Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 95582 October 7, 1991

DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y

MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO
CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL
CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by
Inocencia Cudiamat, respondents.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:p

On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the
death of Pedrito Cudiamat as a result of a vehicular accident which occurred on March 25, 1985
at Marivic, Sapid, Mankayan, Benguet. Among others, it was alleged that on said date, while
petitioner Theodore M. Lardizabal was driving a passenger bus belonging to petitioner corporation
in a reckless and imprudent manner and without due regard to traffic rules and regulations and
safety to persons and property, it ran over its passenger, Pedrito Cudiamat. However, instead of
bringing Pedrito immediately to the nearest hospital, the said driver, in utter bad faith and without
regard to the welfare of the victim, first brought his other passengers and cargo to their respective
destinations before banging said victim to the Lepanto Hospital where he expired.

On the other hand, petitioners alleged that they had observed and continued to observe the
extraordinary diligence required in the operation of the transportation company and the
supervision of the employees, even as they add that they are not absolute insurers of the safety
of the public at large. Further, it was alleged that it was the victim's own carelessness and
negligence which gave rise to the subject incident, hence they prayed for the dismissal of the
complaint plus an award of damages in their favor by way of a counterclaim.

On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this
decretal portion:

IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito

Cudiamat was negligent, which negligence was the proximate cause of his death.
Nonetheless, defendants in equity, are hereby ordered to pay the heirs of Pedrito
Cudiamat the sum of P10,000.00 which approximates the amount defendants
initially offered said heirs for the amicable settlement of the case. No costs.
 SO ORDERED. 2

Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a
decision 3 in CA-G.R. CV No. 19504 promulgated on August 14, 1990, set aside the decision of
the lower court, and ordered petitioners to pay private respondents:

1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for death
of the victim Pedrito Cudiamat;

2. The sum of Twenty Thousand (P20,000.00) by way of moral damages;

3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as actual
and compensatory damages;

4. The costs of this suit. 4

Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated
October 4, 1990, 5 hence this petition with the central issue herein being whether respondent
court erred in reversing the decision of the trial court and in finding petitioners negligent and liable
for the damages claimed.

It is an established principle that the factual findings of the Court of Appeals as a rule are final
and may not be reviewed by this Court on appeal. However, this is subject to settled exceptions,
one of which is when the findings of the appellate court are contrary to those of the trial court, in
which case a reexamination of the facts and evidence may be undertaken. 6

In the case at bar, the trial court and the Court of Appeal have discordant positions as to who
between the petitioners an the victim is guilty of negligence. Perforce, we have had to conduct an
evaluation of the evidence in this case for the prope calibration of their conflicting factual findings
and legal conclusions.

The lower court, in declaring that the victim was negligent, made the following findings:

This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a
moving vehicle, especially with one of his hands holding an umbrella. And, without
having given the driver or the conductor any indication that he wishes to board the
bus. But defendants can also be found wanting of the necessary diligence. In this
connection, it is safe to assume that when the deceased Cudiamat attempted to
board defendants' bus, the vehicle's door was open instead of being closed. This
should be so, for it is hard to believe that one would even attempt to board a vehicle
(i)n motion if the door of said vehicle is closed. Here lies the defendant's lack of
diligence. Under such circumstances, equity demands that there must be
something given to the heirs of the victim to assuage their feelings. This, also
considering that initially, defendant common carrier had made overtures to
amicably settle the case. It did offer a certain monetary consideration to the victim's
heirs. 7

However, respondent court, in arriving at a different opinion, declares that:

 From the testimony of appellees'own witness in the person of Vitaliano Safarita, it
is evident that the subject bus was at full stop when the victim Pedrito Cudiamat
boarded the same as it was precisely on this instance where a certain Miss
Abenoja alighted from the bus. Moreover, contrary to the assertion of the
appellees, the victim did indicate his intention to board the bus as can be seen
from the testimony of the said witness when he declared that Pedrito Cudiamat
was no longer walking and made a sign to board the bus when the latter was still
at a distance from him. It was at the instance when Pedrito Cudiamat was closing
his umbrella at the platform of the bus when the latter made a sudden jerk
movement (as) the driver commenced to accelerate the bus.

Evidently, the incident took place due to the gross negligence of the appellee-driver
in prematurely stepping on the accelerator and in not waiting for the passenger to
first secure his seat especially so when we take into account that the platform of
the bus was at the time slippery and wet because of a drizzle. The defendants-
appellees utterly failed to observe their duty and obligation as common carrier to
the end that they should observe extra-ordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them according to the
circumstances of each case (Article 1733, New Civil Code). 8

After a careful review of the evidence on record, we find no reason to disturb the above holding
of the Court of Appeals. Its aforesaid findings are supported by the testimony of petitioners' own
witnesses. One of them, Virginia Abalos, testified on cross-examination as follows:

Q It is not a fact Madam witness, that at bunkhouse 54, that is

before the place of the incident, there is a crossing?

A The way going to the mines but it is not being pass(ed) by the
bus.

Q And the incident happened before bunkhouse 56, is that not

correct?

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please
inform this Honorable Court if there was anv unusual incident that
occurred?

A When we delivered a baggage at Marivic because a person

alighted there between Bunkhouse 53 and 54.

Q What happened when you delivered this passenger at this

particular place in Lepanto?

A When we reached the place, a passenger alighted and I signalled

my driver. When we stopped we went out because I saw an
umbrella about a split second and I signalled again the driver, so
 the driver stopped and we went down and we saw Pedrito Cudiamat
asking for help because he was lying down.

Q How far away was this certain person, Pedrito Cudiamat, when
you saw him lying down from the bus how far was he?

A It is about two to three meters.

Q On what direction of the bus was he found about three meters

from the bus, was it at the front or at the back?

A At the back, sir. 10 (Emphasis supplied.)

The foregoing testimonies show that the place of the accident and the place where one of the
passengers alighted were both between Bunkhouses 53 and 54, hence the finding of the Court
of Appeals that the bus was at full stop when the victim boarded the same is correct. They further
confirm the conclusion that the victim fell from the platform of the bus when it suddenly accelerated
forward and was run over by the rear right tires of the vehicle, as shown by the physical evidence
on where he was thereafter found in relation to the bus when it stopped. Under such
circumstances, it cannot be said that the deceased was guilty of negligence.

The contention of petitioners that the driver and the conductor had no knowledge that the victim
would ride on the bus, since the latter had supposedly not manifested his intention to board the
same, does not merit consideration. When the bus is not in motion there is no necessity for a
person who wants to ride the same to signal his intention to board. A public utility bus, once it
stops, is in effect making a continuous offer to bus riders. Hence, it becomes the duty of the driver
and the conductor, every time the bus stops, to do no act that would have the effect of increasing
the peril to a passenger while he was attempting to board the same. The premature acceleration
of the bus in this case was a breach of such duty. 11

It is the duty of common carriers of passengers, including common carriers by railroad train,
streetcar, or motorbus, to stop their conveyances a reasonable length of time in order to afford
passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding
passengers resulting from the sudden starting up or jerking of their conveyances while they are
doing so. 12

Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot
be considered negligent under the circumstances. As clearly explained in the testimony of the
aforestated witness for petitioners, Virginia Abalos, th bus had "just started" and "was still in slow
motion" at the point where the victim had boarded and was on its platform. 13

It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which
is moving slowly. 14 An ordinarily prudent person would have made the attempt board the moving
conveyance under the same or similar circumstances. The fact that passengers board and alight
from slowly moving vehicle is a matter of common experience both the driver and conductor in
this case could not have been unaware of such an ordinary practice.

The victim herein, by stepping and standing on the platform of the bus, is already considered a
passenger and is entitled all the rights and protection pertaining to such a contractual relation.
Hence, it has been held that the duty which the carrier passengers owes to its patrons extends to
persons boarding cars as well as to those alighting therefrom. 15

Common carriers, from the nature of their business and reasons of public policy, are bound to
observe extraordina diligence for the safety of the passengers transported by the according to all
the circumstances of each case. 16 A common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the utmost diligence very cautious persons,
with a due regard for all the circumstances. 17

It has also been repeatedly held that in an action based on a contract of carriage, the court need
not make an express finding of fault or negligence on the part of the carrier in order to hold it
responsible to pay the damages sought by the passenger. By contract of carriage, the carrier
assumes the express obligation to transport the passenger to his destination safely and observe
extraordinary diligence with a due regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault or negligence of the carrier. This
is an exception to the general rule that negligence must be proved, and it is therefore incumbent
upon the carrier to prove that it has exercised extraordinary diligence as prescribed in Articles
1733 and 1755 of the Civil Code. 18

Moreover, the circumstances under which the driver and the conductor failed to bring the gravely
injured victim immediately to the hospital for medical treatment is a patent and incontrovertible
proof of their negligence. It defies understanding and can even be stigmatized as callous
indifference. The evidence shows that after the accident the bus could have forthwith turned at
Bunk 56 and thence to the hospital, but its driver instead opted to first proceed to Bunk 70 to allow
a passenger to alight and to deliver a refrigerator, despite the serious condition of the victim. The
vacuous reason given by petitioners that it was the wife of the deceased who caused the delay
was tersely and correctly confuted by respondent court:

... The pretension of the appellees that the delay was due to the fact that they had
to wait for about twenty minutes for Inocencia Cudiamat to get dressed deserves
scant consideration. It is rather scandalous and deplorable for a wife whose
husband is at the verge of dying to have the luxury of dressing herself up for about
twenty minutes before attending to help her distressed and helpless husband. 19

Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was
to inform the victim's family of the mishap, since it was not said bus driver nor the conductor but
the companion of the victim who informed his family thereof. 20 In fact, it was only after the
refrigerator was unloaded that one of the passengers thought of sending somebody to the house
of the victim, as shown by the testimony of Virginia Abalos again, to wit:

Q Why, what happened to your refrigerator at that particular time?

A I asked them to bring it down because that is the nearest place to

our house and when I went down and asked somebody to bring
down the refrigerator, I also asked somebody to call the family of
Mr. Cudiamat.

COURT:

Q Why did you ask somebody to call the family of Mr. Cudiamat?
 A Because Mr. Cudiamat met an accident, so I ask somebody to
call for the family of Mr. Cudiamat.

Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?

A No sir. 21

With respect to the award of damages, an oversight was, however, committed by respondent
Court of Appeals in computing the actual damages based on the gross income of the victim. The
rule is that the amount recoverable by the heirs of a victim of a tort is not the loss of the entire
earnings, but rather the loss of that portion of the earnings which the beneficiary would have
received. In other words, only net earnings, not gross earnings, are to be considered, that is, the
total of the earnings less expenses necessary in the creation of such earnings or income and
minus living and other incidental expenses. 22

We are of the opinion that the deductible living and other expense of the deceased may fairly and
reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or
compensatory damages, respondent court found that the deceased was 48 years old, in good
health with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a
year. Using the gross annual income as the basis, and multiplying the same by 12 years, it
accordingly awarded P288,000. Applying the aforestated rule on computation based on the net
earnings, said award must be, as it hereby is, rectified and reduced to P216,000.00. However, in
accordance with prevailing jurisprudence, the death indemnity is hereby increased to
P50,000.00. 23

WHEREFORE, subject to the above modifications, the challenged judgment and resolution of
respondent Court of Appeals are hereby AFFIRMED in all other respects.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-20761 July 27, 1966

LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET AL., respondents.

G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.

Ahmed Garcia for respondents.

BARRERA, J.:

La 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 and ordering it to pay to respondents Mariano Beltran, et al., P6,000.00 for the
death of his minor daughter Raquel Beltran, plus P400.00 as actual damages.

The 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 4 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 both were 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 whom were 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 companions to a
shaded spot on the left pedestrians side of the road about four or five meters away from the
vehicle. Afterwards, he returned to the bus in controversy to get his other bayong, which he
had left behind, but in so doing, his daughter Raquel followed him, unnoticed by her father.
While said Mariano Beltran was on the running board of the bus waiting for the conductor to
hand him his bayong which he left under one of its seats near the 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 by Mariano 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 getting his 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 the
 ground, her skull crushed, and without life. The child was none other than his daughter Raquel,
who was run over by the bus in 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 the latter an aggregate amount of P16,000 to cover moral
damages and actual damages sustained as a result thereof and attorney's fees. After trial on
the merits, the court below rendered the judgment in question.

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

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

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

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

It has been recognized as a rule that the relation of carrier and passenger does not cease at the
moment the passenger alights from the carrier's vehicle at a place selected by the carrier at the point
of destination, but continues until the passenger has had a reasonable time or a reasonable
opportunity to leave the carrier's premises. And, what is a reasonable time or a reasonable delay within
this rule is to be determined from all the circumstances. Thus, a person who, after alighting from a
train, walks along the station platform is considered still a passenger.2 So also, where a passenger
has alighted at his destination and is proceeding by the usual way to leave the company's premises,
but before actually doing so is halted by the report that his brother, a fellow passenger, has been shot,
and he in good faith and without intent of engaging in the difficulty, returns to relieve his brother, he is
deemed reasonably and necessarily delayed and thus continues to be a passenger entitled as such
to the protection of the railroad and company and its agents.3
In the present case, the father returned to the bus to get one of his baggages which was not unloaded
when they alighted from the bus. Raquel, the child that she was, must have followed the father.
However, although the father was still on the running board of the bus awaiting for the conductor to
hand him the bag or bayong, the bus started to run, so that even he (the father) had to jump down
from the moving vehicle. It was at this instance that the child, who must be near the bus, was run over
and killed. In the circumstances, it cannot be claimed that the carrier's agent had exercised the "utmost
diligence" of a "very cautions person" required by Article 1755 of the Civil Code to be observed by a
common carrier in the discharge of its obligation to transport safely its passengers. In the first place,
the driver, although stopping the bus, nevertheless did not put off the engine. Secondly, he started to
run the bus even before the bus conductor gave him the signal to go and while the latter was still
unloading part of the baggages of the passengers Mariano Beltran and family. The presence of said
passengers near the bus was not unreasonable and they are, therefore, to be considered still as
passengers of the carrier, entitled to the protection under their contract of carriage.

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

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

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

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

The increase of the award of damages from P3,000.00 to P6,000.00 by the Court of Appeals, however,
cannot be sustained. Generally, the appellate court can only pass upon and consider questions or
issues raised and argued in appellant's brief. Plaintiffs did not appeal from that portion of the judgment
of the trial court awarding them on P3,000.00 damages for the death of their daughter. Neither does it
appear that, as appellees in the Court of Appeals, plaintiffs have pointed out in their brief the
inadequacy of the award, or that the inclusion of the figure P3,000.00 was merely a clerical error, in
order that the matter may be treated as an exception to the general rule.5 Herein petitioner's
contention, therefore, that the Court of Appeals committed error in raising the amount of the award for
damages is, evidently, meritorious. 1wph1.t
Wherefore, the decision of the Court of Appeals is hereby modified by sentencing, the petitioner to
pay to the respondents Mariano Beltran, et al., the sum of P3,000.00 for the death of the child, Raquel
Beltran, and the amount of P400.00 as actual damages. No costs in this instance. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.
Makalintal, J., concurs in the result.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-82619 September 15, 1993

PHILIPPINE AIRLINES, INC., petitioner,

vs.
COURT OF APPEALS and PEDRO ZAPATOS, respondents.

Leighton R. Liazon for petitioner.

Balmes L. Ocampo for private respondent.

BELLOSILLO, J.:

This petition for review in certiorari seeks to annul and set aside the decision of the then Intermediate
Appellant Court, 1 now Court of Appeals, dated 28 February 1985, in AC-G.R. CV No. 69327 ("Pedro
Zapatos v. Philippine Airlines, Inc.") affirming the decision of the then Court of first Instance, now Regional
Trial Court, declaring Philippine Airlines, Inc., liable in damages for breach of contract.

On 25 November 1976, private respondent filed a complaint for damages for breach of contract of
carriage 2against Philippine Airlines, Inc. (PAL), before the then Court of First Instance, now Regional Trial
Court, of Misamis Occidental, at Ozamiz City. According to him, on 2 August 1976, he was among the
twenty-one (21) passengers of PAL Flight 477 that took off from Cebu bound for Ozamiz City. The routing
of this flight was Cebu-Ozamiz-Cotabato. While on flight and just about fifteen (15) minutes before landing
at Ozamiz City, the pilot received a radio message that the airport was closed due to heavy rains and
inclement weather and that he should proceed to Cotabato City instead.

Upon arrival at Cotabato City, the PAL Station Agent informed the passengers of their options to return
to Cebu on flight 560 of the same day and thence to Ozamiz City on 4 August 1975, or take the next
flight to Cebu the following day, or remain at Cotabato and take the next available flight to Ozamiz City
on 5 August 1975. 3 The Station Agent likewise informed them that Flight 560 bound for Manila would make
a stop-over at Cebu to bring some of the diverted passengers; that there were only six (6) seats available
as there were already confirmed passengers for Manila; and, that the basis for priority would be the check-
in sequence at Cebu.

Private respondent chose to return to Cebu but was not accommodated because he checked-in as
passenger No. 9 on Flight 477. He insisted on being given priority over the confirmed passengers in
the accommodation, but the Station Agent refused private respondent's demand explaining that the
latter's predicament was not due to PAL's own doing but to be a force majeure. 4

Private respondent tried to stop the departure of Flight 560 as his personal belongings, including a
package containing a camera which a certain Miwa from Japan asked him to deliver to Mrs. Fe Obid
of Gingoog City, were still on board. His plea fell on deaf ears. PAL then issued to private respondent
a free ticket to Iligan city, which the latter received under protest. 5 Private respondent was left at the
airport and could not even hitch a ride in the Ford Fiera loaded with PAL personnel. 6 PAL neither provided
private respondent with transportation from the airport to the city proper nor food and accommodation for
his stay in Cotabato City.

The following day, private respondent purchased a PAL ticket to Iligan City. He informed PAL
personnel that he would not use the free ticket because he was filing a case against PAL. 7 In Iligan
City, private respondent hired a car from the airport to Kolambugan, Lanao del Norte, reaching Ozamiz City
by crossing the bay in a launch. 8 His personal effects including the camera, which were valued at P2,000.00
were no longer recovered.

On 13 January 1977, PAL filed its answer denying that it unjustifiably refused to accommodate private
respondent. 9 It alleged that there was simply no more seat for private respondent on Flight 560 since there
were only six (6) seats available and the priority of accommodation on Flight 560 was based on the check-
in sequence in Cebu; that the first six (6) priority passengers on Flight 477 chose to take Flight 560; that its
Station Agent explained in a courteous and polite manner to all passengers the reason for PAL's inability
to transport all of them back to Cebu; that the stranded passengers agreed to avail of the options and had
their respective tickets exchanged for their onward trips; that it was
only the private respondent who insisted on being given priority in the accommodation; that pieces of
checked-in baggage and had carried items of the Ozamiz City passengers were removed from the aircraft;
that the reason for their pilot's inability to land at Ozamis City airport was because the runway was wet due
to rains thus posing a threat to the safety of both passengers and aircraft; and, that such reason of force
majeure was a valid justification for the pilot to bypass Ozamiz City and proceed directly to Cotabato City.

On 4 June 1981, the trial court rendered its decision 10 the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendant Philippine AirLines, Inc. ordering the latter to pay:

(1) As actual damages, the sum of Two Hundred Pesos (P200.00) representing
plaintiff's expenses for transportation, food and accommodation during his stranded
stay at Cotabato City; the sum of Forty-Eight Pesos (P48.00) representing his flight
fare from Cotabato City to Iligan city; the sum of Five Hundred Pesos (P500.00)
representing plaintiff's transportation expenses from Iligan City to Ozamiz City; and the
sum of Five Thousand Pesos (P5,000.00) as loss of business opportunities during his
stranded stay in Cotabato City;

(2) As moral damages, the sum of Fifty Thousand Pesos (P50,000.00) for plaintiff's
hurt feelings, serious anxiety, mental anguish and unkind and discourteous treatment
perpetrated by defendant's employees during his stay as stranded passenger in
Cotabato City;

(3) As exemplary damages, the sum of Ten Thousand Pesos (P10,000.00) to set a
precedent to the defendant airline that it shall provide means to give comfort and
convenience to stranded passengers;

(4) The sum of Three Thousand Pesos (P3,000.00) as attorney's fees;

(5) To pay the costs of this suit.

PAL appealed to the Court of Appeals which on 28 February 1985, finding no reversible error, affirmed
the judgment of the court a quo. 11
PAL then sought recourse to this Court by way of a petition for review on certiorari 12 upon the following
issues: (1) Can the Court of Appeals render a decision finding petitioner (then defendant-appellant in the
court below) negligent and, consequently, liable for damages on a question of substance which was neither
raised on a question nor proved at the trial? (2) Can the Court of Appeals award actual and moral damages
contrary to the evidence and established jurisprudence? 13

An assiduous examination of the records yields no valid reason for reversal of the judgment on appeal;
only a modification of its disposition.

In its petition, PAL vigorously maintains that private respondent's principal cause of action was its
alleged denial of private respondent's demand for priority over the confirmed passengers on Flight
560. Likewise, PAL points out that the complaint did not impute to PAL neglect in failing to attend to
the needs of the diverted passengers; and, that the question of negligence was not and never put in
issue by the pleadings or proved at the trial.

Contrary to the above arguments, private respondent's amended complaint touched on PAL's
indifference and inattention to his predicament. The pertinent portion of the amended
complaint 14 reads:

10. That by virtue of the refusal of the defendant through its agent in Cotabato to
accommodate (sic) and allow the plaintiff to take and board the plane back to Cebu,
and by accomodating (sic) and allowing passengers from Cotabato for Cebu in his
stead and place, thus forcing the plaintiff against his will, to be left and stranded in
Cotabato, exposed to the peril and danger of muslim rebels plundering at the time, the
plaintiff, as a consequence, (have) suffered mental anguish, mental torture, social
humiliation, bismirched reputation and wounded feeling, all amounting to a
conservative amount of thirty thousand (P30,000.00) Pesos.

To substantiate this aspect of apathy, private respondent testified 15

A I did not even notice that I was I think the last passenger or the last
person out of the PAL employees and army personnel that were left
there. I did not notice that when I was already outside of the building
after our conversation.

Q What did you do next?

A I banished (sic) because it seems that there was a war not far from
the airport. The sound of guns and the soldiers were plenty.

Q After that what did you do?

A I tried to look for a transportation that could bring me down to the

City of Cotabato.

Q Were you able to go there?

A I was at about 7:00 o'clock in the evening more or less and it was a
private jeep that I boarded. I was even questioned why I and who am
(sic) I then. Then I explained my side that I am (sic) stranded
passenger. Then they brought me downtown at Cotabato.
 Q During your conversation with the Manager were you not offered any
vehicle or transportation to Cotabato airport downtown?

A In fact I told him (Manager) now I am by-passed passenger here

which is not my destination what can you offer me. Then they
answered, "it is not my fault. Let us forget that."

Q In other words when the Manager told you that offer was there a
vehicle ready?

A Not yet. Not long after that the Ford Fiera loaded with PAL personnel
was passing by going to the City of Cotabato and I stopped it to take
me a ride because there was no more available transportation but I
was not accommodated.

Significantly, PAL did not seem to mind the introduction of evidence which focused on its alleged
negligence in caring for its stranded passengers. Well-settled is the rule in evidence that the protest
or objection against the admission of evidence should be presented at the time the evidence is offered,
and that the proper time to make protest or objection to the admissibility of evidence is when the
question is presented to the witness or at the time the answer thereto is given. 16 There being no
objection, such evidence becomes property of the case and all the parties are amenable to any favorable
or unfavorable effects resulting from the evidence. 17

PAL instead attempted to rebut the aforequoted testimony. In the process, it failed to substantiate its
counter allegation for want of concrete proof 18

Atty. Rubin O. Rivera PAL's counsel:

Q You said PAL refused to help you when you were in Cotabato, is that
right?

Private respondent:

A Yes.

Q Did you ask them to help you regarding any offer of transportation
or of any other matter asked of them?

A Yes, he (PAL PERSONNEL) said what is? It is not our fault.

Q Are you not aware that one fellow passenger even claimed that he
was given Hotel accommodation because they have no money?

xxx xxx xxx

A No, sir, that was never offered to me. I said, I tried to stop them but
they were already riding that PAL pick-up jeep, and I was not
accommodated.

Having joined in the issue over the alleged lack of care it exhibited towards its passengers, PAL cannot
now turn around and feign surprise at the outcome of the case. When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings. 19

With regard to the award of damages affirmed by the appellate court, PAL argues that the same is
unfounded. It asserts that it should not be charged with the task of looking after the passengers'
comfort and convenience because the diversion of the flight was due to a fortuitous event, and that if
made liable, an added burden is given to PAL which is over and beyond its duties under the contract
of carriage. It submits that granting arguendo that negligence exists, PAL cannot be liable in damages
in the absence of fraud or bad faith; that private respondent failed to apprise PAL of the nature of his
trip and possible business losses; and, that private respondent himself is to be blamed for
unreasonably refusing to use the free ticket which PAL issued.

The contract of air carriage is a peculiar one. Being imbued with public interest, the law requires
common carriers 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. 20 In Air France
v. Carrascoso, 21 we held that

A contract to transport passengers is quite different in kind and degree from any other
contractual relation. And this, because of the relation which an air carrier sustains with
the public. Its business is mainly with the travelling public. It invites people to avail of
the comforts and advantages it offers. The contract of air carriage, therefore, generates
a relation attended with a public duty . . . . ( emphasis supplied).

The position taken by PAL in this case clearly illustrates its failure to grasp the exacting standard
required by law. Undisputably, PAL's diversion of its flight due to inclement weather was a fortuitous
event. Nonetheless, such occurrence did not terminate PAL's contract with its passengers. Being in
the business of air carriage and the sole one to operate in the country, PAL is deemed equipped to
deal with situations as in the case at bar. What we said in one case once again must be stressed, i.e.,
the relation of carrier and passenger continues until the latter has been landed at the port of destination
and has left the carrier's premises. 22 Hence, PAL necessarily would still have to exercise extraordinary
diligence in safeguarding the comfort, convenience and safety of its stranded passengers until they have
reached their final destination. On this score, PAL grossly failed considering the then ongoing battle
between government forces and Muslim rebels in Cotabato City and the fact that the private respondent
was a stranger to the place. As the appellate court correctly ruled

While the failure of plaintiff in the first instance to reach his destination at Ozamis City
in accordance with the contract of carriage was due to the closure of the airport on
account of rain and inclement weather which was radioed to defendant 15 minutes
before landing, it has not been disputed by defendant airline that Ozamis City has no
all-weather airport and has to cancel its flight to Ozamis City or by-pass it in the event
of inclement weather. Knowing this fact, it becomes the duty of defendant to provide
all means of comfort and convenience to its passengers when they would have to be
left in a strange place in case of such by-passing. The steps taken by defendant airline
company towards this end has not been put in evidence, especially for those 7 others
who were not accommodated in the return trip to Cebu, only 6 of the 21 having been
so accommodated. It appears that plaintiff had to leave on the next flight 2 days later.
If the cause of non-fulfillment of the contract is due to a fortuitous event, it has to be
the sole and only cause (Art. 1755 CC., Art. 1733 C.C.) Since part of the failure to
comply with the obligation of common carrier to deliver its passengers safely to their
destination lay in the defendant's failure to provide comfort and convenience to its
stranded passengers using extra-ordinary diligence, the cause of non-fulfillment is not
solely and exclusively due to fortuitous event, but due to something which defendant
airline could have prevented, defendant becomes liable to plaintiff. 23
While we find PAL remiss in its duty of extending utmost care to private respondent while being
stranded in Cotabato City, there is no sufficient basis to conclude that PAL failed to inform him about
his non-accommodation on Flight 560, or that it was inattentive to his queries relative thereto.

On 3 August 1975, the Station Agent reported to his Branch Manager in Cotabato City that

3. Of the fifteen stranded passengers two pax elected to take F478 on August 05, three
pax opted to take F442 August 03. The remaining ten (10) including subject requested
that they be instead accommodated (sic) on F446 CBO-IGN the following day where
they intended to take the surface transportation to OZC. Mr. Pedro Zapatos had by
then been very vocal and boiceterous (sic) at the counter and we tactfully managed to
steer him inside the Station Agent's office. Mr. Pedro Zapatos then adamantly insisted
that all the diverted passengers should have been given priority over the originating
passengers of F560 whether confirmed or otherwise. We explained our policies and
after awhile he seemed pacified and thereafter took his ticket (in-lieued (sic) to CBO-
IGN, COCON basis), at the counter in the presence of five other passengers who were
waiting for their tickets too. The rest of the diverted pax had left earlier after being
assured their tickets will be ready the following day. 24

Aforesaid Report being an entry in the course of business is prima facie evidence of the facts therein
stated. Private respondent, apart from his testimony, did not offer any controverting evidence. If indeed
PAL omitted to give information about the options available to its diverted passengers, it would have
been deluged with complaints. But, only private respondent complained

Atty. Rivera (for PAL)

Q I understand from you Mr. Zapatos that at the time you were waiting
at Cotabato Airport for the decision of PAL, you were not informed of
the decision until after the airplane left is that correct?

A Yes.

COURT:

Q What do you mean by "yes"? You meant you were not informed?

A Yes, I was not informed of their decision, that they will only
accommodate few passengers.

Q Aside from you there were many other stranded passengers?

A I believed, yes.

Q And you want us to believe that PAL did not explain (to) any of these
passengers about the decision regarding those who will board the
aircraft back to Cebu?

A No, Sir.

Q Despite these facts Mr. Zapatos did any of the other passengers
complained (sic) regarding that incident?
 xxx xxx xxx

A There were plenty of argument and I was one of those talking about
my case.

Q Did you hear anybody complained (sic) that he has not been
informed of the decision before the plane left for Cebu?

A No. 25

Admittedly, private respondent's insistence on being given priority in accommodation was

unreasonable considering the fortuitous event and that there was a sequence to be observed in the
booking, i.e., in the order the passengers checked-in at their port of origin. His intransigence in fact
was the main cause for his having to stay at the airport longer than was necessary.

Atty. Rivera:

Q And, you were saying that despite the fact that according to your
testimony there were at least 16 passengers who were stranded there
in Cotabato airport according to your testimony, and later you said that
there were no other people left there at that time, is that correct?

A Yes, I did not see anyone there around. I think I was the only civilian
who was left there.

Q Why is it that it took you long time to leave that place?

A Because I was arguing with the PAL personnel. 26

Anent the plaint that PAL employees were disrespectful and inattentive toward private respondent, the
records are bereft of evidence to support the same. Thus, the ruling of respondent Court of Appeals
in this regard is without basis. 27 On the contrary, private respondent was attended to not only by the
personnel of PAL but also by its Manager." 28

In the light of these findings, we find the award of moral damages of Fifty Thousand Pesos
(P50,000.00) unreasonably excessive; hence, we reduce the same to Ten Thousand Pesos
(P10,000.00). Conformably herewith, the award of exemplary damages is also reduced to five
Thousand Pesos (5,000.00). Moral damages are not intended to enrich the private respondent. They
are awarded only to enable the injured party to obtain means, diversion or amusements that will serve
to alleviate the moral suffering he has undergone by reason of the defendant's culpable action. 29

With regard to the award of actual damages in the amount of P5,000.00 representing private
respondent's alleged business losses occasioned by his stay at Cotabato City, we find the same
unwarranted. Private respondent's testimony that he had a scheduled business "transaction of shark
liver oil supposedly to have been consummated on August 3, 1975 in the morning" and that "since
(private respondent) was out for nearly two weeks I missed to buy about 10 barrels of shark liver
oil," 30 are purely speculative. Actual or compensatory damages cannot be presumed but must be duly
proved with reasonable degree of certainty. A court cannot rely on speculation, conjecture or guesswork as
to the fact and amount of damages, but must depend upon competent proof that they have suffered and on
evidence of the actual amount thereof. 31
WHEREFORE the decision appealed from is AFFIRMED with modification however that the award of
moral damages of Fifty Thousand Pesos (P50,000.00) is reduced to Ten Thousand Pesos
(P10,000.00) while the exemplary damages of Ten Thousand Pesos (P10,000.00) is also reduced to
Five Thousand Pesos (P5,000.00). The award of actual damages in the amount Five Thousand Pesos
(P5,000.00) representing business losses occasioned by private respondent's being stranded in
Cotabato City is deleted.

SO ORDERED.

Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

 [G.R. No. 118664. August 7, 1998]

JAPAN AIRLINES, petitioner, vs. THE COURT OF APPEALS ENRIQUE

AGANA, MARIA ANGELA NINA AGANA, ADALIA B. FRANCISCO
and JOSE MIRANDA, respondents.

DECISION
ROMERO, J.:

Before us is an appeal by certiorari filed by petitioner Japan Airlines, Inc. (JAL)

seeking the reversal of the decision of the Court of Appeals,[1] which affirmed with
modification the award of damages made by the trial court in favor of herein private
respondents Enrique Agana, Maria Angela Nina Agana, Adelia Francisco and Jose
Miranda.
On June 13, 1991, private respondent Jose Miranda boarded JAL flight No. JL 001
in San Francisco, California bound for Manila. Likewise, on the same day private
respondents Enrique Agana, Maria Angela Nina Agana and Adelia Francisco left Los
Angeles, California for Manila via JAL flight No. JL 061. As an incentive for travelling on
the said airline, both flights were to make an overnight stopover at Narita, Japan, at the
airlines expense, thereafter proceeding to Manila the following day.
Upon arrival at Narita, Japan on June 14, 1991, private respondents were billeted at
Hotel Nikko Narita for the night. The next day, private respondents, on the final leg of their
journey, went to the airport to take their flight to Manila. However, due to the Mt. Pinatubo
eruption, unrelenting ashfall blanketed Ninoy Aquino International Airport (NAIA),
rendering it inaccessible to airline traffic. Hence, private respondents trip to Manila was
cancelled indefinitely.
To accommodate the needs of its stranded passengers, JAL rebooked all the Manila-
bound passengers on flight No. 741 due to depart on June 16, 1991 and also paid for the
hotel expenses for their unexpected overnight stay. On June 16, 1991, much to the
dismay of the private respondents, their long anticipated flight to Manila was again
cancelled due to NAIAs indefinite closure. At this point, JAL informed the private
respondents that it would no longer defray their hotel and accommodation expense during
their stay in Narita.
Since NAIA was only reopened to airline traffic on June 22, 1991, private respondents
were forced to pay for their accommodations and meal expenses from their personal
funds from June 16 to June 21, 1991. Their unexpected stay in Narita ended on June 22,
1991 when they arrived in Manila on board JL flight No. 741.
Obviously, still reeling from the experience, private respondents, on July 25, 1991,
commenced an action for damages against JAL before the Regional Trial Court of
Quezon City, Branch 104.[2] To support their claim, private respondents asserted that JAL
failed to live up to its duty to provide care and comfort to its stranded passengers when it
refused to pay for their hotel and accommodation expenses from June 16 to 21, 1991 at
Narita, Japan. In other words, they insisted that JAL was obligated to shoulder their
expenses as long as they were still stranded in Narita. On the other hand, JAL denied this
allegation and averred that airline passengers have no vested right to these amenities in
case a flight is cancelled due to force majeure.
On June 18, 1992, the trial court rendered its judgment in favor of private respondents
holding JAL liable for damages, viz.:

WHEREFORE, judgment is rendered in favor of plaintiffs ordering the

defendant Japan Airlines to pay the plaintiffs Enrique Agana, Adalia B.
Francisco and Maria Angela Nina Agana the sum of One million Two Hundred
forty-six Thousand Nine Hundred Thirty-Six Pesos (P1,246,936.00) and Jose
Miranda the sum of Three Hundred Twenty Thousand Six Hundred sixteen
and 31/100 (P320,616.31) as actual, moral and exemplary damages and pay
attorneys fees in the amount of Two Hundred Thousand Pesos
(P200,000.00), and to pay the costs of suit.

Undaunted, JAL appealed the decision before the Court of Appeals, which, however,
with the exception of lowering the damages awarded affirmed the trial courts
finding,[3] thus:

Thus, the award of moral damages should be as it is hereby reduced

to P200,000.00 for each of the plaintiffs, the exemplary damages
to P300,000.00 and the attorneys fees to P100,000.00 plus the costs.

WHEREFORE, with the foregoing Modification, the judgment appealed from is

hereby AFFIRMED in all other respects.

JAL filed a motion for reconsideration which proved futile and unavailing. [4]
Failing in its bid to reconsider the decision, JAL has now filed this instant petition.
The issue to be resolved is whether JAL, as a common carrier has the obligation to
shoulder the hotel and meal expenses of its stranded passengers until they have reached
their final destination, even if the delay were caused by force majeure.
To begin with, there is no dispute that the Mt. Pinatubo eruption prevented JAL from
proceeding to Manila on schedule. Likewise, private respondents concede that such
event can be considered as force majeure since their delayed arrival in Manila was not
imputable to JAL.[5]
However, private respondents contend that while JAL cannot be held responsible for
the delayed arrival in Manila, it was nevertheless liable for their living expenses during
their unexpected stay in Narita since airlines have the obligation to ensure the comfort
and convenience of its passengers. While we sympathize with the private respondents
plight, we are unable to accept this contention.
 We are not unmindful of the fact that in a plethora of cases we have consistently ruled
that a contract to transport passengers is quite different in kind and degree from any other
contractual relation. It is safe to conclude that it is a relationship imbued with public
interest. Failure on the part of the common carrier to live up to the exacting standards
of care and diligence renders it liable for any damages that may be sustained by its
passengers. However, this is not to say that common carriers are absolutely responsible
for all injuries or damages even if the same were caused by a fortuitous event. To rule
otherwise would render the defense of force majeure, as an exception from any liability,
illusory and ineffective.
Accordingly, there is no question that when a party is unable to fulfill his obligation
because of force majeure, the general rule is that he cannot be held liable for damages
for non-performance.[6] Corollarily, when JAL was prevented from resuming its flight to
Manila due to the effects of Mt. Pinatubo eruption, whatever losses or damages in the
form of hotel and meal expenses the stranded passengers incurred, cannot be charged
to JAL. Yet it is undeniable that JAL assumed the hotel expenses of respondents for their
unexpected overnight stay on June 15, 1991.
Admittedly, to be stranded for almost a week in a foreign land was an exasperating
experience for the private respondents. To be sure, they underwent distress and anxiety
during their unanticipated stay in Narita, but their predicament was not due to the fault or
negligence of JAL but the closure of NAIA to international flights. Indeed, to hold JAL, in
the absence of bad faith or negligence, liable for the amenities of its stranded passengers
by reason of a fortuitous event is too much of a burden to assume.
Furthermore, it has been held that airline passengers must take such risks incident
to the mode of travel.[7] In this regard, adverse weather conditions or extreme climatic
changes are some of the perils involved in air travel, the consequences of which the
passenger must assume or expect. After all, common carriers are not the insurer of all
risks.[8]
Paradoxically, the Court of Appeals, despite the presence of force majeure, still
ruled against JAL relying in our decision in PAL v. Court of Appeals,[9] thus:

The position taken by PAL in this case clearly illustrates its failure to grasp the
exacting standard required by law. Undisputably, PALs diversion of its flight
due to inclement weather was a fortuitous event. Nonetheless, such
occurrence did not terminate PALs contract with its passengers. Being in the
business of air carriage and the sole one to operate in the country, PAL is
deemed equipped to deal with situations as in the case at bar. What we said
in one case once again must be stressed, i.e., the relation of carrier and
passenger continues until the latter has been landed at the port of destination
and has left the carriers premises. Hence, PAL necessarily would still have to
exercise extraordinary diligence in safeguarding the comfort, convenience and
safety of its stranded passengers until they have reached their final
destination. On this score, PAL grossly failed considering the then ongoing
battle between government forces and Muslim rebels in Cotabato City and the
fact that the private respondent was a stranger to the place.

The reliance is misplaced. The factual background of the PAL case is different from
the instant petition. In that case there was indeed a fortuitous event resulting in the
diversion of the PAL flight. However, the unforeseen diversion was worsened when
private respondents (passenger) was left at the airport and could not even hitch a ride in
a Ford Fiera loaded with PAL personnel,[10] not to mention the apparent apathy of the PAL
station manager as to the predicament of the stranded passengers.[11] In light of these
circumstances, we held that if the fortuitous event was accompanied by neglect and
malfeasance by the carriers employees, an action for damages against the carrier is
permissible. Unfortunately, for private respondents, none of these conditions are present
in the instant petition.
We are not prepared, however, to completely absolve petitioner JAL from any liability.
It must be noted that private respondents bought tickets from the United States with
Manila as their final destination. While JAL was no longer required to defray private
respondents living expenses during their stay in Narita on account of the fortuitous event,
JAL had the duty to make the necessary arrangements to transport private respondents
on the first available connecting flight to Manila. Petitioner JAL reneged on its obligation
to look after the comfort and convenience of its passengers when it declassified private
respondents from transit passengers to new passengers as a result of which private
respondents were obliged to make the necessary arrangements themselves for the next
flight to Manila. Private respondents were placed on the waiting listfrom June 20 to June
24. To assure themselves of a seat on an available flight, they were compelled to stay in
the airport the whole day of June 22, 1991 and it was only at 8:00 p.m. of the aforesaid
date that they were advised that they could be accommodated in said flight which flew at
about 9:00 a.m. the next day.
We are not oblivious to the fact that the cancellation of JAL flights to Manila from June
15 to June 21, 1991 caused considerable disruption in passenger booking and
reservation. In fact, it would be unreasonable to expect, considering NAIAs closure, that
JAL flight operations would be normal on the days affected. Nevertheless, this does not
excuse JAL from its obligation to make the necessary arrangements to transport private
respondents on its first available flight to Manila. After all, it had a contract to transport
private respondents from the United States to Manila as their final destination.
Consequently, the award of nominal damages is in order. Nominal damages are
adjudicated in order that a right of a plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized and not for the purpose of indemnifying any
loss suffered by him.[12] The court may award nominal damages in every obligation arising
from any source enumerated in Article 1157, or in every case where any property right
has been invaded.[13]
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dated
December 22, 1993 is hereby MODIFIED. The award of actual, moral and exemplary
damages is hereby DELETED. Petitioner JAL is ordered to pay each of the private
respondents nominal damages in the sum of P100,000.00 each including attorneys fees
of P50,000.00 plus costs.
SO ORDERED.
Narvasa, C.J. (Chairman), Kapunan and Purisima, JJ. concur.
 SECOND DIVISION

[G.R. No. 119756. March 18, 1999]

FORTUNE EXPRESS, INC., petitioner, vs. COURT OF APPEALS, PAULIE

U. CAORONG, and minor children YASSER KING CAORONG, ROSE
HEINNI and PRINCE ALEXANDER, all surnamed CAORONG, and
represented by their mother PAULIE U. CAORONG, respondents.

DECISION
MENDOZA, J.:

This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of
the Court of Appeals, which reversed the decision of the Regional Trial Court, Branch VI, Iligan
City. The aforesaid decision of the trial court dismissed the complaint of private respondents
against petitioner for damages for breach of contract of carriage filed on the ground that petitioner
had not exercised the required degree of diligence in the operation of one of its buses. Atty. Talib
Caorong, whose heirs are private respondents herein, was a passenger of the bus and was killed in
the ambush involving said bus.
The facts of the instant case are as follows:
Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is the
widow of Atty. Caorong, while private respondents Yasser King, Rose Heinni, and Prince
Alexander are their minor children.
On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in
Kauswagan, Lanao del Norte, resulting in the death of several passengers of the jeepney, including
two Maranaos. Crisanto Generalao, a volunteer field agent of the Constabulary Regional Security
Unit No. X, conducted an investigation of the accident. He found that the owner of the jeepney
was a Maranao residing in Delabayan, Lanao del Norte and that certain Maranaos were planning
to take revenge on the petitioner by burning some of its buses. Generalao rendered a report on his
findings to Sgt. Reynaldo Bastasa of the Philippine Constabulary Regional Hearquarters at
Cagayan de Oro. Upon the instruction of Sgt. Bastasa, he went to see Diosdado Bravo, operations
manager of petitioner, at its main office in Cagayan de Oro City. Bravo assured him that the
necessary precautions to insure the safety of lives and property would be taken.[1]
At about 6:45 P.M. on November 22, 1989, three armed Maranaos who pretended to be
passengers, seized a bus of petitioner at Linamon, Lanao del Norte while on its way to Iligan
City. Among the passengers of the bus was Atty. Caorong. The leader of the Maranaos, identified
as one Bashier Mananggolo, ordered the driver, Godofredo Cabatuan, to stop the bus on the side
of the highway. Mananggolo then shot Cabatuan on the arm, which caused him to slump on the
steering wheel. Then one of the companions of Mananggolo started pouring gasoline inside the
bus, as the other held the passengers at bay with a handgun. Mananggolo then ordered the
passengers to get off the bus. The passengers, including Atty. Caorong, stepped out of the bus and
went behind the bushes in a field some distance from the highway.[2]
However, Atty. Caorong returned to the bus to retrieve something from the overhead rack. At
that time, one of the armed men was pouring gasoline on the head of the driver. Cabatuan, who
had meantime regained consciousness, heard Atty. Caorong pleading with the armed men to spare
the driver as he was innocent of any wrong doing and was only trying to make a living. The armed
men were, however, adamant as they repeated their warning that they were going to burn the bus
along with its driver. During this exchange between Atty. Caorong and the assailants, Cabatuan
climbed out of the left window of the bus and crawled to the canal on the opposite side of the
highway. He heard shots from inside the bus. Larry de la Cruz, one of the passengers, saw that
Atty. Caorong was hit. Then the bus was set on fire. Some of the passengers were able to pull Atty.
Caorong out of the burning bus and rush him to the Mercy Community Hospital in Iligan City, but
he died while undergoing operation.[3]
The private respondents brought this suit for breach of contract of carriage in the Regional
Trial Court, Branch VI, Iligan City. In his decision, dated December 28, 1990, the trial court
dismissed the complaint, holding as follows:

The fact that defendant, through Operations Manager Diosdado Bravo, was informed
of the rumors that the Moslems intended to take revenge by burning five buses of
defendant is established since the latter also utilized Crisanto Generalaos as a
witness. Yet despite this information, the plaintiffs charge, defendant did not take
proper precautions. . . . Consequently, plaintiffs now fault the defendant for ignoring
the report. Their position is that the defendant should have provided its buses with
security guards. Does the law require common carriers to install security guards in its
buses for the protection and safety of its passengers? Is the failure to post guards an
omission of the duty to exercise the diligence of a good father of the family which
could have prevented the killing of Atty. Caorong? To our mind, the diligence
demanded by law does not include the posting of security guards in buses. It is an
obligation that properly belongs to the State. Besides, will the presence of one or two
security guards suffice to deter a determined assault of the lawless and thus prevent
the injury complained of? Maybe so, but again, perhaps not. In other words, the
presence of a security guard is not a guarantee that the killing of Atty. Caorong would
have been definitely avoided.

Accordingly, the failure of defendant to accord faith and credit to the report of Mr.
Generalao and the fact that it did not provide security to its buses cannot, in the light
of the circumstances, be characterized as negligence.

Finally, the evidence clearly shows that the assailants did not have the least intention
of harming any of the passengers. They ordered all the passengers to alight and set fire
on the bus only after all the passengers were out of danger. The death of Atty.
Caorong was an unexpected and unforseen occurrence over which defendant had no
control. Atty. Caorong performed an act of charity and heroism in coming to the
succor of the driver even in the face of danger. He deserves the undying gratitude of
the driver whose life he saved. No one should blame him for an act of extraordinary
charity and altruism which cost his life. But neither should any blame be laid on the
doorstep of defendant. His death was solely due to the willful acts of the lawless
which defendant could neither prevent nor stop.

WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For lack
of merit, the counter-claim is likewise dismissed. No cost.[4]

On appeal, however, the Court of Appeals reversed. It held:

In the case at bench, how did defendant-appellee react to the tip or information that
certain Maranao hotheads were planning to burn five of its buses out of revenge for
the deaths of two Maranaos in an earlier collision involving appellees bus? Except for
the remarks of appellees operations manager that we will have our action . . . . and Ill
be the one to settle it personally, nothing concrete whatsoever was taken by appellee
or its employees to prevent the execution of the threat. Defendant-appellee never
adopted even a single safety measure for the protection of its paying passengers. Were
there available safeguards? Of course, there were: one was frisking passengers
particularly those en route to the area where the threats were likely to be carried out
such as where the earlier accident occurred or the place of influence of the victims or
their locality. If frisking was resorted to, even temporarily, . . . . appellee might be
legally excused from liability. Frisking of passengers picked up along the route could
have been implemented by the bus conductor; for those boarding at the bus terminal,
frisking could have been conducted by him and perhaps by additional personnel of
defendant-appellee. On hindsight, the handguns and especially the gallon of gasoline
used by the felons all of which were brought inside the bus would have been
discovered, thus preventing the burning of the bus and the fatal shooting of the victim.

Appellees argument that there is no law requiring it to provide guards on its buses and
that the safety of citizens is the duty of the government, is not well taken. To be sure,
appellee is not expected to assign security guards on all of its buses; if at all, it has the
duty to post guards only on its buses plying predominantly Maranao areas. As
discussed in the next preceding paragraph, the least appellee could have done in
response to the report was to adopt a system of verification such as frisking of
passengers boarding its buses. Nothing, and to repeat, nothing at all, was done by
defendant-appellee to protect its innocent passengers from the danger arising from the
Maranao threats. It must be observed that frisking is not a novelty as a safety measure
in our society. Sensitive places in fact, nearly all important places have applied this
method of security enhancement. Gadgets and devices are available in the market for
this purpose. It would not have weighed much against the budget of the bus company
if such items were made available to its personnel to cope up with situations such as
the Maranao threats.

In view of the constitutional right to personal privacy, our pronouncement in this

decision should not be construed as an advocacy of mandatory frisking in all public
conveyances. What we are saying is that given the circumstances obtaining in the case
at bench that: (a) two Maranaos died because of a vehicular collision involving one of
appellees vehicles; (b) appellee received a written report from a member of the
Regional Security Unit, Constabulary Security Group, that the tribal/ethnic group of
the two deceased were planning to burn five buses of appellee out of revenge; and (c)
appellee did nothing absolutely nothing for the safety of its passengers travelling in
the area of influence of the victims, appellee has failed to exercise the degree of
diligence required of common carriers. Hence, appellee must be adjudged liable.

WHEREFORE, the decision appealed from is hereby REVERSED and another

rendered ordering defendant-appellee to pay plaintiffs-appellants the following:

1) P3,399,649.20 as death indemnity;

2) P50,000.00 and P500.00 per appearance as attorneys fees; and

Costs against defendant-appellee.[5]

Hence, this appeal. Petitioner contends:

(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE DECISION OF THE
REGIONAL TRIAL COURT DATED DECEMBER 28, 1990 DISMISSING THE
COMPLAINT AS WELL AS THE COUNTERCLAIM, AND FINDING FOR PRIVATE
RESPONDENTS BY ORDERING PETITIONER TO PAY THE GARGANTUAN SUM
OF P3,449,649.20 PLUS P500.00 PER APPEARANCE AS ATTORNEYS FEES, AS
WELL AS DENYING PETITIONERS MOTION FOR RECONSIDERATION AND THE
SUPPLEMENT TO SAID MOTION, WHILE HOLDING, AMONG OTHERS, THAT
PETITIONER BREACHED THE CONTRACT OF CARIAGE BY ITS FAILURE TO
EXERCISE THE REQUIRED DEGREE OF DILIGENCE;
(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO GRAVE, IRRESISTIBLE,
VIOLENT, AND FORCEFUL, AS TO BE REGARDED AS CASO FORTUITO; AND
(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
HOLDING THAT PETITIONER COULD HAVE PROVIDED ADEQUATE SECURITY
 IN PREDOMINANTLY MUSLIM AREAS AS PART OF ITS DUTY TO OBSERVE
EXTRA-ORDINARY DILIGENCE AS A COMMON CARRIER.
The instant petition has no merit.

First. Petitioners Breach of the Contract of Carriage

Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered
by a passenger on account of the wilful acts of other passengers, if the employees of the common
carrier could have prevented the act the exercise of the diligence of a good father of a family. In
the present case, it is clear that because of the negligence of petitioners employees, the seizure of
the bus by Mananggolo and his men was made possible.
Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were
planning to take revenge on the petitioner by burning some of its buses and the assurance of
petitioners operation manager, Diosdado Bravo, that the necessary precautions would be taken,
petitioner did nothing to protect the safety of its passengers.
Had petitioner and its employees been vigilant they would not have failed to see that the
malefactors had a large quantity of gasoline with them. Under the circumstances, simple
precautionary measures to protect the safety of passengers, such as frisking passengers and
inspecting their baggages, preferably with non-intrusive gadgets such as metal detectors, before
allowing them on board could have been employed without violating the passengers constitutional
rights. As this Court intimated in Gacal v. Philippine Air Lines, Inc.,[6] a common carrier can be
held liable for failing to prevent a hijacking by frisking passengers and inspecting their baggages.
From the foregoing, it is evident that petitioners employees failed to prevent the attack on one
of petitioners buses because they did not exercise the diligence of a good father of a family. Hence,
petitioner should be held liable for the death of Atty. Caorong.

Second. Seizure of Petitioners Bus not a Case of Force Majeure

The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous
event for which it could not be held liable.
Art. 1174 of the Civil Code defines a fortuitous even as an occurrence which could not be
foreseen or which though foreseen, is inevitable. In Yobido v. Court of Appeals,[7] we held that to
be considered as force majeure, it is necessary that: (1) the cause of the breach of the obligation
must be independent of the human will; (2) the event must be either unforeseeable or unavoidable;
(3) the occurrence must be such as to render it impossible for the debtor to fulfill the obligation in
a normal manner; and (4) the obligor must be free of participation in, or aggravation of, the injury
to the creditor. The absence of any of the requisites mentioned above would prevent the obligor
from being excused from liability.
Thus, in Vasquez v. Court of Appeals,[8] it was held that the common carrier was liable for its
failure to take the necessary precautions against an approaching typhoon, of which it was warned,
resulting in the loss of the lives of several passengers. The event was foreseeable, and, thus, the
second requisite mentioned above was not fulfilled. This ruling applies by analogy to the present
case. Despite the report of PC agent Generalao that the Maranaos were going to attack its buses,
petitioner took no steps to safeguard the lives and properties of its passengers.The seizure of the
bus of the petitioner was foreseeable and, therefore, was not a fortuitous event which would exempt
petitioner from liability.
Petitioner invokes the ruling in Pilapil v. Court of Appeals[9] and De Guzman v. Court of
Appeals[10] in support of its contention that the seizure of its bus by the assailants constitutes force
majeure. In Pilapil v. Court of Appeals,[11] it was held that a common carrier is not liable for failing
to install window grills on its buses to protect passengers from injuries caused by rocks hurled at
the bus by lawless elements. On the other hand, in De Guzman v. Court of Appeals,[12] it was ruled
that a common carrier is not responsible for goods lost as a result of a robbery which is attended
by grave or irresistible threat, violence, or force.
It is clear that the cases of Pilapil and De Guzman do not apply to the present case. Art. 1755
of the Civil Code provides that a common carrier is bound to carry the passengers as far as human
care and foresight can provide, using the utmost diligence of very cautious person, with due regard
for all the circumstances. Thus, we held in Pilapil and De Guzman that the respondents therein
were not negligent in failing to take special precautions against threats to the safety of passengers
which could not be foreseen, such as tortious or criminal acts of third persons. In the present case,
this factor of unforeseeablility (the second requisite for an event to be considered force majeure)
is lacking. As already stated, despite the report of PC agent Generalao that the Maranaos were
planning to burn some of petitioners buses and the assurance of petitioners operations manager
(Diosdado Bravo) that the necessary precautions would be taken, nothing was really done by
petitioner to protect the safety of passengers.

Third. Deceased not Guilty of Contributory Negligence

The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning
to the bus to retrieve something. But Atty. Caorong did not act recklessly. It should be pointed out
that the intended targets of the violence were petitioner and its employees, not its passengers. The
assailants motive was to retaliate for the loss of life of two Maranaos as a result of the collision
between petitioners bus and the jeepney in which the two Maranaos were riding. Mananggolo, the
leader of the group which had hijacked the bus, ordered the passengers to get off the bus as they
intended to burn it and its driver. The armed men actually allowed Atty. Caorong to retrieve
something from the bus. What apparently angered them was his attempt to help the driver of the
bus by pleading for his life. He was playing the role of the good Samaritan. Certainly, this act
cannot be considered an act of negligence, let alone recklessness.

Fourth. Petitioner Liable to Private Respondents for Damages

We now consider the question of damages that the heirs of Atty. Caorong, private respondents
herein, are entitled to recover from the petitioner.
 Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides
for the payment of indemnity for the death of passengers caused by the breached of contract of
carriage by a common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said
indemnity for death has through the years been gradually increased in view of the declining value
of the peso. It is presently fixed at P50,000.00.[13] Private respondents are entitled to this amount.
Actual damages. Art. 2199 provides that Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. The trial court found that the private respondents spent P30,000.00 for the wake and burial
of Atty. Caorong.[14] Since petitioner does not question this finding of the trial court, it is liable to
private respondents in the said amount as actual damages.
Moral Damages. Under Art. 2206, the spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental anguish by reason of the death
of the deceased. The trial court found that private respondent Paulie Caorong suffered pain from
the death of her husband and worry on how to provide support for their minor children, private
respondents Yasser King, Rose Heinni, and Prince Alexander.[15] The petitioner likewise does not
question this finding of the trial court. Thus, in accordance with recent decisions of this
Court,[16] we hold that the petitioner is liable to the private respondents in the amount
of P100,000.00 as moral damages for the death of Atty. Caorong.
Exemplary Damages. Art. 2232 provides that in contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner. In the present case, the petitioner acted in a wanton and reckless
manner. Despite warning that the Maranaos were planning to take revenge against the petitioner
by burning some of its buses, and contrary to the assurance made by its operations manager that
the necessary precautions would be taken, the petitioner and its employees did nothing to protect
the safety of passengers. Under the circumstances, we deem it reasonable to award private
respondents exemplary damages in the amount of P100,000.00.[17]
Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered when, as in the instant
case, exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of
Appeals,[18] we held an award of P50,000.00 as attorneys fees to be reasonable. Hence, the private
respondents are entitled to attorneys fees in that amount.
Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art.
2206 thereof, provides that in addition to the indemnity for death arising from the breach of
contract of carriage by a common carrier, the defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the heirs of the latter. The formula
established in decided cases for computing net earning capacity is as follows:[19]
Gross Necessary
Net earning = Life x Annual - Living
Capacity Expectancy Income Expenses
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80)
and the age of the deceased.[20] Since Atty. Caorong was 37 years old at the time of his death,[21] he
had a life expectancy of 28 2/3 more years.[22] His projected gross annual income, computed based
on his monthly salary of P11,385.00[23] as a lawyer in the Department of Agrarian Reform at the
time of his death, was P148,005.00.[24] allowing for necessary living expenses of fifty percent
(50%)[25]of his projected gross annual income, his total earning capacity amounts
to P2,121,404.90.[26] Hence, the petitioner is liable to the private respondents in the said amount as
compensation for loss of earning capacity.
WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is hereby
AFFIRMED with the MODIFICATION that petitioner Fortune Express, Inc. is ordered to pay the
following amounts to private respondents Paulie, Yasser King, Rose Heinni, and Prince Alexander
Caorong:
1. death indemnity in the amount of fifty thousand pesos (P50,000.00);
2. actual damages in the amount of thirty thousand pesos (P30,000.00);
3. moral damages in the amount of one hundred thousand pesos(P100,000.00);
4. exemplary damages in the amount of one hundred thousand pesos (P100,000.00);
5. attorneys fees in the amount of fifty thousand pesos (P50,000.00);
6. compensation for loss of earning capacity in the amount of two million one hundred twenty-
one thousand four hundred four pesos and ninety centavos (P2,121,404.90); and
7) costs of suits.
SO ORDERED.
Bellosillo, (Chairman), Puno, and Buena, JJ., concur.
Quisumbing, J., on official business abroad.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-8034 November 18, 1955

CORNELIA A. DE GILLACO, ET AL., plaintiffs-appellees,

vs.
MANILA RAILROAD COMPANY, defendant-appellant.

First Assistant Corporate Counsel Federico C. Alikpala and Attorney Higino R. Francisco for
appellant.
Restituto Luna for appellees.

REYES, J.B.L., J.:

The Manila Railroad Company has appealed from a judgment of the Court of First Instance of Laguna
sentencing it to pay P4,000 damages to the appellees herein, the widow and children of the late Tomas
Gillaco, shot by an employee of the Company in April, 1946.

The judgment was rendered upon the following stipulation of facts:

That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas Gillaco, husband of the
plaintiff, was a passenger in the early morning train of the Manila Railroad Company from
Calamba, Laguna to Manila;

That when the train reached the Paco Railroad station, Emilio Devesa, a train guard of the
Manila Railroad Company assigned in the Manila-San Fernando, La Union Line, happened to
be in said station waiting for the same train which would take him to Tutuban Station, where
he was going to report for duty;

That Emilio Devesa had a long standing personal grudge against Tomas Gillaco, same dating
back during the Japanese occupation;

That because of this personal grudge, Devesa shot Gillaco with the carbine furnished to him
by the Manila Railroad Company for his use as such train guard, upon seeing him inside the
train coach;

That Tomas Gillaco died as a result of the would which he sustained from the shot fired by
Devesa.

It is also undisputed that Devesa was convicted with homicide by final judgment of the Court of
Appeals.

Appellant's contention is that, on the foregoing facts, no liability attaches to it as employer of the killer,
Emilio Devesa; that it is not responsible subsidiary ex delicto, under Art. 103 of the Revised Penal
Code, because the crime was not committed while the slayer was in the actual performance of his
ordinary duties and service; nor is it responsible ex contractu, since the complaint did not aver
sufficient facts to establish such liability, and no negligence on appellant's party was shown. The Court
below held the Railroad company responsible on the ground that a contract of transportation implies
protection of the passengers against acts of personal violence by the agents or employees of the
carrier.

There can be no quarrel with the principle that a passenger is entitled to protection from personal
violence by the carrier or its agents or employees, since the contract of transportation obligates the
carrier to transport a passenger safely to his destination. But under the law of the case, this
responsibility extends only to those that the carrier could foresee or avoid through the exercise of the
degree of car and diligence required of it.

Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which was in force in 1946,
when Gillaco was shot) this Court said in Lasam vs. Smith (45 Phil., 657):

In our opinion, the conclusions of the court below are entirely correct. That upon the facts
stated the defendant's liability, if any, is contractual, is well settled by previous decisions of the
court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the
distinction between extra-contractual liability and contractual liability has been so ably and
exhaustively discussed in various other cases that nothing further need here be said upon that
subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila Railroad vs. Compaia
Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric
Railroad & Light Co., 40 Phil., 706). It is sufficient to reiterate that the source of the defendant's
legal liability is the contract of carriage; that by entering into that contract he bound himself to
carry the plaintiff safely and securely to their destination; and that having failed to do so he is
liable in damages unless he shows that the failure to fulfill his obligation was due to causes
mentioned in article 1105 of the Civil Code, which reads as follows:

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

The act of guard Devesa in shooting passenger Gillaco (because of a personal grudge nurtured
against the latter since the Japanese occupation) was entirely unforeseeable by the Manila Railroad
Co. The latter had no means to ascertain or anticipate that the two would meet, nor could it reasonably
foresee every personal rancor that might exist between each one of its many employees and any one
of the thousands of eventual passengers riding in its trains. The shooting in question was
therefore "caso fortuito" within the definition of article 105 of the old Civil Code, being both
unforeseeable and inevitable under the given circumstances; and pursuant to established doctrine,
the resulting breach of appellant's contract of safe carriage with the late Tomas Gillaco was excused
thereby.

No doubt that a common carrier is held to a very high degree of care and diligence in the protection of
its passengers; but, considering the vast and complex activities of modern rail transportation, to require
of appellant that it should guard against all possible misunderstanding between each and every one
of its employees and every passenger that might chance to ride in its conveyances at any time, strikes
us as demanding diligence beyond what human care and foresight can provide.

The lower Court and the appellees both relied on the American authorities that particularly hold carriers
to be insurers of the safety of their passengers against willful assault and intentional ill treatment on
the part of their servants, it being immaterial that the act should be one of private retribution on the
part of the servant, impelled by personal malice toward the passenger (10 Am. Jur. 108; Ed. Note to
Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But as can be inferred from the
previous jurisprudence of this Court , the Civil Code of 1889 did not impose such absolute liability
(Lasam vs. Smith, supra). The liability of a carrier as an insurer was not recognized in this jurisdiction
(Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm. Co. vs. Naviera Filipina, 38 Off. Gaz.,
1020).

Another very important consideration that must be borne in mind is that, when the crime took place,
the guard Devesa had no duties to discharge in connection with the transportation of the deceased
from Calamba to Manila. The stipulation of facts is clear that when Devesa shot and killed Gillaco,
Devesa was assigned 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 a.m., two hours after the commission of the crime. Devesa was
therefore under no obligation to safeguard the passenger of the Calamba-Manila train, where the
deceased was riding; and the killing of Gillaco was not done in line of duty. The position of Devesa at
the time was that of another would be passenger, a stranger also awaiting transportation, and not that
of an employee assigned to discharge any of the duties that the Railroad had assumed by its contract
with the deceased. As a result, Devesa's assault cannot be deemed in law a breach of Gillaco's
contract of transportation by a servant or employee of the carrier. We agree with the position taken by
the Supreme Court of Texas in a similar case, where it held:

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

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

Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, and Concepcion, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19161 April 29, 1966

MANILA RAILROAD COMPANY, petitioner,

vs.
MACARIA BALLESTEROS, TIMOTEO CAMAYO, JOSE REYES and JULIAN MAIMBAN,
JR., respondents.

Gov't Corp. Counsel S. M. Gopengco and Atty. R. G. Fernando, for petitioner.

George G. Arbolario, for respondents.

MAKALINTAL, J.:

In civil case No. 45968 of the Court of First Instance of Manila (Macaria Ballesteros, Timoteo Camayo,
Jose Reyes and Julian Maimban, Jr. vs. Manila Railroad Company) the defendant was adjudged to
pay damages in the following amounts: P2,400 to Macaria Ballesteros; P4,000 to Timoteo Camayo;
P3,000 to Jose Reyes: and P2,000, plus P1,000 as attorney's fees, to Julian Maimban, Jr.

The defendant appealed from the judgment, but upon motion by the plaintiffs, the trial court, by order
dated October 14, 1961, dismissed the appeal on the ground that it was "manifestly and palpably
frivolous and interposed ostensibly to delay the settlement of the just and reasonable claims of the
herein plaintiffs, which have been pending since 1958." The defendant moved to reconsider, and upon
denial of its motion instituted in this Court the instant petition for mandamus to set aside the order of
dismissal and to order respondent court to give due course to the appeal.

In filing the petition directly with this Court, petitioner evidently intended to raise only questions of law
in the appeal contemplated, since under Rule 41, section 15, "when erroneously a motion to dismiss
an appeal is granted or a record on appeal is disallowed by the trial court, a proper petition
for mandamus may be filed in the appellate court;" and under section 17(6) of the Judiciary Act this
Court may review on appeal only questions of law in civil cases decided by inferior courts unless the
value in controversy exceeds P200,000. 1wph1.t

The fact that an appeal is frivolous and interposed only for purposes of delay has been recognized as
a valid ground to deny issuance of the writ of mandamus to compel the trial court to approve and certify
the appeal. In De la Cruz vs. Blanco and Quevedo, 73 Phil. 596, We held:

And where as in the instant case, the dismissal has been ordered by the trial court, it would
not be disturbed in the Appellate Court if the latter finds the appeal to have been interposed
ostensibly for delay. It has been held that a frivolous appeal is one presenting no justiciable
question or one so readily cognizable as devoid of merit on the face of the record that there is
little, if any, prospect that it can over succeed. The instant case is one such instance in which
the appeal is evidently without merit, taken manifestly for delay.

And in Paner vs. Yatco, 87 Phil. 271, We denied the writ prayed for and held that "while strictly and
legally speaking the petition may be granted, we may, before acting thereon, inquire into the facts
involved in order to determine whether once the writ is granted and the case is brought up here on
appeal the appellant has any chance, even possibility, of having the basic decision of the trial court
set aside or modified; for if the appellant has not that prospect or likelihood then the granting of the
writ and the consequent appeal would be futile and would mean only a waste of time to the parties
and to this Court."

The material facts, as found by respondent court in its decision, are as follows: Private respondents
here, plaintiffs below, were passengers on petitioner's bus, the driver of which was Jose Anastacio. In
Bayombong, Nueva Vizcaya, Anastacio stopped the bus and got off to replace a defective spark plug.
While he was thus engaged, one Dionisio Abello, an auditor assigned to defendant company by the
General Auditing Office, took the wheel and told the driver to sit somewhere else. With Abello driving,
the bus proceeded on its way, from time to time stopping to pick up passengers. Anastacio tried twice
to take the wheel back but Abello would not relinquish it. Then, in the language of the trial court, "while
the bus was negotiating between Km. posts 328 and 329 (in Isabela) a freight truck ... driven by Marcial
Nocum ... bound for Manila, was also negotiating the same place; when these two vehicles were about
to meet at the bend of the road Marcial Nocum, in trying to evade several holes on the right lane,
where his truck was running, swerved his truck towards the middle part of the road and in so doing,
the left front fender and left side of the freight truck smashed the left side of the bus resulting in
extensive damages to the body of the bus and injuries to seventeen of its passengers, ... including the
plaintiffs herein."

In rejecting petitioner's contention that the negligence of Marcial Nocum could not be imputed to it and
relieved it from liability, the trial court found that Dionisio Abello "was likewise reckless when he was
driving the bus at the rate of from 40 to 50 kilometers per hour on a bumpy road at the moment of the
collision."

Another defense put up by petitioner is that since Abello was not its employee it should not be held
responsible for his acts. This defense was correctly overruled by the trial court, considering the
provisions of Article 1763 of the Civil Code and section 48 (b) of the Motor Vehicle Law, which
respectively provide as follows:

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

Sec. 48(b). No professional chauffeur shall permit any unlicensed person to drive the motor
vehicle under his control, or permit a person, sitting beside him or in any other part of the car,
to interfere with him in the operation of the motor vehicle, by allowing said person to take hold
of the steering wheel, or in any other manner take part in the manipulation or control of the
car.

It appears further, and so the trial court found, that there were negotiations between the parties to
compromise the case, as a result of which respondents herein, plaintiffs below, considerably reduced
their claims to the amounts subsequently awarded in the judgment; that petitioner had in fact settled
the claims of the other passengers who were also injured in the same accident and even the claim for
damages filed in another action by the owner of the freight truck; and that the Government Corporate
Counsel himself, who represents herein petitioner, rendered two separate opinions (Op. No. 86, May
19, 1960; and Op. No. 99, series of 1961) wherein, after analyzing the facts and the law applicable,
he reached the conclusion that the acts of the bus personnel, particularly "in allowing Mr. Abello to
drive despite two occasions when the bus stopped and the regular driver could have taken over,
constitute reckless imprudence and wanton injurious conduct on the part of the MRR employees." On
the basis of those opinions the Government Corporate Counsel advised petitioner that the offer of the
claimants was reasonable and should be accepted. His advice, however, was not favorably acted
upon, petitioner obviously preferring to litigate.

The issues proposed to be taken up on appeal, as set forth in the petition, are whether or not Dionisio
Abello acted with reckless negligence while driving petitioner's bus at the time of the accident, and
whether or not petitioner may be held liable on account of such negligence, considering that he was
not its employee. These are no longer justiciable questions which would justify our issuing the
peremptory writ prayed for. The first is a question of fact on which the affirmative finding of respondent
court is not reviewable by Us; and the second is one as to which there can be no possible doubt in
view of the provisions of the Civil Code and of the Motor Vehicle Law hereinbefore cited. There would
be no point in giving the appeal due course.

The writ prayed for is denied, with costs against petitioner.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P.,
and Sanchez, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-28692 July 30, 1982

CONRADA VDA. DE ABETO, CARME0000LO ABETO, CECILIA ABETO, CONCEPCION ABETO,

MARIA ABETO, ESTELA ABETO, PERLA ABETO, PATRIA ABETO and ALBERTO
ABETO, plaintiffs-appellees,
vs.
PHILIPPINE AIR LINES, INCORPORATED, defendant-appellant.

Quijano, Arroyo & Padilla Law Offices for plaintiffs-appellees.

Siguion Reyna, Montecillo & Ongsiako, Belo and Associates for defendant-appellant.

RELOVA, J..

Appeal from the decision of the Court of First Instance of Iloilo finding that defendant-appellant "did
not exercise extraordinary diligence or prudence as far as human foresight can provide ... but on the
contrary showed negligence and indifference for the safety of the passengers that it was bound to
transport, " and for the death of Judge Quirico Abeto, defendant- appellant was ordered to pay
plaintiffs, the heirs of Judge Abeto, the following:

1st For the death of Judge Quirico Abeto, the amount of P6,000.00;

2nd For the loss of his earning capacity, for 4.75 (4 ) years at the rate of P7,200.00
per annum in the amount of P34,200.00;

3rd For moral damages in favor of the plaintiffs in the sum of P10,000.00;

4th For actual damages in the sum of P2,000.00 minus P400.00 received under
Voucher Exhibit 'H' the amount of Pl,600.00;

5th For attorney's fees, the sum of P6,000.00 and/or the total sum of P57,800.00
and; To pay the costs of this proceedings.

Plaintiff's evidence shows that about 5:30 in the afternoon of November 23, 1960, Judge Quirico Abeto,
with the necessary tickets, boarded the Philippine Air Lines' PI-C133 plane at the Mandurriao Airport,
Iloilo City for Manila. He was listed as the No. 18 passenger in its Load Manifest (Exhibit A). The plane
which would then take two hours from Iloilo to Manila did not reach its destination and the next day
there was news that the plane was missing. After three weeks, it was ascertained that the plane
crashed at Mt. Baco, Province of Mindoro. All the passengers, including Judge Abeto, must have been
killed instantly and their remains were scattered all over the area. Among the articles recovered on the
site of the crash was a leather bag with the name "Judge Quirico Abeto. " (Exhibit C.)
Judge Abeto, prior to the plane crash, was a Technical Assistant in the Office of the President receiving
an annual compensation of P7,200.00; and before that, has held the various positions in the
government, namely: Municipal President of Iloilo; Provincial Fiscal of Antique, Negros Occidental and
Cebu; Judge of the Court of First Instance of Manila, and Secretary of Justice. He was in good health
before the incident even if he was already 79 years old at that time.

Plaintiff-appellee Conrada Vda. de Abeto was appointed administratrix of the estate of Judge Abeto.
The other plaintiffs-appellees are the children of the deceased. When they received the news of the
plane crash, Mrs. Abeto was shocked and until it was ascertained that the plane had crashed three
weeks after, she could not sleep and eat. She felt sick and was miserable after that. The members of
the family also suffered.

Personal belongings which were lost amounted to P300.00. Burial expenses of the late judge was
P1,700.00.

When defendant-appellant would not hear demands for settlement of damages, plaintiffs-appellees
were compelled to hire counsel for the institution and prosecution of this case.

Defendant-appellant tried to prove that the plane crash at Mt. Baco was beyond the control of the pilot.
The plane at the time of the crash was airworthy for the purpose of conveying passengers across the
country as shown by the certificate of airworthiness issued by the Civil Aeronautics Administration
(CAA). There was navigational error but no negligence or malfeasance on the part of the pilot. The
plane had undergone 1,822 pre- flight checks, 364 thorough checks, 957 terminating checks and 501
after maintenance checks. These checks were part of the quality control operation of defendant airline
Further, deviation from its prescribed route was due to the bad weather conditions between Mt. Baco
and Romblon and strong winds which caused the plane to drift to Mt. Baco. Under the circumstances,
appellant argues that the crash was a fortuitous event and, therefore, defendant-appellant cannot be
held liable under the provisions of Article 1174 of the New Civil Code. Besides, appellant tried to prove
that it had exercised all the cares, skill and diligence required by law on that particular flight in question.

The trial court, finding for the plaintiffs, said:

The Court after a thorough perusal of the evidences, testimonial and documentaries
submitted by both parties has come into the conclusion that the evidence introduced
by the plaintiffs have established the following significant facts which proved the
negligence of the defendant's pilot of the plane on that flight- in question.

1st That the Pilot of the plane disobeyed instruction given in not following the route
of Amber 1 prescribed by the CAA in Violation of Standard Regulation.

Second The defendant failed to perform the pre-flight test on plane PIC-133 before
the same took off from Mandurriao Airport to Manila in order to find out a possible
defect of the plane.

Third When the defendant allowed during the flight in question, student Officer
Rodriguez on training as proved when his body was found on the plane's cockpit with
its microphone hanging still on his left leg.

Fourth When the Pilot during the flight in question failed or did not report his position
over or abeam Romblon which is a compulsory reporting point.
 These facts as established by the evidence of the plaintiff lead to the inevitable
conclusion that the defendant did not exercise extraordinary diligence or prudence as
far as human foresight can provide imposed upon by the Law, but on the contrary
showed negligence and indifference for the safety of the passengers that it was bound
to transport. By the very evidence of the defendant, as shown by the deposition of one
Jose Abanilla, dated December 13, 1963, Section Chief of the Actuarial Department
of the Insular Life Insurance Company regarding life expectancy through American
experience, the late Judge Abeto at the age of 79 would still live or have a life
expectancy of 4.75 years.

Appealing to this Court, defendant claimed that the trial court erred:

... in finding, contrary to the evidence, that the appellant was negligent;

III

... in not finding that the appellant, in the conduct and operation of PI-C133, exercised
its statutory obligation over the passengers of PI C133 of extraordinary diligence as
far as human care and foresight can provide, using the utmost diligence of a very
cautious person with due regard for all the circumstances and in not finding that the
crash of PI-C133 was caused by fortuitous events;

... in awarding damages to the appellees; and

IV

... in not finding that appellant acted in good faith and exerted efforts to minimize
damages.

The issue before Us in this appeal is whether or not the defendant is liable for violation of its contract
of carriage.

The provisions of the Civil Code on this question of liability are clear and explicit. Article 1733 binds
common carriers, "from the nature of their business and by reasons of public policy, ... to observe
extraordinary diligence in the vigilance ... for the safety of the passengers transported by them
according to all the circumstances of each case." Article 1755 establishes the standard of care required
of a common carrier, which is, "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." Article 1756 fixes the burden of proof by providing that "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 extra-ordinary diligence as prescribed in Articles 1733 and 1755."
Lastly, Article 1757 states that "the responsibility of a common carrier for the safety of passengers ...
cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on
tickets, or otherwise."

The prescribed airway of plane PI-C133 that afternoon of November 23, 1960, with Capt. de Mesa, as
the pilot, was Iloilo-Romblon-Manila, denominated as airway "Amber l," and the prescribed elevation
of the flight was 6,000 ft. The fact is, the plane did not take the designated route because it was some
30 miles to the west when it crashed at Mt. Baco. According to defendant's witness, Ramon A.
Pedroza, Administrative Assistant of the Philippine Air Lines, Inc., this tragic crash would have not
happened had the pilot continued on the route indicated. Hereunder is Mr. Pedroza's testimony on this
point:

Q Had the pilot continued on the route indicated, Amber A-1 there
would have been no crash, obviously?

A Yes, Your Honor

ATTY. HILADO:

(To the witness)

Q Because Mt. Baco is 30 miles from Amber I?

A Yes,sir.(TSN,p.75,Oct.22,1963 hearing)

xxx xxx xxx

And, Assistant Director Cesar Mijares of the Civil Aeronautics Administration testified that the pilot of
said plane was "off course."

Q But the fact is that you found him out, that he was off course?

A Yes, sir.

Q And off course, you mean that he did not follow the route prescribed
for him?

A Yes, sir.

Q And the route for him to follow was Amber A-l?

A Yes, sir.

Q And the route for Iloilo direct to Manila, is passing Romblon to

Manila?

A Yes, passing Romblon to Manila.

Q And you found that he was not at all following the route to Romblon
to Manila?

A Yes, sir.

Q You know Mr. Witness that a disregard or, violation, or disregard of

instruction is punishable by law?

A Yes,sir. (TSN,pp.247-248,Dec. 20, 1963)

 xxx xxx xxx

It is clear that the pilot did not follow the designated route for his flight between
Romblon and Manila. The weather was clear and he was supposed to cross airway
"Amber I" over Romblon; instead, he made a straight flight to Manila in violation of air
traffic rules.

At any rate, in the absence of a satisfactory explanation by appellant as to how the accident occurred,
the presumption is, it is at fault.

In an action based on a contract of carriage, the court need not make an express
finding of fault or negligence on the part of the carrier in order to hold it responsible to
pay the damages sought for by the passenger. By the contract of carriage, the carrier
assumes the express obligation to transport the passenger to his destination safely
and to observe extraordinary diligence with a due regard for all the circumstances, and
any injury that might be suffered by the passenger is right away attributable to the fault
or negligence of the carrier (Art. 1756, New Civil Code). This is an exception to the
general rule that negligence must be proved. (Batangas Transportation Company vs.
Caguimbal, 22 SCRA 171.)

The total of the different items which the lower court adjudged herein appellant to pay the plaintiffs is
P57,800.00. The judgment of the court a quo is modified in the sense that the defendant is hereby
ordered to pay the said amount to the plaintiffs, with legal interest thereon from the finality of this
judgment. With costs against defendant-appellant.

Teehankee (Chairman), Makasiar, Melencio-Herrera, Plana and Vasquez, JJ., concur.

Gutierrez, Jr., J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 52159 December 22, 1989

JOSE PILAPIL, petitioner,

vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC., respondents.

Martin Badong, Jr. for petitioner.

Eufronio K. Maristela for private respondent.

PADILLA, J.:

This is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19
October 1979 in CA-G.R. No. 57354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco
Transportation Co., Inc., defendant-appellant," which reversed and set aside the judgment of the Court
of First Instance of Camarines Sur in Civil Case No. 7230 ordering respondent transportation company
to pay to petitioner damages in the total sum of sixteen thousand three hundred pesos (P 16,300.00).

The record discloses the following facts:

Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing No.
409 at San Nicolas, Iriga City on 16 September 1971 at about 6:00 P.M. While said bus No. 409 was
in due course negotiating the distance between Iriga City and Naga City, upon reaching the vicinity of
the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, an unidentified
man, a bystander along said national highway, hurled a stone at the left side of the bus, which hit
petitioner above his left eye. Private respondent's personnel lost no time in bringing the petitioner to
the provincial hospital in Naga City where he was confined and treated.

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

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

Wherefore, judgment is hereby entered:

1. Ordering defendant transportation company to pay plaintiff Jose

Pilapil the sum of P 10,000.00, Philippine Currency, representing
 actual and material damages for causing a permanent scar on the face
and injuring the eye-sight of the plaintiff;

2. Ordering further defendant transportation company to pay the sum

of P 5,000.00, Philippine Currency, to the plaintiff as moral and
exemplary damages;

3. Ordering furthermore, defendant transportation company to

reimburse plaintiff the sum of P 300.00 for his medical expenses and
attorney's fees in the sum of P 1,000.00, Philippine Currency; and

4. To pay the costs.

SO ORDERED 1

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

Hence the present petition.

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

We do not agree.

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

Under Article 1733 of the Civil Code, common carriers are required to observe extraordinary diligence
for the safety of the passenger transported by them, according to all the circumstances of each case.
The requirement of extraordinary diligence imposed upon common carriers is restated in Article 1755:
"A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with due regard for all the
circumstances." Further, in case of death of or injuries to passengers, the law presumes said common
carriers to be at fault or to have acted negligently. 2

While the law requires the highest degree of diligence from common carriers in the safe transport of
their passengers and creates a presumption of negligence against them, it does not, however, make
the carrier an insurer of the absolute safety of its passengers. 3

Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in the
carriage of passengers by common carriers to only such as human care and foresight can provide.
what constitutes compliance with said duty is adjudged with due regard to all the circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the
common carrier when its passenger is injured, merely relieves the latter, for the time being, from
introducing evidence to fasten the negligence on the former, because the presumption stands in the
place of evidence. Being a mere presumption, however, the same is rebuttable by proof that the
common carrier had exercised extraordinary diligence as required by law in the performance of its
contractual obligation, or that the injury suffered by the passenger was solely due to a fortuitous
event. 4

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

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

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

We do not agree.

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

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

Article 1763. A common carrier is responsible for injuries suffered by a passenger on

account of the wilful acts or negligence of other passengers or of strangers, if the
common carrier's employees through the exercise of the diligence of a good father of
a family could have prevented or stopped the act or omission.

Clearly under the above provision, a tort committed by a stranger which causes injury to a passenger
does not accord the latter a cause of action against the carrier. The negligence for which a common
carrier is held responsible is the negligent omission by the carrier's employees to prevent the tort from
being committed when the same could have been foreseen and prevented by them. Further, under
the same provision, it is to be noted that when the violation of the contract is due to the willful acts of
strangers, as in the instant case, the degree of care essential to be exercised by the common carrier
for the protection of its passenger is only that of a good father of a family.
Petitioner has charged respondent carrier of negligence on the ground that the injury complained of
could have been prevented by the common carrier if something like mesh-work grills had covered the
windows of its bus.

We do not agree.

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

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

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

WHEREFORE, the judgment appealed from is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, concur.

Paras, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-55300 March 15, 1990

FRANKLIN G. GACAL and CORAZON M. GACAL, the latter assisted by her husband,
FRANKLIN G. GACAL, petitioners,
vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE PEDRO SAMSON C. ANIMAS, in his
capacity as PRESIDING JUDGE of the COURT OF FIRST INSTANCE OF SOUTH COTABATO,
BRANCH I, respondents.

Vicente A. Mirabueno for petitioners.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

PARAS, J.:

This is a, petition for review on certiorari of the decision of the Court of First Instance of South
Cotabato, Branch 1, * promulgated on August 26, 1980 dismissing three (3) consolidated cases for
damages: Civil Case No. 1701, Civil Case No. 1773 and Civil Case No. 1797 (Rollo, p. 35).

The facts, as found by respondent court, are as follows:

Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S. Anislag and
his wife, Mansueta L. Anislag, and the late Elma de Guzman, were then passengers
boarding defendant's BAC 1-11 at Davao Airport for a flight to Manila, not knowing that
on the same flight, Macalinog, Taurac Pendatum known as Commander Zapata,
Nasser Omar, Liling Pusuan Radia, Dimantong Dimarosing and Mike Randa, all of
Marawi City and members of the Moro National Liberation Front (MNLF), were their
co-passengers, three (3) armed with grenades, two (2) with .45 caliber pistols, and one
with a .22 caliber pistol. Ten (10) minutes after take off at about 2:30 in the afternoon,
the hijackers brandishing their respective firearms announced the hijacking of the
aircraft and directed its pilot to fly to Libya. With the pilot explaining to them especially
to its leader, Commander Zapata, of the inherent fuel limitations of the plane and that
they are not rated for international flights, the hijackers directed the pilot to fly to Sabah.
With the same explanation, they relented and directed the aircraft to land at
Zamboanga Airport, Zamboanga City for refueling. The aircraft landed at 3:00 o'clock
in the afternoon of May 21, 1976 at Zamboanga Airport. When the plane began to taxi
at the runway, it was met by two armored cars of the military with machine guns pointed
at the plane, and it stopped there. The rebels thru its commander demanded that a
DC-aircraft take them to Libya with the President of the defendant company as hostage
and that they be given $375,000 and six (6) armalites, otherwise they will blow up the
plane if their demands will not be met by the government and Philippine Air Lines.
Meanwhile, the passengers were not served any food nor water and it was only on
May 23, a Sunday, at about 1:00 o'clock in the afternoon that they were served 1/4
slice of a sandwich and 1/10 cup of PAL water. After that, relatives of the hijackers
 were allowed to board the plane but immediately after they alighted therefrom, an
armored car bumped the stairs. That commenced the battle between the military and
the hijackers which led ultimately to the liberation of the surviving crew and the
passengers, with the final score of ten (10) passengers and three (3) hijackers dead
on the spot and three (3) hijackers captured.

City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon M. Gacal suffered injuries in
the course of her jumping out of the plane when it was peppered with bullets by the
army and after two (2) hand grenades exploded inside the plane. She was hospitalized
at General Santos Doctors Hospital, General Santos City, for two (2) days, spending
P245.60 for hospital and medical expenses, Assistant City Fiscal Bonifacio S. Anislag
also escaped unhurt but Mrs. Anislag suffered a fracture at the radial bone of her left
elbow for which she was hospitalized and operated on at the San Pedro Hospital,
Davao City, and therefore, at Davao Regional Hospital, Davao City, spending
P4,500.00. Elma de Guzman died because of that battle. Hence, the action of
damages instituted by the plaintiffs demanding the following damages, to wit:

Civil Case No. 1701

City Fiscal Franklin G. Gacal and Mrs. Corazon M. Gacal actual

damages: P245.60 for hospital and medical expenses of Mrs Gacal;
P8,995.00 for their personal belongings which were lost and not
recovered; P50,000.00 each for moral damages; and P5,000.00 for
attorney's fees, apart from the prayer for an award of exemplary
damages (Record, pp. 4-6, Civil Case No. 1701).

Civil Case No. 1773

xxx xxx xxx

Civil Case No. 1797

xxx xxx xxx

The trial court, on August 26, 1980, dismissed the complaints finding that all the damages sustained
in the premises were attributed to force majeure.

On September 12, 1980 the spouses Franklin G. Gacal and Corazon M. Gacal, plaintiffs in Civil Case
No. 1701, filed a notice of appeal with the lower court on pure questions of law (Rollo, p. 55) and the
petition for review on certiorari was filed with this Court on October 20, 1980 (Rollo, p. 30).

The Court gave due course to the petition (Rollo, p. 147) and both parties filed their respective briefs
but petitioner failed to file reply brief which was noted by the Court in the resolution dated May 3, 1982
(Rollo, p. 183).

Petitioners alleged that the main cause of the unfortunate incident is the gross, wanton and
inexcusable negligence of respondent Airline personnel in their failure to frisk the passengers
adequately in order to discover hidden weapons in the bodies of the six (6) hijackers. They claimed
that despite the prevalence of skyjacking, PAL did not use a metal detector which is the most effective
means of discovering potential skyjackers among the passengers (Rollo, pp. 6-7).
Respondent Airline averred that in the performance of its obligation to safely transport passengers as
far as human care and foresight can provide, it has exercised the utmost diligence of a very cautious
person with due regard to all circumstances, but the security checks and measures and surveillance
precautions in all flights, including the inspection of baggages and cargo and frisking of passengers at
the Davao Airport were performed and rendered solely by military personnel who under appropriate
authority had assumed exclusive jurisdiction over the same in all airports in the Philippines.

Similarly, the negotiations with the hijackers were a purely government matter and a military operation,
handled by and subject to the absolute and exclusive jurisdiction of the military authorities. Hence, it
concluded that the accident that befell RP-C1161 was caused by fortuitous event, force majeure and
other causes beyond the control of the respondent Airline.

The determinative issue in this case is whether or not hijacking or air piracy during martial law and
under the circumstances obtaining herein, is a caso fortuito or force majeure which would exempt an
aircraft from payment of damages to its passengers whose lives were put in jeopardy and whose
personal belongings were lost during the incident.

Under the Civil Code, common carriers are required to exercise extraordinary diligence in their
vigilance over the goods and for the safety of passengers transported by them, according to all the
circumstances of each case (Article 1733). They are presumed at fault or to have acted negligently
whenever a passenger dies or is injured (Philippine Airlines, Inc. v. National Labor Relations
Commission, 124 SCRA 583 [1983]) or for the loss, destruction or deterioration of goods in cases
other than those enumerated in Article 1734 of the Civil Code (Eastern Shipping Lines, Inc. v.
Intermediate Appellate Court, 150 SCRA 463 [1987]).

The source of a common carrier's legal liability is the contract of carriage, and by entering into said
contract, it binds itself to carry the passengers safely as far as human care and foresight can provide.
There is breach of this obligation if it fails to exert extraordinary diligence according to all the
circumstances of the case in exercise of the utmost diligence of a very cautious person (Isaac v.
Ammen Transportation Co., 101 Phil. 1046 [1957]; Juntilla v. Fontanar, 136 SCRA 624 [1985]).

It is the duty of a common carrier to overcome the presumption of negligence (Philippine National
Railways v. Court of Appeals, 139 SCRA 87 [1985]) and it must be shown that the carrier had observed
the required extraordinary diligence of a very cautious person as far as human care and foresight can
provide or that the accident was caused by a fortuitous event (Estrada v. Consolacion, 71 SCRA 523
[1976]). Thus, as ruled by this Court, no person shall be responsible for those "events which could not
be foreseen or which though foreseen were inevitable. (Article 1174, Civil Code). The term is
synonymous with caso fortuito (Lasam v. Smith, 45 Phil. 657 [1924]) which is of the same sense as
"force majeure" (Words and Phrases Permanent Edition, Vol. 17, p. 362).

In order to constitute a caso fortuito or force majeure that would exempt a person from liability under
Article 1174 of the Civil Code, it is necessary that the following elements must concur: (a) the cause
of the breach of the obligation must be independent of the human will (the will of the debtor or the
obligor); (b) the event must be either unforeseeable or unavoidable; (c) the event must be such as to
render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the debtor must
be free from any participation in, or aggravation of the injury to the creditor (Lasam v. Smith, 45 Phil.
657 [1924]; Austria v. Court of Appeals, 39 SCRA 527 [1971]; Estrada v. Consolacion, supra; Vasquez
v. Court of Appeals, 138 SCRA 553 [1985]; Juan F. Nakpil & Sons v. Court of Appeals, 144 SCRA
596 [1986]). Caso fortuito or force majeure, by definition, are extraordinary events not foreseeable or
avoidable, events that could not be foreseen, or which, though foreseen, are inevitable. It is, therefore,
not enough that the event should not have been foreseen or anticipated, as is commonly believed, but
it must be one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not
impossibility to foresee the same (Republic v. Luzon Stevedoring Corporation, 21 SCRA 279 [1967]).

Applying the above guidelines to the case at bar, the failure to transport petitioners safely from Davao
to Manila was due to the skyjacking incident staged by six (6) passengers of the same plane, all
members of the Moro National Liberation Front (MNLF), without any connection with private
respondent, hence, independent of the will of either the PAL or of its passengers.

Under normal circumstances, PAL might have foreseen the skyjacking incident which could have been
avoided had there been a more thorough frisking of passengers and inspection of baggages as
authorized by R.A. No. 6235. But the incident in question occurred during Martial Law where there
was a military take-over of airport security including the frisking of passengers and the inspection of
their luggage preparatory to boarding domestic and international flights. In fact military take-over was
specifically announced on October 20, 1973 by General Jose L. Rancudo, Commanding General of
the Philippine Air Force in a letter to Brig. Gen. Jesus Singson, then Director of the Civil Aeronautics
Administration (Rollo, pp. 71-72) later confirmed shortly before the hijacking incident of May 21, 1976
by Letter of Instruction No. 399 issued on April 28, 1976 (Rollo, p. 72).

Otherwise stated, these events rendered it impossible for PAL to perform its obligations in a nominal
manner and obviously it cannot be faulted with negligence in the performance of duty taken over by
the Armed Forces of the Philippines to the exclusion of the former.

Finally, there is no dispute that the fourth element has also been satisfied. Consequently the existence
of force majeure has been established exempting respondent PAL from the payment of damages to
its passengers who suffered death or injuries in their persons and for loss of their baggages.

PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit and the decision of the
Court of First Instance of South Cotabato, Branch I is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated
by its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires
burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road
and turned turtle. Some of the passengers managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three passengers seated beside the driver, named
Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not
get out of the overturned bus. Some of the passengers, after they had clambered up to the road,
heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara,
who said they could not get out of the bus. There is nothing in the evidence to show whether or
not the passengers already free from the wreck, including the driver and the conductor, made any
attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but
calls or shouts for help were made to the houses in the neighborhood. After half an hour, came
about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end,
evidently fueled with petroleum. These men presumably approach the overturned bus, and almost
immediately, a fierce fire started, burning and all but consuming the bus, including the four
passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak
and escape from the gasoline tank on the side of the chassis, spreading over and permeating the
body of the bus and the ground under and around it, and that the lighted torch brought by one of
the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in
her name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus
P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to
Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the
decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

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

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 extra ordinary 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, 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 to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through
the negligence or willful acts of the former's employees, although such employees may
have acted beyond the scope of their authority or in violation of the order of the common
carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

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

We agree with the trial court that the case involves a breach of contract of transportation for hire,
the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay
City. We also agree with the trial court that there was negligence on the part of the defendant,
through his agent, the driver Saylon. There is evidence to show that at the time of the blow out,
the bus was speeding, as testified to by one of the passengers, and as shown by the fact that
according to the testimony of the witnesses, including that of the defense, from the point where
one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a
distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in
order to stop the bus, but because of the velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is liable. The only
question is to what degree. The trial court was of the opinion that the proximate cause of the death
of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including
himself and his co-passengers who were unable to leave it; that at the time the fire started,
Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so
damages were awarded, not for his death, but for the physical injuries suffered by him. We
disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of
American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that
the person responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an injury
to some person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the
overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle
sets it on fire, and the passenger is burned to death, one might still contend that the proximate
cause of his death was the fire and not the overturning of the vehicle. But in the present case
under the circumstances obtaining in the same, we do not hesitate to hold that the proximate
cause was the overturning of the bus, this for the reason that when the vehicle turned not only on
its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or
unexpected; that the coming of the men with a lighted torch was in response to the call for help,
made not only by the passengers, but most probably, by the driver and the conductor themselves,
and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with
them, and coming as they did from a rural area where lanterns and flashlights were not available;
and what was more natural than that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In other words, the coming of the men
with a torch was to be expected and was a natural sequence of the overturning of the bus, the
trapping of some of its passengers and the call for outside help. What is more, the burning of the
bus can also in part be attributed to the negligence of the carrier, through is driver and its
conductor. According to the witness, the driver and the conductor were on the road walking back
and forth. They, or at least, the driver should and must have known that in the position in which
the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked
the area in and around the bus, this aside from the fact that gasoline when spilled, specially over
a large area, can be smelt and directed even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the
lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under
the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the
trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by
them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while
in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit,
she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires
of the bus changed immediately because they were already old, and that as a matter of fact, he
had been telling the driver to change the said tires, but that the driver did not follow his instructions.
If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in
front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in all, there is reason to believe that the
driver operated and drove his vehicle negligently, resulting in the death of four of his passengers,
physical injuries to others, and the complete loss and destruction of their goods, and yet the
criminal case against him, on motion of the fiscal and with his consent, was provisionally
dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to
support the complaint, either failed or appear or were reluctant to testify. But the record of the
case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the public interest the prosecution
of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion
of the safety of passengers on public utility buses. Let a copy of this decision be furnished the
Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and
from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan
and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Endencia, and Felix, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9907 June 30, 1958

LOURDES J. LARA, ET AL., plaintiffs-appellants,

vs.
BRIGIDO R. VALENCIA, defendant-appellant.

Castillo, Cervantes, Occea, Lozano, Montana, Cunanan, Sison and Castillo and Eligio G. Lagman
for defendant-appellant.
Donato C. Endriga and Emigdio Dakanay for plaintiffs-appellants.

BAUTISTA ANGELO, J.:

This is an action for damages brought by plaintiffs against defendant in the Court of First Instance of
Davao for the death of one Demetrio Lara, Sr. allegedly caused by the negligent act of defendant.
Defendant denied the charge of negligence and set up certain affirmative defenses and a
counterclaim.

The court after hearing rendered judgment ordering defendant to pay the plaintiffs the following
amount: (a) P10,000 as moral damages; (b) P3,000 as exemplary damages; and (c) P1,000 as
attorney's fees, in addition to the costs of action. Both parties appealed to this Court because the
damages claimed in the complaint exceed the sum of P50,000.

In their appeal, plaintiffs claim that the court a quo erred in disregarding their claim of P41,400 as
actual or compensatory damages and in awarding as attorneys' fees only the sum of P1,000 instead
of P3,000 as agreed upon between plaintiffs and their counsel. Defendant, on the other hand, disputes
the finding of the court a quo that the oath of Demetrio Lara, Sr. was due to the negligence of defendant
and the portion of the judgment which orders dependant to pay to plaintiffs moral and exemplary
damages as well as attorneys' fees, said defendant contending that the court should have declared
that the death of Lara was due to unavoidable accident.

The deceased was an inspector of the Bureau of Forestry stationed in Davao with an annual salary of
P1,800. The defendant is engaged in the business of exporting logs from his lumber concession in
Cotabato. Lara went to said concession upon instructions of his chief to classify the logs of defendant
which were about to be loaded on a ship anchored in the port of Parang. The work Lara of lasted for
six days during which he contracted malaria fever. In the morning of January 9, 1954, Lara who then
in a hurry to return to Davao asked defendant if he could take him in his pick-up as there was then no
other means of transportation, to which defendant agreed, and in that same morning the pick-up left
Parang bound for Davao taking along six passengers, including Lara.

The pick-up has a front seat where the driver and two passengers can be accommodated and the
back has a steel flooring enclosed with a steel walling of 16 to 17 inches tall on the sides and with a
19 inches tall walling at the back. Before leaving Parang, the sitting arrangement was as follows:
defendant was at the wheel and seated with him in the front seat were Mrs. Valencia and Nicanor
Quinain; on the back of the pick-up were two improvised benches placed on each side, and seated on
the right bench were Ricardo Alojipan and Antonio Lagahit, and on the left one Bernardo and Pastor
Geronimo. A person by the name of Leoning was seated on a box located on the left side while in the
middle Lara sat on a bag. Before leaving Parang, defendant invited Lara to sit with him on the front
seat but Lara declined. It was their understanding that upon reaching barrio Samoay, Cotabato, the
passengers were to alight and take a bus bound for Davao, but when they arrived at that place, only
Bernardo alighted and the other passengers requested defendant to allow them to ride with him up to
Davao because there was then no available bus that they could take in going to that place. Defendant
again accommodated the passengers.

When they continued their trip, the sitting arrangement of the passengers remained the same, Lara
being seated on a bag in the middle with his arms on a suitcase and his head cove red by a jacket.
Upon reaching Km. 96, barrio Catidtuan, Lara accidentally fell from the pick-up and as a result he
suffered serious injuries. Valencia stopped the pick-up to see what happened to Lara. He sought the
help of the residents of that place and applied water to Lara but to no avail. They brought Lara to the
nearest place where they could find a doctor and not having found any they took him to St. Joseph's
Clinic of Kidapawan. But when Lara arrived he was already dead. From there they proceeded to Davao
City and immediately notified the local authorities. An investigation was made regarding the
circumstances surrounding the death of Lara but no criminal action was taken against defendant.

It should be noted that the deceased went to the lumber concession of defendant in Parang, Cotabato
upon instructions of his chief in order to classify the logs of defendant which were then ready to be
exported and to be loaded on a ship anchored in the port of Parang. It took Lara six days to do his
work during which he contracted malaria fever and for that reason he evinced a desire to return
immediately to Davao. At that time, there was no available bus that could take him back to Davao and
so he requested the defendant if he could take him in his own pick-up. Defendant agreed and, together
with Lara, other passengers tagged along, most of them were employees of the Government.
Defendant merely accommodated them and did not charge them any fee for the service. It was also
their understanding that upon reaching barrio Samoay, the passengers would alight and transfer to a
bus that regularly makes the trip to Davao but unfortunately there was none available at the time and
so the same passengers, including Lara, again requested the defendant to drive them to Davao.
Defendant again accommodated them and upon reaching Km. 96, Lara accidentally fell suffering fatal
injuries.

It therefore appears that the deceased, as well his companions who rode in the pick-up of defendant,
were merely accommodation passengers who paid nothing for the service and so they can be
considered as invited guests within the meaning of the law. As accommodation passengers or invited
guests, defendant as owner and driver of the pick-up owes to them merely the duty to exercise
reasonable care so that they may be transported safely to their destination. Thus, "The rule is
established by the weight of authority that the owner or operator of an automobile owes the duty to
an invited guest to exercise reasonable care in its operation, and not unreasonably to expose him to
danger and injury by increasing the hazard of travel. This rule, as frequently stated by the courts, is
that an owner of an automobile owes a guest the duty to exercise ordinary or reasonable care to avoid
injuring him. Since one riding in an automobile is no less a guest because he asked for the privilege
of doing so, the same obligation of care is imposed upon the driver as in the case of one expressly
invited to ride" (5 Am. Jur., 626-627). Defendant, therefore, is only required to observe ordinary care,
and is not in duty bound to exercise extraordinary diligence as required of a common carrier by our
law (Articles 1755 and 1756, new Civil Code).

The question that now arises is: Is there enough evidence to show that defendant failed to observe
ordinary care or diligence in transporting the deceased from Parang to Davao on the date in question?

The trial court answered the question in the affirmative but in so doing it took into account only the
following facts:
 No debe perderse de vista el hecho, que los negocios de exportacion de trozos del
demandado tiene un volumen de P1,200. Lara era empleado de la Oficina de Montes,
asalariado por el gobierno, no pagado por el demandado para classificar los trozos
exportados; debido a los trabajos de classificacion que duro 6 dias, en su ultimo dia Lara no
durmio toda la noche, al dia siguiente, Lara fue atacado de malaria, tenia inflamada la cara y
cuerpo, sufria dolores de cabeza con erupciones en la cara y cuerpo; que en la manana, del
dia 2 de enero de 1954, fecha en que Lara salio de Davao para Parang, en aeroplano para
clasificar los trozos del demandado, el automobil de este condujo a aquel al aerodromo de
Davao.

xxx xxx xxx

El viaje de Cotabato a Davao no es menos de 8 horas, su carretera esta en malas condiciones,

desnivelada, con piedras salientes y baches, que hacen del vehiculo no estable en su marcha.
Lara estaba enfermo de cierta gravedad, tenia el cuerpo y cara inflamados, atacado de
malaria, con dolores de cabeza y con erupciones en la cara y cuerpo.

A la vista de estos hechos, el demandado debia de saber que era sumamente peligroso llevar
5 pasajeros en la parte trasera del pick-up; particularmente, para la salud de Lara; el permitirlo,
el demandado no ha tomado las precausiones, para evitar un posible accidente fatal. La
negative de Lara de ocupar el asiento delantero del pick-up no constituye a juicio del Juzgado
una defensa, pues el demendado conociendo el estado delicado de salud de Lara, no debio
de haber permitido que aquel regrese a Davao en su pick-up; si querria prestar a aquel un
favor, debio de haver provisto a Lara de un automobil para su regrese a Davao, ya que el
demendado es un millionario; si no podia prestar a aquel este favor, debio de haver dejado a
Lara en Samuay para coger aquel un camion de pasajero de Cotabato a Davao.

Even if we admit as true the facts found by the trial court, still we find that the same are not sufficient
to show that defendant has failed to take the precaution necessary to conduct his passengers safely
to their place of destination for there is nothing there to indicate that defendant has acted with
negligence or without taking the precaution that an ordinary prudent man would have taken under
similar circumstances. It should be noted that Lara went to the lumber concession of defendant in
answer to a call of duty which he was bound to perform because of the requirement of his office and
he contracted the malaria fever in the course of the performance of that duty. It should also be noted
that defendant was not in duty bound to take the deceased in his own pick-up to Davao because from
Parang to Cotabato there was a line of transportation that regularly makes trips for the public, and if
defendant agreed to take the deceased in his own car, it was only to accommodate him considering
his feverish condition and his request that he be so accommodated. It should also be noted that the
passengers who rode in the pick-up of defendant took their respective seats therein at their own choice
and not upon indication of defendant with the particularity that defendant invited the deceased to sit
with him in the front seat but which invitation the deceased declined. The reason for this can only be
attributed to his desire to be at the back so that he could sit on a bag and travel in a reclining position
because such was more convenient for him due to his feverish condition. All the circumstances
therefore clearly indicate that defendant had done what a reasonable prudent man would have done
under the circumstances.

There is every reason to believe that the unfortunate happening was only due to an unforeseen
accident accused by the fact that at the time the deceased was half asleep and must have fallen from
the pick-up when it ran into some stones causing it to jerk considering that the road was then bumpy,
rough and full of stones.
The finding of the trial court that the pick-up was running at more than 40 kilometers per hour is not
supported by the evidence. This is a mere surmise made by the trial court considering the time the
pick-up left barrio Samoay and the time the accident occured in relation to the distance covered by the
pick-up. And even if this is correct, still we say that such speed is not unreasonable considering that
they were traveling on a national road and the traffic then was not heavy. We may rather attribute the
incident to lack of care on the part of the deceased considering that the pick-up was open and he was
then in a crouching position. Indeed, the law provides that "A passenger must observe the diligence
of a good father of a family to avoid injury to himself" (Article 1761, new Civil Code), which means that
if the injury to the passenger has been proximately caused by his own negligence, the carrier cannot
be held liable.

All things considered, we are persuaded to conclude that the accident occurred not due to the
negligence of defendant but to circumstances beyond his control and so he should be exempt from
liability.

Wherefore, the decision appealed from is reversed, without pronouncement as to costs.

Paras, C. J., Bengzon, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 113578 July 14, 1995

SULPICIO LINES, INC., Petitioner,

vs.
The Honorable COURT OF APPEALS and TITO DURAN TABUQUILDE and ANGELINA DE PAZ
TABUQUILDE, respondents.

QUIASON, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the decision
of the Court of Appeals in CA-G.R. CV
No. 32864, which affirmed the decision of the Regional Trial Court, Branch 85, Quezon City in Civil
Case No. Q-89-3048.

The Court of Appeals found:

On October 23, 1988, plaintiff Tito Duran Tabuquilde (hereinafter, "Tito") and his three-
year old daughter Jennifer Anne boarded the M/V Dona Marilyn at North Harbor,
Manila, bringing with them several pieces of luggage.

In the morning of October 24, 1988, the M/V Dona Marilyn, while in transit,
encountered inclement weather which caused huge waves due to Typhoon Unsang.

Notwithstanding the fact that Storm Signal No. 2 had been raised by the PAG-ASA
authorities over Leyte as early as 5:30 P.M. of October 23, 1988 and which signal was
raised to Signal No. 3 by 10 P.M. of the same day, the ship captain ordered the vessel
to proceed to Tacloban when prudence dictated that he should have taken it to the
nearest port for shelter, thus violating his duty to exercise extraordinary diligence in
the carrying of passengers safely to their destination.

At about the same time, plaintiff-appellee Angelina Tabuquilde (hereinafter,

"Angelina") mother of Jennifer Anne, contacted the Sulpicio Office to verify radio
reports that the vessel M/V Dona Marilyn was missing. Employees of said Sulpicio
Lines assured her that the ship was merely "hiding" thereby assuaging her anxiety.

At around 2:00 P.M. of October 24, 1988, said vessel capsized, throwing plaintiff-
appellee Tito and Jennifer Anne, along with hundreds of passengers, into the
tumultuous sea.
 Tito tried to keep himself and his daughter afloat but to no avail as the waves got
stronger and he was subsequently separated from his daughter despite his efforts.

He found himself on Almagro Island in Samar the next day at round (sic) 11:00 A.M.
and immediately searched for his daughter among the survivors in the island, but the
search proved fruitless.

In the meantime, Angelina tried to seek the assistance of the Sulpicio Lines in Manila
to no avail, the latter refusing to entertain her and hundreds of relatives of the other
passengers who waited long hours outside the Manila Office. Angelina spent sleepless
nights worrying about her husband Tito and daughter Jennifer Anne in view of the
refusal of Sulpicio Lines to release a verification of the sinking of the ship.

On October 26, 1988, Tito and other survivors in the Almagro Island were fetched and
were brought to Tacloban Medical Center for treatment.

On October 31, 1988, Tito reported the loss of his daughter, was informed that the
corpse of a child with his daughter's description had been found. Subsequently, Tito
wrote a letter to his wife, reporting the sad fact that Jennifer Anne was dead. Angelina
suffered from shock and severe grief upon receipt of the news.

On November 3, 1988, the coffin bearing the corpse of Jennifer Anne was buried in
Tanauan, Leyte.

On November 24, 1988, a claim for damages was filed by Tito with the defendant
Sulpicio Lines in connection with the death of the plaintiff-appellee's daughter and the
loss of Tito's belongings worth P27,580.00. (Appellees' Brief, pp. 2-4) ( Rollo, pp. 52-
54).

On January 3, 1991, the trial court rendered a decision in Civil Case No. Q-89-3048 in favor of the
plaintiffs Tito Duran Tabuquilde and Angelina de Paz Tabuquilde (private respondents herein) and
against defendant Sulpicio Lines, Inc. (petitioner herein) ordering defendant to pay P27,580.00 as
actual damages, P30,000.00 for the death of Jennifer Tabuquilde, P100,000.00 as moral damages,
P50,000.00 as exemplary damages, and P50,000.00 as attorney's fees, and costs.

Petitioner appealed to the Court of Appeals which affirmed the decision of the trial court. Petitioner
then filed a motion for reconsideration which was denied. Hence, this petition.

II

Generally, the findings of fact of the trial court are entitled to great weight and not disturbed except for
cogent reasons (Gatmaitan v. Court of Appeals, 200 SCRA 37 [1991]). One of the accepted reasons
is when the findings of fact are not supported by the evidence (Sandoval Shipyard, Inc. v. Clave, 94
SCRA 472 [1979]). Corollary to this is the rule that actual or compensatory damages, to be recovered,
must be proved; otherwise, if the proof is flimsy, no damages will be awarded (Dichoso v. Court of
Appeals, 192 SCRA 169 [1990]).

In the case at bench, the trial court merely mentioned the fact of the loss and the value of the contents
of the pieces of baggage without stating the evidence on which it based its findings. There is no
showing that the value of the contents of the lost pieces of baggage was based on the bill of lading or
was previously declared by respondent Tito D. Tabuquilde before he boarded the ship. Hence, there
can be no basis to award actual damages in the amount of P27,850.00.

The Court of Appeals was correct in confirming the award of damages for the death of the daughter
of private respondents, a passenger on board the stricken vessel of petitioner. It is true that under
Article 2206 of the Civil Code of the Philippines, only deaths caused by a crime as quasi delict are
entitled to actual and compensatory damages without the need of proof of the said damages. Said
Article provides:

The amount of damages for death caused by a crime or quasi delict shall be at least
Three Thousand Pesos, even though there may have been mitigating circumstances.
...

Deducing alone from said provision, one can conclude that damages arising
from culpa contractual are not compensable without proof of special damages sustained by the heirs
of the victim.

However, the Civil Code, in Article 1764 thereof, expressly makes Article 2206 applicable "to the death
of a passenger caused by the breach of contract by a common carrier." Accordingly, a common carrier
is liable for actual or compensatory damages under Article 2206 in relation to Article 1764 of the Civil
Code for deaths of its passengers caused by the breach of the contract of transportation.

The trial court awarded an indemnity of P30,000.00 for the death of the daughter of private
respondents. The award of damages under Article 2206 has been increased to P50,000.00 (People
v. Flores, 237 SCRA 653 [1994]).

With respect to the award of moral damages, the general rule is that said damages are not recoverable
in culpa contractual except when the presence of bad faith was proven (Trans World Air Lines v. Court
of Appeals, 165 SCRA 143 [1988]). However, in breach of contract of carriage, moral damages may
be recovered when it results in the death of a passenger (Philippine Rabbit Bus Lines, Inc. v. Esguerra,
117 SCRA 741 [1982]; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]).

With respect to the award of exemplary damages, Article 2232 of the Civil Code of the Philippines
gives the Court the discretion to grant said damages in breach of contract when the defendant acted
in a wanton, fraudulent and reckless manner (Air France v. Carrascoso, 18 SCRA 155 [1966]).

Furthermore, in the case of Mecenas v. Court of Appeals, 180 SCRA 83 (1989), we ruled that:

. . . . The Court will take judicial notice of the dreadful regularity with which grievous
maritime disasters occur in our waters with massive loss of life. The bulk of our
population is too poor to afford domestic air transportation. So it is that notwithstanding
the frequent sinking of passenger in our waters, crowds of people continue to travel by
sea. This Court is prepared to use the instruments given to it by the law for securing
the ends of law and public policy. One of those instruments is the institution of
exemplary damages; one of those ends, of special importance in an archipelagic state
like the Philippines, is the safe and reliable carriage of people and goods by sea. . . .
(at p. 100).

A common carrier is obliged to transport its passengers to their destinations with the utmost diligence
of a very cautious person (Laguna Tayabas Bus Co. v. Tiongson, 16 SCRA 940 [1966]). The trial court
found that petitioner failed to exercise the extraordinary diligence required of a common carrier, which
resulted in the sinking of the M/V Dona Marilyn.
The trial court correctly concluded that the sinking of M/V Dona Marilyn was due to gross negligence,
thus:

. . . [i]t is undisputed that Typhoon Unsang entered the Philippine Area of Responsibility
on October 21, 1988. The rain in Metro Manila started after lunch of October 23, 1988,
and at about 5:00 p.m. Public Storm Signal No. 1 was hoisted over Metro Manila,
Signal No. 2 in Leyte and Signal No. 3 in Samar. But at 10:00 o'clock (sic) in the
morning of October 23, 1988, Public Storm Signal No. 1 was already hoisted over the
province of Leyte, which is the destination of M/V Dona Marilyn. This was raised to
Signal No. 2 at 4:00 p.m. and Signal No. 3 at 10:00 p.m. on the same date. The
following day, October 24, 1988, at 4:00 a.m. and 10:00 a.m., Storm Signal No. 3
remained hoisted in Leyte. At 4 p.m. on October 24, 1988, Storm Signal No. 3
remained hoisted in Leyte but was reduced to Storm Signal No. 2 (Exh. G). Signal No.
1 has maximum winds at 60 kph within 36 hours; Signal No. 2 has maximum winds of
from 60 kph to 100 kph within a period of 24 hours; and Signal No. 3 has maximum
winds of 100 kph and above within a period of 12 hours.

Warnings of the storm signal are issued by PAG-ASA thru DZZA, Office of Civil
Defense, Philippine Navy, Coast Guard, Radio Stations, and other offices, every six
(6) hours as soon as a cyclone enters the Philippine Area of Responsibility.

At 10:30 a.m. on October 24, 1988, the vessel was estimated to be between Mindoro
and Masbate, and the center of the typhoon then was around 130 degrees longitude
with maximum winds of 65 kph (Exh. G-3), with a "radius of rough to phenomenal sea
at that time of 450 kms. North and 350 kms. elsewhere; 350 kms. North center and all
throughout the rest" (p. 12, TSN, Lumalda, Feb. 19, 1990).

xxx xxx xxx

In the same manner, (referring to the negligence of the crew of the ship that sank in
Vasquez v. Court of Appeals, 138 SCRA 553 [1985]) the crew of the vessel M/V Dona
Marilyn took a calculated risk when it proceeded despite the typhoon brewing
somewhere in the general direction to which the vessel was going. The crew assumed
a greater risk when, instead of dropping anchor in or at the periphery of the Port of
Calapan, or returning to the port of Manila which is nearer, proceeded on its voyage
on the assumption that it will be able to beat and race with the typhoon and reach its
destination before it (Unsang) passes ( Rollo, pp. 45-47).

The award of attorney's fees by the trial court to respondents is also assailed by petitioner,
citing Mirasol v. De la Cruz, 84 SCRA 337 (1978). In this case, the petitioner filed before the Municipal
Court an action for forcible entry against the private respondent. The said court dismissed the
complaint. On appeal, the Court of First Instance of Camarines Sur sustained the decision of the lower
court, dismissed the appeal and awarded attorney's fees in the sum of not less than P500.00 in favor
of private respondent. Upon appeal to us, we deleted the award of attorney's fees because the text of
the appealed decision was bereft of any findings of fact and law to justify such an award. Moreover,
there was no proof, other than the bare allegation of harassment that the adverse party had acted in
bad faith. The aforementioned decision is inapposite to the instant case where the decision clearly
mentions the facts and the law upon which the award of attorney's fees were based.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the
award of P27,580.00 as actual damages for the loss of the contents of the pieces of baggage is deleted
and that the award of P30,000.00 under Article 2206 in relation Article 1764 is increased to
P50,000.00.

SO ORDERED.

Padilla, Davide, Jr. and Kapunan, JJ., concur.

Bellosillo, J., is on leave.

 Republic of the Philippines
Supreme Court
Manila

FIRST DIVISION

HERMINIO MARIANO, JR., G.R. No. 166640

Petitioner,

Present:
PUNO, C.J., Chairperson,
CARPIO,
- versus - CORONA,
LEONARDO-DE CASTRO, and
BERSAMIN, JJ.

ILDEFONSO C. CALLEJAS and Promulgated:

EDGAR DE BORJA,
Respondents. July 31, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-x

DECISION

PUNO, C.J.:

On appeal are the Decision[1] and Resolution[2] of the Court of Appeals in CA-
G.R. CV No. 66891, dated May 21, 2004 and January 7, 2005 respectively, which
reversed the Decision[3] of the Regional Trial Court (RTC) of Quezon City, dated
September 13, 1999, which found respondents jointly and severally liable to pay
petitioner damages for the death of his wife.
 First, the facts:

Petitioner Herminio Mariano, Jr. is the surviving spouse of Dr. Frelinda

Mariano who was a passenger of a Celyrosa Express bus bound for Tagaytay when
she met her death. Respondent Ildefonso C. Callejas is the registered owner of
Celyrosa Express, while respondent Edgar de Borja was the driver of the bus on
which the deceased was a passenger.

At around 6:30 p.m. on November 12, 1991, along Aguinaldo Highway, San
Agustin, Dasmarias, Cavite, the Celyrosa Express bus, carrying Dr. Mariano as its
passenger, collided with an Isuzu truck with trailer bearing plate numbers PJH 906
and TRH 531. The passenger bus was bound for Tagaytay while the trailer truck
came from the opposite direction, bound for Manila. The trailer truck bumped the
passenger bus on its left middle portion. Due to the impact, the passenger bus fell on
its right side on the right shoulder of the highway and caused the death of Dr.
Mariano and physical injuries to four other passengers. Dr. Mariano was 36 years
old at the time of her death. She left behind three minor children, aged four, three
and two years.

Petitioner filed a complaint for breach of contract of carriage and damages

against respondents for their failure to transport his wife and mother of his three
minor children safely to her destination. Respondents denied liability for the death
of Dr. Mariano. They claimed that the proximate cause of the accident was the
recklessness of the driver of the trailer truck which bumped their bus while allegedly
at a halt on the shoulder of the road in its rightful lane. Thus, respondent Callejas
filed a third-party complaint against Liong Chio Chang, doing business under the
name and style of La Perla Sugar Supply, the owner of the trailer truck, for indemnity
in the event that he would be held liable for damages to petitioner.

Other cases were filed. Callejas filed a complaint,[4] docketed as Civil Case
No. NC-397 before the RTC of Naic, Cavite, against La Perla Sugar Supply and
Arcadio Arcilla, the truck driver, for damages he incurred due to the vehicular
accident. On September 24, 1992, the said court dismissed the complaint against La
Perla Sugar Supply for lack of evidence. It, however, found Arcilla liable to pay
Callejas the cost of the repairs of his passenger bus, his lost earnings, exemplary
damages and attorneys fees.[5]

A criminal case, Criminal Case No. 2223-92, was also filed against truck
driver Arcilla in the RTC of Imus, Cavite. On May 3, 1994, the said court convicted
truck driver Arcadio Arcilla of the crime of reckless imprudence resulting to
homicide, multiple slight physical injuries and damage to property.[6]

In the case at bar, the trial court, in its Decision dated September 13, 1999,
found respondents Ildefonso Callejas and Edgar de Borja, together with Liong Chio
Chang, jointly and severally liable to pay petitioner damages and costs of suit. The
dispositive portion of the Decision reads:
ACCORDINGLY, the defendants are ordered to pay as follows:
1. The sum of P50,000.00 as civil indemnity for the loss of life;
2. The sum of P40,000.00 as actual and compensatory damages;
3. The sum of P1,829,200.00 as foregone income;
4. The sum of P30,000.00 as moral damages;
5. The sum of P20,000.00 as exemplary damages;
6. The costs of suit.
SO ORDERED.[7]

Respondents Callejas and De Borja appealed to the Court of Appeals, contending

that the trial court erred in holding them guilty of breach of contract of carriage.

On May 21, 2004, the Court of Appeals reversed the decision of the trial
court. It reasoned:
. . . the presumption of fault or negligence against the carrier is only a disputable
presumption. It gives in where contrary facts are established proving either that the
carrier had exercised the degree of diligence required by law or the injury suffered
by the passenger was due to a fortuitous event. Where, as in the instant case, the
injury sustained by the petitioner was in no way due to any defect in the means of
transport or in the method of transporting or to the negligent or wilful acts of private
respondent's employees, and therefore involving no issue of negligence in its duty
 to provide safe and suitable cars as well as competent employees, with the injury
arising wholly from causes created by strangers over which the carrier had no
control or even knowledge or could not have prevented, the presumption is rebutted
and the carrier is not and ought not to be held liable. To rule otherwise would make
the common carrier the insurer of the absolute safety of its passengers which is not
the intention of the lawmakers.[8]

The dispositive portion of the Decision reads:

WHEREFORE, the decision appealed from, insofar as it found defendants-
appellants Ildefonso Callejas and Edgar de Borja liable for damages to plaintiff-
appellee Herminio E. Mariano, Jr., is REVERSED and SET ASIDE and another
one entered absolving them from any liability for the death of Dr. Frelinda Cargo
Mariano.[9]

The appellate court also denied the motion for reconsideration filed by
petitioner.

Hence, this appeal, relying on the following ground:

THE DECISION OF THE HONORABLE COURT OF APPEALS, SPECIAL
FOURTEENTH DIVISION IS NOT IN ACCORD WITH THE FACTUAL BASIS
OF THE CASE.[10]

The following are the provisions of the Civil Code pertinent to the case at bar:
ART. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary diligence
in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.
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 to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed in articles 1733 and 1755.

In accord with the above provisions, Celyrosa Express, a common carrier,

through its driver, respondent De Borja, and its registered owner, respondent
Callejas, has the express obligation 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,[11] and to observe extraordinary diligence
in the discharge of its duty. The death of the wife of the petitioner in the course of
transporting her to her destination gave rise to the presumption of negligence of the
carrier. To overcome the presumption, respondents have to show that they observed
extraordinary diligence in the discharge of their duty, or that the accident was caused
by a fortuitous event.

This Court interpreted the above quoted provisions in Pilapil v. Court of

Appeals.[12] We elucidated:
While the law requires the highest degree of diligence from
common carriers in the safe transport of their passengers and creates a
presumption of negligence against them, it does not, however, make the
carrier an insurer of the absolute safety of its passengers.
Article 1755 of the Civil Code qualifies the duty of extraordinary
care, vigilance and precaution in the carriage of passengers by common
carriers to only such as human care and foresight can provide. What
constitutes compliance with said duty is adjudged with due regard to all
the circumstances.

Article 1756 of the Civil Code, in creating a presumption of fault

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

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

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

In the case at bar, petitioner cannot succeed in his contention that respondents
failed to overcome the presumption of negligence against them. The totality of
evidence shows that the death of petitioners spouse was caused by the reckless
negligence of the driver of the Isuzu trailer truck which lost its brakes and bumped
the Celyrosa Express bus, owned and operated by respondents.

First, we advert to the sketch prepared by PO3 Magno S. de Villa, who

investigated the accident. The sketch[13] shows the passenger bus facing the direction
of Tagaytay City and lying on its right side on the shoulder of the road, about five
meters away from the point of impact. On the other hand, the trailer truck was on the
opposite direction, about 500 meters away from the point of impact. PO3 De Villa
stated that he interviewed De Borja, respondent driver of the passenger bus, who
said that he was about to unload some passengers when his bus was bumped by the
driver of the trailer truck that lost its brakes. PO3 De Villa checked out the trailer
truck and found that its brakes really failed. He testified before the trial court, as
follows:
ATTY. ESTELYDIZ:
q You pointed to the Isuzu truck beyond the point of impact. Did you investigate
why did (sic) the Isuzu truck is beyond the point of impact?
a Because the truck has no brakes.

COURT:
q What is the distance between that circle which is marked as Exh. 1-c to the place
where you found the same?
a More or less 500 meters.

q Why did you say that the truck has no brakes?

a I tested it.

q And you found no brakes?

a Yes, sir.
xxx
q When you went to the scene of accident, what was the position of Celyrosa bus?
 a It was lying on its side.

COURT:
q Right side or left side?
a Right side.

ATTY. ESTELYDIZ:
q On what part of the road was it lying?
a On the shoulder of the road.

COURT:
q How many meters from the point of impact?
a Near, about 5 meters.[14]

His police report bolsters his testimony and states:

Said vehicle 1 [passenger bus] was running from Manila toward south
direction when, in the course of its travel, it was hit and bumped by vehicle 2 [truck
with trailer] then running fast from opposite direction, causing said vehicle 1 to fall
on its side on the road shoulder, causing the death of one and injuries of some
passengers thereof, and its damage, after collission (sic), vehicle 2
continiously (sic) ran and stopped at approximately 500 meters away from the
piont (sic) of impact.[15]

In fine, the evidence shows that before the collision, the passenger bus was cruising
on its rightful lane along the Aguinaldo Highway when the trailer truck coming from
the opposite direction, on full speed, suddenly swerved and encroached on its lane,
and bumped the passenger bus on its left middle portion.Respondent driver De Borja
had every right to expect that the trailer truck coming from the opposite direction
would stay on its proper lane. He was not expected to know that the trailer truck had
lost its brakes. The swerving of the trailer truck was abrupt and it was running on a
fast speed as it was found 500 meters away from the point of collision. Secondly,
any doubt as to the culpability of the driver of the trailer truck ought to vanish when
he pleaded guilty to the charge of reckless imprudence resulting to multiple slight
physical injuries and damage to property in Criminal Case No. 2223-92, involving
the same incident.
 IN VIEW WHEREOF, the petition is DENIED. The Decision dated May
21, 2004 and the Resolution dated January 7, 2005 of the Court of Appeals in CA-
G.R. CV No. 66891 are AFFIRMED.

SO ORDERED.