Republic of the Philippines SUPREME COURT Manila City

ANDRES REYES and REY GOMEZ Plaintiffs,-versusCIVIL CASE For: Damages

PHILIPPINE AIRLINES (PAL) & ARROW TOURS AND TRAVEL, INC. Defendant. x-------------------------------------------------------------------------x

Prefatory Statement

As expressly provided under Article 2176 of the new civil code Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done. Damages presages injury or loss. It is conferred to compensate a person for the loss or injury that he/she has suffered that is deemed to be just and conscionable considering the situation and the evidence on hand.

MEMORANDUM COME NOW PLAINTIFF, through the undersigned counsel, unto this Honorable Supreme Court most respectfully submit and present this Memorandum in the above-titled case and aver that: THE PARTIES 1. Plaintiffs Andres Reyes and Rey Gomez are of legal age and both working with the Local Government Unit of Tanauan, Leyte, and may be served with legal processes and other judicial notices thereto.

2. D e f e n d a n t - A r r o w T o u r s a n d Tr a ve l , I n c . is a ticketing office located at 888 Real St. Brgy. Buntay Tanauan, Leyte, where the owner may be served with legal processes and other judicial notices thereto. Defendant Philippine Airlines, Inc., an airline corporation may be served with summons and other legal processes at Century Park Ticket Office Ground Floor Century Park Hotel P. Ocampo Sr. Street Malate Manila

I. FACTUAL BACKGROUND 1. Andres Reyes bought for himself and his companions three (3) confirmed PAL round trip tickets from Arrow Tours and Travel, Inc. with link flight for Cebu-Manila-Hongkong-Manila-Cebu; 2. Reyes returned to Arrow Tours and Travel, Inc. to inquire on the availability of seats for the PAL Manila-Hongkong Flight on January 16, 1992 at 5:00 p.m. so that they could reset their Hongkong Meetings scheduled on 26 January 1992 to a later time; however, to no avail of flight left the Arrow Tours without making any cancellation of their confirmed bookings in their respective tickets. 3. Andres Reyes and his companions too the Cebu-Manila Flight No. PR842 on January 25, 1992 and on the next day, January 26,1992, at the check-in counter at the Ninoy International Airport (NAIA), they were informed by the PALS check-in clerk that their booking on flight PR300 Manila-Hongkong (8:00 a.m.) had been cancelled and their names were not on the computers passenger list. Apparently, companion Manny Libong was able to board the flight. 4. Reyes and Gomez explained to the check-in clerk that they were holding a confirmed bookings and they did not have it cancelled. They likewise begged and pleaded that they be allowed to board the said flight but their pleas fell on deaf ears. Plaintiffs Reyes and Gomez took Flight No. PR301 leaving Manila to Hongkong at 5:00 p.m. the same day. 5. Plaintiffs Reyes and Gomez sued for breach of contract of carriage and damages against PAL and Arrow Tours and Travel, Inc. alleging that the PAL Personnel and the check-in clerk at NAIA arrogantly shouted at them and humiliated them in front of the other

passengers by labelling their tickets cheap tickets and prayed for the award of the following: 6. Herein plaintiffs seek to recompense for the breach of contract of carriage and damages against defendants Philippine Airlines, Inc. and Arrow Tours and Travel, Inc that they be entitled to an award of moral damages in the amount of Three Hundred Fifty Thousand Pesos (P350,000.00). Plaintiffs further pray that they be entitled actual damages of Three Million Five Hundred Sixty Seven Thousand Pesos (P3,567,000.00) and the payment of exemplary damages and attorney's fees.

III. ISSUES 1. Whether or not plaintiffs Andres Reyes and Rey Gomez were holding confirmed bookings on PALs PR300 (MANILA-HONGKONG)

2. Whether or not plaintiffs are entitled to moral damages, actual or compensatory damages, exemplary damages and attorneys fees 3. Whether or not defendants Arrow Tours and Travel, Inc. and Ph ilippine Airlines, Inc. should be held jointly and severally liable to plai ntiffs.

IV. DISCUSSIONS AND ARGUMENTS

A. Plaintiffs held confirmed bookings on PALs Flight PR300 (Manila-Hongkong) and therefore committed a breach of contract of carriage.

On the foregoing basis of this argument, it was held in the case of Spouses Fernando and Lourdes Viloria vs. Continental Airlines, Inc1. whereby it ruled that:

G.R. No. 188288, January 16, 2012 citing G.R. No. 165266, December 15, 2010, 638 S CRA 472

Xxx if the passengers cause of action for damages against the airline company is based on contractual breach or culpa contractual, it is not necessary that there be evidence of the airline companys fault or negligence. As this Court previously stated in China Air Lines and reiterated in Air France vs. Gillego in an action based on a breach of contract of carriage, the aggrieved party does not have to prove that the common carrier was at fault or was negligent. All that he has to prove is the existence of the contract and the fact of its non-performance by the carrier. It is necessary to emphasize that the plaintiffs has in fact a valid and existing contract of carriage that exists between the plaintiffs and respondent PAL relative to flight PR300 from Manila to Hongkong.

Citing Belen and Belen2, It is an old and well-settled rule of the courts that the burden of proving the action is upon the plaintiff, and that if he fails satisfactorily to show the facts upon which he bases his claim, the defendant is under no obligation to prove his exceptions. This [rule] is in harmony with the provisions of Section 297 of the Code of Civil Procedure holding that each party must prove his own affirmative allegations, etc.

As defined by black dictionary, a contract of carriage is a binding contract (usually demonstrated by any airway bill, lading bill, or ticket of a passenger) which includes terms of transportation that state the duties and privileges of a transporter and a passenger/shipper. The transporter takes the responsibility of delivering passengers/ goods from a given point of departure to a given destination, in exchange of fare/freight. This contract tackles issues particularly related to things being carried, liability associated with it, and remuneration for damage, injury, or loss to the passengers/goods is measured, allocated, and paid. Article 1732 of the New Civil Code states that, this "persons, corporations, firms, or associations engaged in the business of carrying or transporting

13 Phil 202 (1909).

passengers or goods or both, by land, water, or air, for compensation, offering their services to the public" is called a common carrier. It is indubitable that the plaintiffs having confirmed plane tickets is a clear proof of evidence that can fully substantiate that there is a contract of carriage between the plaintiff and Arrow Tours and Travel, Inc. Thus, plaintiffs were holding confirmed plane tickets and yet were not transported by petitioner. Having proven the existence of a contract of carriage between plaintiffs, and the fact of nonperformance by petitioner of its obligation as a common carrier, it is clear that petitioner breached its contract of carriage.

B.)

Plaintiffs entitlement to moral damages, actual or compens

atory damages, exemplary damages and attorneys fees. The award of moral damages as Article 2217 provides that it must be anchored on a clear showing that plaintiffs actually experienced mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation or similar injury. Going into the merits of the case, there was no better witness to this experience but plaintiffs themselves. Mere allegations do not suffice; they must be substantiated by clear and convincing proof.3 However, with regard to the award of actual/compensatory damages of P3,567,000.00. The New Civil Code provides: Article 2199. Except as provided by law or by stipulations, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.

Actual compensatory proceeds from a sense of natural justice and are designated to repair the wrong that has been done. In Brenvarrido M. Casino, Jr. v. the CTA, et.al 4, the Supreme Court ruled:

3 4

G.R. No. 145441, April 26, 2005, 457 SCRA 203; 496 Phil. 671 (2005). G.R. No. 133803, September 16, 2005)

There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses, and the other is the failure to receive as benefit that which would have pertained to him. xxx Xxx He must produce the best evidence of which his case is susceptible and that evidence warrants the inference that he has been damaged by the loss of profits which he might with reasonable certainty have anticipated but for the defendants wrongful act, he is entitled to recover. In the case at bar, there is a factual findings that the purpose for plaintiffs ANDRES REYES & REY GOMEZ, and MANNY LIBONGs trip to Hongkong was to conduct business negotiations, but plaintiffs were not able to meet their colleagues as they were not allowed to board the PR300 flight. As provided previously, said factual finding is judged conclusive and the circumstances that plaintiffs suffered some pecuniary loss due to their debacle to meet with their business comrades. Fathomably, it is grim, to adduce proof of the losses suffered by plaintiffs due to their failure to make it to their business meetings. Certainly, plaintiffs' time and effort were futile and put to naught, as the business engagements that they were supposed to conduct in Hongkong did not push through. One cannot discount the fact that business opportunities were lost and fathom the extent of the profit that is to be realized if they were able to attend the meeting in Hongkong. Thus, it is only just that plaintiffs be awarded actual/compensatory damages. As to the award of exemplary damages is instructive, to wit: x x Article 2229 of the Civil Code provides that exemplary or corrective damages are imposed in addition to the moral, temperate, liquidated or compensatory damages. Exemplary damages are not recoverable as a matter of right. The requirements of an award of exemplary damages are: (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimant's right to them has been established; (2) that they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must

be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner. x x x Since plaintiffs are entitled to temperate damages, then they may also be awarded with exemplary damages. Indeed, exemplary damages are applicable in the case at bar because defendant, through their respective employees, acted in bad faith by not notifying plaintiffs of the erroneous cancellation of their bookings on the PR300 flight. Nonetheless, petitioners are also liable for attorney's fees, because plaintiffs demanded payment for damages from petitioner but it was only after they filed a case in court and that respondents were forced to acquire services of counsel to administer a just entitlement, for which they should be awarded attorney's fees.

C. Defendants Arrow Tours and Travel, Inc. and Philippine Airlines, Inc be held liable jointly and severally liable to plaintiffs.

As stated in the case of Far Eastern Shipping v. Court of Appeals5, the Court elucidated thus: x x x. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury.

G.R. No. 179446, January 10, 2011, 639 SCRA 69

Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 of the Civil Code.

In the case at bar, Arrow Tours and Travel, Inc. should be held jointly and solidarily liable because of act of their employee who acted in bad faith leading to the erroneous cancellation of aforementioned plaintiffs' confirmed bookings and the failure to inform of such fact. where plaintiff Reyes returned to the office of Arrow Tours to inquire on the availability of seats for the PAL ManilaHongkong flight on January 26, 1992 at 5:00 p.m. but to not avail. He was informed that said flight can no longer accommodate so he left Arrow Tours without making any cancellations of their confirmed bookings that were stated in their respective tickets. To this effect, petitioners PAL & Arrow Tours and Travel, Inc. should be held jointly and solidarily liable for the damages caused to the plaintiffs.

V. PRAYER

WHEREFORE, PREMISES CONSIDERED, it is highly prayed that the Honorable Court finds that: 1. There was undeniably a breach of contract of carriage on the part of defendant Philippine Airlines, Inc.; 2. An award of moral damages in the amount of Three Hundred Fifty Thousand Pesos (P350,000.00) each, actual or compensatory damages of Three Million Five Hundred Sixty Seven Thousand Pesos (P3,567,000.00), exemplary damages and attorneys fees; 3. Defendants Philippine Airlines, Inc. and Arrow Tours and Travel, Inc. are jointly and severally liable.

Plaintiffs further pray for such other remedies and relief as they may be entitled to either in law or in equity. Respectfully submitted Tanauan, Leyte April 25, 2014.

MARK DAVE N. LEBRIA Counsel for the Plaintiffs 143 Wara-wara St. Guindag-an Tanauan, Leyte IBP No. 072689/04-13-12/LEYTE PTR No. 123456/1-15-13/Tacloban City Roll of Atty.s No. 04132 April 12, 2000

Republic of the Philippines Province of Samar City of Catbalogan

) ) SS )

VERIFICATION

WE, ANDRES REYES & REY GOMEZ, both of legal age, Filipino, married and residents of Tanauan, Leyte after having been duly sworn according to law, hereby depose and say: THAT--We are the plaintiffs in the above-entitled case; that we have caused the foregoing Memorandum to be prepared and filed; that we have read and fully understood all the allegations therein contained; and that the same are all true and correct according to our own personal knowledge and belief, and based on genuine and authentic documents. IN WITNESS WHEREOF, we have hereunto set our hands this 25 April 2014 at Tanauan,Leyte, Philippines.

ANDRES REYES Affiant

REY GOMEZ Affiant

SUBSCRIBED AND SWORN to before me this 25 April 2014 at Tanauan,Leyte, Philippines.

Doc. No. ____ Page No. ____ Book No. ____ SERIES OF 2014

EXPLANATION AS TO THE MODE OF SERVICE AND FILING Pursuant to Section 11, Rule 13 of the Rules of Court, service of the foregoing pleading have been made through registered mail, service and filing are not practicable due to lack of messengerial manpower, distance, and time constraints.