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Republic of the Philippines The evidence disclosed that on May 11, 1975, Anacleto

SUPREME COURT Viana boarded the vessel M/V Antonia, owned by


Manila defendant, at the port at San Jose, Occidental Mindoro,
bound for Manila, having purchased a ticket (No.
SECOND DIVISION 117392) in the sum of P23.10 (Exh. 'B'). On May 12,
1975, said vessel arrived at Pier 4, North Harbor,
G.R. No. 84458 November 6, 1989 Manila, and the passengers therein disembarked, a
gangplank having been provided connecting the side of
ABOITIZ SHIPPING CORPORATION, petitioner, the vessel to the pier. Instead of using said gangplank
vs. Anacleto Viana disembarked on the third deck which
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. was on the level with the pier. After said vessel had
VIANA, SPS. ANTONIO VIANA and GORGONIA VIANA, and landed, the Pioneer Stevedoring Corporation took over
PIONEER STEVEDORING CORPORATION, respondents. the exclusive control of the cargoes loaded on said
vessel pursuant to the Memorandum of Agreement
REGALADO, J.: dated July 26, 1975 (Exh. '2') between the third party
defendant Pioneer Stevedoring Corporation and
defendant Aboitiz Shipping Corporation.
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation
seeks a review of the decision 1 of respondent Court of Appeals, dated
July 29, 1988, the decretal portion of which reads: The crane owned by the third party defendant and
operated by its crane operator Alejo Figueroa was
WHEREFORE, the judgment appealed from as placed alongside the vessel and one (1) hour after the
modified by the order of October 27, 1982, is hereby passengers of said vessel had disembarked, it started
affirmed with the modification that appellant Aboitiz operation by unloading the cargoes from said vessel.
Shipping is hereby ordered to pay plaintiff-appellees While the crane was being operated, Anacleto Viana
the amount of P30,000.00 for the death of Anacleto who had already disembarked from said vessel
Viana; actual damages of P9,800.00; P150,000.00 for obviously remembering that some of his cargoes were
unearned income; P7,200.00 as support for deceased's still loaded in the vessel, went back to the vessel, and it
parents; P20,000.00 as moral damages; P10,000.00 as was while he was pointing to the crew of the said
attorney's fees; and to pay the costs. vessel to the place where his cargoes were loaded that
the crane hit him, pinning him between the side of the
vessel and the crane. He was thereafter brought to the
The undisputed facts of the case, as found by the court a quo and
hospital where he later expired three (3) days
adopted by respondent court, are as follows: .
thereafter, on May 15, 1975, the cause of his death
according to the Death Certificate (Exh. "C") being
"hypostatic pneumonia secondary to traumatic fracture Pioneer, in its answer to the third-party complaint, 6 raised the defenses
of the pubic bone lacerating the urinary bladder" (See that Aboitiz had no cause of action against Pioneer considering that Aboitiz
also Exh. "B"). For his hospitalization, medical, burial is being sued by the Vianas for breach of contract of carriage to which
and other miscellaneous expenses, Anacleto's wife, Pioneer is not a party; that Pioneer had observed the diligence of a good
herein plaintiff, spent a total of P9,800.00 (Exhibits "E", father of a family both in the selection and supervision of its employees as
"E-1", to "E-5"). Anacleto Viana who was only forty (40) well as in the prevention of damage or injury to anyone including the victim
years old when he met said fateful accident (Exh. 'E') Anacleto Viana; that Anacleto Viana's gross negligence was the direct and
was in good health. His average annual income as a proximate cause of his death; and that the filing of the third-party complaint
farmer or a farm supervisor was 400 cavans of palay was premature by reason of the pendency of the criminal case for
homicide through reckless imprudence filed against the crane operator,
annually. His parents, herein plaintiffs Antonio and
Alejo Figueroa.
Gorgonia Viana, prior to his death had been recipient of
twenty (20) cavans of palay as support or P120.00
monthly. Because of Anacleto's death, plaintiffs suffered In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was
ordered to pay the Vianas for damages incurred, and Pioneer was ordered
mental anguish and extreme worry or moral damages.
to reimburse Aboitiz for whatever amount the latter paid the Vianas. The
For the filing of the instant case, they had to hire a
dispositive portion of said decision provides:
lawyer for an agreed fee of ten thousand (P10,000.00)
pesos. 2
WHEREFORE, judgment is hereby rendered in favor of
the plantiffs:
Private respondents Vianas filed a complaint 3 for damages against
petitioner corporation (Aboitiz, for brevity) for breach of contract of
carriage. (1) ordering defendant Aboitiz Shipping Corporation to
pay to plaintiffs the sum of P12,000.00 for the death of
Anacleto Viana P9,800.00 as actual damages;
In its answer. 4 Aboitiz denied responsibility contending that at the time of
the accident, the vessel was completely under the control of respondent P533,200.00 value of the 10,664 cavans of palay
Pioneer Stevedoring Corporation (Pioneer, for short) as the exclusive computed at P50.00 per cavan; P10,000.00 as
stevedoring contractor of Aboitiz, which handled the unloading of cargoes attorney's fees; F 5,000.00, value of the 100 cavans of
from the vessel of Aboitiz. It is also averred that since the crane operator palay as support for five (5) years for deceased (sic)
was not an employee of Aboitiz, the latter cannot be held liable under the parents, herein plaintiffs Antonio and Gorgonia Viana
fellow-servant rule. computed at P50.00 per cavan; P7,200.00 as support
for deceased's parents computed at P120.00 a month
Thereafter, Aboitiz, as third-party plaintiff, filed a third-party for five years pursuant to Art. 2206, Par. 2, of the Civil
complaint 5 against Pioneer imputing liability thereto for Anacleto Viana's Code; P20,000.00 as moral damages, and costs; and
death as having been allegedly caused by the negligence of the crane
operator who was an employee of Pioneer under its exclusive control and (2) ordering the third party defendant Pioneer
supervision. Stevedoring Corporation to reimburse defendant and
third party plaintiff Aboitiz Shipping Corporation the said support for deceased's parents computed at P120.00 a
amounts that it is ordered to pay to herein plaintiffs. month for five years pursuant to Art. 2206, Par. 2, of the
Civil Code; P20,000.00 as moral damages, and costs;
Both Aboitiz and Pioneer filed separate motions for reconsideration and
wherein they similarly raised the trial court's failure to declare that
Anacleto Viana acted with gross negligence despite the overwhelming (2) Absolving third-party defendant Pioneer Stevedoring
evidence presented in support thereof. In addition, Aboitiz alleged, in Corporation for (sic) any liability for the death of
opposition to Pioneer's motion, that under the memorandum of Anacleto Viana the passenger of M/V Antonia owned
agreement the liability of Pioneer as contractor is automatic for any by defendant third party plaintiff Aboitiz Shipping
damages or losses whatsoever occasioned by and arising from the Corporation it appearing that the negligence of its crane
operation of its arrastre and stevedoring service. operator has not been established therein.

In an order dated October 27, 1982, 8 the trial court absolved Pioneer Not satisfied with the modified judgment of the trial court, Aboitiz
from liability for failure of the Vianas and Aboitiz to preponderantly appealed the same to respondent Court of Appeals which affirmed the
establish a case of negligence against the crane operator which the findings of of the trial court except as to the amount of damages
court a quo ruled is never presumed, aside from the fact that the awarded to the Vianas.
memorandum of agreement supposedly refers only to Pioneer's liability in
case of loss or damage to goods handled by it but not in the case of Hence, this petition wherein petitioner Aboitiz postulates that
personal injuries, and, finally that Aboitiz cannot properly invoke the fellow- respondent court erred:
servant rule simply because its liability stems from a breach of contract of
carriage. The dispositive portion of said order reads:
(A) In holding that the doctrine laid down by this
honorable Court in La Mallorca vs. Court of Appeals, et
WHEREFORE, judgment is hereby modified insofar as
al. (17 SCRA 739, July 27, 1966) is applicable to the
third party defendant Pioneer Stevedoring Corporation
case in the face of the undisputable fact that the factual
is concerned rendered in favor of the plaintiffs-,:
situation under the La Mallorca case is radically
different from the facts obtaining in this case;
(1) Ordering defendant Aboitiz Shipping Corporation to
pay the plaintiffs the sum of P12,000.00 for the death of
(B) In holding petitioner liable for damages in the face
Anacleto Viana; P9,000.00 (sic) as actual damages;
of the finding of the court a quo and confirmed by the
P533,200.00 value of the 10,664 cavans of palay
Honorable respondent court of Appeals that the
computed at P50.00 per cavan; P10,000.00 as
deceased, Anacleto Viana was guilty of contributory
attorney's fees; P5,000.00 value of the 100 cavans of
negligence, which, We respectfully submit contributory
palay as support for five (5) years for deceased's
negligence was the proximate cause of his death;
parents, herein plaintiffs Antonio and Gorgonia
Viana,computed at P50.00 per cavan; P7,200.00 as
specifically the honorable respondent Court of Appeals reasonable opportunity to leave the carrier's premises. All persons who
failed to apply Art. 1762 of the New Civil Code; remain on the premises a reasonable time after leaving the conveyance
are to be deemed passengers, and what is a reasonable time or a
(C) In the alternative assuming the holding of the reasonable delay within this rule is to be determined from all the
Honorable respondent Court of Appears that petitioner circumstances, and includes a reasonable time to see after his baggage
may be legally condemned to pay damages to the and prepare for his departure. 12 The carrier-passenger relationship is not
terminated merely by the fact that the person transported has been carried
private respondents we respectfully submit that it
to his destination if, for example, such person remains in the carrier's
committed a reversible error when it dismissed
premises to claim his baggage. 13
petitioner's third party complaint against private
respondent Pioneer Stevedoring Corporation instead of
It was in accordance with this rationale that the doctrine in the
compelling the latter to reimburse the petitioner for
aforesaid case of La Mallorca was enunciated, to wit:
whatever damages it may be compelled to pay to the
private respondents Vianas. 9
It has been recognized as a rule that the relation of
carrier and passenger does not cease at the moment
At threshold, it is to be observed that both the trial court and
the passenger alights from the carrier's vehicle at a
respondent Court of Appeals found the victim Anacleto Viana guilty of
place selected by the carrier at the point of destination,
contributory negligence, but holding that it was the negligence of
but continues until the passenger has had a reasonable
Aboitiz in prematurely turning over the vessel to the arrastre operator
time or a reasonable opportunity to leave the carrier's
for the unloading of cargoes which was the direct, immediate and
premises. And, what is a reasonable time or a
proximate cause of the victim's death.
reasonable delay within this rule is to be determined
from all the circumstances. Thus, a person who, after
I. Petitioner contends that since one (1) hour had already elapsed from
alighting from a train, walks along the station platform is
the time Anacleto Viana disembarked from the vessel and that he was
considered still a passenger. So also, where a
given more than ample opportunity to unload his cargoes prior to the
passenger has alighted at his destination and is
operation of the crane, his presence on the vessel was no longer
proceeding by the usual way to leave the company's
reasonable e and he consequently ceased to be a passenger.
premises, but before actually doing so is halted by the
Corollarily, it insists that the doctrine in La Mallorca vs. Court of
report that his brother, a fellow passenger, has been
Appeals, et al. 10 is not applicable to the case at bar.
shot, and he in good faith and without intent of
engaging in the difficulty, returns to relieve his brother,
The rule is that the relation of carrier and passenger continues until the
he is deemed reasonably and necessarily delayed and
passenger has been landed at the port of destination and has left the
thus continues to be a passenger entitled as such to
vessel owner's dock or premises. 11 Once created, the relationship will
the protection of the railroad company and its agents.
not ordinarily terminate until the passenger has, after reaching his
destination, safely alighted from the carrier's conveyance or had a
In the present case, the father returned to the bus to It is of common knowledge that, by the very nature of petitioner's
get one of his baggages which was not unloaded when business as a shipper, the passengers of vessels are allotted a longer
they alighted from the bus. Racquel, the child that she period of time to disembark from the ship than other common carriers
was, must have followed the father. However, although such as a passenger bus. With respect to the bulk of cargoes and the
the father was still on the running board of the bus number of passengers it can load, such vessels are capable of
waiting for the conductor to hand him the bag accommodating a bigger volume of both as compared to the capacity
or bayong, the bus started to run, so that even he (the of a regular commuter bus. Consequently, a ship passenger will need
father) had to jump down from the moving vehicle. It at least an hour as is the usual practice, to disembark from the vessel
was at this instance that the child, who must be near and claim his baggage whereas a bus passenger can easily get off the
the bus, was run over and killed. In the circumstances, bus and retrieve his luggage in a very short period of time. Verily,
it cannot be claimed that the carrier's agent had petitioner cannot categorically claim, through the bare expedient of
exercised the 'utmost diligence' of a 'very cautious comparing the period of time entailed in getting the passenger's
person' required by Article 1755 of the Civil Code to be cargoes, that the ruling in La Mallorca is inapplicable to the case at bar.
observed by a common carrier in the discharge of its On the contrary, if we are to apply the doctrine enunciated therein to
obligation to transport safely its passengers. ... The the instant petition, we cannot in reason doubt that the victim Anacleto
presence of said passengers near the bus was not Viana was still a passenger at the time of the incident. When the
unreasonable and they are, therefore, to be considered accident occurred, the victim was in the act of unloading his cargoes,
still as passengers of the carrier, entitled to the which he had every right to do, from petitioner's vessel. As earlier
protection under their contract of carriage. 14 stated, a carrier is duty bound not only to bring its passengers safely to
their destination but also to afford them a reasonable time to claim their
It is apparent from the foregoing that what prompted the Court to rule baggage.
as it did in said case is the fact of the passenger's reasonable
presence within the carrier's premises. That reasonableness of time It is not definitely shown that one (1) hour prior to the incident, the
should be made to depend on the attending circumstances of the case, victim had already disembarked from the vessel. Petitioner failed to
such as the kind of common carrier, the nature of its business, the prove this. What is clear to us is that at the time the victim was taking
customs of the place, and so forth, and therefore precludes a his cargoes, the vessel had already docked an hour earlier. In
consideration of the time element per se without taking into account consonance with common shipping procedure as to the minimum time
such other factors. It is thus of no moment whether in the cited case of one (1) hour allowed for the passengers to disembark, it may be
of La Mallorca there was no appreciable interregnum for the passenger presumed that the victim had just gotten off the vessel when he went to
therein to leave the carrier's premises whereas in the case at bar, an retrieve his baggage. Yet, even if he had already disembarked an hour
interval of one (1) hour had elapsed before the victim met the accident. earlier, his presence in petitioner's premises was not without cause.
The primary factor to be considered is the existence of a reasonable The victim had to claim his baggage which was possible only one (1)
cause as will justify the presence of the victim on or near the hour after the vessel arrived since it was admittedly standard
petitioner's vessel. We believe there exists such a justifiable cause. procedure in the case of petitioner's vessels that the unloading
operations shall start only after that time. Consequently, under the cannot be gainsaid that petitioner had inadequately complied with the
foregoing circumstances, the victim Anacleto Viana is still deemed a required degree of diligence to prevent the accident from happening.
passenger of said carrier at the time of his tragic death.
As found by the Court of Appeals, the evidence does not show that
II. Under the law, common carriers are, from the nature of their there was a cordon of drums around the perimeter of the crane, as
business and for reasons of public policy, bound to observe claimed by petitioner. It also adverted to the fact that the alleged
extraordinary diligence in the vigilance over the goods and for the presence of visible warning signs in the vicinity was disputable and not
safety of the passengers transported by them, according to all the indubitably established. Thus, we are not inclined to accept petitioner's
circumstances of each case. 15 More particularly, a common carrier is explanation that the victim and other passengers were sufficiently
bound to carry the passengers safely as far as human care and foresight warned that merely venturing into the area in question was fraught with
can provide, using the utmost diligence of very cautious persons, with a serious peril. Definitely, even assuming the existence of the supposed
due regard for all the circumstances. 16 Thus, where a passenger dies or is cordon of drums loosely placed around the unloading area and the
injured, the common carrier is presumed to have been at fault or to have guard's admonitions against entry therein, these were at most
acted negligently. 17 This gives rise to an action for breach of contract of insufficient precautions which pale into insignificance if considered vis-
carriage where all that is required of plaintiff is to prove the existence of a-vis the gravity of the danger to which the deceased was exposed.
the contract of carriage and its non-performance by the carrier, that is, the There is no showing that petitioner was extraordinarily diligent in
failure of the carrier to carry the passenger safely to his requiring or seeing to it that said precautionary measures were strictly
destination, 18 which, in the instant case, necessarily includes its failure to
and actually enforced to subserve their purpose of preventing entry
safeguard its passenger with extraordinary diligence while such relation
into the forbidden area. By no stretch of liberal evaluation can such
subsists.
perfunctory acts approximate the "utmost diligence of very cautious
persons" to be exercised "as far as human care and foresight can
The presumption is, therefore, established by law that in case of a
provide" which is required by law of common carriers with respect to
passenger's death or injury the operator of the vessel was at fault or
their passengers.
negligent, having failed to exercise extraordinary diligence, and it is
incumbent upon it to rebut the same. This is in consonance with the
While the victim was admittedly contributorily negligent, still petitioner's
avowed policy of the State to afford full protection to the passengers of
aforesaid failure to exercise extraordinary diligence was the proximate
common carriers which can be carried out only by imposing a stringent
and direct cause of, because it could definitely have prevented, the
statutory obligation upon the latter. Concomitantly, this Court has
former's death. Moreover, in paragraph 5.6 of its petition, at
likewise adopted a rigid posture in the application of the law by
bar, 19 petitioner has expressly conceded the factual finding of respondent
exacting the highest degree of care and diligence from common
Court of Appeals that petitioner did not present sufficient evidence in
carriers, bearing utmost in mind the welfare of the passengers who
support of its submission that the deceased Anacleto Viana was guilty of
often become hapless victims of indifferent and profit-oriented carriers. gross negligence. Petitioner cannot now be heard to claim otherwise.
We cannot in reason deny that petitioner failed to rebut the
presumption against it. Under the facts obtaining in the present case, it
No excepting circumstance being present, we are likewise bound by DANGWA TRANSPORTATION CO., INC. and THEODORE
respondent court's declaration that there was no negligence on the part LARDIZABAL y MALECDAN, petitioners,
of Pioneer Stevedoring Corporation, a confirmation of the trial court's vs.
finding to that effect, hence our conformity to Pioneer's being absolved COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT
of any liability. BANDOY, FERNANDO CUDLAMAT, MARRIETA CUDIAMAT,
NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL CUDIAMAT and
As correctly observed by both courts, Aboitiz joined Pioneer in proving LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat
the alleged gross negligence of the victim, hence its present contention represented by Inocencia Cudiamat, respondents.
that the death of the passenger was due to the negligence of the crane
operator cannot be sustained both on grounds, of estoppel and for lack Francisco S. Reyes Law Office for petitioners.
of evidence on its present theory. Even in its answer filed in the court
below it readily alleged that Pioneer had taken the necessary Antonio C. de Guzman for private respondents.
safeguards insofar as its unloading operations were concerned, a fact
which appears to have been accepted by the plaintiff therein by not
impleading Pioneer as a defendant, and likewise inceptively by Aboitiz
by filing its third-party complaint only after ten (10) months from the REGALADO, J.:p
institution of the suit against it. Parenthetically, Pioneer is not within the
ambit of the rule on extraordinary diligence required of, and the On May 13, 1985, private respondents filed a complaint 1 for damages
corresponding presumption of negligence foisted on, common carriers against petitioners for the death of Pedrito Cudiamat as a result of a vehicular accident which
like Aboitiz. This, of course, does not detract from what we have said 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
that no negligence can be imputed to Pioneer but, that on the contrary, to petitioner corporation in a reckless and imprudent manner and without due regard to traffic rules
the failure of Aboitiz to exercise extraordinary diligence for the safety of 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
its passenger is the rationale for our finding on its liability.
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
WHEREFORE, the petition is DENIED and the judgment appealed expired.

from is hereby AFFIRMED in toto.


On the other hand, petitioners alleged that they had observed and
Republic of the Philippines continued to observe the extraordinary diligence required in the
SUPREME COURT operation of the transportation company and the supervision of the
Manila 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
SECOND DIVISION 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.
G.R. No. 95582 October 7, 1991
On July 29, 1988, the trial court rendered a decision, effectively in favor It is an established principle that the factual findings of the Court of
of petitioners, with this decretal portion: 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
IN VIEW OF ALL THE FOREGOING, judgment is when the findings of the appellate court are contrary to those of the
hereby pronounced that Pedrito Cudiamat was trial court, in which case a reexamination of the facts and evidence
negligent, which negligence was the proximate cause may be undertaken. 6
of his death. Nonetheless, defendants in equity, are
hereby ordered to pay the heirs of Pedrito Cudiamat In the case at bar, the trial court and the Court of Appeal have
the sum of P10,000.00 which approximates the amount discordant positions as to who between the petitioners an the victim is
defendants initially offered said heirs for the amicable guilty of negligence. Perforce, we have had to conduct an evaluation of
settlement of the case. No costs. the evidence in this case for the prope calibration of their conflicting
factual findings and legal conclusions.
SO ORDERED. 2
The lower court, in declaring that the victim was negligent, made the
Not satisfied therewith, private respondents appealed to the Court of following findings:
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: This Court is satisfied that Pedrito Cudiamat was
negligent in trying to board a moving vehicle, especially
1. The sum of Thirty Thousand (P30,000.00) Pesos by with one of his hands holding an umbrella. And, without
way of indemnity for death of the victim Pedrito having given the driver or the conductor any indication
Cudiamat; that he wishes to board the bus. But defendants can
also be found wanting of the necessary diligence. In
2. The sum of Twenty Thousand (P20,000.00) by way this connection, it is safe to assume that when the
of moral damages; deceased Cudiamat attempted to board defendants'
bus, the vehicle's door was open instead of being
3. The sum of Two Hundred Eighty Eight Thousand closed. This should be so, for it is hard to believe that
(P288,000.00) Pesos as actual and compensatory one would even attempt to board a vehicle (i)n motion if
damages; the door of said vehicle is closed. Here lies the
defendant's lack of diligence. Under such
4. The costs of this suit. 4 circumstances, equity demands that there must be
something given to the heirs of the victim to assuage
Petitioners' motion for reconsideration was denied by the Court of their feelings. This, also considering that initially,
Appeals in its resolution dated October 4, 1990, 5 hence this petition with the defendant common carrier had made overtures to
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.
amicably settle the case. It did offer a certain monetary After a careful review of the evidence on record, we find no reason to
consideration to the victim's heirs. 7 disturb the above holding of the Court of Appeals. Its aforesaid findings
are supported by the testimony of petitioners' own witnesses. One of
However, respondent court, in arriving at a different opinion, declares them, Virginia Abalos, testified on cross-examination as follows:
that:
Q It is not a fact Madam witness, that at
From the testimony of appellees'own witness in the bunkhouse 54, that is before the place
person of Vitaliano Safarita, it is evident that the subject of the incident, there is a crossing?
bus was at full stop when the victim Pedrito Cudiamat
boarded the same as it was precisely on this instance A The way going to the mines but it is
where a certain Miss Abenoja alighted from the bus. not being pass(ed) by the bus.
Moreover, contrary to the assertion of the appellees,
the victim did indicate his intention to board the bus as Q And the incident happened before
can be seen from the testimony of the said witness bunkhouse 56, is that not correct?
when he declared that Pedrito Cudiamat was no longer
walking and made a sign to board the bus when the A It happened between 54 and 53
latter was still at a distance from him. It was at the bunkhouses. 9
instance when Pedrito Cudiamat was closing his
umbrella at the platform of the bus when the latter The bus conductor, Martin Anglog, also declared:
made a sudden jerk movement (as) the driver
commenced to accelerate the bus. Q When you arrived at Lepanto on
March 25, 1985, will you please inform
Evidently, the incident took place due to the gross this Honorable Court if there was anv
negligence of the appellee-driver in prematurely unusual incident that occurred?
stepping on the accelerator and in not waiting for the
passenger to first secure his seat especially so when A When we delivered a baggage at
we take into account that the platform of the bus was at Marivic because a person alighted
the time slippery and wet because of a drizzle. The there between Bunkhouse 53 and 54.
defendants-appellees utterly failed to observe their duty
and obligation as common carrier to the end that they
Q What happened when you delivered
should observe extra-ordinary diligence in the vigilance
this passenger at this particular place in
over the goods and for the safety of the passengers
Lepanto?
transported by them according to the circumstances of
each case (Article 1733, New Civil Code). 8
A When we reached the place, a The contention of petitioners that the driver and the conductor had no
passenger alighted and I signalled my knowledge that the victim would ride on the bus, since the latter had
driver. When we stopped we went out supposedly not manifested his intention to board the same, does not
because I saw an umbrella about a split merit consideration. When the bus is not in motion there is no
second and I signalled again the driver, necessity for a person who wants to ride the same to signal his
so the driver stopped and we went intention to board. A public utility bus, once it stops, is in effect making
down and we saw Pedrito Cudiamat a continuous offer to bus riders. Hence, it becomes the duty of the
asking for help because he was lying driver and the conductor, every time the bus stops, to do no act that
down. would have the effect of increasing the peril to a passenger while he
was attempting to board the same. The premature acceleration of the
Q How far away was this certain bus in this case was a breach of such duty. 11
person, Pedrito Cudiamat, when you
saw him lying down from the bus It is the duty of common carriers of passengers, including common
how far was he? carriers by railroad train, streetcar, or motorbus, to stop their
conveyances a reasonable length of time in order to afford passengers
A It is about two to three meters. an opportunity to board and enter, and they are liable for injuries
suffered by boarding passengers resulting from the sudden starting up
Q On what direction of the bus was he or jerking of their conveyances while they are doing so. 12
found about three meters from the bus,
was it at the front or at the back? Further, even assuming that the bus was moving, the act of the victim
in boarding the same cannot be considered negligent under the
A At the back, sir. 10 (Emphasis supplied.) circumstances. As clearly explained in the testimony of the aforestated
witness for petitioners, Virginia Abalos, th bus had "just started" and
The foregoing testimonies show that the place of the accident and the "was still in slow motion" at the point where the victim had boarded and
place where one of the passengers alighted were both between was on its platform. 13
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. It is not negligence per se, or as a matter of law, for one attempt to
They further confirm the conclusion that the victim fell from the platform 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
of the bus when it suddenly accelerated forward and was run over by circumstances. The fact that passengers board and alight from slowly moving vehicle is a matter of
the rear right tires of the vehicle, as shown by the physical evidence on common experience both the driver and conductor in this case could not have been unaware of
where he was thereafter found in relation to the bus when it stopped. such an ordinary practice.

Under such circumstances, it cannot be said that the deceased was


guilty of negligence. 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 was the wife of the deceased who caused the delay was tersely and
held that the duty which the carrier passengers owes to its patrons correctly confuted by respondent court:
extends to persons boarding cars as well as to those alighting
therefrom. 15 ... The pretension of the appellees that the delay was
due to the fact that they had to wait for about twenty
Common carriers, from the nature of their business and reasons of minutes for Inocencia Cudiamat to get dressed
public policy, are bound to observe extraordina diligence for the safety deserves scant consideration. It is rather scandalous
of the passengers transported by the according to all the and deplorable for a wife whose husband is at the
circumstances of each case. 16 A common carrier is bound to carry the passengers verge of dying to have the luxury of dressing herself up
safely as far as human care and foresight can provide, using the utmost diligence very cautious for about twenty minutes before attending to help her
persons, with a due regard for all the circumstances. 17
distressed and helpless husband. 19
It has also been repeatedly held that in an action based on a contract
Further, it cannot be said that the main intention of petitioner
of carriage, the court need not make an express finding of fault or
Lardizabal in going to Bunk 70 was to inform the victim's family of the
negligence on the part of the carrier in order to hold it responsible to
mishap, since it was not said bus driver nor the conductor but the
pay the damages sought by the passenger. By contract of carriage, the
companion of the victim who informed his family thereof. 20 In fact, it was
carrier assumes the express obligation to transport the passenger to only after the refrigerator was unloaded that one of the passengers thought of sending somebody to
his destination safely and observe extraordinary diligence with a due the house of the victim, as shown by the testimony of Virginia Abalos again, to wit:
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 Q Why, what happened to your
the carrier. This is an exception to the general rule that negligence refrigerator at that particular time?
must be proved, and it is therefore incumbent upon the carrier to prove
that it has exercised extraordinary diligence as prescribed in Articles A I asked them to bring it down because
1733 and 1755 of the Civil Code. 18 that is the nearest place to our house
and when I went down and asked
Moreover, the circumstances under which the driver and the conductor somebody to bring down the
failed to bring the gravely injured victim immediately to the hospital for refrigerator, I also asked somebody to
medical treatment is a patent and incontrovertible proof of their call the family of Mr. Cudiamat.
negligence. It defies understanding and can even be stigmatized as
callous indifference. The evidence shows that after the accident the COURT:
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 Q Why did you ask somebody to call
passenger to alight and to deliver a refrigerator, despite the serious the family of Mr. Cudiamat?
condition of the victim. The vacuous reason given by petitioners that it
A Because Mr. Cudiamat met an WHEREFORE, subject to the above modifications, the challenged
accident, so I ask somebody to call for judgment and resolution of respondent Court of Appeals are hereby
the family of Mr. Cudiamat. AFFIRMED in all other respects.

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 Republic of the Philippines
the entire earnings, but rather the loss of that portion of the earnings SUPREME COURT
which the beneficiary would have received. In other words, only net Manila
earnings, not gross earnings, are to be considered, that is, the total of
the earnings less expenses necessary in the creation of such earnings FIRST DIVISION
or income and minus living and other incidental expenses. 22
G.R. No. 145804 February 6, 2003
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 LIGHT RAIL TRANSIT AUTHORITY & RODOLFO
or P6,000.00 a year. In adjudicating the actual or compensatory ROMAN, petitioners,
damages, respondent court found that the deceased was 48 years old, vs.
in good health with a remaining productive life expectancy of 12 years, MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD &
and then earning P24,000.00 a year. Using the gross annual income PRUDENT SECURITY AGENCY, respondents.
as the basis, and multiplying the same by 12 years, it accordingly
awarded P288,000. Applying the aforestated rule on computation
DECISION
based on the net earnings, said award must be, as it hereby is,
rectified and reduced to P216,000.00. However, in accordance with
VITUG, J.:
prevailing jurisprudence, the death indemnity is hereby increased to
P50,000.00. 23
The case before the Court is an appeal from the decision and
resolution of the Court of Appeals, promulgated on 27 April 2000 and
10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled
"Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo
Roman, et. al.," which has modified the decision of 11 August 1998 of "WHEREFORE, judgment is hereby rendered in favor of the plaintiffs
the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent and against the defendants Prudent Security and Junelito Escartin
Security Agency (Prudent) from liability and finding Light Rail Transit ordering the latter to pay jointly and severally the plaintiffs the
Authority (LRTA) and Rodolfo Roman liable for damages on account of following:
the death of Nicanor Navidad.
"a) 1) Actual damages of P44,830.00;
On 14 October 1993, about half an hour past seven oclock in the
evening, Nicanor Navidad, then drunk, entered the EDSA LRT station 2) Compensatory damages of P443,520.00;
after purchasing a "token" (representing payment of the fare). While
Navidad was standing on the platform near the LRT tracks, Junelito 3) Indemnity for the death of Nicanor Navidad in the sum of
Escartin, the security guard assigned to the area approached Navidad. P50,000.00;
A misunderstanding or an altercation between the two apparently
ensued that led to a fist fight. No evidence, however, was adduced to "b) Moral damages of P50,000.00;
indicate how the fight started or who, between the two, delivered the
first blow or how Navidad later fell on the LRT tracks. At the exact "c) Attorneys fees of P20,000;
moment that Navidad fell, an LRT train, operated by petitioner Rodolfo
Roman, was coming in. Navidad was struck by the moving train, and
"d) Costs of suit.
he was killed instantaneously.
"The complaint against defendants LRTA and Rodolfo Roman are
On 08 December 1994, the widow of Nicanor, herein respondent
dismissed for lack of merit.
Marjorie Navidad, along with her children, filed a complaint for
damages against Junelito Escartin, Rodolfo Roman, the LRTA, the
"The compulsory counterclaim of LRTA and Roman are likewise
Metro Transit Organization, Inc. (Metro Transit), and Prudent for the
dismissed."1
death of her husband. LRTA and Roman filed a counterclaim against
Navidad and a cross-claim against Escartin and Prudent. Prudent, in
its answer, denied liability and averred that it had exercised due Prudent appealed to the Court of Appeals. On 27 August 2000, the
diligence in the selection and supervision of its security guards. appellate court promulgated its now assailed decision exonerating
Prudent from any liability for the death of Nicanor Navidad and,
instead, holding the LRTA and Roman jointly and severally liable
The LRTA and Roman presented their evidence while Prudent and
thusly:
Escartin, instead of presenting evidence, filed a demurrer contending
that Navidad had failed to prove that Escartin was negligent in his
assigned task. On 11 August 1998, the trial court rendered its decision; "WHEREFORE, the assailed judgment is hereby MODIFIED, by
it adjudged: exonerating the appellants from any liability for the death of Nicanor
Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail
Transit Authority (LRTA) are held liable for his death and are hereby
directed to pay jointly and severally to the plaintiffs-appellees, the "I.
following amounts:
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY
a) P44,830.00 as actual damages; DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT

b) P50,000.00 as nominal damages; "II.

c) P50,000.00 as moral damages; THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN


FINDING THAT PETITIONERS ARE LIABLE FOR THE DEATH OF
d) P50,000.00 as indemnity for the death of the NICANOR NAVIDAD, JR.
deceased; and
"III.
e) P20,000.00 as and for attorneys fees."2
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
The appellate court ratiocinated that while the deceased might not FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA."3
have then as yet boarded the train, a contract of carriage theretofore
had already existed when the victim entered the place where Petitioners would contend that the appellate court ignored the evidence
passengers were supposed to be after paying the fare and getting the and the factual findings of the trial court by holding them liable on the
corresponding token therefor. In exempting Prudent from liability, the basis of a sweeping conclusion that the presumption of negligence on
court stressed that there was nothing to link the security agency to the the part of a common carrier was not overcome. Petitioners would
death of Navidad. It said that Navidad failed to show that Escartin insist that Escartins assault upon Navidad, which caused the latter to
inflicted fist blows upon the victim and the evidence merely established fall on the tracks, was an act of a stranger that could not have been
the fact of death of Navidad by reason of his having been hit by the foreseen or prevented. The LRTA would add that the appellate courts
train owned and managed by the LRTA and operated at the time by conclusion on the existence of an employer-employee relationship
Roman. The appellate court faulted petitioners for their failure to between Roman and LRTA lacked basis because Roman himself had
present expert evidence to establish the fact that the application of testified being an employee of Metro Transit and not of the LRTA.
emergency brakes could not have stopped the train.
Respondents, supporting the decision of the appellate court,
The appellate court denied petitioners motion for reconsideration in its contended that a contract of carriage was deemed created from the
resolution of 10 October 2000. moment Navidad paid the fare at the LRT station and entered the
premises of the latter, entitling Navidad to all the rights and protection
In their present recourse, petitioners recite alleged errors on the part of under a contractual relation, and that the appellate court had correctly
the appellate court; viz: held LRTA and Roman liable for the death of Navidad in failing to
exercise extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the circumstances.5 Such duty of a common carrier to provide safety to its
nature of its business and for reasons of public policy, is burdened with passengers so obligates it not only during the course of the trip but for
the duty of exercising utmost diligence in ensuring the safety of so long as the passengers are within its premises and where they
passengers.4 The Civil Code, governing the liability of a common ought to be in pursuance to the contract of carriage.6 The statutory
carrier for death of or injury to its passengers, provides: provisions render a common carrier liable for death of or injury to
passengers (a) through the negligence or wilful acts of its employees
"Article 1755. A common carrier is bound to carry the passengers or b) on account of wilful acts or negligence of other passengers or of
safely as far as human care and foresight can provide, using the strangers if the common carriers employees through the exercise of
utmost diligence of very cautious persons, with a due regard for all the due diligence could have prevented or stopped the act or omission. 7 In
circumstances. case of such death or injury, a carrier is presumed to have been at fault
or been negligent, and8 by simple proof of injury, the passenger is
"Article 1756. In case of death of or injuries to passengers, common relieved of the duty to still establish the fault or negligence of the
carriers are presumed to have been at fault or to have acted carrier or of its employees and the burden shifts upon the carrier to
negligently, unless they prove that they observed extraordinary prove that the injury is due to an unforeseen event or to force
diligence as prescribed in articles 1733 and 1755." majeure.9 In the absence of satisfactory explanation by the carrier on
how the accident occurred, which petitioners, according to the
"Article 1759. Common carriers are liable for the death of or injuries to appellate court, have failed to show, the presumption would be that it
passengers through the negligence or willful acts of the formers has been at fault,10 an exception from the general rule that negligence
employees, although such employees may have acted beyond the must be proved.11
scope of their authority or in violation of the orders of the common
carriers. The foundation of LRTAs liability is the contract of carriage and its
obligation to indemnify the victim arises from the breach of that
"This liability of the common carriers does not cease upon proof that contract by reason of its failure to exercise the high diligence required
they exercised all the diligence of a good father of a family in the of the common carrier. In the discharge of its commitment to ensure
selection and supervision of their employees." the safety of passengers, a carrier may choose to hire its own
employees or avail itself of the services of an outsider or an
"Article 1763. A common carrier is responsible for injuries suffered by a independent firm to undertake the task. In either case, the common
passenger on account of the willful acts or negligence of other carrier is not relieved of its responsibilities under the contract of
passengers or of strangers, if the common carriers employees through carriage.
the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission." Should Prudent be made likewise liable? If at all, that liability could
only be for tort under the provisions of Article 217612 and related
The law requires common carriers to carry passengers safely using the provisions, in conjunction with Article 2180,13 of the Civil Code. The
utmost diligence of very cautious persons with due regard for all premise, however, for the employers liability is negligence or fault on
the part of the employee. Once such fault is established, the employer The award of nominal damages in addition to actual damages is
can then be made liable on the basis of the presumption juris tantum untenable. Nominal damages are adjudicated in order that a right of
that the employer failed to exercise diligentissimi patris families in the the plaintiff, which has been violated or invaded by the defendant, may
selection and supervision of its employees. The liability is primary and be vindicated or recognized, and not for the purpose of indemnifying
can only be negated by showing due diligence in the selection and the plaintiff for any loss suffered by him.18 It is an established rule that
supervision of the employee, a factual matter that has not been shown. nominal damages cannot co-exist with compensatory damages.19
Absent such a showing, one might ask further, how then must the
liability of the common carrier, on the one hand, and an independent WHEREFORE, the assailed decision of the appellate court is
contractor, on the other hand, be described? It would be solidary. A AFFIRMED with MODIFICATION but only in that (a) the award of
contractual obligation can be breached by tort and when the same act nominal damages is DELETED and (b) petitioner Rodolfo Roman is
or omission causes the injury, one resulting in culpa contractual and absolved from liability. No costs.
the other in culpa aquiliana, Article 219414 of the Civil Code can well
apply.15 In fine, a liability for tort may arise even under a contract,
where tort is that which breaches the contract.16 Stated differently,
when an act which constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability had no contract
existed between the parties, the contract can be said to have been
breached by tort, thereby allowing the rules on tort to apply.17

Regrettably for LRT, as well as perhaps the surviving spouse and heirs
of the late Nicanor Navidad, this Court is concluded by the factual
finding of the Court of Appeals that "there is nothing to link (Prudent) to
the death of Nicanor (Navidad), for the reason that the negligence of its
employee, Escartin, has not been duly proven x x x." This finding of the
appellate court is not without substantial justification in our own review
of the records of the case.

There being, similarly, no showing that petitioner Rodolfo Roman Republic of the Philippines
himself is guilty of any culpable act or omission, he must also be SUPREME COURT
absolved from liability. Needless to say, the contractual tie between the Manila
LRT and Navidad is not itself a juridical relation between the latter and
Roman; thus, Roman can be made liable only for his own fault or EN BANC
negligence.
G.R. No. L-20761 July 27, 1966
LA MALLORCA, petitioner, were the plaintiffs and their children to get off. With respect to
vs. the group of the plaintiffs, Mariano Beltran, then carrying some
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET of their baggages, was the first to get down the bus, followed
AL., respondents. by his wife and his children. Mariano led his companions to a
shaded spot on the left pedestrians side of the road about four
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner. or five meters away from the vehicle. Afterwards, he returned to
Ahmed Garcia for respondents. the bus in controversy to get his other bayong, which he had
left behind, but in so doing, his daughter Raquel followed him,
BARRERA, J.: unnoticed by her father. While said Mariano Beltran was on the
running board of the bus waiting for the conductor to hand him
La Mallorca seeks the review of the decision of the Court of Appeals in his bayong which he left under one of its seats near the door,
CA-G.R. No. 23267-R, holding it liable for quasi-delict and ordering it to the bus, whose motor was not shut off while unloading,
pay to respondents Mariano Beltran, et al., P6,000.00 for the death of suddenly started moving forward, evidently to resume its trip,
his minor daughter Raquel Beltran, plus P400.00 as actual damages. notwithstanding the fact that the conductor has not given the
driver the customary signal to start, since said conductor was
The facts of the case as found by the Court of Appeals, briefly are: 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
On December 20, 1953, at about noontime, plaintiffs, husband
plaintiffs had gotten off.
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 Sensing that the bus was again in motion, Mariano Beltran
No. 757 (1953 Pampanga), owned and operated by the immediately jumped from the running board without getting
defendant, at San Fernando, Pampanga, bound for Anao, his bayong from the conductor. He landed on the side of the
Mexico, Pampanga. At the time, they were carrying with them road almost in front of the shaded place where he left his wife
four pieces of baggages containing their personal belonging. and children. At that precise time, he saw people beginning to
The conductor of the bus, who happened to be a half-brother of gather around the body of a child lying prostrate on the ground,
plaintiff Mariano Beltran, issued three tickets (Exhs. A, B, & C) her skull crushed, and without life. The child was none other
covering the full fares of the plaintiff and their eldest child, than his daughter Raquel, who was run over by the bus in
Milagros. No fare was charged on Raquel and Fe, since both which she rode earlier together with her parents.
were below the height at which fare is charged in accordance
with the appellant's rules and regulations. For the death of their said child, the plaintiffs commenced the
present suit against the defendant seeking to recover from the
After about an hour's trip, the bus reached Anao whereat it latter an aggregate amount of P16,000 to cover moral
stopped to allow the passengers bound therefor, among whom damages and actual damages sustained as a result thereof
and attorney's fees. After trial on the merits, the court below bus. There can be no controversy that as far as the father is
rendered the judgment in question. concerned, when he returned to the bus for his bayong which was not
unloaded, the relation of passenger and carrier between him and the
On the basis of these facts, the trial court found defendant liable for petitioner remained subsisting. For, the relation of carrier and
breach of contract of carriage and sentenced it to pay P3,000.00 for passenger does not necessarily cease where the latter, after alighting
the death of the child and P400.00 as compensatory damages from the car, aids the carrier's servant or employee in removing his
representing burial expenses and costs. 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
On appeal to the Court of Appeals, La Mallorca claimed that there meters away from the bus, the liability of the carrier for her safety
could not be a breach of contract in the case, for the reason that when under the contract of carriage also persisted.
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 It has been recognized as a rule that the relation of carrier and
already terminated. Although the Court of Appeals sustained this passenger does not cease at the moment the passenger alights from
theory, it nevertheless found the defendant-appellant guilty of quasi- the carrier's vehicle at a place selected by the carrier at the point of
delict and held the latter liable for damages, for the negligence of its destination, but continues until the passenger has had a reasonable
driver, in accordance with Article 2180 of the Civil Code. And, the Court time or a reasonable opportunity to leave the carrier's premises. And,
of Appeals did not only find the petitioner liable, but increased the what is a reasonable time or a reasonable delay within this rule is to be
damages awarded the plaintiffs-appellees to P6,000.00, instead of determined from all the circumstances. Thus, a person who, after
P3,000.00 granted by the trial court. alighting from a train, walks along the station platform is considered
still a passenger.2 So also, where a passenger has alighted at his
In its brief before us, La Mallorca contends that the Court of Appeals destination and is proceeding by the usual way to leave the company's
erred (1) in holding it liable for quasi-delict, considering that premises, but before actually doing so is halted by the report that his
respondents complaint was one for breach of contract, and (2) in brother, a fellow passenger, has been shot, and he in good faith and
raising the award of damages from P3,000.00 to P6,000.00 although without intent of engaging in the difficulty, returns to relieve his brother,
respondents did not appeal from the decision of the lower court. he is deemed reasonably and necessarily delayed and thus continues
to be a passenger entitled as such to the protection of the railroad and
Under the facts as found by the Court of Appeals, we have to sustain company and its agents.3
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 In the present case, the father returned to the bus to get one of his
respondent Mariano Beltran, his wife, and their children (including the baggages which was not unloaded when they alighted from the bus.
deceased child) had alighted from the bus at a place designated for Raquel, the child that she was, must have followed the father.
disembarking or unloading of passengers, it was also established that However, although the father was still on the running board of the bus
the father had to return to the vehicle (which was still at a stop) to get awaiting for the conductor to hand him the bag or bayong, the bus
one of his bags or bayong that was left under one of the seats of the 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 plaintiffs sufficiently pleaded the culpa or negligence upon which
the bus, was run over and killed. In the circumstances, it cannot be the claim was predicated when it was alleged in the complaint that "the
claimed that the carrier's agent had exercised the "utmost diligence" of death of Raquel Beltran, plaintiffs' daughter, was caused by the
a "very cautions person" required by Article 1755 of the Civil Code to negligence and want of exercise of the utmost diligence of a very
be observed by a common carrier in the discharge of its obligation to cautious person on the part of the defendants and their agent." This
transport safely its passengers. In the first place, the driver, although allegation was also proved when it was established during the trial that
stopping the bus, nevertheless did not put off the engine. Secondly, he the driver, even before receiving the proper signal from the conductor,
started to run the bus even before the bus conductor gave him the and while there were still persons on the running board of the bus and
signal to go and while the latter was still unloading part of the near it, started to run off the vehicle. The presentation of proof of the
baggages of the passengers Mariano Beltran and family. The presence negligence of its employee gave rise to the presumption that the
of said passengers near the bus was not unreasonable and they are, defendant employer did not exercise the diligence of a good father of
therefore, to be considered still as passengers of the carrier, entitled to the family in the selection and supervision of its employees. And this
the protection under their contract of carriage. presumption, as the Court of Appeals found, petitioner had failed to
overcome. Consequently, petitioner must be adjudged peculiarily liable
But even assuming arguendo that the contract of carriage has already for the death of the child Raquel Beltran.
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 The increase of the award of damages from P3,000.00 to P6,000.00 by
Civil Code. Paragraph 7 of the complaint, which reads the Court of Appeals, however, cannot be sustained. Generally, the
appellate court can only pass upon and consider questions or issues
That aside from the aforesaid breach of contract, the death of raised and argued in appellant's brief. Plaintiffs did not appeal from that
Raquel Beltran, plaintiffs' daughter, was caused by the portion of the judgment of the trial court awarding them on P3,000.00
negligence and want of exercise of the utmost diligence of a damages for the death of their daughter. Neither does it appear that, as
very cautious person on the part of the defendants and their appellees in the Court of Appeals, plaintiffs have pointed out in their
agent, necessary to transport plaintiffs and their daughter brief the inadequacy of the award, or that the inclusion of the figure
safely as far as human care and foresight can provide in the P3,000.00 was merely a clerical error, in order that the matter may be
operation of their vehicle. treated as an exception to the general rule.5Herein petitioner's
contention, therefore, that the Court of Appeals committed error in
is clearly an allegation for quasi-delict. The inclusion of this averment raising the amount of the award for damages is, evidently,
for quasi-delict, while incompatible with the other claim under the meritorious.1wph1.t

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 Wherefore, the decision of the Court of Appeals is hereby modified by
in the alternative, be they compatible with each other or not, to the end sentencing, the petitioner to pay to the respondents Mariano Beltran, et
that the real matter in controversy may be resolved and determined.4 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 On June 13, 1991, private respondent Jose Miranda boarded JAL flight
instance. So ordered. 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.
Republic of the Philippines
SUPREME COURT Upon arrival at Narita, Japan on June 14, 1991, private respondents
Manila 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
THIRD DIVISION 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.
G.R. No. 118664 August 7, 1998
To accommodate the needs of its stranded passengers, JAL rebooked
all the Manila-bound passengers on flight No. 741 due to depart on
JAPAN AIRLINES, petitioner,
June 16, 1991 and also paid for the hotel expenses for their
vs.
unexpected overnight stay. On June 16, 1991, much to the dismay of
THE COURT OF APPEALS, ENRIQUE AGANA., MARIA ANGELA
the private respondents, their long anticipated flight to Manila was
NINA AGANA, ADALIA B. FRANCISCO and JOSE
again cancelled due to NAIA's indefinite closure. At this point, JAL
MIRANDA, respondents.
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,
ROMERO, J.:
private respondents were forced to pay for their accommodations and
Before us is an appeal by certiorari filed by petitioner Japan Airlines, Inc. (JAL) seeking the reversal
meal expenses from their personal funds from June 16 to June 21,
which affirmed with modification the award
of the decision of the Court of Appeals, 1 1991. Their unexpected stay in Narita ended on June 22, 1991 when
of damages made by the trial court in favor of herein private respondents they arrived in Manila on board JL flight No. 741.
Enrique Agana, Maria Angela Nina Agana, Adelia Francisco and Jose
Miranda. 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 WHEREFORE, with the foregoing Modification, the
provide care and comfort to its stranded passengers when it refused to judgment appealed from is hereby AFFIRMED in all
pay for their hotel and accommodation expenses from June 16 to 21, 1991 other respects.
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 JAL filed a motion for reconsideration which proved futile and
the other hand, JAL denied this allegation and averred that airline unavailing. 4
passengers have no vested right to these amenities in case a flight is
cancelled due to "force majeure."
Failing in its bid to reconsider the decision, JAL has now filed this instant
petition.
On June 18, 1992, the trial court rendered its judgment in favor of
private respondents holding JAL liable for damages, viz.:
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
WHEREFORE, judgment is rendered in favor of passengers until they have reached their final destination, even if the
plaintiffs ordering the defendant Japan Airlines to pay delay were caused by "force majeure."
the plaintiffs Enrique Agana, Adalia B. Francisco and
Maria Angela Nina Agana the sum of One million Two
To begin with, there is no dispute that the Mt. Pinatubo eruption
Hundred forty-six Thousand Nine Hundred Thirty-Six
prevented JAL from proceeding to Manila on schedule. Likewise,
Pesos (P1,246,936.00) and Jose Miranda the sum of
private respondents concede that such event can be considered as
Three Hundred Twenty Thousand Six Hundred sixteen
"force majeure" since their delayed arrival in Manila was not imputable
and 31/100 (P320,616.31) as actual, moral and
to JAL. 5
exemplary damages and pay attorney's fees in the
amount of Two Hundred Thousand Pesos
However, private respondents contend that while JAL cannot be held
(P200,000.00), and to pay the costs of suit.
responsible for the delayed arrival in Manila, it was nevertheless liable for
their living expenses during their unexpected stay in Narita since airlines
Undaunted, JAL appealed the decision before the Court of Appeals, have the obligation to ensure the comfort and convenience of its
which, however, with the exception of lowering the damages awarded passengers. While we sympathize with the private respondents' plight, we
affirmed the trial court's finding, 3 thus: are unable to accept this contention.

Thus, the award of moral damages should be as it is We are not unmindful of the fact that in a plethora of cases we have
hereby reduced to P200,000.00 for each of the consistently ruled that a contract to transport passengers is quite
plaintiffs, the exemplary damages to P300,000.00 and different in kind, and degree from any other contractual relation. It is
the attorney's fees to P100,000.00 plus the costs. 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 The position taken by PAL in this case clearly illustrates
common carriers are absolutely responsible for all injuries or damages its failure to grasp the exacting standard required by
even if the same were caused by a fortuitous event. To rule otherwise law. Undisputably, PAL's diversion of its flight due to
would render the defense of "force majeure," as an exception from any inclement weather was a fortuitous event. Nonetheless,
liability, illusory and ineffective. such occurrence did not terminate PAL's contract with
its passengers. Being in the business of air carriage
Accordingly, there is no question that when a party is unable to fulfill and the sole one to operate in the country, PAL is
his obligation because of "force majeure," the general rule is that he deemed equipped to deal with situations as in the case
cannot be held liable for damages for non-performance. 6 Corollarily, at bar. What we said in one case once again must be
when JAL was prevented from resuming its flight to Manila due to the stressed, i.e., the relation of carrier and passenger
effects of Mt. Pinatubo eruption, whatever losses or damages in the form continues until the latter has been landed at the port of
of hotel and meal expenses the stranded passengers incurred, cannot be destination and has left the carrier's premises. Hence,
charged to JAL. Yet it is undeniable that JAL assumed the hotel expenses PAL necessarily would still have to exercise
of respondents for their unexpected overnight stay on June 15, 1991. extraordinary diligence in safeguarding the comfort,
convenience and safety of its stranded passengers until
Admittedly, to be stranded for almost a week in a foreign land was an they have reached their final destination. On this score,
exasperating experience for the private respondents. To be sure, they PAL grossly failed considering the then ongoing battle
underwent distress and anxiety during their unanticipated stay in between government forces and Muslim rebels in
Narita, but their predicament was not due to the fault or negligence of Cotabato City and the fact that the private respondent
JAL but the closure of NAIA to international flights. Indeed, to hold JAL, was a stranger to the place.
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 The reliance is misplaced. The factual background of the PAL case is
burden to assume. different from the instant petition. In that case there was indeed a
fortuitous event resulting in the diversion of the PAL flight. However,
Furthermore, it has been held that airline passengers must take such the unforeseen diversion was worsened when "private respondents
risks incident to the mode of travel. 7 In this regard, adverse weather (passenger) was left at the airport and could not even hitch a ride in a
conditions or extreme climatic changes are some of the perils involved in Ford Fiera loaded with PAL personnel," 10 not to mention the apparent
air travel, the consequences of which the passenger must assume or apathy of the PAL station manager as to the predicament of the stranded
expect. After all, common carriers are not the insurer of all risks. 8 passengers. 11 In light of these circumstances, we held that if the fortuitous
event was accompanied by neglect and malfeasance by the carrier's
Paradoxically, the Court of Appeals, despite the presence of "force employees, an action for damages against the carrier is permissible.
majeure," still ruled against JAL relying in our decision in PAL v. Court of Unfortunately, for private respondents, none of these conditions are
Appeals, 9 thus: present in the instant petition.
We are not prepared, however, to completely absolve petitioner JAL arising from any source enumerated in article 1157, or in every case where
from any liability. It must be noted that private respondents bought any property right has been invaded. 13
tickets from the United States with Manila as their final destination.
While JAL was no longer required to defray private respondents' living WHEREFORE, in view of the foregoing, the decision of the Court of
expenses during their stay in Narita on account of the fortuitous event, Appeals dated December 22, 1993 is hereby MODIFIED. The award of
JAL had the duty to make the necessary arrangements to transport actual, moral and exemplary damages is hereby DELETED. Petitioner JAL
private respondents on the first available connecting flight to Manila. is ordered to pay each of the private respondents nominal damages in the
Petitioner JAL reneged on its obligation to look after the comfort and sum of P100,000.00 each including attorney' s fees of P50,000.00 plus
convenience of its passengers when it declassified private respondents costs.
from "transit passengers" to "new passengers" as a result of which
private respondents were obliged to make the necessary
arrangements themselves for the next flight to Manila. Private
respondents were placed on the waiting list from June 20 to June 24.
To assure themselves of a seat on an available flight, they were
compelled to stay in the airport the whole day of June 22, 1991 and it
was only at 8:00 p.m. of the aforesaid date that they were advised that
they could be accommodated in said flight which flew at about 9:00
a.m. the next day.

We are not oblivious to the fact that the cancellation of JAL flights to
Manila from June 15 to June 21, 1991 caused considerable disruption
in passenger booking and reservation. In fact, it would be
unreasonable to expect, considering NAIA's closure, that JAL flight
operations would be normal on the days affected. Nevertheless, this
does not excuse JAL from its obligation to make the necessary
arrangements to transport private respondents on its first available
flight to Manila. After all, it had a contract to transport private
respondents from the United States to Manila as their final destination.

Consequently, the award of nominal damages is in order. Nominal


damages are adjudicated in order that a right of a plaintiff, which has
been violated or invaded by the defendant, may be vindicated or
recognized and not for the purpose of indemnifying any loss suffered
by him. 12 The court may award nominal damages in every obligation
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
Republic of the Philippines
passengers boarding defendant's BAC 1-11 at Davao
SUPREME COURT
Airport for a flight to Manila, not knowing that on the
Manila
same flight, Macalinog, Taurac Pendatum known as
Commander Zapata, Nasser Omar, Liling Pusuan
SECOND DIVISION Radia, Dimantong Dimarosing and Mike Randa, all of
Marawi City and members of the Moro National
G.R. No. L-55300 March 15, 1990 Liberation Front (MNLF), were their co-passengers,
three (3) armed with grenades, two (2) with .45 caliber City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon
pistols, and one with a .22 caliber pistol. Ten (10) M. Gacal suffered injuries in the course of her jumping
minutes after take off at about 2:30 in the afternoon, the out of the plane when it was peppered with bullets by
hijackers brandishing their respective firearms the army and after two (2) hand grenades exploded
announced the hijacking of the aircraft and directed its inside the plane. She was hospitalized at General
pilot to fly to Libya. With the pilot explaining to them Santos Doctors Hospital, General Santos City, for two
especially to its leader, Commander Zapata, of the (2) days, spending P245.60 for hospital and medical
inherent fuel limitations of the plane and that they are expenses, Assistant City Fiscal Bonifacio S. Anislag
not rated for international flights, the hijackers directed also escaped unhurt but Mrs. Anislag suffered a
the pilot to fly to Sabah. With the same explanation, fracture at the radial bone of her left elbow for which
they relented and directed the aircraft to land at she was hospitalized and operated on at the San Pedro
Zamboanga Airport, Zamboanga City for refueling. The Hospital, Davao City, and therefore, at Davao Regional
aircraft landed at 3:00 o'clock in the afternoon of May Hospital, Davao City, spending P4,500.00. Elma de
21, 1976 at Zamboanga Airport. When the plane began Guzman died because of that battle. Hence, the action
to taxi at the runway, it was met by two armored cars of of damages instituted by the plaintiffs demanding the
the military with machine guns pointed at the plane, following damages, to wit:
and it stopped there. The rebels thru its commander
demanded that a DC-aircraft take them to Libya with Civil Case No. 1701
the President of the defendant company as hostage
and that they be given $375,000 and six (6) armalites, City Fiscal Franklin G. Gacal and Mrs.
otherwise they will blow up the plane if their demands Corazon M. Gacal actual damages:
will not be met by the government and Philippine Air P245.60 for hospital and medical
Lines. Meanwhile, the passengers were not served any expenses of Mrs Gacal; P8,995.00 for
food nor water and it was only on May 23, a Sunday, at their personal belongings which were
about 1:00 o'clock in the afternoon that they were lost and not recovered; P50,000.00
served 1/4 slice of a sandwich and 1/10 cup of PAL each for moral damages; and
water. After that, relatives of the hijackers were allowed P5,000.00 for attorney's fees, apart
to board the plane but immediately after they alighted from the prayer for an award of
therefrom, an armored car bumped the stairs. That exemplary damages (Record, pp. 4-6,
commenced the battle between the military and the Civil Case No. 1701).
hijackers which led ultimately to the liberation of the
surviving crew and the passengers, with the final score Civil Case No. 1773
of ten (10) passengers and three (3) hijackers dead on
the spot and three (3) hijackers captured. xxx xxx xxx
Civil Case No. 1797 personnel who under appropriate authority had assumed exclusive
jurisdiction over the same in all airports in the Philippines.
xxx xxx xxx
Similarly, the negotiations with the hijackers were a purely government
The trial court, on August 26, 1980, dismissed the complaints finding matter and a military operation, handled by and subject to the absolute
that all the damages sustained in the premises were attributed to force and exclusive jurisdiction of the military authorities. Hence, it
majeure. concluded that the accident that befell RP-C1161 was caused by
fortuitous event, force majeure and other causes beyond the control of
On September 12, 1980 the spouses Franklin G. Gacal and Corazon the respondent Airline.
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 The determinative issue in this case is whether or not hijacking or air
for review on certiorari was filed with this Court on October 20, 1980 piracy during martial law and under the circumstances obtaining
(Rollo, p. 30). herein, is a caso fortuito or force majeure which would exempt an
aircraft from payment of damages to its passengers whose lives were
The Court gave due course to the petition (Rollo, p. 147) and both put in jeopardy and whose personal belongings were lost during the
parties filed their respective briefs but petitioner failed to file reply brief incident.
which was noted by the Court in the resolution dated May 3, 1982
(Rollo, p. 183). Under the Civil Code, common carriers are required to exercise
extraordinary diligence in their vigilance over the goods and for the
Petitioners alleged that the main cause of the unfortunate incident is safety of passengers transported by them, according to all the
the gross, wanton and inexcusable negligence of respondent Airline circumstances of each case (Article 1733). They are presumed at fault
personnel in their failure to frisk the passengers adequately in order to or to have acted negligently whenever a passenger dies or is injured
discover hidden weapons in the bodies of the six (6) hijackers. They (Philippine Airlines, Inc. v. National Labor Relations Commission, 124
claimed that despite the prevalence of skyjacking, PAL did not use a SCRA 583 [1983]) or for the loss, destruction or deterioration of goods
metal detector which is the most effective means of discovering in cases other than those enumerated in Article 1734 of the Civil Code
potential skyjackers among the passengers (Rollo, pp. 6-7). (Eastern Shipping Lines, Inc. v. Intermediate Appellate Court, 150
SCRA 463 [1987]).
Respondent Airline averred that in the performance of its obligation to
safely transport passengers as far as human care and foresight can The source of a common carrier's legal liability is the contract of
provide, it has exercised the utmost diligence of a very cautious person carriage, and by entering into said contract, it binds itself to carry the
with due regard to all circumstances, but the security checks and passengers safely as far as human care and foresight can provide.
measures and surveillance precautions in all flights, including the There is breach of this obligation if it fails to exert extraordinary
inspection of baggages and cargo and frisking of passengers at the diligence according to all the circumstances of the case in exercise of
Davao Airport were performed and rendered solely by military the utmost diligence of a very cautious person (Isaac v. Ammen
Transportation Co., 101 Phil. 1046 [1957]; Juntilla v. Fontanar, 136 to foresee the same (Republic v. Luzon Stevedoring Corporation, 21
SCRA 624 [1985]). SCRA 279 [1967]).

It is the duty of a common carrier to overcome the presumption of Applying the above guidelines to the case at bar, the failure to
negligence (Philippine National Railways v. Court of Appeals, 139 transport petitioners safely from Davao to Manila was due to the
SCRA 87 [1985]) and it must be shown that the carrier had observed skyjacking incident staged by six (6) passengers of the same plane, all
the required extraordinary diligence of a very cautious person as far as members of the Moro National Liberation Front (MNLF), without any
human care and foresight can provide or that the accident was caused connection with private respondent, hence, independent of the will of
by a fortuitous event (Estrada v. Consolacion, 71 SCRA 523 [1976]). either the PAL or of its passengers.
Thus, as ruled by this Court, no person shall be responsible for those
"events which could not be foreseen or which though foreseen were Under normal circumstances, PAL might have foreseen the skyjacking
inevitable. (Article 1174, Civil Code). The term is synonymous incident which could have been avoided had there been a more
with caso fortuito (Lasam v. Smith, 45 Phil. 657 [1924]) which is of the thorough frisking of passengers and inspection of baggages as
same sense as "force majeure" (Words and Phrases Permanent authorized by R.A. No. 6235. But the incident in question occurred
Edition, Vol. 17, p. 362). during Martial Law where there was a military take-over of airport
security including the frisking of passengers and the inspection of their
In order to constitute a caso fortuito or force majeure that would luggage preparatory to boarding domestic and international flights. In
exempt a person from liability under Article 1174 of the Civil Code, it is fact military take-over was specifically announced on October 20, 1973
necessary that the following elements must concur: (a) the cause of by General Jose L. Rancudo, Commanding General of the Philippine
the breach of the obligation must be independent of the human will (the Air Force in a letter to Brig. Gen. Jesus Singson, then Director of the
will of the debtor or the obligor); (b) the event must be either Civil Aeronautics Administration (Rollo, pp. 71-72) later confirmed
unforeseeable or unavoidable; (c) the event must be such as to render shortly before the hijacking incident of May 21, 1976 by Letter of
it impossible for the debtor to fulfill his obligation in a normal manner; Instruction No. 399 issued on April 28, 1976 (Rollo, p. 72).
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 Otherwise stated, these events rendered it impossible for PAL to
[1924]; Austria v. Court of Appeals, 39 SCRA 527 [1971]; Estrada v. perform its obligations in a nominal manner and obviously it cannot be
Consolacion, supra; Vasquez v. Court of Appeals, 138 SCRA 553 faulted with negligence in the performance of duty taken over by the
[1985]; Juan F. Nakpil & Sons v. Court of Appeals, 144 SCRA 596 Armed Forces of the Philippines to the exclusion of the former.
[1986]). Caso fortuito or force majeure, by definition, are extraordinary
events not foreseeable or avoidable, events that could not be foreseen, Finally, there is no dispute that the fourth element has also been
or which, though foreseen, are inevitable. It is, therefore, not enough satisfied. Consequently the existence of force majeure has been
that the event should not have been foreseen or anticipated, as is established exempting respondent PAL from the payment of damages
commonly believed, but it must be one impossible to foresee or to to its passengers who suffered death or injuries in their persons and for
avoid. The mere difficulty to foresee the happening is not impossibility 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. Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119756 March 18, 1999

FORTUNE EXPRESS, INC., petitioner,


vs.
COURT OF APPEALS, PAULIE U.CAORONG, and minor
childrenYASSER KING CAORONG, ROSE HEINNI and PRINCE
ALEXANDER, all surnamed CAORONG, and represented by their
mother PAULIE U. CAORONG, respondents.

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 public
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 However, Atty. Caorong returned to the bus to retrieve something from
Paulie Caorong is the widow of Atty. Caorong, while private the overhead rack. at that time, one of the armed men was pouring
respondents Yasser King, Rose Heinni, and Prince Alexander are their gasoline on the head of the driver. Cabatuan, who had meantime
minor children. regained consciousness, heard Atty. Caorong pleading with the armed
men to spare the driver as he was innocent of any wrong doing and
On November 18, 1989, a bus of petitioner figured in an accident with was only trying to make a living. The armed men were, however,
a jeepney in Kauswagan, Lanao del Norte, resulting in the death of adamant as they repeated the warning that they were going to burn the
several passengers of the jeepney, including two Maranaos. Crisanto bus along with its driver. During this exchange between Atty. Caorong
Generalao, a volunteer field agent of the Constabulary Regional and the assailants, Cabatuan climbed out of the left window of the bus
Security Unit No. X, conducted an investigation of the accident. He and crawled to the canal on the opposite side of the highway. He heard
found that the owner of the jeepney was a Maranao residing in shots from inside the bus. Larry de la Cruz, one of the passengers,
Delabayan, Lanao del Norte and that certain Maranaos were planning saw that Atty. Caorong was hit. Then the bus was set on fire. Some of
to take revenge on the petitioner by burning some of its buses. the passengers were able to pull Atty. Caorong out of the burning bus
Generalao rendered a report on his findings to Sgt. Reynaldo Bastasa and rush him to the Mercy Community Hospital in Iligan City, but he
of the Philippine Constabulary Regional Headquarters at Cagayan de died while undergoing operation. 3
Oro. Upon the instruction of Sgt. Bastasa, he went to see Diosdado
Bravo, operations manager of petitioner, its main office in Cagayan de The private respondents brought this suit for breach of contract of
Oro City. Bravo assured him that the necessary precautions to insure carriage in the Regional Trial Court, Branch VI, Iligan City. In its
the safety of lives and property would be taken. 1 decision, dated December 28, 1990, the trial court dismissed the
complaint, holding as follows:
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, The fact that defendant, through Operations Manager
Lanao del Norte while on its way to Iligan City. Among the passengers Diosdado Bravo, was informed of the "rumors" that the
of the bus was Atty. Caorong. The leader of the Maranaos, identified as Moslems intended to take revenge by burning five
one Bashier Mananggolo, ordered the driver, Godofredo Cabatuan, to buses of defendant is established since the latter also
stop the bus on the side of the highway. Mananggolo then shot utilized Crisanto Generalao as a witness. Yet despite
Cabatuan on the arm, which caused him to slump on the steering this information, the plaintiffs charge, defendant did not
wheel. The one of the companions of Mananggolo started pouring take proper precautions. . . . Consequently, plaintiffs
gasoline inside the bus, as the other held the passenger at bay with a now fault the defendant for ignoring the report. Their
handgun. Mananggolo then ordered the passenger to get off the bus. position is that the defendant should have provided its
The passengers, including Atty. Caorong, stepped out of the bus and buses with security guards. Does the law require
went behind the bushes in a field some distance from the highway. 2 common carriers to install security guards in its buses
for the protection and safety of its passengers? Is the
failure to post guards on omission of the duty to
"exercise the diligence of a good father of the family" of the lawless which defendant could neither prevent
which could have prevented the killing of Atty. nor to stop.
Caorong? To our mind, the diligence demanded by law
does not include the posting of security guard in buses. WHEREFORE, in view of the foregoing, the complaint
It is an obligation that properly belongs to the State. is hereby dismissed. For lack of merit, the counter-
Besides, will the presence of one or two security claim is likewise dismissed. No costs. 4
guards suffice to deter a determined assault of the
lawless and thus prevent the injury complained of? On appeal, however, the Court of Appeals reversed. It held:
Maybe so, but again, perhaps not. In other words, the
presence of a security guard is not a guarantee that the In the case at bench, how did defendant-appellee react
killing of Atty. Caorong would have been definitely to the tip or information that certain Maranao hotheads
avoided. were planning to burn five of its buses out of revenge
for the deaths of two Maranaos in an earlier collision
xxx xxx xxx involving appellee's bus? Except for the remarks of
appellee's operations manager that "we will have our
Accordingly, the failure of defendant to accord faith and action . . . . and I'll be the one to settle it personally,"
credit to the report of Mr. Generalao and the fact that it nothing concrete whatsoever was taken by appellee or
did not provide security to its buses cannot, in the light its employees to prevent the execution of the threat.
of the circumstances, be characterized as negligence. Defendant-appellee never adopted even a single safety
measure for the protection of its paying passengers.
Finally, the evidence clearly shows that the assalants Were there available safeguards? Of course, there
did not have the least intention of the harming any of were: one was frisking passengers particularly those en
the passengers. They ordered all the passengers to route to the area where the threats were likely to be
alight and set fire on the bus only after all the carried out such as where the earlier accident occurred
passengers were out of danger. The death of Atty. or the place of influence of the victims or their locality. If
Caorong was an unexpected and unforseen occurrense frisking was resorted to, even temporarily, . . . .
over which defendant had no control. Atty. Caorong appellee might be legally excused from liabilty. Frisking
performed an act of charity and heroism in coming to of passengers picked up along the route could have
the succor of the driver even in the face of danger. He been implemented by the bus conductor; for those
deserves the undying gratitude of the driver whose life boarding at the bus terminal, frisking could have been
he saved. No one should blame him for an act of conducted by him and perhaps by additional personnel
extraordinary charity and altruism which cost his life. of defendant-appellee. On hindsight, the handguns and
But neither should any blame be laid on the doorstep of especially the gallon of gasoline used by the felons all
defendant. His death was solely due to the willfull acts of which were brought inside the bus would have been
discovered, thus preventing the burning of the bus and Regional Security Unit, Constabulary Security Group,
the fatal shooting of the victim. that the tribal/ethnic group of the two deceased were
planning to burn five buses of appellee out of revenge;
Appellee's argument that there is no law requiring it to and (c) appelle did nothing absolutely nothing for
provide guards on its buses and that the safety of the safety of its passengers travelling in the area of
citizens is the duty of the government, is not well taken. influence of the victims, appellee has failed to exercise
To be sure, appellee is not expected to assign security the degree of dilegence required of common carriers.
guards on all its buses; if at all, it has the duty to post Hence, appellee must be adjudge liable.
guards only on its buses plying predominantly
Maranaos areas. As discussed in the next preceding xxx xxx xxx
paragraph, least appellee could have done in response
to the report was to adopt a system of verification such WHEREFORE the decision appealed from is hereby
as the frisking of passengers boarding at its buses. REVERSED and another rendered ordering defendant-
Nothing, and no repeat, nothing at all, was done by appellee to pay plaintiffs-appellants the following:
defendant-appellee to protect its innocent passengers
from the danger arising from the "Maranao threats." It 1) P3,399,649.20 as death indemnity;
must be observed that frisking is not a novelty as a
safety measure in our society. Sensitive places in 2) P50,000.00 and
fact, nearly all important places have applied this P500.00 per
method of security enhancement. Gadgets and devices appearance as
are avilable in the market for this purpose. It would not attorney's fee and
have weighed much against the budget of the bus
company if such items were made available to its Costs against defendant-appellee. 5
personnel to cope up with situations such as the
"Maranaos threats."
Hence, this appeal. Petitioner contends:

In view of the constitutional right to personal privacy,


(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE
our pronouncement in this decision should not be
DECISION OF THE REGIONAL TRIAL COURT DATED DECEMBER
construed as an advocacy of mandatory frisking in all
28, 1990 DISMISSING THE COMPLAINT AS WELL AS THE
public conveyances. What we are saying is that given
COUNTERCLAIM, AND FINDING FOR PRIVATE RESPONDENTS BY
the circumstances obtaining in the case at bench that:
ORDERING PETITIONER TO PAY TE GARGANTUAN SUM OF
(a) two Maranaos died because of a vehicular collision
P3,449,649.20 PLUS P500.00 PER APPEARANCE AS ATORNEY'S
involving one of appellee's vehicles; (b) appellee
FEES, AS WELL AS DENYING PETITIONERS MOTION FRO
received a written report from a member of the
RECONSIDERATION AND THE SUPPLEMENT TO SAID MOTION,
WHILE HOLDING, AMONG OTHERS, THAT THE PETITIONER them. Under the circumstances, simple precautionary measures to
BREACHED THE CONTRACT OF THE CARRIAGE BY ITS FAILURE protect the safety of passengers, such as frisking passengers and
TO EXCERCISE THE REQUIRED DEGREE OF DILIGENCE inspecting their baggages, preferably with non-intrusive gadgets such
as metal detectors, before allowing them on board could have been
(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO employed without violating the passenger's constitutional rights. As this
GRAVE, IRRESISTABLE, VIOLENT, AND FORCEFULL, AS TO BE Court amended in Gacal v. Philippine Air Lines, Inc., 6 a common carrier
REGARDED AS CASO FORTUITO; AND can be held liable for failing to prevent a hijacking by frisking passengers
and inspecting their baggages.
(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY
ERRED IN HOLDING THAT PETITIONER COULD HAVE PROVIDED From the foregoing, it is evident that petitioner's employees failed to
ADEQUATE SECURITY IN PREDOMINANTLY MUSLIM AREAS AS prevent the attack on one of petitioner's buses because they did not
PART OF ITS DUTY TO OBSERVE EXTRA-ORDINARY DILIGENCE exercise the diligence of a good father of a family. Hence, petitioner
AS A COMMON CARRIER should be held liable for the death of Atty. Caorong.

The instant has no merit. Second. Seizure of Petitioner's Bus not a Case of Force Majeure

First. Petitioner's Breach of the Contract of Carriage. 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. 1763 of the Civil Code provides that a common carrier is
responsible for injuries suffered by a passenger on account of wilfull Art. 1174 of the Civil Code defines a fortuitous event as an occurence
acts of other passengers, if the employees of the common carrier could which could not be foreseen, is inevitable. In Yobido v. Court of
have prevented the act through the exercise of the diligence of a good Appeals, 7 we held that to considered as force majeure, it is necessary
father of a family. In the present case, it is clear that because of the that (1) the cause of the breach of the obligation must be independent of
negligence of petitioner's employees, the seizure of the bus by the human will; (2) the event must be either unforeseeable or unavoidable;
Mananggolo and his men was made possible. (3) the occurence must be 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
Despite warning by the Philippine Constabulary at Cagayan de Oro
any of the requisites mentioned above would prevent the obligor from
that the Maranaos were planning to take revenge on the petitioner by
being excused from liability.
burning some of its buses and the assurance of petitioner's operation
manager, Diosdado Bravo, that the necessary precautions would be
Thus, in Vasquez v. Court of Appeals, 8 it was held that the common
taken, petitioner did nothing to protect the safety of its passengers.
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
Had petitioner and its employees been vigilant they would not have the lives of several passengers. The event was forseeable, and, thus, the
failed to see that the malefactors had a large quantity of gasoline with second requisite mentioned above was not fulfilled. This ruling applies by
analogy to the present case. Despite the report of PC agent Generalao The petitioner contends that Atty. Caorong was guilty of contributory
that the Maranaos were going to attack its buses, petitioner took no steps negligence in returning to the bus to retrieve something. But Atty.
to safeguard the lives and properties of its passengers. The seizure of the Caorong did not act recklessly. It should be pointed out that the
bus of the petitioner was foreseeable and, therefore, was not a fortuitous intended targets of the violence were petitioners and its employees,
event which would exempt petitioner from liabilty. not its passengers. The assailant's motive was to retaliate for the loss
of life of two Maranaos as a result of the collision between petitioner's
Petitioner invokes the ruling in Pilapil v. Court of Appeals, 9 and De bus and the jeepney in which the two Maranaos were riding.
Guzman v. Court of Appeals, 10 in support of its contention that the seizure Mananggolo, the leader of the group which had hijacked the bus,
of its bus by the assailants constitutes force majeure. In Pilapil v. Court of ordered the passengers to get off the bus as they intended to burn it
Appeals, 11 it was held that a common carrier is not liable for failing to and its driver. The armed men actually allowed Atty. Caorong to
install window grills on its buses to protect the passengers from injuries retrieve something from the bus. What apparently angered them was
cause by rocks hurled at the bus by lawless elements. On the other hand, his attempt to help the driver of the bus by pleading for his life. He was
in De Guzman v. Court of Appeals, 12 it was ruled that a common carriers is
playing the role of the good Samaritan. Certainly, this act cannot
not responsible for goods lost as a result of a robbery which is attended by
considered an act of negligence, let alone recklessness.
grave or irresistable threat, violence, or force.

Fourth. Petitioner Liable to Private Respaondents for Damages


It is clear that the cases of Pilapil and De Guzman do not apply to the
prensent case. Art. 1755 of the Civil Code provides that "a common
carrier is bound to carry the passengers as far as human care and We now consider the question of damages that the heirs of Atty.
foresight can provide, using the utmost diligence of very cautious Caorong, private respondents herein, are entitled to recover from the
persons, with due regard for all the circumstances." Thus, we held in petitioner.
Pilapil and De Guzman that the respondents therein were not negligent
in failing to take special precautions against threats to the safety of Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206
passengers which could not be foreseen, such as tortious or criminal thereof, provides for the payment of indemnity for the death of
acts of third persons. In the present case, this factor of unforeseeability passengers caused by the breach of contract of carriage by a common
(the second requisite for an event to be considered force majeure) is carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said
lacking. As already stated, despite the report of PC agent Generalao indemnity for death has through the years been gradually increased in
that the Maranaos were planning to burn some of petitioner's buses view of the declining value of the peso. It is presently fixed at
and the assurance of petitioner's operation manager (Diosdado Bravo) P50,000.00. 13 Private respondents are entitled to this amount.
that the necessary precautions would be taken, nothing was really
done by petitioner to protect the safety of passengers. Actual Damages. Art. 2199 provides that "except as provided by law or
by stipulation, one is entitled to an adequate compensation only for
Third. Deceased not Guilty of Contributory Negligence such pecuniary loss suffered by him as 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 respondent in the said Compensation for Loss of Earning Capacity. Art. 1764 of the Civil
amount as actual damages. Code, in relation to Art. 2206 thereof, provides that in addition to the
indemnity for death arising from the breach of contrtact of carriage by a
Moral Damages. Under Art. 2206, the "spouse, legitimate and common carrier, the "defendant shall be liable for the loss of the
illegitimate descendants and ascendants of the deceased may demand earning capacity of the deceased, and the indemnity shall be paid to
moral damages for mental anguish by reason of the death of the the heirs of the latter." The formula established in decided cases for
deceased." The trial court found that private respondent Paulie computing net earning capacity is as follows:19
Caorong suffered pain from the death of her husband and worry on
how to provide support for their minor children, private respondents Gross Necessary
Yasser King, Rose Heinni, and Prince Alexander. 15 The petitioner
likewise does not question this finding of the trial court. Thus, in Net Earning = Life x Annual Living
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
Capacity Expectancy Income Expenses
as moral damages for the death of Atty. Caorong.
Life expectancy is equivalent to two thirds (2/3) multiplied by the
Exemplary Damages. Art. 2232 provides that "in contracts and quasi-
difference of eighty (80) and the age of the deceased. 20 Since Atty.
contracts, the court may award exemplary damages if the defendant
Caorong was 37 years old at that time of his death, 21 he had a life
acted in a wanton, fraudulent, reckless, oppressive, or malevolent expectancy of 28 2/3 more years. 22 His projected gross annual income,
reckless manner." In the present case, the petitioner acted in a wanton computed based on his monthly salary of P11,385.00. 23 as a lawyer in the
and reckless manner. Despite warning that the Maranaos were Department of Agrarian Reform at the time of his death, was
planning to take revenge against the petitioner by burning some of its P148,005.00. 24 Allowing for necessary living expenses of fifty percent
buses, and contary to the assurance made by its operations manager (50%) 25 of his projected gross annual income, his total earning capacity
that the necessary precautions would be take, the petitioner and its amounts to P2,121,404.90. 26 Hence, the petitioner is liable to the private
employees did nothing to protect the safety of passengers. Under the respondents in the said amount as a compensation for loss of earning
circumtances, we deem it reasonable to award private respondents capacity.
exemplary damages in the amount of P100,000.00. 17
WHEREFORE, the decision, dated July 29, 1994, of the Court of
Attorney's Fees. Pursuant to Art. 2208, attorney's fees may be Appeals is hereby AFFIRMED with the MODIFICATION that petitioner
recovered when, as in the instant case, exemplary damages are Fortune Express, Inc. is ordered to pay the following amounts to
awarded. In the recent case of Sulpicio Lines, Inc. v. Court of private respondents Paulie, Yasser King, Rose Heinni, and Prince
Appeals, 18 we held an award of P50,000.00 as attorney's fees to be Alexander Caorong:
reasonable. Hence, the private respondents are entitled to attorney's fees
in that amount. 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. attorney's 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. cost of suits.

Republic of the Philippines


SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 85691 July 31, 1990

BACHELOR EXPRESS, INCORPORATED, and CRESENCIO


RIVERA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS (Sixth Division), Ornominio while Teofilo Rautraut and Zoetera [should be Zotera]
RICARDO BETER, SERGIA BETER, TEOFILO RAUTRAUT and Rautraut are the parents of Narcisa) filed a complaint for "sum of
ZOETERA RAUTRAUT, respondents. money" against Bachelor Express, Inc. its alleged owner Samson
Yasay and the driver Rivera.
Aquino W. Gambe for petitioners.
In their answer, the petitioners denied liability for the death of
Tranquilino O. Calo, Jr. for private respondents. Ornominio Beter and Narcisa Rautraut. They alleged that ... the driver
was able to transport his passengers safely to their respective places
GUTIERREZ, JR., J.: of destination except Ornominio Beter and Narcisa Rautraut who
jumped off the bus without the knowledge and consent, much less, the
This is a petition for review of the decision of the Court of Appeals fault of the driver and conductor and the defendants in this case; the
which reversed and set aside the order of the Regional Trial Court, defendant corporation had exercised due diligence in the choice of its
Branch I, Butuan City dismissing the private respondents' complaint for employees to avoid as much as possible accidents; the incident on
collection of "a sum of money" and finding the petitioners solidarily August 1, 1980 was not a traffic accident or vehicular accident; it was
liable for damages in the total amount of One Hundred Twenty an incident or event very much beyond the control of the defendants;
Thousand Pesos (P120,000.00). The petitioners also question the defendants were not parties to the incident complained of as it was an
appellate court's resolution denying a motion for reconsideration. act of a third party who is not in any way connected with the
defendants and of which the latter have no control and supervision; ..."
On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and (Rollo, pp. 112-113).itc-asl

driven by Cresencio Rivera was the situs of a stampede which resulted


in the death of passengers Ornominio Beter and Narcisa Rautraut. After due trial, the trial court issued an order dated August 8, 1985
dismissing the complaint.
The evidence shows that the bus came from Davao City on its way to
Cagayan de Oro City passing Butuan City; that while at Tabon-Tabon, Upon appeal however, the trial court's decision was reversed and set
Butuan City, the bus picked up a passenger; that about fifteen (15) aside. The dispositive portion of the decision of the Court of Appeals
minutes later, a passenger at the rear portion suddenly stabbed a PC states:
soldier which caused commotion and panic among the passengers;
that when the bus stopped, passengers Ornominio Beter and Narcisa WHEREFORE, the Decision appealed from is
Rautraut were found lying down the road, the former already dead as a REVERSED and SET ASIDE and a new one entered
result of head injuries and the latter also suffering from severe injuries finding the appellees jointly and solidarily liable to pay
which caused her death later. The passenger assailant alighted from the plaintiffs-appellants the following amounts:
the bus and ran toward the bushes but was killed by the police.
Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private 1) To the heirs of Ornominio Beter, the amount of
respondents herein (Ricardo Beter and Sergia Beter are the parents of Seventy Five Thousand Pesos (P75,000.00) in loss of
earnings and support, moral damages, straight death running bus. They argue that they should not be made liable for
indemnity and attorney's fees; and, damages arising from acts of third persons over whom they have no
control or supervision.
2) To the heirs of Narcisa Rautraut, the amount of Forty
Five Thousand Pesos (P45,000.00) for straight death Furthermore, the petitioners maintain that the driver of the bus, before,
indemnity, moral damages and attorney's fees. Costs during and after the incident was driving cautiously giving due regard
against appellees. (Rollo, pp. 71-72) to traffic rules, laws and regulations. The petitioners also argue that
they are not insurers of their passengers as ruled by the trial court.
The petitioners now pose the following questions
The liability, if any, of the petitioners is anchored on culpa
What was the proximate cause of the whole incident? contractual or breach of contract of carriage. The applicable provisions
Why were the passengers on board the bus panicked of law under the New Civil Code are as follows:
(sic) and why were they shoving one another? Why did
Narcisa Rautraut and Ornominio Beter jump off from ART. 1732. Common carriers are persons,
the running bus? corporations, firms or associations engaged in the
business of carrying or transporting passengers or
The petitioners opine that answers to these questions are material to goods or both by land, water, or air, for compensation,
arrive at "a fair, just and equitable judgment." (Rollo, p. 5) They claim offering their services to the public.
that the assailed decision is based on a misapprehension of facts and
its conclusion is grounded on speculation, surmises or conjectures. ART. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
As regards the proximate cause of the death of Ornominio Beter and observe extraordinary diligence in the vigilance over
Narcisa Rautraut, the petitioners maintain that it was the act of the the goods and for the safety of the passengers
passenger who ran amuck and stabbed another passenger of the bus. transported by them, according to all the circumstances
They contend that the stabbing incident triggered off the commotion of each case.
and panic among the passengers who pushed one another and
that presumably out of fear and moved by that human instinct of self- xxx xxx xxx
preservation Beter and Rautraut jumped off the bus while the bus was
still running resulting in their untimely death." (Rollo, p. 6) Under these ART. 1755. A common carrier is bound to carry the
circumstances, the petitioners asseverate that they were not negligent passengers safely as far as human care and foresight
in the performance of their duties and that the incident was completely can provide, using the utmost diligence of very cautious
and absolutely attributable to a third person, the passenger who ran persons, with a due regard for all the circumstances.
amuck, for without his criminal act, Beter and Rautraut could not have
been subjected to fear and shock which compelled them to jump off the
ART. 1756. In case of death of or injuries to no person shall be responsible for those events which
passengers, common carriers are presumed to have could not be foreseen, or which though foreseen, were
been at fault or to have acted negligently, unless they inevitable.
prove that they observed extraordinary diligence as
prescribed in Articles 1733 and 1755. The above-mentioned provision was substantially copied from Article
1105 of the old Civil Code which states"
There is no question that Bachelor Express, Inc. is a common carrier.
Hence, from the nature of its business and for reasons of public policy No one shall be liable for events which could not be
Bachelor Express, Inc. is bound to carry its passengers safely as far as foreseen or which, even if foreseen, were inevitable,
human care and foresight can provide using the utmost diligence of with the exception of the cases in which the law
very cautious persons, with a due regard for all the circumstances. expressly provides otherwise and those in which the
obligation itself imposes liability.
In the case at bar, Ornominio Beter and Narcisa Rautraut were
passengers of a bus belonging to petitioner Bachelor Express, Inc. In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined
and, while passengers of the bus, suffered injuries which caused their "events" which cannot be foreseen and which, having been foreseen,
death. Consequently, pursuant to Article 1756 of the Civil Code, are inevitable in the following manner:
petitioner Bachelor Express, Inc. is presumed to have acted negligently
unless it can prove that it had observed extraordinary diligence in ... The Spanish authorities regard the language
accordance with Articles 1733 and 1755 of the New Civil Code. employed as an effort to define the term 'caso fortuito'
and hold that the two expressions are synonymous.
Bachelor Express, Inc. denies liability for the death of Beter and (Manresa Comentarios al Codigo Civil Espaol, vol. 8,
Rautraut on its posture that the death of the said passengers was pp. 88 et seq.; Scaevola, Codigo Civil, vol. 19, pp. 526
caused by a third person who was beyond its control and supervision. et seq.)
In effect, the petitioner, in order to overcome the presumption of fault or
negligence under the law, states that the vehicular incident resulting in The antecedent to Article 1105 is found in Law II, Title
the death of passengers Beter and Rautraut was caused by force 33, Partida 7, which defines caso fortuito as 'occasion
majeure or caso fortuito over which the common carrier did not have que acaese por aventura de que non se puede ante
any control. ver. E son estos, derrivamientos de casas e fuego que
enciende a so ora, e quebrantamiento de navio, fuerca
Article 1174 of the present Civil Code states: de ladrones' (An event that takes place by incident and
could not have been foreseen. Examples of this are
Except in cases expressly specified by law, or when it destruction of houses, unexpected fire, shipwreck,
is otherwise declared by stipulations, or when the violence of robbers ...)
nature of the obligation requires the assumption of risk,
Escriche defines caso fortuito as an unexpected event The running amuck of the passenger was the proximate cause of the
or act of God which could neither be foreseen nor incident as it triggered off a commotion and panic among the
resisted, such as floods, torrents, shipwrecks, passengers such that the passengers started running to the sole exit
conflagrations, lightning, compulsion, insurrections, shoving each other resulting in the falling off the bus by passengers
destruction of buildings by unforeseen accidents and Beter and Rautraut causing them fatal injuries. The sudden act of the
other occurrences of a similar nature. passenger who stabbed another passenger in the bus is within the
context of force majeure.
In discussing and analyzing the term caso fortuito the
Enciclopedia Juridica Espaola says: 'In a legal sense However, in order that a common carrier may be absolved from liability
and, consequently, also in relation to contracts, a caso in case of force majeure, it is not enough that the accident was caused
fortuito presents the following essential characteristics: by force majeure. The common carrier must still prove that it was not
(1) The cause of the unforeseen and unexpected negligent in causing the injuries resulting from such accident. Thus, as
occurrence, or of the failure of the debtor to comply early as 1912, we ruled:
with his obligation, must be independent of the human
will. (2) It must be impossible to foresee the event From all the foregoing, it is concluded that the
which constitutes the caso fortuito, or if it can be defendant is not liable for the loss and damage of the
foreseen, it must be impossible to avoid. (3) The goods shipped on the lorcha Pilar by the Chinaman,
occurrence must be such as to render it impossible for Ong Bien Sip, inasmuch as such loss and damage
the debtor to fulfill his obligation in a normal manner. were the result of a fortuitous event or force
And (4) the obligor (debtor) must be free from any majeure, and there was no negligence or lack of care
participation in the aggravation of the injury resulting to and diligence on the part of the defendant company or
the creditor. (5) Enciclopedia Juridica Espaola, 309) its agents. (Tan Chiong Sian v. Inchausti & Co., 22 Phil.
152 [1912]; Emphasis supplied).
As will be seen, these authorities agree that some
extraordinary circumstance independent of the will of This principle was reiterated in a more recent case, Batangas Laguna
the obligor or of his employees, is an essential element Tayabas Co. v. Intermediate Appellate Court (167 SCRA 379 [1988]),
of a caso fortuito. ... wherein we ruled:

... [F]or their defense of force majeure or act of God to


prosper the accident must be due to natural causes
and exclusively without human intervention. (Emphasis
supplied)
Therefore, the next question to be determined is whether or not the duties. The defendants' personnel have every right to
petitioner's common carrier observed extraordinary diligence to accept passengers absent any manifestation of
safeguard the lives of its passengers. violence or drunkenness. If and when such passengers
harm other passengers without the knowledge of the
In this regard the trial court and the appellate court arrived at transportation company's personnel, the latter should
conflicting factual findings. not be faulted. (Rollo, pp. 46-47)

The trial court found the following facts: A thorough examination of the records, however, show that there are
material facts ignored by the trial court which were discussed by the
The parties presented conflicting evidence as to how appellate court to arrive at a different conclusion. These circumstances
the two deceased Narcisa Rautruat and Ornominio show that the petitioner common carrier was negligent in the provision
Beter met their deaths. of safety precautions so that its passengers may be transported safely
to their destinations. The appellate court states:
However, from the evidence adduced by the plaintiffs,
the Court could not see why the two deceased could A critical eye must be accorded the lower court's
have fallen off the bus when their own witnesses conclusions of fact in its tersely written ratio decidendi.
testified that when the commotion ensued inside the The lower court concluded that the door of the bus was
bus, the passengers pushed and shoved each other closed; secondly, the passengers, specifically the two
towards the door apparently in order to get off from the deceased, jumped out of the window. The lower court
bus through the door. But the passengers also could therefore concluded that the defendant common carrier
not pass through the door because according to the is not liable for the death of the said passengers which
evidence the door was locked. it implicitly attributed to the unforeseen acts of the
unidentified passenger who went amuck.
On the other hand, the Court is inclined to give
credence to the evidence adduced by the defendants There is nothing in the record to support the conclusion
that when the commotion ensued inside the bus, the that the solitary door of the bus was locked as to
two deceased panicked and, in state of shock and fear, prevent the passengers from passing through. Leonila
they jumped off from the bus by passing through the Cullano, testifying for the defense, clearly stated that
window. the conductor opened the door when the passengers
were shouting that the bus stop while they were in a
It is the prevailing rule and settled jurisprudence that state of panic. Sergia Beter categorically stated that
transportation companies are not insurers of their she actually saw her son fall from the bus as the door
passengers. The evidence on record does not show was forced open by the force of the onrushing
that defendants' personnel were negligent in their passengers.
Pedro Collango, on the other hand, testified that he (Tsn. p. 3, August 8, 1984).
shut the door after the last passenger had boarded the
bus. But he had quite conveniently neglected to say Accordingly, there is no reason to believe that the
that when the passengers had panicked, he himself deceased passengers jumped from the window when it
panicked and had gone to open the door. Portions of was entirely possible for them to have alighted through
the testimony of Leonila Cullano, quoted below, are the door. The lower court's reliance on the testimony of
illuminating: Pedro Collango, as the conductor and employee of the
common carrier, is unjustified, in the light of the clear
xxx xxx xxx testimony of Leonila Cullano as the sole uninterested
eyewitness of the entire episode. Instead we find Pedro
Q When you said the conductor opened the door, the Collango's testimony to be infused by bias and fraught
door at the front or rear portion of the bus? with inconsistencies, if not notably unreliable for lack of
veracity. On direct examination, he testified:
A Front door.
xxx xxx xxx
Q And these two persons whom you said alighted,
where did they pass, the fron(t) door or rear door? Q So what happened to the passengers inside your
bus?
A Front door.
A Some of the passengers jumped out of the window.
xxx xxx xxx
COURT:
(Tsn., p. 4, Aug. 8, 1984)
Q While the bus was in motion?
xxx xxx xxx
A Yes, your Honor, but the speed was slow because we
Q What happened after there was a commotion at the have just picked up a passenger.
rear portion of the bus?
Atty. Gambe:
A When the commotion occurred, I stood up and I
noticed that there was a passenger who was sounded Q You said that at the time of the incident the bus was
(sic). The conductor panicked because the passengers running slow because you have just picked up a
were shouting 'stop, stop'. The conductor opened the passenger. Can you estimate what was your speed at
bus.' that time?
Atty. Calo: At such speed of not less than 30 to 40 miles ..., or
about 48 to 65 kilometers per hour, the speed of the
No basis, your Honor, he is neither a driver nor a bus could scarcely be considered slow considering that
conductor. according to Collango himself, the bus had just come
from a full stop after picking a passenger (Tsn, p. 4, Id.)
COURT: and that the bus was still on its second or third gear
(Tsn., p. 12, Id.).
Let the witness answer. Estimate only, the conductor
experienced. In the light of the foregoing, the negligence of the
common carrier, through its employees, consisted of
Witness: the lack of extraordinary diligence required of common
carriers, in exercising vigilance and utmost care of the
Not less than 30 to 40 miles. safety of its passengers, exemplified by the driver's
belated stop and the reckless opening of the doors of
the bus while the same was travelling at an appreciably
COURT:
fast speed. At the same time, the common carrier itself
acknowledged, through its administrative officer,
Kilometers or miles?
Benjamin Granada, that the bus was commissioned to
travel and take on passengers and the public at large,
A Miles. while equipped with only a solitary door for a bus its
size and loading capacity, in contravention of rules and
Atty. Gambe: regulations provided for under the Land Transportation
and Traffic Code (RA 4136 as amended.) (Rollo, pp.
Q That is only your estimate by your experience? 23-26)

A Yes, sir, estimate. Considering the factual findings of the Court of Appeals-the bus driver
did not immediately stop the bus at the height of the commotion; the
(Tsn., pp. 4-5, Oct. 17, 1983). bus was speeding from a full stop; the victims fell from the bus door
when it was opened or gave way while the bus was still running; the
conductor panicked and blew his whistle after people had already
fallen off the bus; and the bus was not properly equipped with doors in
accordance with law-it is clear that the petitioners have failed to
overcome the presumption of fault and negligence found in the law
governing common carriers.
The petitioners' argument that the petitioners "are not insurers of their (considering the state of health of the deceased and
passengers" deserves no merit in view of the failure of the petitioners the mortality tables are deemed conclusive) and loss of
to prove that the deaths of the two passengers were exclusively due earning capacity; (2) pecuniary loss, loss of support
to force majeure and not to the failure of the petitioners to observe and service; and (3) moral and mental suffering
extraordinary diligence in transporting safely the passengers to their (Alcantara, et al. v. Surro, et al., 93 Phil. 470).
destinations as warranted by law. (See Batangas Laguna Tayabas Co.
v. Intermediate Appellate Court, supra). In the case of People v. Daniel (No. L-66551, April 25,
1985, 136 SCRA 92, at page 104), the High Tribunal,
The petitioners also contend that the private respondents failed to reiterating the rule in Villa Rey Transit, Inc. v. Court of
show to the court that they are the parents of Ornominio Beter and Appeals (31 SCRA 511), stated that the amount of loss
Narcisa Rautraut respectively and therefore have no legal personality of earring capacity is based mainly on two factors,
to sue the petitioners. This argument deserves scant consideration. We namely, (1) the number of years on the basis of which
find this argument a belated attempt on the part of the petitioners to the damages shall be computed; and (2) the rate at
avoid liability for the deaths of Beter and Rautraut. The private which the losses sustained by the heirs should be fixed.
respondents were Identified as the parents of the victims by witnesses
during the trial and the trial court recognized them as such. The trial As the formula adopted in the case of Davila v.
court dismissed the complaint solely on the ground that the petitioners Philippine Air Lines, 49 SCRA 497, at the age of 30
were not negligent. one's normal life expectancy is 33-1/3 years based on
the American Expectancy Table of Mortality (2/3 x 80-
Finally, the amount of damages awarded to the heirs of Beter and 32). By taking into account the pace and nature of the
itc-asl

Rautraut by the appellate court is supported by the evidence. The life of a carpenter, it is reasonable to make allowances
appellate court stated: for these circumstances and reduce the life expectancy
of the deceased Ornominio Beter to 25 years (People v.
Ornominio Beter was 32 years of age at the time of his Daniel, supra). To fix the rate of losses it must be noted
death, single, in good health and rendering support and that Art. 2206 refers to gross earnings less necessary
service to his mother. As far as Narcisa Rautraut is living expenses of the deceased, in other words, only
concerned, the only evidence adduced is to the effect net earnings are to be considered (People v.
that at her death, she was 23 years of age, in good Daniel, supra; Villa Rey Transit, Inc. v. Court of
health and without visible means of support. Appeals, supra).

In accordance with Art. 1764 in conjunction with Art. Applying the foregoing rules with respect to Ornominio
2206 of the Civil Code, and established jurisprudence, Beter, it is both just and reasonable, considering his
several factors may be considered in determining the social standing and position, to fix the deductible, living
award of damages, namely: 1) life expectancy and incidental expenses at the sum of Four Hundred
Pesos (P400.00) a month, or Four Thousand Eight WHEREFORE, the instant petition is DISMISSED. The questioned
Hundred Pesos (P4,800.00) annually. As to his income, decision dated May 19, 1988 and the resolution dated August 1, 1988
considering the irregular nature of the work of a daily of the Court of Appeals are AFFIRMED.
wage carpenter which is seasonal, it is safe to assume
that he shall have work for twenty (20) days a month at
Twenty Five Pesos (P150,000.00) for twenty five years.
Deducting therefrom his necessary expenses, his heirs
would be entitled to Thirty Thousand Pesos
(P30,000.00) representing loss of support and service
(P150,000.00 less P120,000.00). In addition, his heirs
are entitled to Thirty Thousand Pesos (P30,000.00) as
straight death indemnity pursuant to Article 2206
(People v. Daniel, supra). For damages for their moral
and mental anguish, his heirs are entitled to the
reasonable sum of P10,000.00 as an exception to the
general rule against moral damages in case of breach
of contract rule Art. 2200 (Necesito v. Paras, 104 Phil.
75). As attorney's fees, Beter's heirs are entitled to
P5,000.00. All in all, the plaintiff-appellants Ricardo and
Sergia Beter as heirs of their son Ornominio are
entitled to an indemnity of Seventy Five Thousand
Pesos (P75,000.00).

In the case of Narcisa Rautraut, her heirs are entitled to


a straight death indemnity of Thirty Thousand Pesos
(P30,000.00), to moral damages in the amount of Ten
Thousand Pesos (P10,000.00) and Five Thousand
Pesos (P5,000.00) as attorney's fees, or a total of Forty
Five Thousand Pesos (P45,000.00) as total indemnity
for her death in the absence of any evidence that she
had visible means of support. (Rollo, pp. 30-31)
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
Republic of the Philippines report for duty;
SUPREME COURT
Manila
That Emilio Devesa had a long standing personal grudge Discussing the basis of a carrier's liability under the old Civil Code of
against Tomas Gillaco, same dating back during the Japanese 1889 (which was in force in 1946, when Gillaco was shot) this Court
occupation; said in Lasam vs. Smith (45 Phil., 657):

That because of this personal grudge, Devesa shot Gillaco with In our opinion, the conclusions of the court below are entirely
the carbine furnished to him by the Manila Railroad Company correct. That upon the facts stated the defendant's liability, if
for his use as such train guard, upon seeing him inside the train any, is contractual, is well settled by previous decisions of the
coach; court, beginning with the case of Rakes vs. Atlantic, Gulf &
Pacific Co. (7 Phil., 359), and the distinction between extra-
That Tomas Gillaco died as a result of the would which he contractual liability and contractual liability has been so ably
sustained from the shot fired by Devesa. and exhaustively discussed in various other cases that nothing
further need here be said upon that subject. (See
It is also undisputed that Devesa was convicted with homicide by final Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila
judgment of the Court of Appeals. Railroad vs. Compaia Transatlantica and Atlantic, Gulf &
Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad
Appellant's contention is that, on the foregoing facts, no liability & Light Co., 40 Phil., 706). It is sufficient to reiterate that the
attaches to it as employer of the killer, Emilio Devesa; that it is not source of the defendant's legal liability is the contract of
responsible subsidiary ex delicto, under Art. 103 of the Revised Penal carriage; that by entering into that contract he bound himself to
Code, because the crime was not committed while the slayer was in carry the plaintiff safely and securely to their destination; and
the actual performance of his ordinary duties and service; nor is it that having failed to do so he is liable in damages unless he
responsible ex contractu, since the complaint did not aver sufficient shows that the failure to fulfill his obligation was due to causes
facts to establish such liability, and no negligence on appellant's party mentioned in article 1105 of the Civil Code, which reads as
was shown. The Court below held the Railroad company responsible follows:
on the ground that a contract of transportation implies protection of the
passengers against acts of personal violence by the agents or "No one shall be liable for events which could not be foreseen
employees of the carrier. or which, even if foreseen, were inevitable, with the exception
of the cases in which the law expressly provides otherwise and
There can be no quarrel with the principle that a passenger is entitled those in which the obligation itself imposes such liability."
to protection from personal violence by the carrier or its agents or
employees, since the contract of transportation obligates the carrier to The act of guard Devesa in shooting passenger Gillaco (because of a
transport a passenger safely to his destination. But under the law of personal grudge nurtured against the latter since the Japanese
the case, this responsibility extends only to those that the carrier could occupation) was entirely unforeseeable by the Manila Railroad Co. The
foresee or avoid through the exercise of the degree of car and latter had no means to ascertain or anticipate that the two would meet,
diligence required of it. nor could it reasonably foresee every personal rancor that might exist
between each one of its many employees and any one of the Calamba to Manila. The stipulation of facts is clear that when Devesa
thousands of eventual passengers riding in its trains. The shooting in shot and killed Gillaco, Devesa was assigned to guard the Manila-San
question was therefore "caso fortuito" within the definition of article 105 Fernando (La Union) trains, and he was at Paco Station awaiting
of the old Civil Code, being both unforeseeable and inevitable under transportation to Tutuban, the starting point of the train that he was
the given circumstances; and pursuant to established doctrine, the engaged to guard. In fact, his tour of duty was to start at 9:00 a.m., two
resulting breach of appellant's contract of safe carriage with the late hours after the commission of the crime. Devesa was therefore under
Tomas Gillaco was excused thereby. no obligation to safeguard the passenger of the Calamba-Manila train,
where the deceased was riding; and the killing of Gillaco was not done
No doubt that a common carrier is held to a very high degree of care in line of duty. The position of Devesa at the time was that of another
and diligence in the protection of its passengers; but, considering the would be passenger, a stranger also awaiting transportation, and not
vast and complex activities of modern rail transportation, to require of that of an employee assigned to discharge any of the duties that the
appellant that it should guard against all possible misunderstanding Railroad had assumed by its contract with the deceased. As a result,
between each and every one of its employees and every passenger Devesa's assault cannot be deemed in law a breach of Gillaco's
that might chance to ride in its conveyances at any time, strikes us as contract of transportation by a servant or employee of the carrier. We
demanding diligence beyond what human care and foresight can agree with the position taken by the Supreme Court of Texas in a
provide. similar case, where it held:

The lower Court and the appellees both relied on the American The only good reason for making the carrier responsible for the
authorities that particularly hold carriers to be insurers of the safety of misconduct of the servant perpetrated in his own interest, and
their passengers against willful assault and intentional ill treatment on not in that of his employer, or otherwise within the scope of his
the part of their servants, it being immaterial that the act should be one employment, is that the servant is clothed with the delegated
of private retribution on the part of the servant, impelled by personal authority, and charge with the duty by the carrier, to execute his
malice toward the passenger (10 Am. Jur. 108; Ed. Note to undertaking with the passenger. And it cannot be said, we
Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But as think, that there is any such delegation to the employees at a
can be inferred from the previous jurisprudence of this Court , the Civil station with reference to passenger embarking at another or
Code of 1889 did not impose such absolute liability traveling on the train. Of course, we are speaking only of the
(Lasam vs. Smith, supra). The liability of a carrier as an insurer was not principle which holds a carrier responsible for wrong done to
recognized in this jurisdiction (Government vs. Inchausti & Co., 40 passenger by servants acting in their own interest, and not in
Phil., 219; Oriental Comm. Co. vs. Naviera Filipina, 38 Off. Gaz., that of the employer. That principle is not the ordinary
1020). rule, respondent superior, by which the employer is held
responsible only for act or omissions of the employee in the
Another very important consideration that must be borne in mind is scope of his employment; but the only reason in our opinion for
that, when the crime took place, the guard Devesa had no duties to a broader liability arises from the fact that the servant, in
discharge in connection with the transportation of the deceased from 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 Republic of the Philippines
employee who committed the assault was never in a position in SUPREME COURT
which it became his duty to his employer to represent him in Manila
discharging any duty of the latter toward the passenger. The
proposition that the carrier clothes every employee engaged in FIRST DIVISION
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 G.R. No. 60501. March 5, 1993.
regarded as not only not sustained by the authorities, but as
being unsound and oppressive both to the employer and the CATHAY PACIFIC AIRWAYS, LTD, petitioner, vs. COURT OF
employee. (Houston & T. C. R. Co. vs. Bush, 32 LRA (NS), p. APPEALS and TOMAS L. ALCANTARA, respondents.
1205.)
Siguion-Reyna, Montecillo & Ongsiako and Tomacruz, Manguiat &
Wherefore, the judgment appealed from is reversed and the complaint Associates for petitioner.
ordered dismissed, without cost. So ordered.
Tanjuatco, Oreta, Tanjuatco, Berenger & Corpus for private
respondent.

SYLLABUS

1. CIVIL LAW; CONTRACT OF CARRIAGE; BREACH THEREOF;


PETITIONER BREACHED ITS CONTRACT OF CARRIAGE WITH
PRIVATE RESPONDENT WHEN IT FAILED TO DELIVER HIS
LUGGAGE AT THE DESIGNATED PLACE AND TIME. Petitioner
breached its contract of carriage with private respondent when it failed
to deliver his luggage at the designated place and time, it being the
obligation of a common carrier to carry its passengers and their
luggage safely to their destination, which includes the duty not to delay
their transportation, and the evidence shows that petitioner acted
fraudulently or in bad faith.
2. DAMAGES; MORAL AND EXEMPLARY DAMAGES PREDICATED contrary to the ruling of the court a quo, in the absence of any showing
UPON A BREACH OF CONTRACT OF CARRIAGE; RECOVERABLE that he sustained some pecuniary loss. It cannot be gainsaid that
ONLY IN INSTANCES WHERE THE MISHAP RESULTS IN DEATH respondent's luggage was ultimately delivered to him without serious
OF A PASSENGER, OR WHERE THE CARRIER IS GUILTY OF or appreciable damage.
FRAUD OR BAD FAITH; THE CONDUCT OF PETITIONER'S
REPRESENTATIVE TOWARDS RESPONDENT JUSTIFIES THE 4. WARSAW CONVENTION; DOES NOT OPERATE AS AN
GRANT OF MORAL AND EXEMPLARY DAMAGES IN CASE AT BAR. EXCLUSIVE ENUMERATION OF THE INSTANCES FOR
Moral damages predicated upon a breach of contract of carriage DECLARING A CARRIER LIABLE FOR BREACH OF CONTRACT OF
may only be recoverable in instances where the mishap results in CARRIAGE OR AS AN ABSOLUTE LIMIT OF THE EXTENT OF THAT
death of a passenger, or where the carrier is guilty of fraud or bad faith. LIABILITY; DOES NOT PRECLUDE THE OPERATION OF THE CIVIL
The language and conduct of petitioner's representative towards CODE AND OTHER PERTINENT LAWS. As We have repeatedly
respondent Alcantara was discourteous or arbitrary to justify the grant held, although the Warsaw Convention has the force and effect of law
of moral damages. The CATHAY representative was not only in this country, being a treaty commitment assumed by the Philippine
indifferent and impatient; he was also rude and insulting. He simply government, said convention does not operate as an exclusive
advised Alcantara to buy anything he wanted. But even that was not enumeration of the instances for declaring a carrier liable for breach of
sincere because the representative knew that the passenger was contract of carriage or as an absolute limit of the extent of that liability.
limited only to $20.00 which, certainly, was not enough to purchase The Warsaw Convention declares the carrier liable for damages in the
comfortable clothings appropriate for an executive conference. enumerated cases and under certain limitations. However, it must not
Considering that Alcantara was not only a revenue passenger but even be construed to preclude the operation of the Civil Code and other
paid for a first class airline accommodation and accompanied at the pertinent laws. It does not regulate, much less exempt, the carrier from
time by the Commercial Attache of the Philippine Embassy who was liability for damages for violating the rights of its passengers under the
assisting him in his problem, petitioner or its agents should have been contract of carriage, especially if wilfull misconduct on the part of the
more courteous and accommodating to private respondent, instead of carrier's employees is found or established, which is clearly the case
giving him a curt reply, "What can we do, the baggage is missing. I before Us.
cannot do anything . . . Anyhow, you can buy anything you need,
charged to Cathay Pacific." Where in breaching the contract of carriage DECISION
the defendant airline is not shown to have acted fraudulently or in bad
faith, liability for damages is limited to the natural and probable
BELLOSILLO, J p:
consequences of the breach of obligation which the parties had
foreseen or could have reasonably foreseen. In that case, such liability
does not include moral and exemplary damages. Conversely, if the This is a petition for review on certiorari of the decision of the Court of
defendant airline is shown to have acted fraudulently or in bad faith, Appeals which affirmed with modification that of the trial court by
the award of moral and exemplary damages is proper. increasing the award of damages in favor of private respondent Tomas
L. Alcantara.
3. TEMPERATE DAMAGES; RECOVERABLE ONLY UPON PROOF
THAT THE CLAIMANT SUSTAINED SOME PECUNIARY LOSS. The facts are undisputed: On 19 October 1975, respondent Tomas L.
However, respondent Alcantara is not entitled to temperate damages, Alcantara was a first class passenger of petitioner Cathay Pacific
Airways, Ltd. (CATHAY for brevity) on its Flight No. CX-900 from contract and questioned the non-application by the court of the
Manila to Hongkong and onward from Hongkong to Jakarta on Flight Warsaw Convention as well as the excessive damages awarded on the
No. CX-711. The purpose of his trip was to attend the following day, 20 basis of its finding that respondent Alcantara was rudely treated by
October 1975, a conference with the Director General of Trade of petitioner's employees during the time that his luggage could not be
Indonesia, Alcantara being the Executive Vice-President and General found. For his part, respondent Alcantara assigned as error the failure
Manager of Iligan Cement Corporation, Chairman of the Export of the trial court to grant the full amount of damages sought in his
Committee of the Philippine Cement Corporation, and representative of complaint.
the Cement Industry Authority and the Philippine Cement Corporation.
He checked in his luggage which contained not only his clothing and On 11 November 1981, respondent Court of Appeals rendered its
articles for personal use but also papers and documents he needed for decision affirming the findings of fact of the trial court but modifying its
the conference. award by increasing the moral damages to P80,000.00, exemplary
damages to P20,000.00 and temperate or moderate damages to
Upon his arrival in Jakarta, respondent discovered that his luggage P10,000.00. The award of P25,000.00 for attorney's fees was
was missing. When he inquired about his luggage from CATHAY's maintained.
representative in Jakarta, private respondent was told that his luggage
was left behind in Hongkong. For this, respondent Alcantara was The same grounds raised by petitioner in the Court of Appeals are
offered $20.00 as "inconvenience money" to buy his immediate reiterated before Us. CATHAY contends that: (1) the Court of Appeals
personal needs until the luggage could be delivered to him. erred in holding petitioner liable to respondent Alcantara for moral,
exemplary and temperate damages as well as attorney's fees; and, (2)
His luggage finally reached Jakarta more than twenty four (24) hours the Court of Appeals erred in failing to apply the Warsaw Convention
after his arrival. However, it was not delivered to him at his hotel but on the liability of a carrier to its passengers.
was required by petitioner to be picked up by an official of the
Philippine Embassy. On its first assigned error, CATHAY argues that although it failed to
transport respondent Alcantara's luggage on time, the one-day delay
On 1 March 1976, respondent filed his complaint against petitioner with was not made in bad faith so as to justify moral, exemplary and
the Court of First Instance (now Regional Trial Court) of Lanao del temperate damages. It submits that the conclusion of respondent
Norte praying for temperate, moral and exemplary damages, plus appellate court that private respondent was treated rudely and
attorney's fees. arrogantly when he sought assistance from CATHAY's employees has
no factual basis, hence, the award of moral damages has no leg to
On 18 April 1976, the trial court rendered its decision ordering CATHAY stand on.
to pay Plaintiff P20,000.00 for moral damages, P5,000.00 for
temperate damages, P10,000.00 for exemplary damages, and Petitioner's first assigned error involves findings of fact which are not
P25,000.00 for attorney's fees, and the costs. 1 reviewable by this Court. 2 At any rate, it is not impressed with merit.
Petitioner breached its contract of carriage with private respondent
Both parties appealed to the Court of Appeals. CATHAY assailed the when it failed to deliver his luggage at the designated place and time, it
conclusion of the trial court that it was accountable for breach of being the obligation of a common carrier to carry its passengers and
their luggage safely to their destination, which includes the duty not to Q: What did Mr. Alcantara say?
delay their transportation, 3 and the evidence shows that petitioner
acted fraudulently or in bad faith. A: He was trying to press the fellow to make the report and if possible
make the delivery of his baggage as soon as possible.
Moral damages predicated upon a breach of contract of carriage may
only be recoverable in instances where the mishap results in death of a Q: And what did the agent or duty officer say, if any?
passenger, 4 or where the carrier is guilty of fraud or bad faith. 5
A: The duty officer, of course, answered back saying 'What can we do,
In the case at bar, both the trial court and the appellate court found that the baggage is missing. I cannot do anything.' something like it.
CATHAY was grossly negligent and reckless when it failed to deliver 'Anyhow you can buy anything you need, charged to Cathay Pacific.'
the luggage of petitioner at the appointed place and time. We agree.
CATHAY alleges that as a result of mechanical trouble, all pieces of Q: What was the demeanor or comportment of the duty officer of
luggage on board the first aircraft bound for Jakarta were unloaded Cathay Pacific when he said to Mr. Alcantara 'You can buy anything
and transferred to the second aircraft which departed an hour and a chargeable to Cathay Pacific'?
half later. Yet, as the Court of Appeals noted, petitioner was not even
aware that it left behind private respondent's luggage until its attention
A: If I had to look at it objectively, the duty officer would like to dismiss
was called by the Hongkong Customs authorities. More, bad faith or
the affair as soon as possible by saying indifferently 'Don't worry. It can
otherwise improper conduct may be attributed to the employees of
be found.'" 7
petitioner. While the mere failure of CATHAY to deliver respondent's
luggage at the agreed place and time did not ipso facto amount to
willful misconduct since the luggage was eventually delivered to private Indeed, the aforequoted testimony shows that the language and
respondent, albeit belatedly, 6 We are persuaded that the employees conduct of petitioner's representative towards respondent Alcantara
of CATHAY acted in bad faith. We refer to the deposition of Romulo was discourteous or arbitrary to justify the grant of moral damages.
Palma, Commercial Attache of the Philippine Embassy at Jakarta, who The CATHAY representative was not only indifferent and impatient; he
was with respondent Alcantara when the latter sought assistance from was also rude and insulting. He simply advised Alcantara to buy
the employees of CATHAY. This deposition was the basis of the anything he wanted. But even that was not sincere because the
findings of the lower courts when both awarded moral damages to representative knew that the passenger was limited only to $20.00
private respondent. Hereunder is part of Palma's testimony which, certainly, was not enough to purchase comfortable clothings
appropriate for an executive conference. Considering that Alcantara
was not only a revenue passenger but even paid for a first class airline
"Q: What did Mr. Alcantara say, if any?
accommodation and accompanied at the time by the Commercial
Attache of the Philippine Embassy who was assisting him in his
A. Mr. Alcantara was of course . . . . I could understand his position. He problem, petitioner or its agents should have been more courteous and
was furious for the experience because probably he was thinking he accommodating to private respondent, instead of giving him a curt
was going to meet the Director-General the following day and, well, he reply, "What can we do, the baggage is missing. I cannot do
was with no change of proper clothes and so, I would say, he was not anything . . . Anyhow, you can buy anything you need, charged to
happy about the situation. Cathay Pacific." CATHAY's employees should have been more
solicitous to a passenger in distress and assuaged his anxieties and damages for violating the rights of its passengers under the contract of
apprehensions. To compound matters, CATHAY refused to have the carriage, 12 especially if wilfull misconduct on the part of the carrier's
luggage of Alcantara delivered to him at his hotel; instead, he was employees is found or established, which is clearly the case before Us.
required to pick it up himself and an official of the Philippine Embassy. For, the Warsaw Convention itself provides in Art. 25 that
Under the circumstances, it is evident that petitioner was remiss in its
duty to provide proper and adequate assistance to a paying passenger, "(1) The carrier shall not be entitled to avail himself of the provisions of
more so one with first class accommodation. this convention which exclude or limit his liability, if the damage is
caused by his wilfull misconduct or by such default on his part as, in
Where in breaching the contract of carriage the defendant airline is not accordance with the law of the court to which the case is submitted, is
shown to have acted fraudulently or in bad faith, liability for damages is considered to be equivalent to wilfull misconduct."
limited to the natural and probable consequences of the breach of
obligation which the parties had foreseen or could have reasonably (2) Similarly the carrier shall not be entitled to avail himself of the said
foreseen. In that case, such liability does not include moral and provisions, if the damage is caused under the same circumstances by
exemplary damages. 8 Conversely, if the defendant airline is shown to any agent of the carrier acting within the scope of his employment."
have acted fraudulently or in bad faith, the award of moral and
exemplary damages is proper. When petitioner airline misplaced respondent's luggage and failed to
deliver it to its passenger at the appointed place and time, some
However, respondent Alcantara is not entitled to temperate damages, special species of injury must have been caused to him. For sure, the
contrary to the ruling of the court a quo, in the absence of any showing latter underwent profound distress and anxiety, and the fear of losing
that he sustained some pecuniary loss. 9 It cannot be gainsaid that the opportunity to fulfill the purpose of his trip. In fact, for want of
respondent's luggage was ultimately delivered to him without serious appropriate clothings for the occasion brought about by the delay of
or appreciable damage. the arrival of his luggage, to his embarrassment and consternation
respondent Alcantara had to seek postponement of his pre-arranged
As regards its second assigned error, petitioner airline contends that conference with the Director General of Trade of the host country.
the extent of its liability for breach of contract should be limited
absolutely to that set forth in the Warsaw Convention. We do not In one case, 13 this Court observed that a traveller would naturally
agree. As We have repeatedly held, although the Warsaw Convention suffer mental anguish, anxiety and shock when he finds that his
has the force and effect of law in this country, being a treaty luggage did not travel with him and he finds himself in a foreign land
commitment assumed by the Philippine government, said convention without any article of clothing other than what he has on.
does not operate as an exclusive enumeration of the instances for
declaring a carrier liable for breach of contract of carriage or as an Thus, respondent is entitled to moral and exemplary damages. We
absolute limit of the extent of that liability. 10 The Warsaw Convention however find the award by the Court of Appeals of P80,000.00 for
declares the carrier liable for damages in the enumerated cases and moral damages excessive, hence, We reduce the amount to
under certain limitations. 11 However, it must not be construed to P30,000.00. The exemplary damages of P20,000.00 being reasonable
preclude the operation of the Civil Code and other pertinent laws. It is maintained, as well as the attorney's fees of P25,000.00 considering
does not regulate, much less exempt, the carrier from liability for
that petitioner's act or omission has compelled Alcantara to litigate with Republic of the Philippines
third persons or to incur expenses to protect his interest. 14 SUPREME COURT
Manila
WHEREFORE, the assailed decision of respondent Court of Appeals is
AFFIRMED with the exception of the award of temperate damages of THIRD DIVISION
P10,000.00 which is deleted, while the award of moral damages of
P80,000.00 is reduced to P30,000.00. The award of P20,000.00 for
exemplary damages is maintained as reasonable together with the
attorney's fees of P25,000.00. The moral and exemplary damages
shall earn interest at the legal rate from 1 March 1976 when the G.R. No. 122308 July 8, 1997
complaint was filed until full payment.
PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P.
MAPA, petitioners,
vs.
COURT OF APPEALS and TRANS-WORLD AIRLINES
INC., respondents.

DAVIDE, JR., J.:

The main issue in this petition for review under Rule 45 of the Rules of
Court is the applicability of Article 28(1) of the Warsaw
Convention, 1 which provides as follows:

Art. 28. (1) An action for damages must be brought, at the


option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the domicile of
the carrier or of his principal place of business, or where he has
a place of business through which the contract has been made,
or before the court at the place of destination.

We are urged by the petitioners to reverse the 31 May 1995 Decision


of the Court of Appeals in CA-G.R. CV No. 39896 2 affirming the 24 July
1992 Order of the Regional Trial Court of Quezon City, Branch 102, which
dismissed Civil Case No. Q-91-9620 3 on the ground of lack of jurisdiction On August 10, 1990, plaintiffs Carmina and Purita left Manila
in view of the aforementioned Article 28(1) of the Warsaw Convention. on board PAL flight No. 104 for Los Angeles. Carmina was to
commence schooling and thus was accompanied by Purita to
The antecedent facts, as summarized by the Court of Appeals, are as assist her in settling down at the University.
follows:
They arrived Los Angeles on the same date and stayed there
Plaintiffs Cornelio P. Mapa and Purita S. Mapa are respectable until August 14, 1990 when they left for New York City.
members of the society. Mr. Mapa is an established
businessman and currently the Regional General Manager of On August 14, 1990, plaintiffs Purita and Carmina S. Mapa
Akerlund and Rausing, a multinational packaging material arrived at the John F. Kennedy (JFK) Airport, New York, on
manufacturer based in Manila. He was previously the Senior TWA Flight No. 904.
Vice President of Phimco Industries, an affiliate company of
Swedish Match Company. Mrs. Mapa is a successful On August 27, 1990, plaintiffs Purita and Carmina S. Mapa
businesswoman engaged in the commercial transactions of departed for Boston, taking a connecting flight on TWA's
high value antique and oriental arts decor items originating carrier, TW 0901, from JFK Airport, New York, to Boston's
from Asian countries. Carmina S. Mapa is the daughter of Logan Airport, checking in seven (7) pieces of luggage at the
plaintiffs Purita and Cornelio and is a graduate of the TWA counter in the JFK Airport. The seven baggages were
International School in Bangkok, Thailand, now presently received by a porter who issued seven TWA baggage receipts
enrolled at the Boston University where she is majoring in numbered 17-8270, 71, 72, 73, 74, 75, and 76 therefor.
communication.
From the entrance gate of the terminal building, plaintiffs Purita
Plaintiffs Mapa entered into contract of air transportation with and Carmina proceeded to TWA's ticket counter and presented
defendant TWA as evidence by TWA ticket Nos. their confirmed TWA tickets numbered 015:9475:153:304 and
015:9475:153:304 and 015:9475:153:305, purchased in 015:9475:153:305 with a 3:00 p.m. departure time. They were
Bangkok, Thailand. Said TWA tickets are for Los Angeles-New issued their boarding passes and were instructed to proceed to
York-Boston-St. Louis-Chicago. . . . gate 35 for boarding. At about 2:40 p.m., plaintiffs noticed that
there was still no instruction to board the aircraft so they made
Domicile of carrier TWA is Kansas City, Missouri, USA. Its inquiries. The TWA ground stewardess informed plaintiffs that
principal place of business is Kansas City, Missouri, USA. they were at the wrong gate because their flight was boarding
TWA's place of business through which the contracts were at gate 1. Upon hearing this, plaintiffs rushed to gate 1 which
made is Bangkok, Thailand. The place of destination is was in another building terminal. At gate 1, they were told by a
Chicago, USA. TWA ground stewardess that flight 901 had just departed.
However, they were consoled that another TWA flight was
leaving for Boston after 30 minutes and plaintiffs could use the
same boarding pass for the next flight. At around 3:15 p.m., On September 20, 1990, plaintiff's counsel wrote TWA thru its
plaintiffs Purita and Carmina were able to board the next flight. General Sales Manager in the Philippines, Daniel Tuason, with
However, the plane was not immediately cleared for take off on office address at Ground Floor, Saville Building, Sen. Gil. J.
account of a thunderstorm. The passengers were instructed to Puyat Avenue corner Paseo de Roxas, Makati, Metro Manila
stay inside the aircraft until 6:00 p.m. when the plane finally left demanding indemnification for the grave damage and injury
for Boston. suffered by the plaintiffs.

Upon arriving in Boston, plaintiffs Purita and Carmina TWA again assured plaintiffs that intensive search was being
proceeded to the carousel to claim their baggages and found conducted.
only three out of the seven they checked in, to wit: one
Samsonite on the carousel, another Samsonite lying on the On October 8, 1990, TWA offered to amicably settle the case
floor near the carousel and a third baggage, an American by giving plaintiffs-appellants two options: (a) transportation
Tourister, inside the unclaimed baggage office. Plaintiffs credit for future TWA travel or (b) cash settlement. Five months
immediately reported the loss of their four baggages to the lapsed without any result on TWA's intensive search.
TWA Baggage Office at Logan Airport. TWA's representative
confidently assured them that their baggages would be located On January 3, 1991, plaintiffs-appellant opted for transportation
within 24 hours and not more than 48 hours. credit for future TWA travel.

On September 2, 1990, plaintiffs received a letter from TWA, On January 11, 1991, TWA disregarded plaintiffs' option and
signed by Mr. J.A. Butler, Customer Relations-Baggage unilaterally declared the payment of $2,560.00 as constituting
Service, apologizing for TWA's failure to locate the missing full satisfaction of the plaintiffs' claim.
luggage and requesting plaintiffs to accomplish a passenger
property questionnaire to facilitate a further intensive and On July 19, 1991, plaintiffs accepted the check for $2,560.00,
computerized search for the lost luggage. Plaintiffs duly as partial payment for the actual cost of their lost baggages
accomplished the passenger property questionnaire, taking and their contents.
pains to write down in detail the contents of each missing
baggage. The total value of the lost items amounted to Despite demands by plaintiffs, TWA failed and refused without
$11,283.79. just cause to indemnify and redress plaintiffs for the grave
injury and damages they have suffered. 4

Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein


petitioners) then filed with the trial court on 1 August 1991 a
complaint 5 for damages, 6 which was docketed as Civil Case No. Q-91-
9620. Before a responsive pleading was filed, the petitioners filed an
Amended Complaint. 7 They prayed that after due trial private respondent representing the travel expenses, hotel, lodging, food and other expenses
Trans-World Airlines, Inc. (hereafter, TWA), be ordered to pay them the of petitioner Cornelio Mapa, who was constrained to join his family in
following amounts: (1) US$8,723.79, or its equivalent in Philippine Boston to extend the necessary assistance in connection with the lost
currency, representing the cost of the lost luggage and its contents; (2) luggage.
US$2,949.50, or its equivalent in Philippine currency, representing the cost
of hotel, board and lodging, and communication expenses; (3) P1 million, After the filing of TWA's Answer to the second Amended
by way of moral damages; (4) P1 million, by way of exemplary damages, Complaint, 11 and petitioners' Reply thereto, the trial court gave TWA ten
with legal interest on said amounts from the date of extrajudicial demand days within which to submit a memorandum in support of its affirmative
thereof; and (5) P500,000.00 as attorney's fees, costs of the suit, and defenses; after which the incident would be deemed submitted for
other expenses of litigation. 8 resolution. 12 However, after TWA filed its Memorandum, 13 the trial court
gave the petitioners five days within which to file a reply memorandum;
On 26 February 1992, TWA filed its Answer to the Amended Complaint and TWA, two days from receipt of the latter to file its comment
raising, as special and affirmative defense, lack of jurisdiction of thereon. 14 The petitioners then filed their Opposition (by way of Reply
Philippine courts over the action for damages in the pursuant to Article Memorandum) 15 to which TWA filed a Reply. 16Thereafter, the petitioners
28(1) of the Warsaw Convention, the action could only be brought submitted a Rejoinder 17; TWA, a Surrejoinder. 18
either in Bangkok where the contract was entered into, or in Boston
which was the place of destination, or in Kansas City which is the On 24 July 1992, the trial court issued an Order 19 dismissing the case
carrier's domicile and principal place of business. for lack of jurisdiction in light of Article 28(1) of the Warsaw Convention.
Thus:
TWA further alleged that pursuant to the Warsaw Convention and the
Notice of Baggage Limitations at the back of the tickets, its liability to It is plaintiffs' theory that the Warsaw Convention does not
the petitioners is limited to US$9.07 per pound, or US$20.00 per kilo, apply to the instant case because plaintiffs' contract of
which is in lieu of actual and compensatory damages. Even assuming transportation does not constitute "international transportation"
that petitioners' bag weighed the maximum acceptable weight of 70 as defined in said convention. This however is belied by the
pounds, TWA's maximum liability is $640.00 per bag or $2,560.00 for Passenger Property Questionnaire which is Annex C of
the four pieces of baggage, which the petitioners have been offered plaintiffs' amended complaint. Page two of said questionnaire
and have accepted. TWA also submitted that it could not be liable for accomplished by plaintiffs under the heading "Your Complete
moral and exemplary damages and attorney's fees because it did not Itinerary" shows that the TWA tickets issued to the plaintiffs
act in a wanton, fraudulent, reckless, oppressive, or malevolent form part of the contract of transportation to be performed from
manner. 9 Manila to the United States. Since the Philippines and the
United States are parties to the convention, plaintiffs' contracts
On 7 February 1992, the petitioners filed their second Amended of transportation come within the meaning of International
Complaint 10 to include a claim of US$2,500, or its equivalent in Philippine Transportation.
Currency, representing the additional replacement cost of the items and
personal effects contained in their lost luggage; and US$4,500 xxx xxx xxx
On the basis of the foregoing, the Court holds that the Warsaw private respondent supporting the conclusion that the provision
Convention is applicable to the case at bar, even if the basis of is jurisdictional.
plaintiffs' present action is breach of contract of carriage under
the New Civil Code. Venue and jurisdiction are entirely distinct matters. Jurisdiction
may not be conferred by consent or waiver upon a court which
The next question to be resolved is whether or not the Court otherwise would have no jurisdiction over the subject-matter of
has jurisdiction to try the present case in the light of the an action; but the venue of an action as fixed by statute may be
provision of Art. 28(1) above-quoted. changed by the consent of the parties and an objection that the
plaintiff brought his suit in the wrong country may be waived by
Under Art. 28(1) supra, a complaint for damages against an air the failure of the defendant to make a timely objection. In either
carrier can be instituted only in any of the following case, the court may render a valid judgment. Rules as to
places/courts: jurisdiction can never be left to the consent or agreement of the
parties, whether or not prohibition exists against their alteration.
(1) The court of the domicile of
the carrier; A number of reasons tends to support the characterization of
Article 28(1) as a jurisdiction and not a venue provision. First,
(2) The court of its principal the wording of Article 32, which indicates the places where the
place of business; action for damages "must" be brought, underscores the
mandatory nature of Article 28(1). Second, this characterization
(3) The court where it has a is consistent with one of the objectives of the Convention,
place of business through which which is to "regulate in a uniform manner the conditions of
the contract had been made; international transportation by air." Third, the Convention does
not contain any provision prescribing rules of jurisdiction other
(4) The court of the place of than Article 28(1), which means that the phrase "rules as to
destination. jurisdiction" used in Article 32 must refer only to Article 28(1). In
fact, the last sentence of Article 32 specifically deals with the
exclusive enumeration in Article 28(1) as "jurisdictions," which,
In interpreting the provision of Art. 28(1) of the Warsaw
as such, cannot be left to the will of the parties regardless of
Convention, the Supreme Court in the same case of Augusto
the time when the damage occurred.
Benedicto Santos vs. Northwest Airlines held:

xxx xxx xxx


Whether Article 28(1) refers to jurisdiction or only to venue is a
question over which authorities are sharply divided. While the
petitioner cites several cases holding that Article 28(1) refers to It has been shown by the defendant that the domicile of the
venue rather that jurisdiction, there are later cases cited by the defendant Trans World Airlines, Inc. is Kansas City, Missouri,
its principal place of business is also in Kansas City, Missouri, Convention, all actions for damages, whether based on tort, code law or
the carrier's place of business through which the contracts common law, arising from loss of baggage under Article 18 of the Warsaw
were made is Bangkok (Annexes A and A-1, Amended Convention, can only be brought subject to the conditions and limits set
Complaint), and the place of destination was Boston. forth in the Warsaw Convention. Article 28(1) thereof sets forth conditions
and limits in that the action for damages may be instituted only in the
The Philippines not being one of the places specified in Art. territory of one of the High Contracting Parties, before the court of (1) the
domicile of the carrier, (2) the carrier's principal place of business, (3) the
28(1) abovequoted where the complaint may be instituted, this
place of business through which the contract has been made, or (4) the
Court therefore, does not have jurisdiction over the present
place of destination. Since the Philippines is not one of these places, a
case.
Philippine Court, like the RTC, has no jurisdiction over the complaint for
damages.
Evidently discontented with the trial court's order, the petitioners
appealed to the Court of Appeals, contending that the lower court erred Respondent Court of Appeals likewise held that the petitioners could
in not holding that (1) it has jurisdiction over the instant case and (2) not claim application of Articles 1733, 1734, 1735, 1755, and 1756 of
the Warsaw Convention is inapplicable in the instant case because the the New Civil Code on common carriers without taking into
subject matter of the case is not included within the coverage of the consideration Article 1753 of the same Code, which provides that the
said convention. 20 They claimed that their cause of action could be based law of the country to which the goods are to be transported shall
on breach of contract of air carriage founded on Articles 1733, 1734, 1735,
govern the liability of the common carrier for their loss, destruction, or
1755, and 1756 of the New Civil Code governing common carriers or
deterioration. Since the country of ultimate destination is Chicago, the
Article 2176 of the same Code governing tort or quasi-delict.
law of Chicago shall govern the liability of TWA for the loss of the four
pieces of baggage. Neither is Article 2176 of the New Civil Code on
The appellate court disagreed with the petitioners and affirmed the
torts or quasi-delicts applicable in view of the private international law
order of the trial court. It held that the Warsaw Convention is the law
principle of lex loci delicti commissi. 22 In addition, comformably
which governs the dispute between the petitioners and TWA because
with Santos III v. Northwest Orient Airlines, 23 mere allegation of willful
what is involved is international transportation defined by said misconduct resulting in a tort is insufficient to exclude the case from the
Convention in Article I(2). This holding is founded on its determination comprehension of the Warsaw Convention.
that the two TWA tickets for Los Angeles-New York-Boston-St. Louis-
Chicago purchased in Bangkok, Thailand, were issued in conjunction Failing in their bid to reconsider the decision, the petitioners filed this
with, and therefore formed part of, the contract of transportation petition. They aver that respondent Court of Appeals gravely erred (1)
performed from Manila, Philippines, to the United States. in holding that the Warsaw Convention is applicable to this case and
(2) in applying Article 1753 of the Civil Code and the principle of lex
The respondent court further held that the cause of action of the loci delicti commissi. 24
petitioners arose from the loss of the four checked pieces of baggage,
which then falls under Article 18(1), Chapter III (Liability of the Carrier) We resolved to give due course to the petitioner after the filing by TWA
of the Warsaw Conventions. 21 Pursuant to Article 24(1) of the of its Comment on the petition and noted without action for the reasons
stated in the resolution of 25 September 1996 petitioners' Reply and brought within the term "international transportation," as defined in Article
Rejoinder. We then required the parties to submit their respective I(2) of the Warsaw Convention. As provided therein, a contract is one
memoranda. They did in due time. of international transportation only if

The petitioners insist that the Warsaw Convention is not applicable to according to the contract made by the parties, the place of
their case because the contracts they had with TWA did not involve departure and the place of destination, whether or not there be
an international transportation. Whether the contracts were a break in the transportation or a transshipment, are situated
of international transportation is to be solely determined from the TWA either within the territories of two High Contracting Parties, or
tickets issued to them in Bangkok, Thailand, which showed that their within the territory of a single High Contracting Party, if there is
itinerary was Los Angeles-New York-Boston-St. Louis-Chicago. an agreed stopping place within a territory subject to the
Accordingly, since the place of departure (Los Angeles) and the place sovereignty, mandate or authority of another power, even
of destination (Chicago) are both within the territory of one High though that power is not a party to this convention.
Contracting Party, with no agreed stopping place in a territory subject
to the sovereignty, mandate, suzerainty or authority of another Power, There are then two categories of international transportation, viz., (1)
the contracts did not constitute 'international transportation' as defined that where the place of departure and the place of destination are
by the convention. They also claim to be without legal basis the situated within the territories of two High Contracting Parties regardless
contention of TWA that their transportation contracts were of of whether or not there be a break in the transportation or a
international character because of the handwritten notations in the transshipment; and (2) that where the place of departure and the place
tickets re "INT'S TKT #079-4402956821-2" and "INT'L TKT #079- of destination are within the territory of a single High Contracting Party
4402956819." Notwithstanding such notations, the TWA tickets, viz., if there is an agreed stopping place within a territory subject to the
(a) No. 015.9475:153:304 and (b) No. 015:9475:153:305 did not cease sovereignty, mandate, or authority of another power, even though the
to be for the itinerary therein designated. Besides, it is a fact that power is not a party of the Convention.
petitioners Purita and Carmina Mapa traveled from Manila to Los
Angeles via Philippine Airlines (PAL) by virtue of PAL tickets issued The High Contracting Parties referred to in the Convention are the
independently of the TWA tickets. signatories thereto and those which subsequently adhered to it. In the
case of the Philippines, the Convention was concurred in by the
The pitch issue to be resolved under the petitioner's first assigned error Senate, through Resolution No. 19, on 16 May 1950. The Philippine
is whether the contracts of transportation between Purita and Carmina instrument of accession was signed by President Elpidio Quirino on 13
Mapa, on the one hand, and TWA, on the other, were contracts of October 1950 and was deposited with the Polish Government on 9
"international transportation" under the Warsaw Convention. If they November 1950. The Convention became applicable to the Philippines
were, then we should sustain the trial court and the Court of Appeals in on 9 February 1951. Then, on 23 September 1955, President Ramon
light of our ruling in Santos v. Northwest Orient Airlines. 25 It appears Magsaysay issued Proclamation No. 201, declaring the Philippines'
clear to us that TWA itself, the trial court, and the Court of Appeals formal adherence thereto, "to the end that the same and every article
impliedly admit that if the sole basis were the two TWA tickets for Los
Angeles-New York-Boston-St. Louis-Chicago, the contracts cannot be
and clause thereof may be observed and fulfilled in good faith by the As regards the petitioner's entry in YOUR COMPLETE ITINERARY
Republic of the Philippines and the citizens thereof. 26 column of the Passenger Property Questionnaire wherein they
included the Manila-Los Angeles travel, it must be pointed out that this
The contracts of transportation in this case are evidenced by the two was made on 4 September 1990 27 by petitioners Purita and Carmina
TWA tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both Mapa, and only in connection with their claim for their lost pieces of
purchased and issued in Bangkok, Thailand. On the basis alone of the baggage. The loss occurred much earlier, or on 27 August 1990. The entry
provisions therein, it is obvious that the place of departure and the can by no means be considered as a part of, or supplement to, their
place of destination are all in the territory of the United States, or of a contracts of transportation evidenced by the TWA tickets which covered
single High Contracting Party. The contracts, therefore, cannot come transportation within the United States only.
within the purview of the first category of international transportation.
Neither can it be under the second category since there was NO It must be underscored that the first category of international
agreed stopping place within a territory subject to the sovereignty, transportation under the Warsaw Convention is based on "the contract
mandate, or authority of another power. made by the parties." TWA does not claim that the Manila-Los Angeles
contracts of transportation which brought Purita and Carmina to Los
The only way to bring the contracts between Purita and Carmina Angeles were also its contracts. It does not deny the assertion of the
Mapa, on the one hand, and TWA, on the other, within the first petitioners that those contracts were independent of the TWA tickets
category of "international transportation" is to link them with, or to make issued in Bangkok, Thailand. No evidence was offered that TWA and
them an integral part of, the Manila-Los Angeles travel of Purita and PAL had an agreement concerning transportation of passengers from
Carmina through PAL aircraft. The "linkages" which have been pointed points of departures not served with aircrafts of one or the other. There
out by the TWA, the trial court, and the Court of Appeals are (1) the could have been no difficulty for such agreement, since TWA admitted
handwritten notations, viz., INT'L TKT # 079-4402956821-2 and INT'L without qualification in paragraph 1 of its Answer 28 to the second
TKT # 079-4402956819, on the two TWA tickets; and (2) the entries Amended Complaint the allegation in paragraph 1.1 of the latter 29 that
TWA "is a foreign corporation licensed to do business in the Philippines
made by petitioners Purita and Carmina Mapa in column YOUR
with office address at Ground Floor, Saville Building, Sen. Gil. J. Puyat
COMPLETE ITINERARY in TWA's Passenger Property Questionnaire,
Avenue, corner Paseo de Roxas, Makati, Metro Manila."
wherein they mentioned their travel from Manila to Los Angeles in flight
PR 102.
TWA relies on Article I(3) of the Convention, which provides as follows:
The alleged "international tickets" mentioned in the notations in
3. A carriage to be performed by several
conjunction with which the two TWA tickets were issued were not
successive air carriers is deemed, for the
presented. Clearly then, there is at all no factual basis of the finding
purposes of this Convention, to be one
that the TWA tickets were issued in conjunction with the international
undivided carriage, if it has been regarded by
tickets, which are even, at least as of now, non-existent.
the parties as a single operation, whether it had
been agreed upon under the form of a single
contract or of a series of contracts, and it shall
not lose its international character merely preliminary hearing may be had thereon as if a motion to
because one contract or a series of contracts is dismiss had been filed.
to be performed entirely within a territory
subject to the sovereignty, suzerainty, mandate, Without any further evidence as earlier discussed, the trial court should
or authority of the same High Contracting Party. have denied the affirmative defense of lack of jurisdiction because it
did not appear to be indubitable. Section 3 of Rule 16 of the Rules of
It also points to Article 15 of the IATA Recommend Practice 1724, Court provides:
which provides: Carriage to be performed by a several successive
carriers under one ticket, or under a ticket and any conjunction ticket Sec. 3. Hearing and order. After hearing the court may deny
issued in connection therewith, is regarded as a single operation." 30 or grant the motion or allow amendment of pleading, or may
defer the hearing and determination of the motion until the trial
The flaw of respondent's position is the presumption that the parties if the ground alleged therein does not appear to be indubitable.
have "regarded" as an "undivided carriage" or as a "single operation"
the carriage from Manila to Los Angeles through PAL then to New WHEREFORE, the instant petition is GRANTED and the challenged
York-Boston-St. Louis-Chicago through TWA. The dismissal then of the decision of 31 May 1995 of respondent Court of Appeals in CA-G.R.
second Amended Complaint by the trial court and the Court of Appeals' CV No. 39896, as well as the Order of 24 July 1992 of the Regional
affirmance of the dismissal were not based on indubitable facts or Trial Court of Quezon City, Branch 102, in Civil Case No. Q-91-9620, is
grounds, but no inferences without established factual basis. REVERSED and SET ASIDE.

TWA should have offered evidence for its affirmative defenses at the The Regional Trial Court of Quezon City, Branch 102, is hereby
preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court DIRECTED to proceed with the pre-trial, if it has not been terminated,
expressly provides: and with the trial on the merits of the case and then to render judgment
thereon, taking into account the foregoing observations on the issue of
Sec. 5. Pleading grounds as affirmative defenses. Any of the jurisdiction.
grounds for dismissal provided for in this rule, except improper
venue, may be pleaded as an affirmative defense, and a

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