the train. Of course, we are speaking only of the principle which holds a carrier responsible for wrongdone to passenger by servants acting in their own interest, and not in that of the employer. That principle is not the ordinaryrule, respondent superior, by which the employer is held responsible only for act or omissions of the employee in the scopeof his employment; but the only reason in our opinion for a broader liability arises from the fact that the servant, inmistreating the passenger wholly for some private purpose of his own, in the very act, violates the contractual obligation of the employer for the performance of which he has put the employee in his place. The reason does not exist where theemployee who committed the assault was never in a position in which it became his duty to his employer to represent him indischarging any duty of the latter toward the passenger. The proposition that the carrier clothes every employee engaged inthe transportation business with the comprehensive duty of protecting every passenger with whom he may in any way comein contact, and hereby makes himself liable for every assault commited by such servant, without regard to the inquirywhether or not the passenger has come within the sphere of duty of that servant as indicated by the employment, is regardedas not only not sustained by the authorities, but as being unsound and oppressive both to the employer and the employee.(Houston & T. C. R. Co. vs. Bush, 32 LRA (NS), p. 1205.)

herefore, the judgment appealed from is reversed and the complaint ordered dismissed, without cost. So ordered.

G.R. No. L-22272 June 26, 1967 ANTONIA MARANAN vs. PASCUAL PEREZ, ET AL.,

ogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by Pascual Perez when he was stabbedd killed by the driver, Simeon Valenzuela.

lenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty, he was sentenced to suffer prisonment and to indemnify the heirs of the deceased in the sum of P6,000. Appeal from said conviction was taken to the CourtAppeals. 1äwphï1.ñët

n December 6 1961, while appeal was pending in the Court of Appeals, Antonia Maranan, Rogelio's mother, filed an action in theourt of First Instance of Batangas to recover damages from Perez and Valenzuela for the death of her son. Defendants asserted that



e deceased was killed in self-defense, since he first assaulted the driver by stabbing him from behind. Defendant Perez further aimed that the death was a caso fortuito for which the carrier was not liable.

e court a quo , after trial, found for the plaintiff and awarded her P3,000 as damages against defendant Perez. The claim againstfendant Valenzuela was dismissed. From this ruling, both plaintiff and defendant Perez appealed to this Court, the former askingr more damages and the latter insisting on non-liability. Subsequently, the Court of Appeals affirmed the judgment of convictionrlier mentioned, during the pendency of the herein appeal, and on May 19, 1964, final judgment was entered therein. ( Rollo , p

efendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co ., 97 Phil. 884, that the carrier is under nsolute liability for assaults of its employees upon the passengers. The attendant facts and controlling law of that case and the one atr are very different however. In the Gillaco case, the passenger was killed outside the scope and the course of duty of the guilty

mployee. As this Court there found:

x x x when the crime took place, the guard Devesa had no duties to discharge in connection with the transportation of thedeceased from Calamba to Manila . The stipulation of facts is clear that when Devesa shot and killed Gillaco, Devesa wasassigned to guard the Manila-San Fernando (La Union) trains, and he was at Paco Station awaiting transportation to Tutuban,the starting point of the train that he was engaged to guard. In fact, his tour of duty was to start at 9:00 two hours after thecommission of the crime. Devesa was therefore under no obligation to safeguard the passengers of the Calamba-Manilatrain, where the deceased was riding; and the killing of Gillaco was not done in line of duty . The position of Devesa at thetime was that of another would be passenger, a stranger also awaiting transportation, and not that of an employee assigned todischarge any of the duties that the Railroad had assumed by its contract with the deceased. As a result, Devesa's assault cannot be deemed in law a breach of Gillaco's contract of transportation by a servant or employee of the carrier. . . . (Emphasissupplied)

ow here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose hands the carrier hadtrusted the duty of executing the contract of carriage. In other words, unlike the Gillaco case, the killing of the passenger here tooace in the course of duty of the guilty employee and when the employee was acting within the scope of his duties.

oreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which, unlike the present Civil Code, did notpose upon common carriers absolute liability for the safety of passengers against wilful assaults or negligent acts committed by

eir employees. The death of the passenger in the Gillaco case was truly a fortuitous event which exempted the carrier frombility. It is true that Art. 1105 of the old Civil Code on fortuitous events has been substantially reproduced in Art. 1174 of the Civil

ode of the Philippines but both articles clearly remove from their exempting effect the case where the law expressly provides for bility in spite of the occurrence of force majeure. And herein significantly lies the statutory difference between the old and presentvil Codes, in the backdrop of the factual situation before Us, which further accounts for a different result in the Gillaco case.nlike the old Civil Code, the new Civil Code of the Philippines expressly makes the common carrier liable for intentional assaultsmmitted by its employees upon its passengers, by the wording of Art. 1759 which categorically states that

Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former'semployees, although such employees may have acted beyond the scope of their authority or in violation of the orders of thecommon carriers.

e Civil Code provisions on the subject of Common Carriers 1 are new and were taken from Anglo-American Law. 2 There, the bthe carrier's liability for assaults on passengers committed by its drivers rests either on (1) the doctrine of respondeat superior ) the principle that it is the carrier's implied duty to transport the passenger safely. 3

nder the first, which is the minority view, the carrier is liable only when the act of the employee is within the scope of his authorityd duty. It is not sufficient that the act be within the course of employment only. 4

nder the second view, upheld by the majority and also by the later cases, it is enough that the assault happens within the course of e employee's duty. It is no defense for the carrier that the act was done in excess of authority or in disobedience of the carrier'sders. 5 The carrier's liability here is absolute in the sense that it practically secures the passengers from assaults committed by its

wn employees. 6

can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule based on the second view. At leastee very cogent reasons underlie this rule. As explained in Texas Midland R.R. v. Monroe , 110 Tex. 97, 216 S.W. 388, 389-390,d Haver v. Central Railroad Co ., 43 LRA 84, 85: (1) the special undertaking of the carrier requires that it furnish its passenger that

l measure of protection afforded by the exercise of the high degree of care prescribed by the law, inter alia from violence and



sults at the hands of strangers and other passengers, but above all, from the acts of the carrier's own servants charged with thessenger's safety; (2) said liability of the carrier for the servant's violation of duty to passengers, is the result of the formersnfiding in the servant's hands the performance of his contract to safely transport the passenger, delegating therewith the duty of otecting the passenger with the utmost care prescribed by law; and (3) as between the carrier and the passenger, the former mustar the risk of wrongful acts or negligence of the carrier's employees against passengers, since it, and not the passengers, has power select and remove them.

ccordingly, it is the carrier's strict obligation to select its drivers and similar employees with due regard not only to their technicalmpetence and physical ability, but also, no less important, to their total personality, including their patterns of behavior, moralers, and social attitude.

pplying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged the defendant carrier liable pursuantArt. 1759 of the Civil Code. The dismissal of the claim against the defendant driver was also correct. Plaintiff's action wasedicated on breach of contract of carriage 7 and the cab driver was not a party thereto. His civil liability is covered in the criminalse wherein he was convicted by final judgment.

connection with the award of damages, the court a quo granted only P3,000 to plaintiff-appellant. This is the minimummpensatory damages amount recoverable under Art. 1764 in connection with Art. 2206 of the Civil Code when a breach of ntract results in the passenger's death. As has been the policy followed by this Court, this minimal award should be increased to,000. As to other alleged actual damages, the lower court's finding that plaintiff's evidence thereon was not convincing, 8 shouldisturbed. Still, Arts. 2206 and 1764 award moral damages in addition to compensatory damages, to the parents of the passenger led to compensate for the mental anguish they suffered. A claim therefor, having been properly made, it becomes the court's dutyaward moral damages. 9 Plaintiff demands P5,000 as moral damages; however, in the circumstances, We consider P3,000 moralmages, in addition to the P6,000 damages afore-stated, as sufficient. Interest upon such damages are also due to plaintiff-pellant. 10

herefore, with the modification increasing the award of actual damages in plaintiff's favor to P6,000, plus P3,000.00 moralmages, with legal interest on both from the filing of the complaint on December 6, 1961 until the whole amount is paid, thedgment appealed from is affirmed in all other respects. No costs. So ordered.

G.R. No. 52159 December 22, 1989

SE PILAPIL vs. HON. CA and ALATCO TRANSPORTATION COMPANY, INC.,

is is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19 October 1979 in CA-G.R. No.354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco Transportation Co., Inc., defendant-appellant," which reversed and setde the judgment of the Court of First Instance of Camarines Sur in Civil Case No. 7230 ordering respondent transportationmpany to pay to petitioner damages in the total sum of sixteen thousand three hundred pesos (P 16,300.00).

e record discloses the following facts:

titioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing No. 409 at San Nicolas, Iriga City16 September 1971 at about 6:00 P.M. While said bus No. 409 was in due course negotiating the distance between Iriga City and

aga City, upon reaching the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, anidentified man, a bystander along said national highway, hurled a stone at the left side of the bus, which hit petitioner above his

t eye. Private respondent's personnel lost no time in bringing the petitioner to the provincial hospital in Naga City where he wasnfined and treated.

onsidering that the sight of his left eye was impaired, petitioner was taken to Dr. Malabanan of Iriga City where he was treated for other week. Since there was no improvement in his left eye's vision, petitioner went to V. Luna Hospital, Quezon City where heas treated by Dr. Capulong. Despite the treatment accorded to him by Dr. Capulong, petitioner lost partially his left eye's vision andstained a permanent scar above the left eye.

ereupon, petitioner instituted before the Court of First Instance of Camarines Sur, Branch I an action for recovery of damagesstained as a result of the stone-throwing incident. After trial, the court a quo rendered judgment with the following dispositive part:

Wherefore, judgment is hereby entered:



1. Ordering defendant transportation company to pay plaintiff Jose Pilapil the sum of P 10,000.00,Philippine Currency, representing actual and material damages for causing a permanent scar on theface and injuring the eye-sight of the plaintiff;

2. Ordering further defendant transportation company to pay the sum of P 5,000.00, PhilippineCurrency, to the plaintiff as moral and exemplary damages;

3. Ordering furthermore, defendant transportation company to reimburse plaintiff the sum of P300.00 for his medical expenses and attorney's fees in the sum of P 1,000.00, Philippine Currency;and

4. To pay the costs.

SO ORDERED 1

om the judgment, private respondent appealed to the Court of Appeals where the appeal was docketed as CA-G.R. No. 57354R.n 19 October 1979, the Court of Appeals, in a Special Division of Five, rendered judgment reversing and setting aside the judgmentthe court a quo .

ence the present petition.

seeking a reversal of the decision of the Court of Appeals, petitioner contends that said court has decided the issue not in accordth law. Specifically, petitioner argues that the nature of the business of a transportation company requires the assumption of certainks, and the stoning of the bus by a stranger resulting in injury to petitioner-passenger is one such risk from which the commonrrier may not exempt itself from liability.

e do not agree.

consideration of the right granted to it by the public to engage in the business of transporting passengers and goods, a commonrrier does not give its consent to become an insurer of any and all risks to passengers and goods. It merely undertakes to performrtain duties to the public as the law imposes, and holds itself liable for any breach thereof.

nder Article 1733 of the Civil Code, common carriers are required to observe extraordinary diligence for the safety of the

ssenger transported by them, according to all the circumstances of each case. The requirement of extraordinary diligence imposedon common carriers is restated in Article 1755: "A common carrier is bound to carry the passengers safely as far as human cared foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances." Further, inse of death of or injuries to passengers, the law presumes said common carriers to be at fault or to have acted negligently. 2

hile the law requires the highest degree of diligence from common carriers in the safe transport of their passengers and creates aesumption of negligence against them, it does not, however, make the carrier an insurer of the absolute safety of its passengers.

ticle 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in the carriage of passengers bymmon carriers to only such as human care and foresight can provide. what constitutes compliance with said duty is adjudged withe regard to all the circumstances.

ticle 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the common carrier when its passenger injured, merely relieves the latter, for the time being, from introducing evidence to fasten the negligence on the former, becausee presumption stands in the place of evidence. Being a mere presumption, however, the same is rebuttable by proof that themmon carrier had exercised extraordinary diligence as required by law in the performance of its contractual obligation, or that theury suffered by the passenger was solely due to a fortuitous event. 4

fine, we can only infer from the law the intention of the Code Commission and Congress to curb the recklessness of drivers anderators of common carriers in the conduct of their business.

us, it is clear that neither the law nor the nature of the business of a transportation company makes it an insurer of the passenger'sfety, but that its liability for personal injuries sustained by its passenger rests upon its negligence, its failure to exercise the degreediligence that the law requires. 5



titioner contends that respondent common carrier failed to rebut the presumption of negligence against it by proof on its part that itercised extraordinary diligence for the safety of its passengers.

e do not agree.

rst, as stated earlier, the presumption of fault or negligence against the carrier is only a disputable presumption. It gives in wherentrary facts are established proving either that the carrier had exercised the degree of diligence required by law or the injuryffered by the passenger was due to a fortuitous event. Where, as in the instant case, the injury sustained by the petitioner was in noay due to any defect in the means of transport or in the method of transporting or to the negligent or willful acts of privatespondent's employees, and therefore involving no issue of negligence in its duty to provide safe and suitable cars as well asmpetent employees, with the injury arising wholly from causes created by strangers over which the carrier had no control or evenowledge or could not have prevented, the presumption is rebutted and the carrier is not and ought not to be held liable. To ruleherwise would make the common carrier the insurer of the absolute safety of its passengers which is not the intention of thewmakers.

cond, while as a general rule, common carriers are bound to exercise extraordinary diligence in the safe transport of their ssengers, it would seem that this is not the standard by which its liability is to be determined when intervening acts of strangers isbe determined directly cause the injury, while the contract of carriage Article 1763 governs:

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of thediligence of a good father of a family could have prevented or stopped the act or omission.

early under the above provision, a tort committed by a stranger which causes injury to a passenger does not accord the latter ause of action against the carrier. The negligence for which a common carrier is held responsible is the negligent omission by therrier's employees to prevent the tort from being committed when the same could have been foreseen and prevented by them.rther, under the same provision, it is to be noted that when the violation of the contract is due to the willful acts of strangers, as in

e instant case, the degree of care essential to be exercised by the common carrier for the protection of its passenger is only that of aod father of a family.

titioner has charged respondent carrier of negligence on the ground that the injury complained of could have been prevented by themmon carrier if something like mesh-work grills had covered the windows of its bus.

e do not agree.

though the suggested precaution could have prevented the injury complained of, the rule of ordinary care and prudence is not soacting as to require one charged with its exercise to take doubtful or unreasonable precautions to guard against unlawful acts of angers. The carrier is not charged with the duty of providing or maintaining vehicles as to absolutely prevent any and all injuries tossengers. Where the carrier uses cars of the most approved type, in general use by others engaged in the same occupation, andercises a high degree of care in maintaining them in suitable condition, the carrier cannot be charged with negligence in thisspect. 6

nally, petitioner contends that it is to the greater interest of the State if a carrier were made liable for such stone-throwing incidentsher than have the bus riding public lose confidence in the transportation system.

d to say, we are not in a position to so hold; such a policy would be better left to the consideration of Congress which ismpowered to enact laws to protect the public from the increasing risks and dangers of lawlessness in society.

HEREFORE, the judgment appealed from is hereby AFFIRMED.

G.R. No. 85691 July 31, 1990 BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA,CA (Sixth Division), RICARDO BETER, SERGIA BETER, TEOFILO RAUTRAUT and ZOETERA RAUTRAUT

is is a petition for review of the decision of the Court of Appeals which reversed and set aside the order of the Regional Trialourt, Branch I, Butuan City dismissing the private respondents' complaint for collection of "a sum of money" and finding thetitioners solidarily liable for damages in the total amount of One Hundred Twenty Thousand Pesos (P120,000.00). The petitionerso question the appellate court's resolution denying a motion for reconsideration.



n August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was the situs of a stampede whichsulted in the death of passengers Ornominio Beter and Narcisa Rautraut.

e evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing Butuan City; that while at Tabon-bon, Butuan City, the bus picked up a passenger; that about fifteen (15) minutes later, a passenger at the rear portion suddenlybbed a PC soldier which caused commotion and panic among the passengers; that when the bus stopped, passengers Ornominioter and Narcisa Rautraut were found lying down the road, the former already dead as a result of head injuries and the latter alsoffering from severe injuries which caused her death later. The passenger assailant alighted from the bus and ran toward the bushest was killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private respondents herein (Ricardoter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should be Zotera] Rautraut are the parents

Narcisa) filed a complaint for "sum of money" against Bachelor Express, Inc. its alleged owner Samson Yasay and the driver vera.

their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. They alleged that ... the driver as able to transport his passengers safely to their respective places of destination except Ornominio Beter and Narcisa Rautraut whomped off the bus without the knowledge and consent, much less, the fault of the driver and conductor and the defendants in thisse; the defendant corporation had exercised due diligence in the choice of its employees to avoid as much as possible accidents; thecident on August 1, 1980 was not a traffic accident or vehicular accident; it was an incident or event very much beyond the controlthe defendants; defendants were not parties to the incident complained of as it was an act of a third party who is not in any waynnected with the defendants and of which the latter have no control and supervision; ..." (Rollo, pp. 112-113). i•t•c-aüsl

ter due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.

pon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of the decision of the Court of ppeals states:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one entered finding theappellees jointly and solidarily liable to pay the plaintiffs-appellants the following amounts:

1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00) in loss of earningsand support, moral damages, straight death indemnity and attorney's fees; and,

2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for straight deathindemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp. 71-72)

e petitioners now pose the following questions

What was the proximate cause of the whole incident? Why were the passengers on board the bus panicked (sic) andwhy were they shoving one another? Why did Narcisa Rautraut and Ornominio Beter jump off from the running

bus?

e petitioners opine that answers to these questions are material to arrive at "a fair, just and equitable judgment." (Rollo, p. 5) Theyaim that the assailed decision is based on a misapprehension of facts and its conclusion is grounded on speculation, surmises or njectures.

regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners maintain that it was the act of e passenger who ran amuck and stabbed another passenger of the bus. They contend that the stabbing incident triggered off themmotion and panic among the passengers who pushed one another and that presumably out of fear and moved by that humanstinct of self-preservation Beter and Rautraut jumped off the bus while the bus was still running resulting in their untimely death."ollo, p. 6) Under these circumstances, the petitioners asseverate that they were not negligent in the performance of their duties andat the incident was completely and absolutely attributable to a third person, the passenger who ran amuck, for without his criminalt, Beter and Rautraut could not have been subjected to fear and shock which compelled them to jump off the running bus. Theygue that they should not be made liable for damages arising from acts of third persons over whom they have no control or pervision.

rthermore, the petitioners maintain that the driver of the bus, before, during and after the incident was driving cautiously givinge regard to traffic rules, laws and regulations. The petitioners also argue that they are not insurers of their passengers as ruled by

e trial court.



e liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of carriage. The applicable provisions ofw under the New Civil Code are as follows:

ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both by land, water, or air, for compensation, offering their services to the

public.

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound toobserve extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported bythem, according to all the circumstances of each case.

xxx xxx xxx

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or tohave acted negligently, unless they prove that they observed extraordinary diligence as prescribed in Articles 1733and 1755.

ere is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its business and for reasons of publiclicy Bachelor Express, Inc. is bound to carry its passengers safely as far as human care and foresight can provide using the utmostigence of very cautious persons, with a due regard for all the circumstances.

the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to petitioner Bachelor Express, Inc.d, while passengers of the bus, suffered injuries which caused their death. Consequently, pursuant to Article 1756 of the Civil

ode, petitioner Bachelor Express, Inc. is presumed to have acted negligently unless it can prove that it had observed extraordinaryigence in accordance with Articles 1733 and 1755 of the New Civil Code.

chelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death of the said passengers wasused by a third person who was beyond its control and supervision. In effect, the petitioner, in order to overcome the presumptionfault or negligence under the law, states that the vehicular incident resulting in the death of passengers Beter and Rautraut wasused by force majeure or caso fortuito over which the common carrier did not have any control.

ticle 1174 of the present Civil Code states:

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

e above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which states"

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

the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and which, having been foreseen,e inevitable in the following manner:

... The Spanish authorities regard the language employed as an effort to define the term 'caso fortuito' and hold thatthe two expressions are synonymous. (Manresa Comentarios al Codigo Civil Español, vol. 8, pp. 88 et seq.;Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)

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



Escriche defines caso fortuito as an unexpected event or act of God which could neither be foreseen nor resisted,such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections, destruction of buildings byunforeseen accidents and other occurrences of a similar nature.

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

any participation in the aggravation of the injury resulting to the creditor. (5) Enciclopedia Juridica Española, 309)

As will be seen, these authorities agree that some extraordinary circumstance independent of the will of the obligor or of his employees, is an essential element of a caso fortuito. ...

e running amuck of the passenger was the proximate cause of the incident as it triggered off a commotion and panic among thessengers such that the passengers started running to the sole exit shoving each other resulting in the falling off the bus byssengers Beter and Rautraut causing them fatal injuries. The sudden act of the passenger who stabbed another passenger in the buswithin the context of force majeure.

owever, in order that a common carrier may be absolved from liability in case of force majeure , it is not enough that the accidentas caused by force majeure . The common carrier must still prove that it was not negligent in causing the injuries resulting fromch accident. Thus, as early as 1912, we ruled:

From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of the goods shippedon the lorcha Pilar by the Chinaman, Ong Bien Sip, inasmuch as such loss and damage were the result of a fortuitousevent or force majeure, and there was no negligence or lack of care and diligence on the part of the defendant company or its agents . (Tan Chiong Sian v. Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied).

is principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate Appellate Court (167 SCRA 3988]), wherein we ruled:

... [F]or their defense of force majeure or act of God to prosper the accident must be due to natural causesand exclusively without human intervention . (Emphasis supplied)

erefore, the next question to be determined is whether or not the petitioner's common carrier observed extraordinary diligence tofeguard the lives of its passengers.

this regard the trial court and the appellate court arrived at conflicting factual findings.

e trial court found the following facts:

The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and Ornominio Beter mettheir deaths.

However, from the evidence adduced by the plaintiffs, the Court could not see why the two deceased could havefallen off the bus when their own witnesses testified that when the commotion ensued inside the bus, the passengers

pushed and shoved each other towards the door apparently in order to get off from the bus through the door. But the passengers also could not pass through the door because according to the evidence the door was locked.

On the other hand, the Court is inclined to give credence to the evidence adduced by the defendants that when thecommotion ensued inside the bus, the two deceased panicked and, in state of shock and fear, they jumped off fromthe bus by passing through the window.

It is the prevailing rule and settled jurisprudence that transportation companies are not insurers of their passengers.The evidence on record does not show that defendants' personnel were negligent in their duties. The defendants'

personnel have every right to accept passengers absent any manifestation of violence or drunkenness. If and when



such passengers harm other passengers without the knowledge of the transportation company's personnel, the latter should not be faulted. (Rollo, pp. 46-47)

thorough examination of the records, however, show that there are material facts ignored by the trial court which were discussedthe appellate court to arrive at a different conclusion. These circumstances show that the petitioner common carrier was negligentthe provision of safety precautions so that its passengers may be transported safely to their destinations. The appellate court states:

A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio decidendi . The locourt concluded that the door of the bus was closed; secondly, the passengers, specifically the two deceased, jumpedout of the window. The lower court therefore concluded that the defendant common carrier is not liable for the deathof the said passengers which it implicitly attributed to the unforeseen acts of the unidentified passenger who wentamuck.

There is nothing in the record to support the conclusion that the solitary door of the bus was locked as to prevent the passengers from passing through. Leonila Cullano, testifying for the defense, clearly stated that the conductor opened the door when the passengers were shouting that the bus stop while they were in a state of panic. SergiaBeter categorically stated that she actually saw her son fall from the bus as the door was forced open by the force of the onrushing passengers.

Pedro Collango, on the other hand, testified that he shut the door after the last passenger had boarded the bus. But hehad quite conveniently neglected to say that when the passengers had panicked, he himself panicked and had gone toopen the door. Portions of the testimony of Leonila Cullano, quoted below, are illuminating:

xxx xxx xxx

Q When you said the conductor opened the door, the door at the front or rear portion of the bus?--A Front door.

Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear door?--A Front door.

Q What happened after there was a commotion at the rear portion of the bus?--A When the commotion occurred, Istood up and I noticed that there was a passenger who was sounded (sic). The conductor panicked because the

passengers were shouting 'stop, stop'. The conductor opened the bus.'

Accordingly, there is no reason to believe that the deceased passengers jumped from the window when it wasentirely possible for them to have alighted through the door. The lower court's reliance on the testimony of PedroCollango, as the conductor and employee of the common carrier, is unjustified, in the light of the clear testimony of Leonila Cullano as the sole uninterested eyewitness of the entire episode. Instead we find Pedro Collango'stestimony to be infused by bias and fraught with inconsistencies, if not notably unreliable for lack of veracity. Ondirect examination, he testified:

xxx xxx xxx

Q So what happened to the passengers inside your bus?--A Some of the passengers jumped out of the window.

COURT:--Q While the bus was in motion?--A Yes, your Honor, but the speed was slow because we have just picked

up a passenger.

Atty. Gambe:

Q You said that at the time of the incident the bus was running slow because you have just picked up a passenger.Can you estimate what was your speed at that time?

Atty. Calo: No basis, your Honor, he is neither a driver nor a conductor.

COURT:

Let the witness answer. Estimate only, the conductor experienced.



circumstances and reduce the life expectancy of the deceased Ornominio Beter to 25 years (People v. Daniel, suTo fix the rate of losses it must be noted that Art. 2206 refers to gross earnings less necessary living expenses of thedeceased, in other words, only net earnings are to be considered (People v. Daniel, supra ; Villa Rey Transit, Inc. vCourt of Appeals, supra ).

Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable, considering his socialstanding and position, to fix the deductible, living and incidental expenses at the sum of Four Hundred Pesos(P400.00) a month, or Four Thousand Eight Hundred Pesos (P4,800.00) annually. As to his income, considering theirregular nature of the work of a daily wage carpenter which is seasonal, it is safe to assume that he shall have work for twenty (20) days a month at Twenty Five Pesos (P150,000.00) for twenty five years. Deducting therefrom his

necessary expenses, his heirs would be entitled to Thirty Thousand Pesos (P30,000.00) representing loss of supportand service (P150,000.00 less P120,000.00). In addition, his heirs are entitled to Thirty Thousand Pesos(P30,000.00) as straight death indemnity pursuant to Article 2206 (People v. Daniel, supra). For damages for their moral and mental anguish, his heirs are entitled to the reasonable sum of P10,000.00 as an exception to the generalrule against moral damages in case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75). Asattorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-appellants Ricardo and Sergia Beter asheirs of their son Ornominio are entitled to an indemnity of Seventy Five Thousand Pesos (P75,000.00).

In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty Thousand Pesos(P30,000.00), to moral damages in the amount of Ten Thousand Pesos (P10,000.00) and Five Thousand Pesos(P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos (P45,000.00) as total indemnity for her deathin the absence of any evidence that she had visible means of support. (Rollo, pp. 30-31)

HEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and the resolution dated August 1,88 of the Court of Appeals are AFFIRMED.

G.R. No. L-23733 October 31, 1969 HERMINIO L. NOCUM vs. LAGUNA TAYABAS BUS COMPANY

ppeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment of the said court (Court of First Instance of tangas) in its Civil Case No. 834, wherein appellee Herminio L. Nocum was plaintiff, sentencing appellant to pay appellee them of P1,351.00 for actual damages and P500.00 as attorney's fees with legal interest from the filing of the complaint plus costs.ppellee, who was a passenger in appellant's Bus No. 120 then making a trip within the barrio of Dita, Municipality of Bay, Laguna,as injured as a consequence of the explosion of firecrackers, contained in a box, loaded in said bus and declared to its conductor asntaining clothes and miscellaneous items by a co-passenger. The findings of fact of the trial court are not assailed. The appeal isrely on legal questions.

ppellee has not filed any brief. All that We have before Us is appellant's brief with the following assignment of errors:

1.BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERRED AS A MATTER OF LAWIN NOT ABSOLVING APPELLANT FROM LIABILITY RESULTING FROM THE EXPLOSION OF FIRECRACKERSCONTAINED IN A PACKAGE, THE CONTENTS OF WHICH WERE MISREPRESENTED BY A PASSENGER.

II.THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGES WITH LEGAL INTERESTIN FAVOR OF THE APPELLEE.

III.THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTS AGAINST THEAPPELLEE.

pon consideration of the points raised and discussed by appellant, We find the appeal to be well taken.

e main basis of the trial court's decision is that appellant did not observe the extraordinary or utmost diligence of a very cautiousrson required by the following articles of the Civil Code:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observeextraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according toall the circumstances of each case.



Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6,and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, usingthe utmost diligence of very cautious persons, with a due regard for all the circumstances.

ART 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have actednegligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755.

nalyzing the evidence presented by the parties, His Honor found:

According to Severino Andaya, a witness for the plaintiff, a man with a box went up the baggage compartment of the buswhere he already was and said box was placed under the seat. They left Azcarraga at about 11:30 in the morning and whenthe explosion occurred, he was thrown out. PC investigation report states that thirty seven (37) passengers were injured(Exhibits "O" and "2").

The bus conductor, Sancho Mendoza, testified that the box belonged to a passenger whose name he does not know and whotold him that it contained miscellaneous items and clothes. He helped the owner in loading the baggage which weighed abouttwelve (12) kilos and because of company regulation, he charged him for it twenty-five centavos (P0.25). From itsappearance there was no indication at all that the contents were explosives or firecrackers. Neither did he open the box

because he just relied on the word of the owner.

Dispatcher Nicolas Cornista of defendant company corroborrated the testimony of Mendoza and he said, among other things,that he was present when the box was loaded in the truck and the owner agreed to pay its fare. He added that they were notauthorized to open the baggages of passengers because instruction from the management was to call the police if there were

packages containing articles which were against regulations.

xxx xxx xxx

There is no question that Bus No. 120 was road worthy when it left its Manila Terminal for Lucena that morning of December 5, 1960. The injuries suffered by the plaintiff were not due to mechanical defects but to the explosion of firecrackers inside the bus which was loaded by a co-passenger.

... Turning to the present case, it is quite clear that extraordinary or utmost diligence of a very cautious person was notobserved by the defendant company. The service manual, exhibits "3" and "3-A," prohibits the employees to allowexplosives, such as dynamite and firecrackers to be transported on its buses. To implement this particular rule for 'the safetyof passengers, it was therefore incumbent upon the employees of the company to make the proper inspection of all the

baggages which are carried by the passengers.

But then, can it not be said that the breach of the contract was due to fortuitous event? The Supreme Court in the case of Lasam vs. Smith, 45 Phil. 657, quoted Escriche's definition of caso fortuito as "an unexpected event or act of God whichcould neither be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsions,insurrections, destructions of buildings by unforeseen accidents and other occurrences of a similar nature." In other words,the cause of the unexpected event must be independent of the will of man or something which cannot be avoided. Thiscannot be said of the instant case. If proper and rigid inspection were observed by the defendant, the contents of the box

could have been discovered and the accident avoided. Refusal by the passenger to have the package opened was no excuse because, as stated by Dispatcher Cornista, employees should call the police if there were packages containing articles againstcompany regulations. Neither was failure by employees of defendant company to detect the contents of the packages of

passengers because like the rationale in the Necesito vs. Paras case (supra), a passenger has neither choice nor control in theexercise of their discretion in determining what are inside the package of co-passengers which may eventually prove fatal.

e cannot agree. No doubt, the views of His Honor do seem to be in line with the reasons that the Code Commission had for corporating the above-quoted provisions in its draft of the Civil Code. Indeed, in approving the said draft, Congress must havencurred with the Commission that by requiring the highest degree of diligence from common carriers in the safe transport of their ssengers and by creating a presumption of negligence against them, the recklessness of their drivers which is a common sight evencrowded areas and, particularly, on the highways throughout the country may, somehow, if not in a large measure, be curbed. Wee not convinced, however, that the exacting criterion of said provisions has not been met by appellant in the circumstances of this

rticular case.



s undisputed that before the box containing the firecrackers were allowed to be loaded in the bus by the conductor, inquiry wasade with the passenger carrying the same as to what was in it, since its "opening ... was folded and tied with abaca." (Decision p., Record on Appeal.) According to His Honor, "if proper and rigid inspection were observed by the defendant, the contents of thex could have been discovered and the accident avoided. Refusal by the passenger to have the package opened was no excusecause, as stated by Dispatcher Cornista, employees should call the police if there were packages containing articles againstmpany regulations." That may be true, but it is Our considered opinion that the law does not require as much. Article 1733 is notunbending as His Honor has held, for it reasonably qualifies the extraordinary diligence required of common carriers for the safetythe passengers transported by them to be "according to all the circumstances of each case." In fact, Article 1755 repeats this samealification: "A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using themost diligence of very cautious persons, with due regard for all the circumstances ."

this particular case before Us, it must be considered that while it is true the passengers of appellant's bus should not be made toffer for something over which they had no control, as enunciated in the decision of this Court cited by His Honor, 1 fairnessmands that in measuring a common carrier's duty towards its passengers, allowance must be given to the reliance that should beposed on the sense of responsibility of all the passengers in regard to their common safety. It is to be presumed that a passenger ll not take with him anything dangerous to the lives and limbs of his co-passengers, not to speak of his own. Not to be lightlynsidered must be the right to privacy to which each passenger is entitled. He cannot be subjected to any unusual search, when heotests the innocuousness of his baggage and nothing appears to indicate the contrary, as in the case at bar. In other words, inquiryay be verbally made as to the nature of a passenger's baggage when such is not outwardly perceptible, but beyond this,nstitutional boundaries are already in danger of being transgressed. Calling a policeman to his aid, as suggested by the serviceanual invoked by the trial judge, in compelling the passenger to submit to more rigid inspection, after the passenger had alreadyclared that the box contained mere clothes and other miscellaneous, could not have justified invasion of a constitutionally

otected domain. Police officers acting without judicial authority secured in the manner provided by law are not beyond the pale of nstitutional inhibitions designed to protect individual human rights and liberties. Withal, what must be importantly considered herenot so much the infringement of the fundamental sacred rights of the particular passenger herein involved, but the constant threaty contrary ruling would pose on the right of privacy of all passengers of all common carriers, considering how easily the duty tospect can be made an excuse for mischief and abuse. Of course, when there are sufficient indications that the representations of thessenger regarding the nature of his baggage may not be true, in the interest of the common safety of all, the assistance of the policethorities may be solicited, not necessarily to force the passenger to open his baggage, but to conduct the needed investigationnsistent with the rules of propriety and, above all, the constitutional rights of the passenger. It is in this sense that the mentionedrvice manual issued by appellant to its conductors must be understood.

ecisions in other jurisdictions cited by appellant in its brief, evidently because of the paucity of local precedents squarely in point,mphasize that there is need, as We hold here, for evidence of circumstances indicating cause or causes for apprehension that the

ssenger's baggage is dangerous and that it is failure of the common carrier's employee to act in the face of such evidence thatnstitutes the cornerstone of the common carrier's liability in cases similar to the present one.

The principle that must control the servants of the carrier in a case like the one before us is correctly stated in the opinion inthe case of Clarke v. Louisville & N.R. Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In that case Clarke was a passenger on thedefendant's train. Another passenger took a quantity of gasoline into the same coach in which Clarke was riding. It ignitedand exploded, by reason of which he was severely injured. The trial court peremptorily instructed the jury to find for thedefendant. In the opinion, affirming the judgment, it is said: "It may be stated briefly, in assuming the liability of a railroadto its passengers for injury done by another passenger, only where the conduct of this passenger had been such before theinjury as to induce a reasonably prudent and vigilant conductor to believe that there was reasonable ground to apprehendviolence and danger to the other passengers, and in that case asserting it to be the duty of the conductor of the railroad trainto use all reasonable means to prevent such injury, and if he neglects this reasonable duty, and injury is done, that then the

company is responsible; that otherwise the railroad is not responsible."

The opinion quotes with approval from the case of Gulf, C. & S. F. R. Co. vs. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652,in which case the plaintiff was injured by alcohol which had been carried upon the train by another passenger. In the opinionin that case it is said: "It was but a short period of time after the alcohol was spilt when it was set on fire and the accidentoccurred, and it was not shown that appellant's employees knew that the jug contained alcohol. In fact, it is not shown thatthe conductor or any other employee knew that Harris had a jug with him until it fell out of the sack, though the conductor had collected ... (his) fare, and doubtless knew that he had the sack on the seat with him. ... It cannot be successfully deniedthat Harris had the right as a passenger to carry baggage on the train, and that he had a right to carry it in a sack if he chose todo so. We think it is equally clear that, in the absence of some intimation or circumstance indicating that the sack containedsomething dangerous to other passengers, it was not the duty of appellant's conductor or any other employee to open the sack and examine its contents." Quinn v. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville & N. R. Co. 101



Ky. 703, 42 S. W. 349; Louisville & N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96 S. W. 898; Louisville & N. R. Co. v.Renfro, 142 Ky. 590, 33 L. R. A. (N. S.) 133, 135 S. W. 266. 2 (Emphasis supplied)

Explosive or Dangerous Contents. — A carrier is ordinarily not liable for injuries to passengers from fires or explosionscaused by articles brought into its conveyances by other passengers, in the absence of any evidence that the carrier, throughits employees, was aware of the nature of the article or had any reason to anticipate danger therefrom. (Bogard v. Illinois C.R Co. 144 Ky. 649, 139 S. W. 855, 36 L. R. A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S. W. 840, 36 L.R. A. 123 [explosion of can of gasoline]; East Indian R. Co. v. Mukerjee [1901] A. C. [Eng.] 396, 3 B. R. C. 420 — P. C.[explosion of fireworks]; Annotation: 37 L. R. A. [N. S.] 725.) 3

ppellant further invokes Article 1174 of the Civil Code which relieves all obligors, including, of course, common carriers likepellant, from the consequence of fortuitous events. The court a quo held that "the breach of contract (in this case) was not due tortuitous event and that, therefore, the defendant is liable in damages." Since We hold that appellant has succeeded in rebutting theesumption of negligence by showing that it has exercised extraordinary diligence for the safety of its passengers, "according to thecumstances of the (each) case", We deem it unnecessary to rule whether or not there was any fortuitous event in this case.

CCORDINGLY, the appealed judgment of the trial court is reversed and the case is dismissed, without costs.

G.R. No. 122039 May 31, 2000 VICENTE CALALAS vs. CA, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA

is is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated March 31, 1991, reversing the contrarycision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Elizaeurche Sunga as plaintiff in an action for breach of contract of carriage.

e facts, as found by the Court of Appeals, are as follows:

10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring inysical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As thepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at theck of the door at the rear end of the vehicle.

n the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of thehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned

Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distalrd of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting,d case wedging were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her ending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three monthsd would have to ambulate in crutches during said period.

n October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaintainst Francisco Salva, the owner of the Isuzu truck.

e lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was thever of the Isuzu truck who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490), filed by

lalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointlyble to Calalas for the damage to his jeepney.

n appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of action was baseda contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the Civil Code.e appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The

spositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is enteredordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages; (2) P50,000.00 as moral damages; (3) P10,000.00 as attorney's

fees; and (4) P1,000.00 as expenses of litigation; and (5) to pay the costs. SO ORDERED.



ence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate causethe accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of itsssengers. He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito . Petitioner further assaile award of moral damages to Sunga on the ground that it is not supported by evidence.

e petition has no merit.

e argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-lict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply.

or are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva ands driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the issue in this casewhether petitioner is liable on his contract of carriage. The first , quasi-delict, also known as culpa aquiliana or culpa extrantractual , has as its source the negligence of the tortfeasor. The second , breach of contract or culpa contractual , is premised upe negligence in the performance of a contractual obligation.

onsequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas ineach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in thisse the common carrier, failed to transport his passenger safely to his destination. 2 In case of death or injuries to passengers, Art.56 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless theyove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts toe common carrier the burden of proof.

ere is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for themage to petitioner's jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between thepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasi-lict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relationtween him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractualation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate

e relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are thosespecting the diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligencecases of death or injury to passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observeextraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them,according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755and 1756.

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 due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to

have acted negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733and 1755.

the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of titioner to prove that he had to observe extraordinary diligence in the care of his passengers.

ow, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of ry cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several factorslitate against petitioner's contention.

rst , as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters frome broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No.

36, as amended, or the Land Transportation and Traffic Code, which provides:



Sec. 54. Obstruction of Traffic . — No person shall drive his motor vehicle in such a manner as to obstruct or impedethe passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstructthe free passage of other vehicles on the highway.

cond , it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of the jeepney, a violation§32(a) of the same law. It provides:

Exceeding registered capacity . — No person operating any motor vehicle shall allow more passengers or morefreight or cargo in his vehicle than its registered capacity.

e fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers wereposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injurystained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers.

e find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted to an impliedsumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensatederely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner'sntention that the jeepney being bumped while it was improperly parked constitutes caso fortuito . A caso fortuito is an event whuld not be foreseen, or which, though foreseen, was inevitable. 3 This requires that the following requirements be present: (a) theuse of the breach is independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render mpossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to

eeditor. 4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway.

nally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find thisntention well taken.

awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at theSilliman University, majoring in Physical Education. Because of the injury, she was not able to enroll in the secondsemester of that school year. She testified that she had no more intention of continuing with her schooling, becauseshe could not walk and decided not to pursue her degree, major in Physical Education "because of my leg which hasa defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of thefracture side." She likewise decided not to further pursue Physical Education as her major subject, because "my leftleg . . . has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00, which is fair, justand reasonable.

a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one of the

ms enumerated under Art. 2219 of the Civil Code.5

As an exception, such damages are recoverable: (1) in cases in which theshap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the caseswhich the carrier is guilty of fraud or bad faith, as provided in Art. 2220. 6

this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court thattitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that petitioner's admission in openurt that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission of bad faith.e fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was utterly indifferent to

e plight of his injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the accident.

HEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, areFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.



G.R. No. 85331 August 25, 1989 KAPALARAN BUS LINE vs. ANGEL CORONADO, LOPE GRAJERA, DIONISIOHINYO, and THE COURT OF APPEALS,

titioner Kapalaran Bus Line ("Kapalaran") seeks the reversal or modification of the Court of Appeals' decision in CA G.R. CV No.476 and the absolution of petitioner from all liability arising from the collision between one of petitioner's buses and a jeepney

wned by respondent Coronado, driven by respondent Grajera and in which jeepney respondent Shinyo was a passenger.

e facts of this case as found by the trial court and adopted by the Court of Appeals, are summarized in the trial court's decision andoted in the Court of Appeals' own judgment in the following terms:

The accident happened on the National Highway at 10:30 A.M. on August 2, 1982. The jeepney driven by LopeGrajera was then corning from Pila, Laguna on its way towards the direction of Sta. Cruz, traversing the oldhighway. As it reached the intersection where there is a traffic sign 'yield,' it stopped and cautiously treated theintersection as a "Thru Stop' street, which it is not. The KBL bus was on its way from Sta. Cruz, Laguna, driven byits regular driver Virgilio Llamoso, on its way towards Manila. The regular itinerary of the KBL bus is through thetown proper of Pila, Laguna, but at times it avoids this if a bus is already fully loaded with passengers and can nolonger accommodate additional passengers. As the KBL bus neared the intersection, Virgilio Llamoso inquired fromhis conductor if they could still accommodate passengers and learning that they were already full, he decided to

bypass Pila and instead, to proceed along the national highway. Virgilio Llamoso admitted that there was another motor vehicle ahead of him.

The general rule is that the vehicle on the national highway has the right-of-way as against a feeder road. Another general rule is that the vehicle coming from the right has the right-of-way over the vehicle coming from the left. Thegeneral rules on right-of-way may be invoked only if both vehicles approach the intersection at almost the sametime. In the case at bar, both roads are national roads. Also, the KBL bus was still far from the intersection when the

jeepney reached the same. As testified to by Atty. Conrado L. Manicad who was driving a Mustang car coming fromthe direction of Sta. Cruz and proceeding towards the direction of Manila, he stopped at the intersection to give wayto the jeepney driven by Grajera. Behind Manicad were two vehicles, a car of his client and another car. A LagunaTransit bus had just entered the town of Pila ahead of Atty. Manicad.

The sketch marked Exhibit 'E' indicates very clearly that the jeepney had already traversed the intersection when itmet the KBL bus head-on. It is also obvious that the point of impact was on the right lane of the highway which isthe lane properly belonging to the jeepney. As testified to by Lope Grajera, the KBL bus ignored the stoppedvehicles of Atty. Manicad and the other vehicles behind Atty. Manicad and overtook both vehicles at theintersection, therefore, causing the accident.

Judging from the testimony of Atty. Conrado L. Manicad and the sketch (Exhibit 'E'), the sequence of events showsthat the first vehicle to arrive at the intersection was the jeepney. Seeing that the road was clear, the jeepney whichhad stopped at the intersection began to move forward, and for his part, Atty. Manicad stopped his car at theintersection to give way to the jeepney. At about this time, the KBL bus was approaching the intersection and itsdriver was engaged in determining from his conductor if they would still pass through the town proper of Pila. Uponlearning that they were already full, he turned his attention to the road and found the stopped vehicles at theintersection with the jeepney trying to cross the intersection. The KBL bus had no more room within which to stopwithout slamming into the rear of the vehicle behind the car of Atty. Manicad. The KBL driver chose to gamble on

proceeding on its way, unfortunately, the jeepney driven by Grajera, which had the right-of-way, was about to crossthe center of the highway and was directly on the path of the KBL bus. The gamble made by Llamoso did not payoff. The impact indicates that the KBL bus was travelling at a fast rate of speed because, after the collision, it did notstop; it travelled for another 50 meters and stopped only when it hit an electric post (pp. 3-4, Decision; pp. 166167,Record). 1

n 14 September 1982, Kapalaran, apparently believing that the best defense was offense, filed a complaint for damage to propertyd physical injuries through reckless imprudence against respondents Angel Coronado and Lope Grajera in the Regional Trial

ourt, Branch 27, Sta. Cruz, Laguna. Respondents answered with their own claims (counter-claims) for damages. A third-partymplaint and/or a complaint for intervention was also filed in the same case against Kapalaran by jeepney passenger Dionisioinyo.

n 15 October 1986, after trial, the trial court rendered a judgment in favor of private respondents and ordering Kapalaran



(a) to pay Angel Coronado the sum of P40,000.00 as compensation for the totally wrecked jeepney, plus the sum of P5,000.00 as attorney's fees and litigation expenses, and

(b) to Dionisio Shinyo the sum of P35,000.00 representing the expenses incurred by said intervenor for his treatmentincluding his car-hire, the further sum of P30,000.00 representing the expenses said defendant will incur for hissecond operation to remove the intramedulary nail from his femur, the additional sum of P50,000.00 to serve asmoral damages for the pain and suffering inflicted on said defendant, plus the sum of P10,000.00 in the concept of exemplary damages to serve as a deterrent to others who, like the plaintiff, may be minded to induce accidentvictims to perjure themselves in a sworn statement, and the sum of P15,000.00 as attorney's fees and litigationexpenses.

om the above judgment, Kapalaran appealed to the Court of Appeals assailing the trial court's findings on the issue of fault and theward of damages. The Court of Appeals, on 28 June 1988, affirmed the decision of the trial court but modified the award of

mages by setting aside the grant of exemplary damages as well as the award of attomey's fee and litigation expenses made toonisio Shinyo. 2

is decision of the Court of Appeals is now before us on a Petition for Review, a motion for reconsideration by Kapalaran havingen denied by that court on 13 October 1988.

apalaran assails the findings of fact of the Regional Trial Court and of the Court of Appeals, and insists before this Court thatspondent Grajera, driver of the jeepney, was at fault and not the driver of Kapalaran's bus. It must be remembered that it is not thenction of this Court to analyze and weigh evidence presented by the parties all over again and that our jurisdiction is in principle

mited to reviewing errors of law that might have been committed by the Court of Appeals. Kapalaran has made no compellingowing of any misapprehension of facts on the part of the Court of Appeals that would require us to review and overturn the factualdings of that court. On the contrary, examination of the record shows that not only are the conclusions of fact of the Court of

ppeals and the trial court on who — the bus driver or the jeepney driver — had acted negligently and was at fault in the collision of eir vehicles, amply supported by the evidence of record, but also that Kapalaran's bus driver was grossly negligent and had actedantonly and in obvious disregard of the applicable rules on safety on the highway.

apalaran's driver had become aware that some vehicles ahead of the bus and travelling in the same direction had already stopped ate intersection obviously to give way either to pedestrians or to another vehicle about to enter the intersection. The bus driver, whoas driving at a speed too high to be safe and proper at or near an intersection on the highway, and in any case too high to be able toow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose to swerve to the left laned overtake such preceding vehicles, entered the intersection and directly smashed into the jeepney within the intersection.mediately before the collision, the bus driver was actually violating the following traffic rules and regulations, among others, in

e Land Transportation and Traffic Code, Republic Act No. 4136, as amended:

Sec. 35. Restriction as to speed . — (a) Any person driving a motor vehicle on a highway shall drive the same at acareful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, thewidth of the highway, and or any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed

greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.

xxx xxx xxx

Sec. 41. Restrictions on overtaking and passing . _1 (a) The driver of a vehicle shall not drive to the left side of thecenter line of a highway in overtaking or passing another vehicle, proceeding in the same direction, unless such left

side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in safety.

xxx xxx xxx

(c) The driver of a vehicle shall not overtake or pass any other vehicle proceeding in the same direction, at anyrailway grade crossing, or at any intersection of highways , unless such intersection or crossing is controlled bytraffic signal, or unless permitted to do so by a watchman or a peace officer , except on a highway having two or more lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle on the right. Nothing in this section shall be construed to prohibit a driver overtaking or passing, upon the

right, another vehicle which is making or about to make a left turn.



xxx xxx xxx

(Emphasis supplied)

us, a legal presumption arose that the bus driver was negligent 3 a presumption Kapalaran was unable to overthrow.

titioner's contention that the jeepney should have stopped before entering the "Y-intersection" because of the possibility thatother vehicle behind the cars which had stopped might not similarly stop and might swerve to the left to proceed to the highwayute to Manila, is more ingenious than substantial. It also offers illustration of the familiar litigation tactic of shifting blame frome's own shoulders to those of the other party. But the jeepney driver, seeing the cars closest to the intersection on the opposite sidethe highway come to a stop to give way to him, had the right to assume that other vehicles further away and behind the stoppedrs would similarly come to a stop and not seek illegally to overtake the stopped vehicles and come careening into the intersectionan unsafe speed. 4 Petitioner's bus was still relatively far away from the intersection when the jeepney entered the same; the busllided head on into the jeepney because the bus had been going at an excessively high velocity immediately before and at the timeovertaking the stopped cars, and so caught the jeepney within the intersection. It was also the responsibility of the bus driver to seeit, when it overtook the two (2) cars ahead which had stopped at the intersection, that the left lane of the road within theersection and beyond was clear. The point of impact was on the left side of the intersection (the light lane so far as concerns thepney coming from the opposite side), which was precisely the lane or side on which the jeepney had a right to be.

titioner Kapalaran also assails the award of moral damages against itself, upon the ground that its own bus driver, third-partyfendant, was apparently not held liable by the trial court . 5 Hence, Kapalaran argues that there was no justification for holding it,e employer, liable for damages, considering that such liability was premised upon the bus driver's negligence and that petitioner "asere employer" was not guilty of such negligence or imprudence. 6 This contention in thoroughly unpersuasive. The patent and grossgligence on the part of the petitioner Kapalaran's driver raised the legal presumption that Kapalaran as employer was guilty of gligence either in the selection or in the supervision of its bus driver, 7 Where the employer is held liable for damages, it has of urse a right of recourse against its own negligent employee. If petitioner Kapalaran was interested in maintaining its right of course against or reimbursement from its own driver, 8 it should have appealled from that portion of the trial court's decision whichd failed to hold the bus driver is not "merely subsidiary," and is not limited to cases where the employee "cannot pay his liability"r are private respondents compelled frist to proceed against the bus driver. The liability of the employer under Article 2180 of thevil Code is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of e insolvency of such employee. 9 So far as the record shows, petitioner Kapalaran was unable to rebut the presumption of gligence on its own part. The award of moral damages against petitioner Kapalaran is not only entirely in order; it is also quiteodest consideirng Dionisio Shinyo's death during the pendency of this petition, a death hastened by, if not directly due to, theevous injuries sustained by him in the violent collision.

e Court of Appeals deleted the award of exemplary damages which the trial court had granted in order "to serve as a deterrent tohers who, like the plaintiff [Kapalaran], may be minded to induce accident victims to perjure themselves in a sworn statement."e Court of Appeals held that htere was no basis for this award of exemplary damages, stating that it was not "such a reprehensiblet to try to gather witnesses for one's cause" and that there was no evidence of use of "presure or influence" to induce the accidentctims to perjure themselves While that might have been so, both the trial court and the Court of Appeals overlook another and far ore compelling basis for the award of exemplary damages against petitioner Kapalaran in this case. There is no question thattitioner's bus driver was grossly and very probably criminally negligent in his reckless disregard of the rights of other vehicles andeir pasangers and of pedestrian as well The Court is entitled to take judicial notice of the gross negligence and the appallingsregard of the physical safety and property of others so commonly exhibited today by the drivers of passanger bussses and similar hicles on our highways. The law requires petitioner as common carrier to exercise extraordinary diligence incarrying andnsporting their passanger safely " as far as human care and foresight can proved, using the utmost diligence of very cautiousrsons , with due regard for all circumstances." 10 In requiring the highest possible degree of diligence from common carriers andeating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers. 11 While themediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of cargo carried by ammon carrier, they are not only persons that the law seeks to benefit. For if common carriers carefully observed the statutoryndard of extraordinary diligence in respect of of their own passengers, they cannot help but simultaneously benefit pedestrians and

e owners and passengers of other vehicles who are equally entitled to the safe and convenient use of our roads andghways. 12 The law seeks to stop and prevent the slaughter and maiming of people (whether passengers or not) and the destructionproperty (whether freight or not) on our highways by buses, the very size and power of which seem often to inflame the minds of

eir drivers. Article 2231 of the Civil Code explicitly authorizes the imposition of exemplary damages in cases of quasi-delicts "if e defendant acted with gross negligence." Thus we believe that the award of exemplary damages by the trial court was quiteoper, although granted for the wrong reason, and should not only be restored but augmented in the present case. The Court is awareat respondent Shinyo did not file a separate petition for review to set aside that portion of the Court of Appeals'decision whichleted the grant by the trial court of exemplary damages. It is settled, however, that issues which must be resolved if substantial



tice is to be rendered to the parties, may and should be considered and decided by this Court even if those issues had not beenplicitly raised by the party affected. 13 In the instant case, it is not only the demands of substantial justice but also the compellingnsiderations of public policy noted above, which impel us to the conclusion that the trial court's award of exemplary damages wasoneously deleted and must be restored and brought more nearly to the level which public policy and substantial justice require.

much the same vein, we believe that the award by the trial court of P15,000.00 as attorney's fees and litigation expenses, deletedthe Court of Appeals, should similarly be restored, being both authorized by law 14 and demanded by substantial justice in the

stant case.

HEREFORE, the Petition for Review on certiorari is DENIED for lack of merit and the Decision of the Court of Appeals is herebyFFIRMED, except (1) that the award of exemplary damages to Dionisio Shinyo shall be restored and increased from P10,000.00 to5,000.00, and (2) that the grant of attorney's fees and litigation expenses in the sum of P15,000.00 to Dionisio Shinyo shall

milarly be restored. Costs against petitioner.

G.R. No. L-50076 September 14, 1990 NORBERTO QUISUMBING, SR., and GUNTHER LOEFFLER vs COURT OFPPEALS and PHILIPPINE AIR LINES, INC.

aving met with no success in the Court of First Instance of Rizal and in the Court of Appeals, the petitioners are now in this Courta third and final attempt to recover from the Philippine Airlines, Inc. (hereafter, simply PAL) the value of jewelry, other valuablesd money taken from them by four (4) armed robbers on board one of the latter's airplanes while on a flight from Mactan City toanila, as well as moral and exemplary damages, attorney's fees and expenses of litigation.

e petitioners accept the correctness of the basic facts adopted by the Court of Appeals from the judgment of the Court of Firststance, to wit: 1

1. . . . Norberto Quisumbing, Sr. and Gunther Leoffler were among the of ... (PAL's) Fokker 'Friendship' PIC-536 plane in its flight of November 6,1968 which left Mactan City at about 7:30 in the evening with Manila for itsdestination.

2. After the plane had taken off, Florencio O. Villarin, a Senior NBI Agent who was also a passenger of the said plane, noticed a certain 'Zaldy,' a suspect in the killing of Judge Valdez, seated at the front seat near the door leadingto the cockpit of the plane. A check by Villarin with the passenger's ticket in the possession of flight StewardessAnnie Bontigao, who was seated at the last seat right row, revealed that 'Zaldy' had used the name 'Cardente,' one of his aliases known to Villarin. Villarin also came to know from the stewardess that 'Zaldy' had three companions on

board the plane."

3. Villarin then scribbled a note addressed to the pilot of the plane requesting the latter to contact NBI duty agents inManila for the said agents to ask the Director of the NBI to send about six NBI agents to meet the plane because thesuspect in the killing of Judge Valdez was on board (Exh. 'G'). The said note was handed by Villarin to thestewardess who in tum gave the same to the pilot.

4. After receiving the note, which was about 15 minutes after take off, the pilot of the plane, Capt. Luis Bonnevie,Jr., came out of the cockpit and sat beside Villarin at the rear portion of the plane and explained that he could notsend the message because it would be heard by all ground aircraft stations. Villarin, however, told the pilot of thedanger of commission of violent acts on board the plane by the notorious 'Zaldy' and his three companions.

5. While the pilot and Villarin were talking, 'Zaldy' and one of his companions walked to the rear and stood behindthem. Capt. Bonnevie then stood up and went back to the cockpit. 'Zaldy' and his companions returned to their seats,

but after a few minutes they moved back to the rear throwing ugly looks at Villarin who, sensing danger, stood upand went back to his original seat across the aisle on the second to the last seat near the window. 'Zaldy and hiscompanion likewise went back to their respective seats in front.

6. Soon thereafter an exchange of gunshots ensued between Villarin and 'Zaldy' and the latter's companions. 'Zaldy'announced to the passengers and the pilots in the cockpit that it was a hold-up and ordered the pilot not to send anySOS. The hold-uppers divested passengers of their belongings.

7. Specifically, ... Norberto Quisumbing, Sr. was divested of jewelries and cash in the total amount of P18,650.00

out of which recoveries were made amounting to P4,550.00. . . Gunther Leoffler was divested of a wrist watch, cash



and a wallet in the total of P1,700.00. As a result of the incident ... Quisumbing, Sr.suffered shock, because a gunhad been pointed at him by one of the holduppers.

8. Upon landing at the Manila International Airport. 'Zaldy' and his three companions succeeded in escaping.

emands were thereafter made on PAL by Quisumbing and Loeffler "to indemnify ... (them) on their aforesaid loss, but ... (PAL)used ... (averring that) it is not liable to (them) in law or in fact." 2

ontending that the "aforesaid loss is a result of breach of ... (PAL's) contractual obligation to carry ... (them) and their belongingsd effects to their Manila destination without loss or damage, and constitutes a serious dereliction of ... (PAL's) legal duty toercise extraordinary diligence in the vigilance over the same." , Quisumbing and Loeffler brought suit against PAL in the Court of rst Instance of Rizal, as stated in this opinion's opening paragraph, to recover the value of the property lost by them to the robberswell as moral and exemplary damages, attorney's fees and expenses of litigation. 3 The plaintiffs declared that their suit was

stituted "... pursuant to Civil Code articles 1754, 998, 2000 and 2001 and on the ground that in relation to said Civil Code article01 the complained-of act of the armed robbers is not a force majeure , as the 'use of arms' or 'irresistible force' was not takenvantage of by said armed robbers in gaining entrance to defendant's ill-fated plane in questions. And, with respect to said Civil

ode article 1998, it is not essential that the lost effects and belongings of plaintiffs were actually delivered to defendant's planersonnel or that the latter were notified thereof (De los Santos v. Tamn Khey, [CA] 58 O.G. 7693)." 4

AL filed answer denying liability, alleging inter alia that the robbery during the flight and after the aircraft was forcibly landed ate Manila Airport did indeed constitute force majeure , and neither of the plaintiffs had notified PAL "or its crew or employees thatey were in possession of cash, German marks and valuable jewelries and watches" or surrendered said items to "the crew or rsonnel on board the aircraft." 5

ter trial, the Court of First Instance rendered judgment 'dismissing plaintiffs' complaint with costs against ... (them)." 6 The Coined that since the plaintiffs "did not notify defendant or its employees that they were in possession of the cash, jewelries, and the

allet they are now claiming," the very provision of law invoked by them, Article 1998 of the Civil Code, denies them any recourseainst PAL. The Court also pointed out that-

... while it is true that the use of gems was not taken advantage of by the robbers in gaining entrance to defendant'sill-fated plane, the armed robbery that took place constitutes force majeure for which defendant is not liable becausthe robbers were able to gain entrance to the plane with the guns they used already in their possession, which factcould not have been prevented nor avoided by the defendant since it was not authorized to search its passengers for firearms and deadly weapons as shown in Exhibits '6', '7', '8,' and '8-A.' As its robbery constitutes force majeuredefendant is not liable.

e plaintiffs appealed to the Court of Appeals. 7 The Court affirmed the trial court's judgment. 8 It rejected the argument that "thee of arms or ... irresistible force" referred to in Article 2001 constitutes force majeure only if resorted to gain entry into theplane, and not if it attends "the robbery itself." The Court ruled that under the facts, "the highjacking-robbery was force majeure,"serving that —

... hijackers do not board an airplane through a blatant display of firepower and violent fury. Firearms, hand-grenades, dynamite, and explosives are introduced into the airplane surreptitiously and with the utmost cunning andstealth, although there is an occasional use of innocent hostages who will be coldly murdered unless a plane is givento the hijackers' complete disposal. The objective of modern-day hijackers is to display the irresistible forceamounting to force majeure only when it is most effective and that is when the jetliner is winging its way atHimalayan altitudes and ill-advised heroics by either crew or passengers would send the multi-million peso airplaneand the priceless lives of all its occupants into certain death and destruction. ...

e Appellate Court also ruled that in light of the evidence PAL could not be faulted for want of diligence, particularly for failing "toke positive measures to implement Civil Aeronautics Administration regulations prohibiting civilians from carrying firearms onard aircrafts;" and that "the absence of coded transmissions, the amateurish behaviour of the pilot in dealing with the NBI agent,e allegedly open cockpit door, and the failure to return to Mactan, in the light of the circumstances of the case ..., were notgligent acts sufficient to overcome the force majeure nature of the armed robbery." In fact, the Court went on to says, 9

... it is illusive to assume that had these precautions been taken, the hijacking or the robbery would not havesucceeded. The mandatory use of the most sophisticated electronic detection devices and magnetometers, the

imposition of severe penalties, the development of screening procedures, the compilation of hijacker behavioural



profiles, the assignment of sky marshals, and the weight of outraged world opinion may have minimized hijackings but all these have proved ineffective against truly determined hijackers. World experience shows that if a group of armed hijackers want to take over a plane in flight, they can elude the latest combined government and airlineindustry measures. And as our own experience in Zamboanga City illustrates, the use of force to overcome hijackers,results in the death and injury of innocent passengers and crew members. We are not in the least bit suggesting thatthe Philippine Airlines should not do everything humanly possible to protect passengers from hijackers' acts. Wemerely state that where the defendant has faithfully complied with the requirements of government agencies andadhered to the established procedures and precautions of the airline industry at any particular time, its failure to takecertain steps that a passenger in hindsight believes should have been taken is not the negligence or misconduct whichmingles with force majeure as an active and cooperative cause.

Under the circumstance of the instant case, the acts of the airline and its crew cannot be faulted as negligence. Thehijackers had already shown their willingness to kill. One passenger was in fact killed and another survived gunshotwounds. The lives of the rest of the passengers and crew were more important than their properties. Cooperationwith the hijackers until they released their hostages at the runway end near the South Superhighway was dictated bythe circumstances.

sisting that the evidence demonstrates negligence on the part of the PAL crew "occurring before and exposing them to hijacking,"uisumbing and Loeffler have come up to this Court praying that the judgments of the trial Court and the Court of Appeals beversed and another rendered in their favor. Once again, the issue will be resolved against them.

careful analysis of the record in relation to the memoranda and other pleadings of the parties, convinces this Court of therrectness of the essential conclusion of both the trial and appellate courts that the evidence does indeed fail to prove any want of igence on the part of PAL, or that, more specifically, it had failed to comply with applicable regulations or universally acceptedd observed procedures to preclude hijacking; and that the particular acts singled out by the petitioners as supposedly demonstrativenegligence were, in the light of the circumstances of the case, not in truth negligent acts "sufficient to overcome the force majeureture of the armed robbery." The Court quite agrees, too, with the Appellate Tribunal's wry observation that PAL's "failure to takertain steps that a passenger in hindsight believes should have been taken is not the negligence or misconduct which mingles withrce majeure as an active and cooperative cause."

o success can therefore attend petitioners' appeal, not only because they wish to have a review and modification of factualnclusions of the Court of Appeals, which established and uniformly observed axiom proscribes, 10 but also because those factualnclusions have in this Court's view been correctly drawn from the proofs on record.

HEREFORE, the petition is DENIED and the appealed Decision of the Court of Appeals is AFFIRMED, with costs againsttitioners.

G.R. No. L-65510 March 9, 1987 TEJA MARKETING AND/OR ANGEL JAUCIAN, vs. IAC

Ex pacto illicito' non oritur actio" (No action arises out of illicit bargain) is the time-honored maxim that must be applied to therties in the case at bar. Having entered into an illegal contract, neither can seek relief from the courts, and each must bear thensequences of his acts." (Lita Enterprises vs. IAC, 129 SCRA 81.)

e factual background of this case is undisputed. The same is narrated by the respondent court in its now assailed decision, as

lows:

On May 9, 1975, the defendant bought from the plaintiff a motorcycle with complete accessories and a sidecar in thetotal consideration of P8,000.00 as shown by Invoice No. 144 (Exh. "A"). Out of the total purchase price thedefendant gave a downpayment of P1,700.00 with a promise that he would pay plaintiff the balance within sixtydays. The defendant, however, failed to comply with his promise and so upon his own request, the period of payingthe balance was extended to one year in monthly installments until January 1976 when he stopped paying anymore.The plaintiff made demands but just the same the defendant failed to comply with the same thus forcing the plaintiff to consult a lawyer and file this action for his damage in the amount of P546.21 for attorney's fees and P100.00 for expenses of litigation. The plaintiff also claims that as of February 20, 1978, the total account of the defendant wasalready P2,731.06 as shown in a statement of account (Exhibit. "B"). This amount includes not only the balance of P1,700.00 but an additional 12% interest per annum on the said balance from January 26, 1976 to February 27,

1978; a 2% service charge; and P 546.21 representing attorney's fees.



In this particular transaction a chattel mortgage (Exhibit 1) was constituted as a security for the payment of the balance of the purchase price. It has been the practice of financing firms that whenever there is a balance of the purchase price the registration papers of the motor vehicle subject of the sale are not given to the buyer. The recordsof the LTC show that the motorcycle sold to the defendant was first mortgaged to the Teja Marketing by AngelJaucian though the Teja Marketing and Angel Jaucian are one and the same, because it was made to appear that wayonly as the defendant had no franchise of his own and he attached the unit to the plaintiff's MCH Line. Theagreement also of the parties here was for the plaintiff to undertake the yearly registration of the motorcycle with theLand Transportation Commission. Pursuant to this agreement the defendant on February 22, 1976 gave the plaintiff P90.00, the P8.00 would be for the mortgage fee and the P82.00 for the registration fee of the motorcycle. The

plaintiff, however failed to register the motorcycle on that year on the ground that the defendant failed to comply

with some requirements such as the payment of the insurance premiums and the bringing of the motorcycle to theLTC for stenciling, the plaintiff saying that the defendant was hiding the motorcycle from him. Lastly, the plaintiff explained also that though the ownership of the motorcycle was already transferred to the defendant the vehicle wasstill mortgaged with the consent of the defendant to the Rural Bank of Camaligan for the reason that all motorcycle

purchased from the plaintiff on credit was rediscounted with the bank.

On his part the defendant did not dispute the sale and the outstanding balance of P1,700. 00 still payable to the plaintiff. The defendant was persuaded to buy from the plaintiff the motorcycle with the side car because of thecondition that the plaintiff would be the one to register every year the motorcycle with the Land TransportationCommission. In 1976, however, the plaintfff failed to register both the chattel mortgage and the motorcycle with theLTC notwithstanding the fact that the defendant gave him P90.00 for mortgage fee and registration fee and had themotorcycle insured with La Perla Compana de Seguros (Exhibit "6") as shown also by the Certificate of cover

(Exhibit "3"). Because of this failure of the plaintiff to comply with his obligation to register the motorcycle thedefendant suffered damages when he failed to claim any insurance indemnity which would amount to no less thanP15,000.00 for the more than two times that the motorcycle figured in accidents aside from the loss of the dailyincome of P15.00 as boundary fee beginning October 1976 when the motorcycle was impounded by the LTC for not

being registered.

The defendant disputed the claim of the plaintiff that he was hiding from the plaintiff the motorcycle resulting in itsnot being registered. The truth being that the motorcycle was being used for transporting passengers and it kept ontravelling from one place to another. The motor vehicle sold to him was mortgaged by the plaintiff with the RuralBank of Camaligan without his consent and knowledge and the defendant was not even given a copy of themortgage deed. The defendant claims that it is not true that the motorcycle was mortgaged because of re-discountingfor rediscounting is only true with Rural Banks and the Central Bank. The defendant puts the blame on the plaintiff

for not registering the motorcycle with the LTC and for not giving him the registration papers inspite of demandsmade. Finally, the evidence of the defendant shows that because of the filing of this case he was forced to retain theservices of a lawyer for a fee on not less than P1,000.00.

xxx xxx xxx

... it also appears and the Court so finds that defendant purchased the motorcycle in question, particularly for the purpose of engaging and using the same in the transportation business and for this purpose said trimobile unit waattached to the plaintiffs transportation line who had the franchise, so much so that in the registration certificate,the plaintiff appears to be the owner of the unit. Furthermore, it appears to have been agreed, further between the

plaintiff and the defendant, that plaintiff would undertake the yearly registration of the unit in question with theLTC. Thus, for the registration of the unit for the year 1976, per agreement, the defendant gave to the plaintiff theamount of P82.00 for its registration, as well as the insurance coverage of the unit.

entually, petitioner Teja Marketing and/or Angel Jaucian filed an action for "Sum of Money with Damages" against privatespondent Pedro N. Nale in the City Court of Naga City. The City Court rendered judgment in favor of petitioner, the dispositivertion of which reads:

WHEREFORE, decision is hereby rendered dismissing the counterclaim and ordering the defendant to pay plaintiff the sum of P1,700.00 representing the unpaid balance of the purchase price with legal rate of interest from the dateof the filing of the complaint until the same is fully paid; to pay plaintiff the sum of P546.21 as attorney's fees; to

pay plaintiff the sum of P200.00 as expenses of litigation; and to pay the costs.

SO ORDERED.



n appeal to the Court of First Instance of Camarines Sur, the decision was affirmed in toto. Private respondent filed a petition for view with the Intermediate Appellate Court and on July 18, 1983 the said Court promulgated its decision, the pertinent portion of hich reads —

However, as the purchase of the motorcycle for operation as a trimobile under the franchise of the private respondentJaucian, pursuant to what is commonly known as the "kabit system", without the prior approval of the Board of Transportation (formerly the Public Service Commission) was an illegal transaction involving the fictitiousregistration of the motor vehicle in the name of the private respondent so that he may traffic with the privileges of his franchise, or certificate of public convenience, to operate a tricycle service, the parties being in paridelicto, neither of them may bring an action against the other to enforce their illegal contract [Art. 1412 (a), Civil

Code].

xxx xxx xxx

WHEREFORE, the decision under review is hereby set aside. The complaint of respondent Teja Marketing and/or Angel Jaucian, as well as the counterclaim of petitioner Pedro Nale in Civil Case No. 1153 of the Court of FirstInstance of Camarines Sur (formerly Civil Case No. 5856 of the City Court of Naga City) are dismissed. No

pronouncement as to costs.

SO ORDERED.

e decision is now before Us on a petition for review, petitioner Teja Marketing and/or Angel Jaucian presenting a lone assignmenterror — whether or not respondent court erred in applying the doctrine of "pari delicto."

e find the petition devoid of merit.

nquestionably, the parties herein operated under an arrangement, commonly known as the "kabit system" whereby a person whos been granted a certificate of public convenience allows another person who owns motor vehicles to operate under such franchiser a fee. A certificate of public convenience is a special privilege conferred by the government. Abuse of this privilege by theantees thereof cannot be countenanced. The "kabit system" has been Identified as one of the root causes of the prevalence of graftd corruption in the government transportation offices.

though not outrightly penalized as a criminal offense, the kabit system is invariably recognized as being contrary to public policy

d, therefore, void and in existent under Article 1409 of the Civil Code. It is a fundamental principle that the court will not aidher party to enforce an illegal contract, but will leave both where it finds then. Upon this premise it would be error to accord therties relief from their predicament. Article 1412 of the Civil Code denies them such aid. It provides:

Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, thefollowing rules shall be observed:

1. When the fault is on the part of both contracting parties, neither may recover that he has given by virtue of thecontract, or demand, the performance of the other's undertaking.

e defect of in existence of a contract is permanent and cannot be cured by ratification or by prescription. The mere lapse of timennot give efficacy to contracts that are null and void.

HEREFORE, the petition is hereby dismissed for lack of merit. The assailed decision of the Intermediate Appellate Court (now theourt of Appeals) is AFFIRMED. No costs.

. G.R. No. L-20761 July 27, 1966 LA MALLORCA, vs. CA , MARIANO BELTRAN, ET AL.,

Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R. No. 23267-R, holding it liable for quasi-delict anddering it to pay to respondents Mariano Beltran, et al., P6,000.00 for the death of his minor daughter Raquel Beltran, plus P400.00actual damages.

e facts of the case as found by the Court of Appeals, briefly are:



On December 20, 1953, at about noontime, plaintiffs, husband and wife, together with their minor daughters, namely,Milagros, 13 years old, Raquel, about 4½ years old, and Fe, over 2 years old, boarded the Pambusco Bus No. 352, bearing

plate TPU No. 757 (1953 Pampanga), owned and operated by the defendant, at San Fernando, Pampanga, bound for Anao,Mexico, Pampanga. At the time, they were carrying with them four pieces of baggages containing their personal belonging.The conductor of the bus, who happened to be a half-brother of plaintiff Mariano Beltran, issued three tickets (Exhs. A, B, &C) covering the full fares of the plaintiff and their eldest child, Milagros. No fare was charged on Raquel and Fe, since bothwere below the height at which fare is charged in accordance with the appellant's rules and regulations.

After about an hour's trip, the bus reached Anao whereat it stopped to allow the passengers bound therefor, among whomwere the plaintiffs and their children to get off. With respect to the group of the plaintiffs, Mariano Beltran, then carrying

some of their baggages, was the first to get down the bus, followed by his wife and his children. Mariano led his companionsto a shaded spot on the left pedestrians side of the road about four or five meters away from the vehicle. Afterwards, hereturned to the bus in controversy to get his other bayong , which he had left behind, but in so doing, his daughter Raquelfollowed him, unnoticed by her father. While said Mariano Beltran was on the running board of the bus waiting for theconductor to hand him his bayong which he left under one of its seats near the door, the bus, whose motor was not shut off while unloading, suddenly started moving forward, evidently to resume its trip, notwithstanding the fact that the conductor has not given the driver the customary signal to start, since said conductor was still attending to the baggage left behind byMariano Beltran. Incidentally, when the bus was again placed into a complete stop, it had travelled about ten meters from the

point where the plaintiffs had gotten off.

Sensing that the bus was again in motion, Mariano Beltran immediately jumped from the running board without gettinghis bayong from the conductor. He landed on the side of the road almost in front of the shaded place where he left his wife

and children. At that precise time, he saw people beginning to gather around the body of a child lying prostrate on theground, her skull crushed, and without life. The child was none other than his daughter Raquel, who was run over by the busin which she rode earlier together with her parents.

For the death of their said child, the plaintiffs commenced the present suit against the defendant seeking to recover from thelatter an aggregate amount of P16,000 to cover moral damages and actual damages sustained as a result thereof andattorney's fees. After trial on the merits, the court below rendered the judgment in question.

n the basis of these facts, the trial court found defendant liable for breach of contract of carriage and sentenced it to pay P3,000.00r the death of the child and P400.00 as compensatory damages representing burial expenses and costs.

n appeal to the Court of Appeals, La Mallorca claimed that there could not be a breach of contract in the case, for the reason thathen the child met her death, she was no longer a passenger of the bus involved in the incident and, therefore, the contract of rriage had already terminated. Although the Court of Appeals sustained this theory, it nevertheless found the defendant-appellantilty of quasi-delict and held the latter liable for damages, for the negligence of its driver, in accordance with Article 2180 of thevil Code. And, the Court of Appeals did not only find the petitioner liable, but increased the damages awarded the plaintiffs-pellees to P6,000.00, instead of P3,000.00 granted by the trial court.

its brief before us, La Mallorca contends that the Court of Appeals erred (1) in holding it liable for quasi-delict , considering thspondents complaint was one for breach of contract, and (2) in raising the award of damages from P3,000.00 to P6,000.00 althoughspondents did not appeal from the decision of the lower court.

nder the facts as found by the Court of Appeals, we have to sustain the judgement holding petitioner liable for damages for theath of the child, Raquel Beltran. It may be pointed out that although it is true that respondent Mariano Beltran, his wife, and their ildren (including the deceased child) had alighted from the bus at a place designated for disembarking or unloading of passengers,was also established that the father had to return to the vehicle (which was still at a stop) to get one of his bags or bayong that t under one of the seats of the bus. There can be no controversy that as far as the father is concerned, when he returned to the busr his bayong which was not unloaded, the relation of passenger and carrier between him and the petitioner remained subsisting. For,e relation of carrier and passenger does not necessarily cease where the latter, after alighting from the car, aids the carrier's servantemployee in removing his baggage from the car. 1 The issue to be determined here is whether as to the child, who was already ledthe father to a place about 5 meters away from the bus, the liability of the carrier for her safety under the contract of carriage also

rsisted.

has been recognized as a rule that the relation of carrier and passenger does not cease at the moment the passenger alights from therrier's vehicle at a place selected by the carrier at the point of destination, but continues until the passenger has had a reasonable

me or a reasonable opportunity to leave the carrier's premises. And, what is a reasonable time or a reasonable delay within this rule



to be determined from all the circumstances. Thus, a person who, after alighting from a train, walks along the station platform isnsidered still a passenger. 2 So also, where a passenger has alighted at his destination and is proceeding by the usual way to leavee company's premises, but before actually doing so is halted by the report that his brother, a fellow passenger, has been shot, and hegood faith and without intent of engaging in the difficulty, returns to relieve his brother, he is deemed reasonably and necessarilylayed and thus continues to be a passenger entitled as such to the protection of the railroad and company and its agents. 3

the present case, the father returned to the bus to get one of his baggages which was not unloaded when they alighted from thes. Raquel, the child that she was, must have followed the father. However, although the father was still on the running board of thes awaiting for the conductor to hand him the bag or bayong , the bus started to run, so that even he (the father) had to jump down

om the moving vehicle. It was at this instance that the child, who must be near the bus, was run over and killed. In the

cumstances, it cannot be claimed that the carrier's agent had exercised the "utmost diligence" of a "very cautions person" requiredArticle 1755 of the Civil Code to be observed by a common carrier in the discharge of its obligation to transport safely its

ssengers. In the first place, the driver, although stopping the bus, nevertheless did not put off the engine. Secondly, he started ton the bus even before the bus conductor gave him the signal to go and while the latter was still unloading part of the baggages of e passengers Mariano Beltran and family. The presence of said passengers near the bus was not unreasonable and they are,erefore, to be considered still as passengers of the carrier, entitled to the protection under their contract of carriage.

ut even assuming arguendo that the contract of carriage has already terminated, herein petitioner can be held liable for thegligence of its driver, as ruled by the Court of Appeals, pursuant to Article 2180 of the Civil Code. Paragraph 7 of the complaint,hich reads —

That aside from the aforesaid breach of contract, the death of Raquel Beltran, plaintiffs' daughter, was caused by thenegligence and want of exercise of the utmost diligence of a very cautious person on the part of the defendants and their agent, necessary to transport plaintiffs and their daughter safely as far as human care and foresight can provide in theoperation of their vehicle.

clearly an allegation for quasi-delict . The inclusion of this averment for quasi-delict , while incompatible with the other claimder the contract of carriage, is permissible under Section 2 of Rule 8 of the New Rules of Court, which allows a plaintiff to allegeuses of action in the alternative, be they compatible with each other or not, to the end that the real matter in controversy may besolved and determined. 4

e plaintiffs sufficiently pleaded the culpa or negligence upon which the claim was predicated when it was alleged in the complaintat "the death of Raquel Beltran, plaintiffs' daughter, was caused by the negligence and want of exercise of the utmost diligence of ary cautious person on the part of the defendants and their agent." This allegation was also proved when it was established duringe trial that the driver, even before receiving the proper signal from the conductor, and while there were still persons on the runningard of the bus and near it, started to run off the vehicle. The presentation of proof of the negligence of its employee gave rise to theesumption that the defendant employer did not exercise the diligence of a good father of the family in the selection and supervisionits employees. And this presumption, as the Court of Appeals found, petitioner had failed to overcome. Consequently, petitioner

ust be adjudged peculiarily liable for the death of the child Raquel Beltran.

e increase of the award of damages from P3,000.00 to P6,000.00 by the Court of Appeals, however, cannot be sustained.enerally, the appellate court can only pass upon and consider questions or issues raised and argued in appellant's brief. Plaintiffsd not appeal from that portion of the judgment of the trial court awarding them on P3,000.00 damages for the death of their ughter. Neither does it appear that, as appellees in the Court of Appeals, plaintiffs have pointed out in their brief the inadequacy of e award, or that the inclusion of the figure P3,000.00 was merely a clerical error, in order that the matter may be treated as anception to the general rule. 5Herein petitioner's contention, therefore, that the Court of Appeals committed error in raising the

mount of the award for damages is, evidently, meritorious. 1äwphï1.ñët

herefore, the decision of the Court of Appeals is hereby modified by sentencing, the petitioner to pay to the respondents Marianoltran, et al., the sum of P3,000.00 for the death of the child, Raquel Beltran, and the amount of P400.00 as actual damages. Nosts in this instance. So ordered.

. G.R. No. 98275 November 13, 1992 BA FINANCE CORPORATION vs. CA, RTC OF ANGELES CITY, BRANCH LVI,ARLOS OCAMPO, INOCENCIO TURLA, SPOUSES MOISES AGAPITO and SOCORRO M. AGAPITO and NICOLASRUZ,



e question of petitioner's responsibility for damages when on March 6, 1983, an accident occurred involving petitioner's Isuzu ten-heeler truck then driven by an employee of Lino Castro is the thrust of the petition for review on certiorari now before Usnsidering that neither the driver nor Lino Castro appears to be connected with petitioner.

n October 13, 1988, the disputed decision in the suit below was rendered by the court of origin in this manner:

1. Ordering Rock B.A. and Rogelio Villar y Amare jointly and severally to pay the plaintiffs as follows:

a) To the plaintiff Carlos Ocampo — P121,650.00; b) To the plaintiff Moises Ocampo — P298,500.00 c) To the plaintiff Nicolas Cruz — P154,740.00 d) To the plaintiff Inocencio Turla, Sr.

— 48,000.00

2. Dismissing the case against Lino Castro

3. Dismissing the third-party complaint against STRONGHOLD

4. Dismissing all the counterclaim of the defendants and third-party defendants.

5. Ordering ROCK to reimburse B.A. the total amount of P622,890.00 which the latter is adjudged to pay to the plaintiffs. (p. 46, Rollo )

spondent Court of Appeals affirmed the appealed disposition in toto through Justice Rasul, with Justices De Pano, Jr. and Imperialncurring, on practically the same grounds arrived at by the court a quo (p. 28, Rollo ). Efforts exerted towards re-evaluation of theverse were futile (p. 37, Rollo ). Hence, the instant petition.

e lower court ascertained after due trial that Rogelio Villar y Amare, the driver of the Isuzu truck, was at fault when the mishapcurred in as much as he was found guilty beyond reasonable doubt of reckless imprudence resulting in triple homicide withultiple physical injuries with damage to property in a decision rendered on February 16, 1984 by the Presiding Judge of Branch 6the Regional Trial Court stationed at Malolos, Bulacan. Petitioner was adjudged liable for damages in as much as the truck was

gistered in its name during the incident in question, following the doctrine laid down by this Court in Perez vs. Gutierrez (53CRA 149 [1973]) and Erezo, et al. vs. Jepte (102 Phil. 103 [1957]). In the same breadth, Rock Component Philippines, Inc. wasdered to reimburse petitioner for any amount that the latter may be adjudged liable to pay herein private respondents as expresslypulated in the contract of lease between petitioner and Rock Component Philippines, Inc. Moreover, the trial court applied Article

94 of the new Civil Code on solidary accountability of join tortfeasors insofar as the liability of the driver, herein petitioner andock Component Philippines was concerned (pp. 6-7, Decision; pp. 44-45, Rollo ).

the question of whether petitioner can be held responsible to the victim albeit the truck was leased to Rock Componentilippines when the incident occurred, the appellate court answered in the affirmative on the basis of the jurisprudential dogmas

hich, as aforesaid, were relied upon by the trial court although respondent court was quick to add the caveat embodied in the leavenant between petitioner and Rock Component Philippines relative to the latter's duty to reimburse any amount which may bejudged against petitioner (pp. 32-33, Rollo ).

titioner asseverates that it should not have been haled to court and ordered to respond for the damage in the manner arrived at byth the trial and appellate courts since paragraph 5 of the complaint lodged by the plaintiffs below would indicate that petitioner as not the employer of the negligent driver who was under the control an supervision of Lino Castro at the time of the accident,

art from the fact that the Isuzu truck was in the physical possession of Rock Component Philippines by virtue of the leasereement.

ide from casting clouds of doubt on the propriety of invoking the Perez and Erezo doctrines, petitioner continue to persist with thea that the pronouncements of this Court in Duavit vs. Court of Appeals (173 SCRA 490 [1989]) and Duquillo vs. Bayot (67 P1 [1939]) dovetail with the factual and legal scenario of the case at hand. Furthermore, petitioner assumes, given the so-lled hiatus on the basis for the award of damages as decreed by the lower and appellate courts, that Article 2180 of the new Civilode on vicarious liability will divest petitioner of any responsibility absent as there is any employer-employee relationship betweentitioner and the driver.

ontrary to petitioner's expectations, the recourse instituted from the rebuffs it encountered may not constitute a sufficientundation for reversal of the impugned judgment of respondent court. Petitioner is of the impression that the Perez and Erezo c



e inapplicable due to the variance of the generative facts in said cases as against those obtaining in the controversy at bar.contrario , the lesson imparted by Justice Labrador in Erezo is still good law, thus:

. . . In previous decisions, We already have held that the registered owner of a certificate of public convenience isliable to the public for the injuries or damages suffered by passengers or third persons caused by the operation of said vehicle, even though the same had been transferred to a third person. (Montoya vs. Ignacio, 94 Phil., 182 50Off. Gaz., 108; Roque vs. Malibay Transit, Inc., G.R. No. L-8561, November 18, 1955; Vda. de Medina vs.Cresencia, 99 Phil., 506, 52 Off. Gaz., [10], 4606.) The principle upon which this doctrine is based is that in dealingwith vehicles registered under the Public Service Law, the public has the right to assume or presumed that theregistered owner is the actual owner thereof, for it would be difficult with the public to enforce the actions that they

may have for injuries caused to them by the vehicles being negligently operated if the public should be required to prove who actual the owner is. How would the public or third persons know against whom to enforce their rights incase of subsequent transfer of the vehicles? We do not imply by this doctrine, however, that the registered owner may not recover whatever amount he had paid by virtue of his liability to third persons from the person to whom hehad actually sold, assigned or conveyed the vehicle.

Under the same principle the registered owner of any vehicle, even if not used for a public service, should primarilyresponsible to the public or to the third persons for injuries caused the latter while the vehicle is being driven on thehighways or streets. The members of the Court are in agreement that the defendant-appellant should be held liableto plaintiff-appellee for the injuries occasioned to the latter because of the negligence of the driver, even if thedefendant-appellant was no longer an owner of the vehicle at the time of the damage because he had previously sold it to another . What is the legal basis for his (defendants-appellant's) liability?

There is a presumption that the owner of the guilty vehicle is the defendant-appellant as he is the registered owner inthe Motor Vehicle Office. Should he not be allowed to prove the truth, that he had sold it to another and thus shiftthe responsibility for the injury to the real and the actual owner? The defendants hold the affirmative of this

proposition; the trial court hold the negative.

The Revised Motor Vehicle Law (Act No. 3992, as amended) provides that the vehicle may be used or operatedupon any public highway unless the same is properly registered. It has been stated that the system of licensing andthe requirement that each machine must carry a registration number, conspicuously displayed, is one of the

precautions taken to reduce the danger of injury of pedestrians and other travelers from the careless management of automobiles, and to furnish a means of ascertaining the identity of persons violating the laws and ordinances,regulating the speed and operation of machines upon the highways (2 R. C. L. 1176). Not only are vehicles to beregistered and that no motor vehicles are to be used or operated without being properly registered from the currentyear, furnish the Motor Vehicle Office a report showing the name and address of each purchaser of motor vehicleduring the previous month and the manufacturer's serial number and motor number. (Section 5[c], Act No. 3992, asamended.)

Registration is required not to make said registration the operative act by which ownership in vehicles is transferred,as in land registration cases, because the administrative proceeding of registration does not bear any essentialrelation to the contract of sale between the parties (Chinchilla vs. Rafael and Verdaguer, 39 Phil. 888), but to permitthe use and operation of the vehicle upon any public highway (section 5[a], Act No. 3992, as amended). the mainaim of motor vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can be fixed on a definite individual,the registered owner. Instances are numerous where vehicles running on public highways caused accidents or injuries to pedestrians or other vehicles without positive identification of the owner or drivers, or with very scantmeans of identification. It is to forestall these circumstances, so inconvenient or prejudicial to the public, that themotor vehicle registration is primarily obtained, in the interest of the determinations of persons responsible for damages or injuries caused on public highways.

One of the principle purposes of motor vehicles legislation is identification of the vehicle and of theoperator, in case of accident; and another is that the knowledge that means of detection are alwaysavailable my act as a deterrent from lax observance of the law and of the rules of conservative andsafe operation. Whatever purpose there may be in these statutes, it is subordinate at the last to the

primary purpose of rendering it certain that the violator of the law or of the rules of safety shall notescape because of lack of means to discover him. The purpose of the statute is thwarted, and thedisplayed number becomes a "share and delusion," if courts would entertain such defenses as that

put forward by appellee in this case. No responsible person or corporation could be held liable for



the most outrageous acts of negligence, if they should be allowed to pace a "middleman" betweenthem and the public, and escape liability by the manner in which they recompense their servants.(King vs. Breham Automobile Co., Inc. 145 S. W. 278, 279.)

With the above policy in mind, the question that defendant-appellant poses is: should not the registered owner beallowed at the trial to prove who the actual and real owner is, and in accordance with such proof escape or evaderesponsibility and lay the same on the person actually owning the vehicle? We hold with the trial court that the lawdoes not allow him to do so; the law, with its aim and policy in mind, does not relieve him directly of theresponsibility that the law fixes and places upon him as an incident or consequence of registration. Were a registeredowner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him,

by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially for the damage or injury done. A victim of recklessness on the public highways is usually without means to discover or Identify the person actually causing theinjury or damage. He has no means other then by a recourse to the registration in the Motor Vehicles Office todetermine who is the owner. The protection that the law aims to extend to him would become illusory were theregistered owner given the opportunity to escape liability by disproving his ownership. If the policy of the law is to

be enforced and carried out, the registered owner should not be allowed to prove the contrary to the prejudice of the person injured, that is, to prove that a third person or another has become the owner, so that he may thereby berelieved of the responsibility to the injured person.

The above policy and application of the law may appear quite harsh and would seem to conflict with truth and justice. We do not think it is so. A registered owner who has already sold or transferred a vehicle has the recourse to

a third-party complaint, in the same action brought against him to recover for the damage or injury done, against thevendee or transferee of the vehicle. The inconvenience of the suit is no justification for relieving him of liability;said inconvenience is the price he pays for failure to comply with the registration that the law demands and requires.

In synthesis, we hold that the registered owner, the defendant-appellant herein, is primarily responsible for thedamage caused to the vehicle of the plaintiff-appellee, but he (defendant-appellant) has a right to be indemnified bythe real or actual owner of the amount that he may be required to pay as damage for the injury caused to the

plaintiff-appellant.

the foregoing words of wisdom were applied in solving the circumstance whereof the vehicle had been alienated or sold to another,ere certainly can be no serious exception against utilizing the same rationale to the antecedents of this case where the subjecthicle was merely leased by petitioner to Rock Component Philippines, Inc., with petitioner retaining ownership over the vehicle.

titioner's reliance on the ruling of this Court in Duavit vs. Court of Appeals and in Duquillo vs. Bayot ( supra ) is legally unpalatr the purpose of the present discourse. The vehicles adverted to in the two cases shared a common thread, so to speak, in that thep and the truck were driven in reckless fashion without the consent or knowledge of the respective owners. Cognizant of the

culpatory testimony spewed by defendant Sabiniano when he admitted that he took the jeep from the garage of defendant Dauvitthout the consent or authority of the latter, Justice Gutierrez, Jr. in Duavit remarked;

. . . Herein petitioner does not deny ownership of the vehicle involved in the mishap but completely denies havingemployed the driver Sabiniano or even having authorized the latter to drive his jeep. The jeep was virtually stolenfrom the petitioner's garage. To hold, therefore, the petitioner liable for the accident caused by the negligence of Sabiniano who was neither his driver nor employee would be absurd as it would be like holding liable the owner of astolen vehicle for an accident caused by the person who stole such vehicle. In this regard, we cannot ignore the manycases of vehicles forcibly taken from their owners at gunpoint or stolen from garages and parking areas and theinstances of service station attendants or mechanics of auto repair shops using, without the owner's consent, vehiclesentrusted to them for servicing or repair.(at p. 496.)

the Duquillo case, the defendant therein cannot, according to Justice Diaz, be held liable for anything because of circumstanceshich indicated that the truck was driven without the consent or knowledge of the owner thereof.

onsequently, there is no need for Us to discuss the matter of imputed negligence because petitioner merely presumed, erroneously,wever, that judgment was rendered against it on the basis of such doctrine embodied under Article 2180 of the new Civil Code.

HEREFORE, the petition is hereby DISMISSED and decision under review AFFIRMED without special pronouncement as tosts.



. G.R. No. 104408 June 21, 1993 METRO MANILA TRANSIT CORPORATION vs. CA AND NENITA CUSTODIA

is appeal calls for a review of the legal validity and sufficiency of petitioner's invocation of due diligence in the selection andpervision of employees as its defense against liability resulting from a vehicular collision. With the facility by which such afense can be contrived and our country having reputedly the highest traffic accident rate in its geographical region, it is indeedgh time for us to once again address this matter which poses not only a litigation issue for the courts but affects the very safety of r streets.

e facts of the case at bar are recounted for us by respondent court, thus —

At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita Custodio boarded as a paying passenger a public utility jeepney with plate No. D7 305 PUJ Pilipinas 1979, then driven by defendant AgudoCalebag and owned by his co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated located inBicutan, Taguig, Metro Manila, where she then worked as a machine operator earning P16.25 a day. While the

passenger jeepney was travelling at (a) fast clip along DBP Avenue, Bicutan, Taguig, Metro Manila another fastmoving vehicle, a Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB (Philippines)"79 driven by defendant Godofredo C. Leonardo was negotiating Honeydew Road, Bicutan, Taguig, Metro Manila

bound for its terminal at Bicutan. As both vehicles approached the intersection of DBP Avenue and Honeydew Roadthey failed to slow down and slacken their speed; neither did they blow their horns to warn approaching vehicles. Asa consequence, a collision between them occurred, the passenger jeepney ramming the left side portion of theMMTC bus. The collision impact caused plaintiff-appellant Nenita Custodio to hit the front windshield of the

passenger jeepney and (she) was thrown out therefrom, falling onto the pavement unconscious with serious physicalinjuries. She was brought to the Medical City Hospital where she regained consciousness only after one (1) week.Thereat, she was confined for twenty-four (24) days, and as a consequence, she was unable to work for three and onehalf months (31/2). 1

complaint for damages 2 was filed by herein private respondent, who being then a minor was assisted by her parents, against all of erein named defendants following their refusal to pay the expenses incurred by the former as a result of the collision.

id defendants denied all the material allegations in the complaint and pointed an accusing finger at each other as being the party atult. Further, herein petitioner Metro Manila Transit Corporation (MMTC), a government-owned corporation and one of thefendants in the court a quo , along with its driver, Godofredo Leonardo, contrarily averred in its answer with cross-claim andunterclaim 3 that the MMTC bus was driven in a prudent and careful manner by driver Leonardo and that it was the passenger pney which was driven recklessly considering that it hit the left middle portion of the MMTC bus, and that it was defendantmayo, the owner of the jeepney and employer of driver Calebag, who failed to exercise due diligence in the selection andpervision of employees and should thus be held solidarily liable for damages caused to the MMTC bus through the fault andgligence of its employees.

efendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and counterclaim 4 that the damages suffered byerein plaintiff should be borne by defendants MMTC and its driver, Godofredo Leonardo, because the latter's negligence was thele and proximate cause of the accident and that MMTC failed to exercise due diligence in the selection and supervision of its

mployees.

y order of the trial court, defendant Calebag was declared in default for failure to file an answer. 5 Thereafter, as no amicabletlement was reached during the pre-trial conference, 6 trial on the merits ensued with the opposing parties presenting their

spective witnesses and documentary evidence.

erein private respondent Nenita Custodia, along with her parents, were presented as witnesses for the prosecution. In addition, Dr.gardo del Mundo, the attending physician, testified on the cause, nature and extent of the injuries she sustained as a result of thehicular mishap. 7 On the other hand, defendant MMTC presented as witnesses Godofredo Leonardo, Christian Bautista andilagros Garbo. Defendant Lamayo, however, failed to present any witness.

ilagros Garbo testified that, as a training officer of MMTC, she was in charge of the selection of the company's bus drivers,nducting for this purpose a series of training programs and examinations. According to her, new applicants for job openings atMTC are preliminarily required to submit certain documents such as National Bureau of Investigation (NBI) clearance, birth or sidence certificate, ID pictures, certificate or diploma of highest educational attainment, professional driver's license, and work perience certification. Re-entry applicants, aside from the foregoing requirements, are additionally supposed to submit companyearance for shortages and damages and revenue performance for the preceding year. Upon satisfactory compliance with said



quisites, applicants are recommended for and subjected to a Preliminary interview, followed by a record check to find out whether ey are included in the list of undesirable employees given by other companies.

ereafter, she continued, if an applicant is found to be acceptable, a final interview by the Chief Supervisor is scheduled andlowed by a training program which consists of seminars and actual driving and Psycho-physical tests and X-ray examinations. The

minars, which last for a total of eighteen (18) days, include familiarization with assigned routes, existing traffic rules andgulations, Constabulary Highway Patrol Group (CHPG) seminar on defensive driving, preventive maintenance, proper vehiclendling, interpersonal relationship ,and administrative rules on discipline and on-the-job training. Upon completion of all theminars and tests, a final clearance is issued, an employment contract is executed and the driver is ready to report for duty. 8

MTC's Transport Supervisor, Christian Bautista, testified that it was his duty to monitor the daily operation of buses in the field, tountercheck the dispatcher on duty prior to the operation of the buses in the morning and to see to it that the bus crew follow writtenidelines of the company, which include seeing to it that its employees are in proper uniform, briefed in traffic rules and regulationsfore the start of duty, fit to drive and, in general, follow other rules and regulations of the Bureau of Land Transportation as well asthe company. 9

e reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of the colliding vehicles concurrently negligentr non-observance of appropriate traffic rules and regulations and for failure to take the usual precautions when approaching anersection. As joint tortfeasors, both drivers, as well as defendant Lamayo, were held solidarily liable for damages sustained by

aintiff Custodio. Defendant MMTC, on the bases of the evidence presented was, however, absolved from liability for the accidentthe ground that it was not only careful and diligent in choosing and screening applicants for job openings but was also strict andigent in supervising its employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules and

gulations before the start of duty, and that it checked its employees to determine whether or not they were positive for alcohol andlowed other rules and regulations and guidelines of the Bureau of Land Transportation and of the company.

e trial court accordingly ruled:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing the complaint against theMetro Manila Transit Corporation and ordering defendants Agudo P. Calebag, Victorino Lamayo and Godofredo C.Leonardo to pay plaintiffs, jointly and severally, the following:

a) the sum of P10,000.00 by way of medical expenses; b) the sum of P5,000.00 by way of expenses of litigation; c)the sum of P15,000.00 by way of moral damages; d) the sum of P2,672.00 by way of loss of earnings; e) the sum of P5,000.00 by way of exemplary damages; f) the sum of P6,000.00 by way of attorney's fees; and g) costs of suit. SOORDERED. 11

aintiff's motion to have that portion of the trial court's decision absolving MMTC from liability reconsidered 12having been denr lack of merit, 13 an appeal was filed by her with respondent appellate court. After consideration of the appropriate pleadings onpeal and finding the appeal meritorious, the Court of Appeals modified the trial court's decision by holding MMTC solidarilyble with the other defendants for the damages awarded by the trial court because of their concurrent negligence, concluding that

hile there is no hard and fast rule as to what constitutes sufficient evidence to prove that an employer has exercised the dueigence required of it in the selection and supervision of its employees, based on the quantum of evidence adduced the saidpellate court was not disposed to say that MMTC had exercised the diligence required of a good father of a family in the selectiond supervision of its driver, Godofredo Leonardo. 14

e Court of Appeals was resolute in its conclusion and denied the motions for reconsideration of appellee Custodio and appellantMTC in a resolution dated February 17, 1982, 15 thus prompting MMTC to file the instant petition invoking the review powers of s Court over the decision of the Court of Appeals, raising as issues for resolution whether or not (1) the documentary evidence topport the positive testimonies of witnesses Garbo and Bautista are still necessary; (2) the testimonies of witnesses Garbo andutista may still be disturbed on appeal; and (3) the evidence presented during the trial with respect to the proof of due diligence of titioner MMTC in the selection and supervision of its employees, particularly driver Leonardo, is sufficient.

efatorily, private respondent questions the timeliness of the filing of the petition at bar in view of the procedural stricture that themely perfection of an appeal is both a mandatory and jurisdictional requirement. This is a legitimate concern on the part of privatespondent and presents an opportune occasion to once again clarify this point as there appears to be some confusion in theplication of the rules and interpretative rulings regarding the computation of reglementary periods at this stage of the proceedings.



e records of this case reveal that the decision of respondent Court of Appeals, dated October 31, 1991, was received by MMTC onovember 18, 1991 16 and it seasonably filed a motion for the reconsideration thereof on November 28, 1991. 17 Said motion for consideration was denied by respondent court in its resolution dated February 17, 1992, which in turn was received by MMTC onarch 9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen (15) days therefrom or up to March, 1992 within which to file its petition, for review on certiorari . Anticipating, however, that it may not be able to file said petitionfore the lapse of the reglementary period therefor, MMTC filed a motion on March 19, 1992 for an extension of thirty (30) days toe the present petition, with proof of service of copies thereof to respondent court and the adverse parties. The Court granted saidotion, with the extended period to be counted from the expiration of the reglementary period. 19 Consequently, private respondentd thirty (30) days from March 24, 1992 within which to file its petition, or up to April 23, 1992, and the eventual filing of saidtition on April 14, 1992 was well within the period granted by the Court.

e digress to reiterate, in view of erroneous submissions that we continue to receive, that in the case of a petition for reviewcertiorari from a decision rendered by the Court of Appeals, Section 1, Rule 45 of the Rules of Court, which has long since been

arified in Lacsamana vs. The Hon. Second Special Cases Division of the Intermediate Appellate Court, et al., 20 allows the samefiled "within fifteen (15) days from notice of judgment or of the denial of the motion for reconsideration filed in due time, andying at the same time to the corresponding docket fee." In other words, in the event a motion for reconsideration is filed andnied, the period of fifteen (15) days begins to run all over again from notice of the denial resolution. Otherwise put, if a motion for consideration is filed, the reglementary period within which to appeal the decision of the Court of Appeals to the Supreme Court isckoned from the date the party who intends to appeal received the order denying the motion for reconsideration. 21 Furthermoreotion for extension of time to file a petition for review may be filed with this Court within said reglementary period, paying at theme time the corresponding docket fee.

The first two issues raised by petitioner shall be correlatively discussed in view of their interrelation.

its present petition, MMTC insists that the oral testimonies of its employees were presented as witnesses in its behalf sufficientlyove, even without the presentation documentary evidence, that driver Leonardo had complied with all the hiring and clearancequirements and had undergone all trainings, tests and examinations preparatory to actual employment, and that said positivetimonies spell out the rigid procedure for screening of job applicants and the supervision of its employees in the field. Itderscored the fact that it had indeed complied with the measure of diligence in the selection and supervision of its employees asunciated in Campo, et al. vs. Camarote, et al . 22 requiring an employer, in the exercise of the diligence of a good father of a family,carefully examine the applicant for employment as to his qualifications, experience and record service, and not merely be satisfiedth the possession of a professional driver's license.

goes on to say since the testimonies of these witnesses were allegedly neither discredited nor impeached by the adverse party, theyould be believed and not arbitrarily disregarded or rejected nor disturbed on appeal. It assiduously argues that inasmuch as there islaw requiring that facts alleged by petitioner be established by documentary evidence, the probative force and weight of their timonies should not be discredited, with the further note that the lower court having passed upon the relevancy of the oraltimonies and considered the same as unrebutted, its consideration should no longer be disturbed on appeal. 23

ivate respondent, on the other hand, retorts that the factual findings of respondent court are conclusive upon the High Court whichnnot be burdened with the task of analyzing and weighing the evidence all over again. 24

this juncture, it suffices to note that factual findings of the trial court may be reversed by the Court of Appeals, which is vested byw with the power to review both legal and factual issues, if on the evidence of record, it appears that the trial court may have beenstaken 25 particularly in the appreciation of evidence, which is within the domain of the Court of Appeals. 26 The general rule lawn in a plethora of cases is that such findings of fact by the Court of Appeals are conclusive upon and beyond the power of reviewthe Supreme Court. 27However, it is now well-settled that while the findings of fact of the Court of Appeals are entitled to great

spect, and even finality at times, that rule is not inflexible and is subject to well established exceptions, to wit: (1) when thenclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) when the inference made is manifestlystaken, absurd or impossible; (3) where there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of

cts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of e case and the same are contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appealse contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on whichey are based; (9) when the facts set forth in the petition, as well as in the petitioner's main and reply briefs are not disputed by thespondents and (10) when the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and arentradicted by the evidence on record. 28

hen as in this case, the findings of the Court of Appeals and the trial court are contrary to each other, this court may scrutinize theidence on record, 29 in order to arrive at a correct finding based thereon. 30



perusal of the same shows that since there is no dispute as to the finding of concurrent negligence on the part of the defendantlebag, the driver of the passenger jeepney, and co-defendant Leonardo, the bus driver of petitioner MMTC, both of whom werelidarily held liable with defendant Lamayo, the owner of the jeepney, we are spared the necessity of determining the sufficiency of idence establishing the fact of negligence. 31 The contrariety is in the findings of the two lower courts, and which is the subject of s present controversy, with regard to the liability of MMTC as employer of one the erring drivers.

e trial court, in absolving MMTC from liability ruled that —

On the question as to whether defendant MMTC was successful in proving its defense that indeed it had exercisedthe due diligence of a good father of a family in the selection and supervision of defendant Leonardo, this Courtfinds that based on the evidence presented during the trial, defendant MMTC was able to prove that it was not onlycareful and diligent in choosing and screening applicants for job openings but also strict (and) diligent in supervisingits employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules and regulations

before the start of duty, checked employees to determine whether they were positive for alcohol and followed other rules and regulations and guidelines of the Bureau of Land Transportation as well as its company. Havingsuccessfully proven such defense, defendant MMTC therefore, cannot be held liable for the accident.

Having reached this conclusion, the Court now, holds that defendant MMTC be totally absolved from liability andthat the complaint against it be dismissed. . . . 32

hereas respondent court was of the opinion that —

It is surprising though that witness Milagros Garbo did not testify nor present any evidence that defendant-appellee'sdriver, defendant Godofredo Leonardo has complied with or has undergone all clearances and trainings she referredto. The clearances, result of seminars and tests which Godofredo Leonardo submitted and complied with, if any,were not presented in court despite the fact that they are obviously in the possession and control of defendant-appellee. Instead, it resorted to generalities. The Court has ruled that due diligence in (the) selection and supervisionof employee(s) are not proved by mere testimonies to the effect that its applicant has complied with all the companyrequirements before one is admitted as an employee but without proof thereof. . . .

On the part of Christian Bautista, the transport supervisor of defendant-appellee, he testified that it is his duty tomonitor the operation of buses in the field; to countercheck the dispatchers' duty prior to the operation of the buses inthe morning; to see to it that bus crew follows written guidelines of the company (t.s.n., April 29, 1988, pp. 4-5), butwhen asked to present in court the alleged written guidelines of the company he merely stated that he brought withhim a "wrong document" and defendant-appellee's counsel asked for reservation to present such written guidelines inthe next hearing but the same was (sic) never presented in court. 33

thorough and scrupulous review of the records of this case reveals that the conclusion of respondent Court of Appeals is moremly grounded on jurisprudence and amply supported by the evidence of record than that of the court below.

s procedurally required for each party in a case to prove his own affirmative assertion by the degree of evidence required byw. 34 In civil cases, the degree of evidence required of a party in order to support his claim is preponderance of evidence, or thatidence adduced by one party which is more conclusive and credible than that of the other party. It is, therefore, incumbent on theaintiff who is claiming a right to prove his case. Corollarily, defendant must likewise prove own allegation to buttress its claim thats not liable. 35

fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of presenting at the trial suchmount of evidence required by law to obtain a favorable judgment. 36 It is entirely within each of the parties discretion, consonant

th the theory of the case it or he seeks to advance and subject to such procedural strategy followed thereby, to present all availableidence at its or his disposal in the manner which may be deemed necessary and beneficial to prove its or his position, providedly that the same shall measure up to the quantum of evidence required by law. In making proof in its or his case, it is paramountat the best and most complete evidence be formally entered. 37

oming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated bycumentary evidence, or even subject evidence for that matter, inasmuch as the witnesses' testimonies dwelt on mere generalities,

e cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection andpervision of employees. 38 Petitioner's attempt to prove its diligentissimi patris familias in the selection and supervision of



mployees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary,hich might obviate the apparent biased nature of the testimony. 39

ur view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as would convincingly anddoubtedly prove its observance of the diligence of a good father of a family has its precursor in the underlying rationaleonounced in the earlier case of Central Taxicab Corp. vs. Ex-Meralco Employees Transportation Co., et al., 40 set amidst an almentical factual setting, where we held that:

. . . . This witness spoke of an "affidavit of experience" which a driver-applicant must accomplish before he isemployed by the company, a written "time schedule" for each bus, and a record of the inspections and thoroughchecks pertaining to each bus before it leaves the car barn; yet no attempt was ever made to present in evidence anyof these documents, despite the fact that they were obviously in the possession and control of the defendantcompany.

xxx xxx xxx

Albert also testified that he kept records of the preliminary and final tests given him as well as a record of thequalifications and experience of each of the drivers of the company. It is rather strange, therefore, that he failed to

produce in court the all important record of Roberto, the driver involved in this case.

The failure of the defendant company to produce in court any "record" or other documentary proof tending toestablish that it had exercised all the diligence of a good father of a family in the selection and supervision of itsdrivers and buses, notwithstanding the calls therefor by both the trial court and the opposing counsel, argues stronglyagainst its pretensions.

We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to prove due observance of all the diligence of a good father of a family as would constitute a valid defense to the legal presumption of negligence on the part of an employer or master whose employee has by his negligence, caused damage toanother. . . . (R)educing the testimony of Albert to its proper proportions, we do not have enough trustworthyevidence left to go by. We are of the considered opinion, therefore, that the believable evidence on the degree of careand diligence that has been exercised in the selection and supervision of Roberto Leon y Salazar, is not legallysufficient to overcome the presumption of negligence against the defendant company.

hether or not the diligence of a good father of a family has been observed by petitioner is a matter of proof which under thecumstances in the case at bar has not been clearly established. It is not felt by the Court that there is enough evidence on record as

ould overturn the presumption of negligence, and for failure to submit all evidence within its control, assuming the putativeistence thereof, petitioner MMTC must suffer the consequences of its own inaction and indifference.

In any event, we do not find the evidence presented by petitioner sufficiently convincing to prove the diligence of a good father of amily, which for an employer doctrinally translates into its observance of due diligence in the selection and supervision of its

mployees but which mandate, to use an oft-quoted phrase, is more often honored in the breach than in the observance.

titioner attempted to essay in detail the company's procedure for screening job applicants and supervising its employees in theld, through the testimonies of Milagros Garbo, as its training officer, and Christian Bautista, as its transport supervisor, both of

hom naturally and expectedly testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt

at considering the nature of the business of petitioner, it would not let any applicant-drivers to be ( sic ) admitted without undergoe rigid selection and training process with the end (in) view of protecting the public in general and its passengers in particular; . . .us, there is no doubt that applicant had fully complied with the said requirements otherwise Garbo should not have allowed him todertake the next set of requirements . . . and the training conducted consisting of seminars and actual driving tests were satisfactoryherwise he should have not been allowed to drive the subject vehicle. 41

ese statements strike us as both presumptuous and in the nature of petitio principii , couched in generalities and shorn of anypporting evidence to boost their verity. As earlier observed, respondent court could not but express surprise, and thereby itscredulity, that witness Garbo neither testified nor presented any evidence that driver Leonardo had complied with or had undergonethe clearances and trainings she took pains to recite and enumerate. The supposed clearances, results of seminars and tests whichonardo allegedly submitted and complied with were never presented in court despite the fact that, if true, then they were obviouslythe possession and control of petitioner. 42



e case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180, of the Civil Code provisionsquasi-delicts as all the elements thereof are present, to wit: (1) damages suffered by the plaintiff, (2) fault or negligence of the

fendant or some other person for whose act he must respond, and (3) the connection of cause and effect between fault or gligence of the defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner was originally sued as employer driver Leonardo under Article 2180, the pertinent parts of which provides that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observedall the diligence of a good father of a family to prevent damage.

e basis of the employer's vicarious liability has been explained under this ratiocination:

The responsibility imposed by this article arises by virtue of a presumption juris tantum of negligence on the part the persons made responsible under the article, derived from their failure to exercise due care and vigilance over theacts of subordinates to prevent them from causing damage. Negligence is imputed to them by law, unless they provethe contrary. Thus, the last paragraph of the article says that such responsibility ceases if is proved that the personswho might be held responsible under it exercised the diligence of a good father of a family ( diligentissimi patris

familias ) to prevent damage. It is clear, therefore, that it is not representation, nor interest, nor even the necessity of having somebody else answer for the damages caused by the persons devoid of personality, but it is the non-

performance of certain duties of precaution and prudence imposed upon the persons who become responsible bycivil bond uniting the actor to them, which forms the foundation of such responsibility. 44

e above rule is, of course, applicable only where there is an employer-employee relationship, although it is not necessary that themployer be engaged in business or industry. Whether or not engaged in any business or industry, the employer under Article 2180 is

ble for torts committed by his employees within the scope of their assigned tasks. But, it is necessary first to establish themployment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting withine scope of his assigned task when the tort complained of was committed. It is only then that the defendant, as employer, may find itcessary to interpose the defense of due diligence in the selection and supervision of employees. 45 The diligence of a good fatheramily required to be observed by employers to prevent damages under Article 2180 refers to due diligence in the selection andpervision of employees in order to protect the public. 46

ith the allegation and subsequent proof of negligence against the defendant driver and of an employer-employee relation betweenm and his co-defendant MMTC in this instance, the case in undoubtedly based on a quasi-delict under Article 2180 47 When the

mployee causes damage due to his own negligence while performing his own duties, there arises the juris tantum presumption the employer is negligent, 48 rebuttable only by proof of observance of the diligence of a good father of a family. For failure to rebutch legal presumption of negligence in the selection and supervision of employees, the employer is likewise responsible for

mages,49

the basis of the liability being the relationship of pater familias or on the employer's own negligence.50

early as the case of Gutierrez vs. Gutierrez , 51 and thereafter, we have consistently held that where the injury is due to thencurrent negligence of the drivers of the colliding vehicles, the drivers and owners of the said vehicles shall be primarily, directlyd solidarily liable for damages and it is immaterial that one action is based on quasi-delict and the other on culpa contractual , e solidarily of the obligation is justified by the very nature thereof. 52

should be borne in mind that the legal obligation of employers to observe due diligence in the selection and supervision of mployees is not to be considered as an empty play of words or a mere formalism, as appears to be the fashion of the times, since the

n-observance thereof actually becomes the basis of their vicarious liability under Article 2180.

n the matter of selection of employees, Campo vs. Camarote, supra , lays down this admonition:



. . . . In order tat the owner of a vehicle may be considered as having exercised all diligence of a good father of afamily, he should not have been satisfied with the mere possession of a professional driver's license; he should havecarefully examined the applicant for employment as to his qualifications, his experience and record of service. Thesesteps appellant failed to observe; he has therefore, failed to exercise all due diligence required of a good father of afamily in the choice or selection of driver.

ue diligence in the supervision of employees, on the other hand, includes the formulation of suitable rules and regulations for theidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the

mployer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of each or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their

mployer. 53 To this, we add that actual implementation and monitoring of consistent compliance with said rules should be thenstant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions.

order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it ist enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of e employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it hasen diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of theistence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome presumption.

e emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation of various company policies onfety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising fromgligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring driver thecruitment procedures and company policies on efficiency and safety were followed." 54 Paying lip-service to these injunctions or erely going through the motions of compliance therewith will warrant stern sanctions from the Court.

ese obligations, imposed by the law and public policy in the interests and for the safety of the commuting public, herein petitioner led to perform. Respondent court was definitely correct in ruling that ". . . due diligence in the selection and supervision of

mployee (is) not proved by mere testimonies to the effect that its applicant has complied with all the company requirements beforee is admitted as an employee but without proof thereof." 55 It is further a distressing commentary on petitioner that it is avernment-owned public utility, maintained by public funds, and organized for the public welfare.

e Court it is necessary to once again stress the following rationale behind these all-important statutory and jurisprudentialandates, for it has been observed that despite its pronouncement in Kapalaran Bus Line vs. Coronado, et al., supra , there has ble improvement in the transport situation in the country:

In requiring the highest possible degree of diligence from common carriers and creating a presumption of negligenceagainst them, the law compels them to curb the recklessness of their drivers. While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of the cargo carried by a commoncarrier, they are not the only persons that the law seeks to benefit. For if common carriers carefully observe thestatutory standard of extraordinary diligence in respect of their own passengers, they cannot help but simultaneously

benefit pedestrians and the owners and passengers of other vehicles who are equally entitled to the safe andconvenient use of our roads and highways. The law seeks to stop and prevent the slaughter and maiming of people(whether passengers or not) and the destruction of property (whether freight or not) on our highways by buses, thevery size and power of which seem often to inflame the minds of their drivers. . . .

nally, we believe that respondent court acted in the exercise of sound discretion when it affirmed the trial court's award, withoutquiring the payment of interest thereon as an item of damages just because of delay in the determination thereof, especially sincevate respondent did not specifically pray therefor in her complaint. Article 2211 of the Civil Code provides that in quasi-delicerest as a part of the damages may be awarded in the discretion of the court, and not as a matter of right. We do not perceive that

ere have been international dilatory maneuvers or any special circumstances which would justify that additional award and,nsequently, we find no reason to disturb said ruling.

HEREFORE, the impugned decision of respondent Court of Appeals is hereby AFFIRMED.

transpo law cases new

Documents