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G.R. No. L-28014-15 May 29, 1970

SPOUSES MARCELO LANDINGIN and RACQUEL BOCASAS, plaintiffs-appellees,vs.PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN,defendants-appellants.

SPOUSES PEDRO GARCIA and EUFRACIA LANDINGIN, plaintiffs-appellees,vs.PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN,defendants-appellants.

Gabriel A. Zabala for plaintiffs-appellees.

Vicente M. Erfe Law Office for defendants-appellants.

VILLAMOR, J.:

Direct appeal on a question of law from the portion of the judgment of the Court ofFirst Instance of Manila ordering the defendants Pangasinan Transportation Co.(PANTRANCO) and Marcelo Oligan to pay the plaintiffs in Civil Case No. D-1468(L-28014) the sum of P6,500.00, and the plaintiffs in Civil Case No. 1470 (L-28015)the sum of P3,500.00.

The complaints in said Civil Cases Nos. D-1468 and D-1470 were filed by thespouses Marcelo Landingin and Racquel Bocasas, and the spouses Pedro Garciaand Eufracia Landingin, respectively, for damages allegedly suffered by them inconnection with the death of their respective daughter, Leonila Landingin and EstrellaGarcia, due to the alleged negligence of the defendants and/or breach of contract ofcarriage. In their complaints, plaintiffs averred, among others, that in the morning ofApril 20, 1963, their above-mentioned daughters were among the passengers in the

bus driven by defendant Marcelo Oligan and owned and operated by defendantPANTRANCO on an excursion trip from Dagupan City to Baguio City and back, thatthe bus was open on one side and enclosed on the other, in gross violation of therules of the Public Service Commission; that defendant PANTRANCO acted withnegligence, fraud and bad faith in pretending to have previously secured a specialpermit for the trip when in truth it had not done so; that upon reaching an uphill pointat Camp 8, Kennon Road, Baguio City, on the onward trip, defendant driver, throughutter lack of foresight, experience and driving knowledge, caused the bus to stall andstop for a few moments; that through the said defendant's fault and mishandling, themotor ceased to function, causing the bus to slide back unchecked; that when thesaid defendant suddenly swerved and steered the bus toward the mountainside,Leonila and Estrella, together with several other passengers, were thrown out of thebus through its open side unto the road, suffering serious injuries as a result of whichLeonila and Estrella died at the hospital and the same day; and that in connection

with the incident, defendant driver had been charged with and convicted of multiplehomicide and multiple slight physical injuries on account of the death of Leonila and

Estrella and of the injuries suffered by four others, although it may be said, by way ofparenthesis, that this case is now pending appeal in a higher court. The plaintiffsprayed for awards of moral, actual and exemplary damages in the total sum ofP40,000.00 in Civil Case No. D-1468, and in the total sum of P25,000.00 in Civil CaseNo. D-1470 as well as attorney's fees in the amounts of P5,000.00 and P4,000.00,respectively.

Defendants filed a joint answer to each of the two complaints alleging, among others,that at the t ime of the accident, defendant driver was driving the bus at, the slow

speed of about 10 kilometers per hour; that while the said defendant was steering hisbus toward the mountainside after hearing a sound coming from under the rear end ofthe bus, Leonila and Estrella recklessly, and in disobedience to his shouted warningsand advice, jumped out of the bus causing their heads to hit the road or pavement;that the bus was then being driven with extraordinary care, prudence and diligence;that defendant PANTRANCO observed the care and diligence of a good father of afamily to prevent the accident as well as in the selection and supervision of itsemployees, particularly of defendant driver; and that the decision convicting the saiddefendant was not yet final, the same having been appealed to the Court of Appealswhere it was still pending.

By agreement of the parties, the two cases were tried jointly. On October 17, 1966,the court a quo rendered its decision therein in which it made the following findings;

that upon reaching the fatal spot at Camp 8, a sudden snapping or breaking of metalbelow the floor of the bus was heard, and the bus abruptly stopped, rolling back a fewmoments later; that as a result, some of the passengers jumped out of the bus, whileothers stepped down; that defendant driver maneuvered the bus safely to and againstthe side of the mountain where its rear end was made to rest, ensuring the safety ofthe many passengers still inside the bus; that while defendant driver as steering thebus towards the mountainside, he advised the passengers not to jump, but to remainseated; that Leonila and Estrella were not thrown out of the bus, but that theypanicked and jumped out; that the malfunctioning of the motor resulted from thebreakage of the cross-joint; that there was no negligence on the part of either of thedefendants; that only the day before, the said cross-joint was duly inspected andfound to be in order; and that defendant PANTRANCO had exercised the requisitecare in the selection and supervision of its employees, including the defendant driver.The court concluded that "the accident was caused by a fortuitous event or an act ofGod brought about by some extra-ordinary circumstances independent of the will ofthe Pantranco or its employees."

One would wonder why in the face of such factual findings and conclusion of the trialcourt, the defendants, instead of the plaintiffs, should come to this Court on appeal.The answer lies in the dispositive portion of the decision, to wit:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Courthereby renders judgment: (a) Absolving the defendants from anyliability on account of negligence on their part and thereforedismissing the complaints in these two cases; (b) However, asstated above, the Court hereby orders the defendant Pantranco to

pay to the plaintiffs spouses Marcelo Tandingin and RacquelBocasas in Civil Case No. D-1468 the amount of P6,500.00; and

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the amount of P3,500.00 to the spouses Pedro Garcia and EufraciaLandingin in Civil Case No. D-1470, not in payment of liabilitybecause of any negligence on the part of the defendants but as anexpression of sympathy and goodwill.(Emphasis supplied.)

As to what impelled the court below to include item (b) in the dispositive portion of itsdecision, can be gathered from the penultimate paragraph of the decision, whichreads:

However, there is evidence to the effect that an offer of P8,500.00in the instant cases without any admission of fault or negligencehad been made by the defendant Pantranco and that actually inCivil Case No. D-1469 for the death of Pacita Descalso, the otherdeceased passenger of the bus in question, the heirs of thedecease received P3,000.00 in addition to hospital and medicalbills and the coffin of the deceased for the dismissal of the saidcase without Pantranco accepting liability. There was as a matter offact during the pre-trial of these two cases a continuing offer ofsettlement on the part of the defendant Pantranco withoutaccepting any liability for such damages, and the Court understoodthat the Pantranco would be willing still to pay said amounts even ifthese cases were to be tried on the merits. It is well-known that the

defendant Pantranco is zealous in the preservation of its publicrelations. In the spirit therefore of the offer of the defendantPantranco aforesaid, to assuage the feelings of the herein plaintiffsan award of P6,500.00 for the spouses Marcelo Landingin andRacquel Bocasas in Civil Case No. D-1468 whose daughter Leonilawas, when she died, a third-year Commerce student at the FarEastern University, and P3,500.00 for the spouses Pedro Garciaand Eufracia Landingin in Civil Case No. D-1470 whose daughterEstrella was in the fourth year High at the Dagupan Colleges whenshe died, is hereby made in their favor. This award is in addition towhat Pantranco might have spent to help the parents of bothdeceased after the accident.

Defendants-appellants complain that having found them to be absolutely free fromfault or negligence, and having in fact dismissed the complaints against them, thecourt should not have ordered them to assume any pecuniary liability. There would bemerit in his argument but for the fact that defendant-appellant PANTRANCO wasguilty of breach of contract of carriage. It will be noted that in each of the twocomplaints it is averred that two buses including the one in which the two deceasedgirls were riding, were hired to transport the excursionist passengers from DagupanCity to Baguio City, and return, and that the said two passengers did not reachdestination safely.

As a common carrier, defendant-appellant PANTRANCO was duty bound to carry itspassengers "safely as far as human care and foresight can provide, using the utmostdiligence of very cautious persons, with a due regard for all the circumstances."

(Article 1755, Civil Code.) Did defendant-appellant PANTRANCO measure up to thedegree of care and foresight required it under the circumstances? We think not. The

court below found that the cross-joint of the bus in which the deceased were ridingbroke, which caused the malfunctioning of the motor, which in turn resulted in panicamong some of the passengers. This is a finding of fact which this Court may notdisturb. We are of the opinion, however, that the lower court's conclusion drawn fromthat fact, i.e., that "the accident was caused by a fortuitous event or an act of Godbrought about by some extraordinary circumstances independent of the will of thePantranco or its employees," is in large measure conjectural and speculative, andwas arrived at without due regard to all the circumstances, as required by Article1755. In Lasam vs. Smith (45 Phil. 660), this Court held that an accident caused by

defects in the automobile is not acaso fortuito. The rationale of the carrier's liability isthe fact that "the passenger has neither the choice nor control over the carrier in theselection and use of the equipment and appliances in use by the carrier." (Necesito,et al. vs. Paras, et al., 104 Phil. 75.)

When a passenger dies or is injured, the presumption is that the common carrier is atfault or that it acted negligently (Article 1756). This presumption is only rebutted byproof on the carrier's part that it observed the "extraordinary diligence" required inArticle 1733 and the "utmost diligence of very cautious persons" required in Article1755 (Article 1756). In the instant case it appears that the court below considered thepresumption rebutted on the strength of defendants-appellants' evidence that only theday before the incident, the crossjoint in question was duly inspected and found to bein order. It does not appear, however, that the carrier gave due regard for all thecircumstances in connection with the said inspection. The bus in which the deceasedwere riding was heavily laden with passengers, and it would be traversingmountainous, circuitous and ascending roads. Thus the entire bus, including itsmechanical parts, would naturally be taxed more heavily than it would be underordinary circumstances. The mere fact that the bus was inspected only recently andfound to be in order would not exempt the carrier from liability unless it is shown thatthe particular circumstances under which the bus would travel were also considered.

In the premises, it was error for the trial court to dismiss the complaints. The awardsmade by the court should be considered in the concept of damages for breach ofcontracts of carriage.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is

modified as indicated above, and defendant-appellant PANTRANCO is ordered topay to plaintiffs-appellees the amounts stated in the judgment appealed from, asdamages for breach of contracts, with interest thereon at the legal rate from the dateof the filing of the complaints. Costs against defendant-appellant PANTRANCO.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankeeand Barredo, JJ., concur.

Castro, J., is on leave.

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G.R. No. L-10605 June 30, 1958

PRECILLANO NECESITO, ETC., plaintiff-appellant,vs.NATIVIDAD PARAS, ET AL., defendants-appellees.

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

G.R. No. L-10606 June 30, 1958

GERMAN NECESITO, ET AL., plaintiffs-appellants,vs.NATIVIDAD PARAS, ET AL., defendants-appellees.

Tomas Besa and Federico Agrava for appellants.

Jose W. Diokno for appellees.

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

These cases involve ex contractu against the owners and operators ofthe common carrier known as Philippine Rabbit Bus Lines, filed byone passenger, and the heirs of another, who injured as a result of thefall into a river of the vehicle in which they were riding.

In the morning of January 28, 1964, Severina Garces and her one-yearold son, Precillano Necesito, carrying vegetables, boarded passenger

auto truck or bus No. 199 of the Philippine Rabbit Bus Lines at Agno,Pangasinan. The passenger truck, driven by Francisco Bandonell, thenproceeded on its regular run from Agno to Manila. After passingMangatarem, Pangasinan truck No. 199 entered a wooden bridge, butthe front wheels swerved to the right; the driver lost control, and afterwrecking the bridge's wooden rails, the truck fell on its right side intoa creek where water was breast deep. The mother, Severina Garces,was drowned; the son, Precillano Necesito, was injured, sufferingabrasions and fracture of the left femur. He was brought to theProvincial Hospital at Dagupan, where the fracture was set but with

fragments one centimeter out of line. The money, wrist watch andcargo of vegetables were lost.

Two actions for damages and attorney's fees totalling over P85,000having been filed in the Court of First Instance of Tarlac (Cases Nos.908 and 909) against the carrier, the latter pleaded that the accidentwas due to "engine or mechanical trouble" independent or beyond thecontrol of the defendants or of the driver Bandonell.

After joint trial, the Court of First Instance found that the bus was

proceeding slowly due to the bad condition of the road; that theaccident was caused by the fracture of the right steering knuckle,which was defective in that its center or core was not compact but"bubbled and cellulous", a condition that could not be known orascertained by the carrier despite the fact that regular thirty-dayinspections were made of the steering knuckle, since the steel exteriorwas smooth and shiny to the depth of 3/16 of an inch all around; thatthe knuckles are designed and manufactured for heavy duty and maylast up to ten years; that the knuckle of bus No. 199 that broke onJanuary 28, 1954, was last inspected on January 5, 1954, and was due

to be inspected again on February 5th. Hence, the trial court, holdingthat the accident was exclusively due to fortuitous event, dismissedboth actions. Plaintiffs appealed directly to this Court in view of theamount in controversy.

We are inclined to agree with the trial court that it is not likely that busNo. 199 of the Philippine Rabbit Lines was driven over the deeplyrutted road leading to the bridge at a speed of 50 miles per hour, astestified for the plaintiffs. Such conduct on the part of the driver wouldhave provoked instant and vehement protest on the part of the

passengers because of the attendant discomfort, and there is no trace ofany such complaint in the records. We are thus forced to assume thatthe proximate cause of the accident was the reduced strength of thesteering knuckle of the vehicle caused by defects in casting it. Whileappellants hint that the broken knuckle exhibited in court was not thereal fitting attached to the truck at the time of the accident, the recordsthey registered no objection on that ground at the trial below. Theissue is thus reduced to the question whether or not the carrier is liablefor the manufacturing defect of the steering knuckle, and whether theevidence discloses that in regard thereto the carrier exercised the

diligence required by law (Art. 1755, new Civil Code).

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ART. 1755. A common carrier is bound to carry the passengerssafely as far as human care and foresight can provide, using theutmost diligence of very cautious persons, with a due regardfor the all the circumstances.

It is clear that the carrier is not an insurer of the passengers' safety. Hisliability rests upon negligence, his failure to exercise the "utmost"

degree of diligence that the law requires, and by Art. 1756, in case of apassenger's death or injury the carrier bears the burden of satisfyingthe court that he has duly discharged the duty of prudence required. Inthe American law, where the carrier is held to the same degree ofdiligence as under the new Civil Code, the rule on the liability ofcarriers for defects of equipment is thus expressed: "Thepreponderance of authority is in favor of the doctrine that a passengeris entitled to recover damages from a carrier for an injury resultingfrom a defect in an appliance purchased from a manufacturer,whenever it appears that the defect would have been discovered by the

carrier if it had exercised the degree of care which under thecircumstances was incumbent upon it, with regard to inspection andapplication of the necessary tests. For the purposes of this doctrine, themanufacturer is considered as being in law the agent or servant of thecarrier, as far as regards the work of constructing the appliance.According to this theory, the good repute of the manufacturer will notrelieve the carrier from liability" (10 Am. Jur. 205, s, 1324; see alsoPennsylvania R. Co. vs. Roy, 102 U. S. 451; 20 L. Ed. 141; SouthernR. Co. vs. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR788; Ann. Cas. 1916E 929).

The rationale of the carrier's liability is the fact that the passenger hasneither choice nor control over the carrier in the selection and use ofthe equipment and appliances in use by the carrier. Having no privitywhatever with the manufacturer or vendor of the defective equipment,the passenger has no remedy against him, while the carrier usually has.It is but logical, therefore, that the carrier, while not in insurer of thesafety of his passengers, should nevertheless be held to answer for theflaws of his equipment if such flaws were at all discoverable. ThusHannen, J., inFrancis vs. Cockrell, LR 5 Q. B. 184, said:

In the ordinary course of things, the passenger does not knowwhether the carrier has himself manufactured the means ofcarriage, or contracted with someone else for its manufacture.If the carrier has contracted with someone else the passengerdoes not usually know who that person is, and in no case has heany share in the selection. The liability of the manufacturermust depend on the terms of the contract between him and the

carrier, of which the passenger has no knowledge, and overwhich he can have no control, while the carrier can introducewhat stipulations and take what securities he may think proper.For injury resulting to the carrier himself by the manufacturer'swant of care, the carrier has a remedy against the manufacturer;but the passenger has no remedy against the manufacturer fordamage arising from a mere breach of contract with thecarrier . . . . Unless, therefore, the presumed intention of theparties be that the passenger should, in the event of his beinginjured by the breach of the manufacturer's contract, of which

he has no knowledge, be without remedy, the only way inwhich effect can be given to a different intention is bysupposing that the carrier is to be responsible to the passenger,and to look for his indemnity to the person whom he selectedand whose breach of contract has caused the mischief. (29ALR 789)

And in the leading case ofMorgan vs. Chesapeake & O. R. Co. 15LRA (NS) 790, 16 Ann. Cas. 608, the Court, in holding the carrierresponsible for damages caused by the fracture of a car axle, due to a

"sand hole" in the course of moulding the axle, made the followingobservations.

The carrier, in consideration of certain well-known and highlyvaluable rights granted to it by the public, undertakes certainduties toward the public, among them being to provide itselfwith suitable and safe cars and vehicles in which carry thetraveling public. There is no such duty on the manufacturer ofthe cars. There is no reciprocal legal relation between him andthe public in this respect. When the carrier elects to have

another build its cars, it ought not to be absolved by that factsfrom its duty to the public to furnish safe cars. The carrier

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cannot lessen its responsibility by shifting its undertaking toanother's shoulders. Its duty to furnish safe cars is side by sidewith its duty to furnish safe track, and to operate them in a safemanner. None of its duties in these respects can be sublet so asto relieve it from the full measure primarily exacted of it bylaw. The carrier selects the manufacturer of its cars, if it doesnot itself construct them, precisely as it does those who grade

its road, and lay its tracks, and operate its trains. That it doesnot exercise control over the former is because it elects to placethat matter in the hands of the manufacturer, instead ofretaining the supervising control itself. The manufacturershould be deemed the agent of the carrier as respects its duty toselect the material out of which its cars and locomotive arebuilt, as well as in inspecting each step of their construction. Ifthere be tests known to the crafts of car builders, or ironmoulders, by which such defects might be discovered beforethe part was incorporated into the car, then the failure of the

manufacturer to make the test will be deemed a failure by thecarrier to make it. This is not a vicarious responsibility. Itextends, as the necessity of this business demands, the rule ofrespondeat superior to a situation which falls clearly within itsscope and spirit. Where an injury is inflicted upon a passengerby the breaking or wrecking of a part of the train on which heis riding, it is presumably the result of negligence at some pointby the carrier. As stated by Judge Story, in Story on Bailments,sec. 601a: "When the injury or damage happens to thepassenger by the breaking down or overturning of the coach, or

by any other accident occurring on the ground, the presumptionprima facie is that it occurred by the negligence of thecoachmen, and onus probandi is on the proprietors of the coachto establish that there has been no negligence whatever, andthat the damage or injury has been occasioned by inevitablecasualty, or by some cause which human care and foresightcould not prevent; for the law will, in tenderness to human lifeand limb, hold the proprietors liable for the slightestnegligence, and will compel them to repel by satisfactoryproofs every imputation thereof." When the passenger has

proved his injury as the result of a breakage in the car or thewrecking of the train on which he was being carried, whether

the defect was in the particular car in which he was riding ornot, the burden is then cast upon the carrier to show that it wasdue to a cause or causes which the exercise of the utmosthuman skill and foresight could not prevent. And the carrier inthis connection must show, if the accident was due to a latentdefect in the material or construction of the car, that not onlycould it not have discovered the defect by the exercise of such

care, but that the builders could not by the exercise of the samecare have discovered the defect or foreseen the result. This ruleapplies the same whether the defective car belonged to thecarrier or not.

In the case now before us, the record is to the effect that the only testapplied to the steering knuckle in question was a purely visualinspection every thirty days, to see if any cracks developed. It nowhereappears that either the manufacturer or the carrier at any time testedthe steering knuckle to ascertain whether its strength was up to

standard, or that it had no hidden flaws would impair that strength.And yet the carrier must have been aware of the critical importance ofthe knuckle's resistance; that its failure or breakage would result in lossof balance and steering control of the bus, with disastrous effects uponthe passengers. No argument is required to establish that a visualinspection could not directly determine whether the resistance of thiscritically important part was not impaired. Nor has it been shown thatthe weakening of the knuckle was impossible to detect by any knowntest; on the contrary, there is testimony that it could be detected. Weare satisfied that the periodical visual inspection of the steering

knuckle as practiced by the carrier's agents did not measure up to therequired legal standard of "utmost diligence of very cautious persons" "as far as human care and foresight can provide", and therefore thatthe knuckle's failure can not be considered a fortuitous event thatexempts the carrier from responsibility (Lasam vs. Smith, 45 Phil. 657;Son vs. Cebu Autobus Co., 94 Phil., 892.)

It may be impracticable, as appellee argues, to require of carriers totest the strength of each and every part of its vehicles before each trip;but we are of the opinion that a due regard for the carrier's obligations

toward the traveling public demands adequate periodical tests to

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determine the condition and strength of those vehicle portions thefailure of which may endanger the safe of the passengers.

As to the damages suffered by the plaintiffs, we agree with appelleethat no allowance may be made for moral damages, since under Article2220 of the new Civil Code, in case of suits for breach of contract,moral damages are recoverable only where the defendant acted

fraudulently or in bad faith, and there is none in the case before us. Asto exemplary damages, the carrier has not acted in a "wanton,fraudulent, reckless, oppressive or malevolent manner" to warrant theiraward. Hence, we believe that for the minor Precillano Necesito (G. R.No. L-10605), an indemnity of P5,000 would be adequate for theabrasions and fracture of the femur, including medical andhospitalization expenses, there being no evidence that there would beany permanent impairment of his faculties or bodily functions, beyondthe lack of anatomical symmetry. As for the death of Severina Garces(G. R. No. L-10606) who was 33 years old, with seven minor children

when she died, her heirs are obviously entitled to indemnity not onlyfor the incidental loses of property (cash, wrist watch andmerchandise) worth P394 that she carried at the time of the accidentand for the burial expenses of P490, but also for the loss of herearnings (shown to average P120 a month) and for the deprivation ofher protection, guidance and company. In our judgment, an award ofP15,000 would be adequate (cf Alcantara vs. Surro, 49 Off. Gaz. 2769;93 Phil., 472).

The low income of the plaintiffs-appellants makes an award for

attorney's fees just and equitable (Civil Code, Art. 2208, par. 11).Considering that he two cases filed were tried jointly, a fee of P3,500would be reasonable.

In view of the foregoing, the decision appealed from is reversed, andthe defendants-appellees are sentenced to indemnify the plaintiffs-appellants in the following amounts: P5,000 to Precillano Necesito,and P15,000 to the heirs of the deceased Severina Garces, plus P3,500by way of attorney's fees and litigation expenses. Costs againstdefendants-appellees. So ordered.

Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, and

Endencia, JJ., concur.

Felix, J., concurs in the result.

R E S O L U T I O N

September 11, 1958

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

Defendants-appellees have Submitted a motion asking this Court toreconsider its decision of June 30, 1958, and that the same be modifiedwith respect to (1) its holding the carrier liable for the breakage of thesteering knuckle that caused the autobus No. 199 to overturn, whereby

the passengers riding in it were injured; (2) the damages awarded, thatappellees argue to be excessive; and (3) the award of attorneys' fees.

(1) The rule prevailing in this jurisdiction as established in previousdecisions of this Court, cited in our main opinion, is that a carrier isliable to its passengers for damages caused by mechanical defects ofthe conveyance. As early as 1924, inLasam vs. Smith, 45 Phil. 659 thisCourt ruled:

As far as the record shows, the accident was caused either by

defects in the automobile or else through the negligence of itsdriver. That is not caso fortuito.

And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court helda common carrier liable in damages to passenger for injuries cause byan accident due to the breakage of a faulty drag-link spring.

It can be seen that while the courts of the United States are at varianceon the question of a carrier's liability for latent mechanical defects, therule in this jurisdiction has been consistent in holding the carrier

responsible. This Court has quoted from American and Englishdecisions, not because it felt bound to follow the same, but merely in

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approval of the rationale of the rule as expressed therein, since theprevious Philippine cases did not enlarge on the ideas underlying thedoctrine established thereby.

The new evidence sought to be introduced do not warrant the grant ofa new trial, since the proposed proof available when the original trialwas held. Said evidence is not newly discovered.

(2) With regard to the indemnity awarded to the child PrecillianoNecesito, the injuries suffered by him are incapable of accuratepecuniary estimation, particularly because the full effect of the injuryis not ascertainable immediately. This uncertainty, however, does notpreclude the right to an indemnity, since the injury is patent and notdenied (Civil Code, Art. 2224). The reasons behind this award areexpounded by the Code Commission in its report:

There are cases where from the nature of the case, definite

proof of pecuniary loss cannot be offered, although the court isconvinced that there has been such loss. For instance, injury toone's commercial credit or to the goodwill of a business firm isoften hard to show with certainty in terms of money. Shoulddamages be denied for that reason? The judge should beempowered to calculate moderate damages in such cases,rather than that the plaintiff should suffer, without redress,from the defendant's wrongful act." (Report of the CodeCommission, p. 75)

In awarding to the heirs of the deceased Severina Garces an indemnityfor the loss of her "guidance, protection and company," although it isbut moral damage, the Court took into account that the case of apassenger who dies in the course of an accident, due to the carrier'snegligence constitutes an exception to the general rule. While, aspointed out in the main decision, under Article 2220 of the new CivilCode there can be no recovery of moral damages for a breach ofcontract in the absence of fraud malice or bad faith, the case of aviolation of the contract of carriage leading to a passenger's deathescapes this general rule, in view of Article 1764 in connection with

Article 2206, No. 3 of the new Civil Code.

ART. 1764. Damages in cases comprised in this Section shallbe awarded in accordance with Title XVIII of this Book,concerning Damages. Article 2206 shall also apply to the deathof a passenger caused by the breach of contract by a commancarrier. ART. 2206. . . .

(3) The spouse, legitimate and eligimate descendants and

ascendants of the deceased may demand moral damages formental anguish by reason of the death of the deceased.

Being a special rule limited to cases of fatal injuries, these articlesprevail over the general rule of Art. 2220. Special provisions controlgeneral ones (Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancio vs.Lizarraga, 55 Phil. 601).

It thus appears that under the new Civil Code, in case of accident dueto a carrier's negligence, the heirs of a deceased passenger may recover

moral damages, even though a passenger who is injured, but managesto survive, is not entitled to them. There is, therefore, no conflictbetween our main decision in the instant case and that ofCachero vs.Manila Yellow Taxi Cab Co., 101 Phil., 523, where the passengersuffered injuries, but did not lose his life.

(3) In the Cachero case this Court disallowed attorneys' fees to theinjured plaintiff because the litigation arose out of his exaggerated andunreasonable deeds for an indemnity that was out of proportion withthe compensatory damages to which he was solely entitled. But in the

present case, plaintiffs' original claims can not be deemed a prioriwholly unreasonable, since they had a right to indemnity for moraldamages besides compensatory ones, and moral damages are notdetermined by set and invariable bounds.

Neither does the fact that the contract between the passengers and theircounsel was on a contingent basis affect the former's right to counselfees. As pointed out for appellants, the Court's award is an party andnot to counsel. A litigant who improvidently stipulate higher counselfees than those to which he is lawfully entitled, does not for that reason

earn the right to a larger indemnity; but, by parity of reasoning, he

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should not be deprived of counsel fees if by law he is entitled torecover them.

We find no reason to alter the main decision heretofore rendered.Ultimately, the position taken by this Court is that a common carrier'scontract is not to be regarded as a game of chance wherein thepassenger stakes his limb and life against the carrier's property and

profits.

Wherefore, the motion for reconsideration is hereby denied. Soordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., BautistaAngelo, Concepcion, Endencia, and Felix, JJ., concur.

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G.R. No. 106279 July 14, 1995

SULPICIO LINES, INC., petitioner,vs.THE HONORABLE COURT OF APPEALS (Twelfth Division)and JACINTA L. PAMALARAN, respondents.

QUIASON, J.:

This is a petition for review on certiorariunder Rule 45 of theRevised Rules of Court to reverse the Decision dated April 8,1992 of the Court of Appeals in CA-G.R. CV No. 21919,affirming the decision of the Regional Trial Court of Bohol,Branch 2, Tagbilaran City, which awarded the claim for

damages filed by private respondent against CBL TimberCorporation (CBL), AGO Lumber Company (ALC), SulpicioLines, Inc. (SLI) and Ernie Santiago (Civil Case No. 2864).

We deny the petition.

I

A contract of carriage was entered into between petitioner andALC for the transport of the latter's timber from Pugad, Lianga,

Surigao del Sur.

On March 17, 1976, petitioner sent its tugboat "MT Edmund"and barge "Solid VI" to Lianga to pick up ALC's timber.However, no loading could be made because of the heavydownpour. The next morning, several stevedores of CBL, whowere hired by ALC, boarded the "Solid VI" and opened itsstoreroom. The stevedores were warned of the gas and heatgenerated by the copra stored in the holds of the ship. Notheeding the warning, a stevedore entered the storeroom and fell

unconscious. Two other stevedores followed, one of whom was

Leoncio L. Pamalaran. He also lost consciousness andeventually died of gas poisoning.

Thus, Civil Case No. 2864 for damages was filed with theRegional Trial Court of Bohol, Branch 2, Tagbilaran byPamalaran's heirs against petitioner CBL, ALC and its manager,Ernie Santiago. The trial court ruled in favor of plaintiffs,

disposing as follows:

WHEREFORE, finding a preponderance of evidence in favorof the plaintiffs, judgment is hereby rendered:

Ordering defendants CBL Timber Corporation, AGO LumberCompany, Sulpicio Lines, Inc. and Ernie Santiago to payplaintiffs jointly and severally:

1. Actual and compensatory damages of P40,000.00;

2. Moral damages of P50,000.00;

3. Attorney's fees of P20,000.00 and the costs of the suit(Rollo, p. 57).

On appeal, the Court of Appeals in its Decision dated April 8,1992 in CA-G.R. No. CV No. 21919, affirmed the lower court'sdecision, the dispositive portion of which reads:

WHEREFORE, WE AFFIRM the appealed judgment therebeing no justifiable reason that warrants the reversal thereof.

Costs against defendant-appellant (Rollo, p. 32).

Not satisfied with the appellate court's decision, petitioner filedthis petition.

II

Petitioner raises the following arguments:

1. Pamalaran was never a passenger of petitioner.

Therefore, it is not liable as a common carrier;

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2. Petitioner and its employees were not negligent in theseries of events which led to the death of Pamalaran;

3. Petitioner is not liable under Article 2180 of the New CivilCode;

4. It is CBL and/or ALC which should be held liable for thedeath of the victim; and,

5. Petitioner should have been granted its just and validcounterclaims and cross claims.

We agree with the Court of Appeals that although Pamalaranwas never a passenger of petitioner, still the latter is liable as acommon carrier for his death. The Court of Appeals relied onCanas v. Dabatos, 8 Court of Appeals Report 918 (1965). Insaid case, 13 persons were on board the vessel of defendantnot as passengers but as 'cargadores' of the shipper's goods.

They were there with the consent and knowledge of the ownerof the vessel. Despite the absence of a passenger-carrierrelationship between them, the appellate court, just the same,held the patron thereof liable as a common carrier. Theappellate court ruled:

There is no debate as to the fact that not one of the thirteenpassengers have paid an amount of money as fare for theirconveyance from Hingotanan to Cebu. The undisputed fact,however, is that all of them were in the boat with theknowledge and consent of the patron. The eleven

passengers, other than Encarnacion and Diosdado were inthe boat because they have helped in loading cargoes in theboat, and"to serve as cargadores of the cargoes,"

presumably, in unloading them at the place of destination.For those services they were permitted to be in the boat andto proceed to their destination in Cebu. The servicesrendered were the valuable consideration in exchange forthe transportation fare. "In onerous contracts the cause isunderstood to be, for each contracting party, the prestationor promise of a thing or service by the other; . . ." (at p. 925;emphasis supplied).

ALC had a contract of carriage with petitioner. The presence ofthe stevedores sent by ALC on board the barge of petitioner

was called for by the contract of carriage. For how else would itslumber be transported unless it is placed on board? And bywhom? Of course, the stevedores. Definitely, petitioner couldnot expect the shipper itself to load the lumber without the aid ofthe stevedores. Furthermore, petitioner knew of the presenceand role of the stevedores in its barge and thus consented totheir presence. Hence, petitioner was responsible for their

safety while on board the barge.

Petitioner next claims that its employees even warned thestevedores and tried to prevent their entry into the storeroom.Such argument, again, is demolished by the findings of theCourt of Appeals, thus:

. . . . However, appellant failed to prove that its employeeswere actually trained or given specific instructions to see to itthat the barge is fit and safe not only in transporting goodsbut also for people who would be loading the cargo into the

bodega of the barge. It is not enough that appellant'semployees have warned the laborers not to enter the bargeafter the hatch was opened.Appellant's employees shouldhave been sufficiently instructed to see to it that the hatch ofthe barge is not opened by any unauthorized person andthat the hatch is not easily opened by anyone. At the veryleast, precautionary measures should have been observedby appellant's employees to see to it that no one could enterthe bodega of the barge until after they have made sure thatit is safe for anyone to enter the same. Failing to exercisedue diligence in the supervision of its employees, the lowercourt was correct in holding appellant liable for damages

(Rollo, pp. 31-32; Emphasis supplied).

Inasmuch as the findings of the Court of Appeals are merely anaffirmance of the findings of the trial court, which findings aresupported by the evidence, we do not find any reason to reversethe same.

There is no quarrel that ALC and CBL are also liable as theywere in fact held liable by both the trial and appellate courts.

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Both the counterclaims and cross claims of petitioner arewithout legal basis. The counterclaims and cross claims werebased on the assumption that the other defendants are the onessolely liable. However, inasmuch as its solidary liability with theother defendants has clearly been established by both the trialand the appellate courts, which we find to be in order, wecannot make a different conclusion contrary to that of the said

courts.

Finally, the indemnity for the death of Leoncio L. Pamalaran isincreased from P40,000.00 to P50,000.00 in accordance withour ruling in People v. Flores, 237 SCRA 653 (1994).

WHEREFORE, the Decision of the Court of Appeals isAFFIRMED with the MODIFICATION that the award of actualand compensatory damages is increased to P50,000.00.

SO ORDERED.

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

Bellosillo, J., is on leave.

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G.R. No. 161730 January 28, 2005

JAPAN AIRLINES,petitioner,vs.MICHAEL ASUNCION and JEANETTE ASUNCION,

respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for review seeks to reverse and set aside the October 9,2002 decision1 of the Court of Appeals and its January 12, 2004resolution,2 which affirmed in toto the June 10, 1997 decision of theRegional Trial Court of Makati City, Branch 61 in Civil Case No. 92-3635.3

On March 27, 1992, respondents Michael and Jeanette Asuncion leftManila on board Japan Airlines (JAL) Flight 742 bound for LosAngeles. Their itinerary included a stop-over in Narita and anovernight stay at Hotel Nikko Narita. Upon arrival at Narita, Mrs.Noriko Etou-Higuchi of JAL endorsed their applications for shore passand directed them to the Japanese immigration official.4 A shore passis required of a foreigner aboard a vessel or aircraft who desires to stayin the neighborhood of the port of call for not more than 72 hours.

During their interview, the Japanese immigration official noted thatMichael appeared shorter than his height as indicated in his passport.Because of this inconsistency, respondents were denied shore passentries and were brought instead to the Narita Airport Rest Housewhere they were billeted overnight.

The immigration official also handed Mrs. Higuchi a Notice5 where itwas stated that respondents were to be "watched so as not to escape".

Mr. Atsushi Takemoto of the International Service Center (ISC), the

agency tasked by Japans Immigration Department to handle

passengers who were denied shore pass entries, brought respondents tothe Narita Airport Rest House where they stayed overnight until theirdeparture the following day for Los Angeles. Respondents werecharged US$400.00 each for their accommodation, security serviceand meals.

On December 12, 1992, respondents filed a complaint for damages6

claiming that JAL did not fully apprise them of their travelrequirements and that they were rudely and forcibly detained at NaritaAirport.

JAL denied the allegations of respondents. It maintained that therefusal of the Japanese immigration authorities to issue shore passes torespondents is an act of state which JAL cannot interfere with orprevail upon. Consequently, it cannot impose upon the immigrationauthorities that respondents be billeted at Hotel Nikko instead of theairport resthouse.7

On June 10, 1997, the trial court rendered its decision, the dispositiveportion of which reads:

WHEREFORE PREMISES CONSIDERED, judgment is herebyrendered in favor of plaintiffs ordering defendant JAL to pay plaintiffsas follows:

1. the sum of US$800.00 representing the expenses incurred atthe Narita Airport with interest at 12% per annum from March

27, 1992 until the sum is fully paid;

2. the sum of P200,000.00 for each plaintiff as moral damages;

3. the amount of P100,000.00 for each plaintiff as exemplarydamages;

4. the amount of P100,000.00 as attorneys fees; and

5. costs of suit.

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SO ORDERED.8

The trial court dismissed JALs counterclaim for litigation expenses,exemplary damages and attorneys fees.

On October 9, 2002, the Court of Appeals affirmed in toto the decisionof the trial court. Its motion for reconsideration having been denied,9

JAL now files the instant petition.

The basic issue for resolution is whether JAL is guilty of breach ofcontract.

Under Article 1755 of the Civil Code, a common carrier such as JALis bound to carry its passengers safely as far as human care andforesight can provide, using the utmost diligence of very cautiouspersons, with due regard for all the circumstances. When an airlineissues a ticket to a passenger, confirmed for a particular flight on a

certain date, a contract of carriage arises. The passenger has everyright to expect that he be transported on that flight and on that date andit becomes the carriers obligation to carry him and his luggagesafely to the agreed destination.10If the passenger is not so transportedor if in the process of transporting he dies or is injured, the carrier maybe held liable for a breach of contract of carriage.11

We find that JAL did not breach its contract of carriage withrespondents. It may be true that JAL has the duty to inspect whether itspassengers have the necessary travel documents, however, such duty

does not extend to checking the veracity of every entry in thesedocuments. JAL could not vouch for the authenticity of a passport andthe correctness of the entries therein. The power to admit or not analien into the country is a sovereign act which cannot be interferedwith even by JAL. This is not within the ambit of the contract ofcarriage entered into by JAL and herein respondents. As such, JALshould not be faulted for the denial of respondents shore passapplications.

Prior to their departure, respondents were aware that upon arrival in

Narita, they must secure shore pass entries for their overnight stay.

Respondentsmother, Mrs. Imelda Asuncion, insisted though thatMs. Linda Villavicencio of JAL assured her that her children would begranted the passes.12This assertion was satisfactorily refuted by Ms.Villavicencios testimony during the cross examination, to wit:

ATTY. GONZAGA:

Q I will show to you Exh. 9 which is the TIM and on page 184hereof, particularly number 10, and I quote, "Those holdingtickets with confirmed seats and other documents for theironward journey and continuing their journey to a third countryprovided that they obtain an indorsement with an application ofshore pass or transit pass from the airline ground personnelbefore clearing the immigration formality?"

WITNESS:

A Yes, Sir.

Q Did you tell this provision to Mrs. Asuncion?

A Yes, Sir. I did.

Q Are you sure?

A Yes, Sir.

Q Did you give a copy?

A No, Sir, I did not give a copy but verbally I explained to herthe procedure they have to undergo when they get to naritaairport.

.

Q And you read the contents of this [TIM]?

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A No, Sir, I did not read it to her but I explained to her theprocedure that each passenger has to go through before whenthey get to narita airport before they line up in the immigrationcounter.

Q In other words, you told Mrs. Asuncion the responsibility ofsecuring shore passes bears solely on the passengers only?

A Yes, Sir.

Q That the airline has no responsibility whatsoever withregards (sic) to the application for shore passes?

A Yes, Sir.13

Next, respondents claimed that petitioner breached its contract ofcarriage when it failed to explain to the immigration authorities that

they had overnight vouchers at the Hotel Nikko Narita. They imputedthat JAL did not exhaust all means to prevent the denial of their shorepass entry applications.

To reiterate, JAL or any of its representatives have no authority tointerfere with or influence the immigration authorities. The most thatcould be expected of JAL is to endorse respondents applications,which Mrs. Higuchi did immediately upon their arrival in Narita.

As Mrs. Higuchi stated during her deposition:

ATTY. QUIMBO

Q: Madam Witness, what assistance did you give, if any, to theplaintiffs during this interview?

A: No, I was not present during their interview. I cannot assist.

Q: Why not?

A: It is forbidden for a civilian personnel to interfere with theImmigration agents duties.14

.

Q: During the time that you were in that room and you weregiven this notice for you to sign, did you tell the immigration

agent that Michael and Jeanette Asuncion should be allowed tostay at the Hotel Nikko Narita because, as passengers of JAL,and according to the plaintiff, they had vouchers to stay in thathotel that night?

A: No, I couldnt do so.

Q: Why not?

A: This notice is evidence which shows the decision of

immigration authorities. It shows there that the immigrationinspector also designated Room 304 of the Narita AirportResthouse as the place where the passengers were going to waitfor their outbound flight.1awphi1.ntI cannot interfere withthat decision.15

Mrs. Higuchi did all she could to assist the respondents. Upon beingnotified of the denial of respondents applications, Mrs. Higuchiimmediately made reservations for respondents at the Narita AirportRest House which is really more a hotel than a detention house as

claimed by respondents.16

More importantly, nowhere in respondent Michaels testimony didhe state categorically that Mrs. Higuchi or any other employee of JALtreated them rudely or exhibited improper behavior throughout theirstay. We therefore find JAL not remiss in its obligations as a commoncarrier.1awphi1.nt

Moral damages may be recovered in cases where one willfully causesinjury to property, or in cases of breach of contract where the other

party acts fraudulently or in bad faith. Exemplary damages are

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imposed by way of example or correction for the public good, whenthe party to a contract acts in wanton, fraudulent, oppressive ormalevolent manner. Attorneys fees are allowed when exemplarydamages are awarded and when the party to a suit is compelled toincur expenses to protect his interest.17 There being no breach ofcontract nor proof that JAL acted in wanton, fraudulent or malevolentmanner, there is no basis for the award of any form of damages.

Neither should JAL be held liable to reimburse respondents theamount of US$800.00. It has been sufficiently proven that the amountpertained to ISC, an agency separate and distinct from JAL, inpayment for the accommodations provided to respondents. Thepayments did not in any manner accrue to the benefit of JAL.

However, we find that the Court of Appeals correctly dismissedJALs counterclaim for litigation expenses, exemplary damages andattorneys fees. The action was filed by respondents in utmost good

faith and not manifestly frivolous. Respondents honestly believed thatJAL breached its contract. A persons right to litigate should not bepenalized by holding him liable for damages. This is especially truewhen the filing of the case is to enforce what he believes to be hisrightful claim against another although found to be erroneous.18

WHEREFORE, in view of the foregoing, the instant petition isPARTLY GRANTED. The October 9, 2002 decision of the Court ofAppeals and its January 12, 2004 resolution in CA-G.R. CV No.57440, are REVERSED and SET ASIDE insofar as the finding of

breach on the part of petitioner and the award of damages, attorneysfees and costs of the suit in favor of respondents is concerned.Accordingly, there being no breach of contract on the part ofpetitioner, the award of actual, moral and exemplary damages, as wellas attorneys fees and costs of the suit in favor of respondentsMichael and Jeanette Asuncion, is DELETED for lack of basis.However, the dismissal for lack of merit of petitioners counterclaimfor litigation expenses, exemplary damages and attorneys fees, isSUSTAINED. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Carpio, and Azcuna, JJ., concur.

Quisumbing, J., no part.

Footnotes

1 Penned by Associate Justice Elvi John S. Asuncion asconcurred in by Associate Justices Portia Alio-Hormachuelosand Juan Q. Enriquez, Jr.,Rollo, pp. 67-74.

2Rollo, p. 76.

3 Penned by Judge Fernando V. Gorospe, Jr.,Rollo, pp. 87-92.

4 Mrs. Higuchis Deposition, 21 September 1994, Records,

pp. 583-585.

5 Exhibit 1-E-Deposition, Records, p. 627.

6Rollo, pp. 77-81.

7Id., p. 84.

8Id., p. 92

9

Id., p. 76.

10 Cathay Pacific Airways, Ltd. v. Court of Appeals, G.R. No.60501, 5 March 1993, 219 SCRA 520, 524.

11Singapore Airlines Limited v. Fernandez, G.R. No. 142305 ,10 December 2003, 417 SCRA 474, 480, citing AlitaliaAirways v. Court of Appeals, G.R. No. 77011, 24 July 1990,187 SCRA 763, 770.

12

Records, p. 327.

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13 TSN, Linda Villavicencio, 21 July 1994, Records, pp. 403-406.

14 Mrs. Higuchis Deposition, Records, p. 586.

15Id., pp. 589-590.

16 Exhibits 1-H-Deposition, 1-J-Deposition to 1-N-Deposition,Records, pp. 630, 632-634.

17Rivera, et al. v. Del Rosario, et al., G.R. No. 144934 , 15January 2004.

18 J. Marketing Corp. v. Sia, Jr., 349 Phil. 513, 517 (1998).

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G.R. No. L-29462 March 7, 1929

IGNACIO DEL PRADO, plaintiff-appellee,vs.MANILA ELECTRIC CO., defendant-appellant.

Ross, Lawrence and Selph and Antonio T. Carrascoso, jr., forappellant.Vicente Sotto for appellee.

STREET,J.:

This action was instituted in the Court of First Instance of Manila byIgnacio del Prado to recover damages in the amount of P50,000 forpersonal injuries alleged to have been caused by the negligence of tedefendant, the Manila Electric Company, in the operation of one of its

street cars in the City of Manila. Upon hearing the cause the trial courtawarded to the plaintiff the sum of P10,000, as damages, with costs ofsuit, and the defendant appealed.

The appellant, the Manila Electric Company, is engaged in operatingstreet cars in the City for the conveyance of passengers; and on themorning of November 18, 1925, one Teodorico Florenciano, asappellant's motorman, was in charge of car No. 74 running from eastto west on R. Hidalgo Street, the scene of the accident being at a pointnear the intersection of said street and Mendoza Street. After the car

had stopped at its appointed place for taking on and letting offpassengers, just east of the intersection, it resumed its course at amoderate speed under the guidance of the motorman. The car hadproceeded only a short distance, however, when the plaintiff, Ignaciodel Prado, ran across the street to catch the car, his approach beingmade from the left. The car was of the kind having entrance and existat either end, and the movement of the plaintiff was so timed that hearrived at the front entrance of the car at the moment when the car waspassing.

The testimony of the plaintiff and of Ciriaco Guevara, one of hiswitnesses, tends to shows that the plaintiff, upon approaching the car,

raised his hand as an indication to the motorman of his desire to boardthe car, in response to which the motorman eased up a little, withoutstopping. Upon this the plaintiff seized, with his hand, the frontperpendicular handspot, at the same time placing his left foot upon theplatform. However, before the plaintiff's position had become secure,and even before his raised right foot had reached the flatform, themotorman applied the power, with the result that the car gave a slight

lurch forward. This sudden impulse to the car caused the plaintiff'sfoot to slip, and his hand was jerked loose from the handpost, Hetherefore fell to the ground, and his right foot was caught and crushedby the moving car. The next day the member had to be amputated inthe hospital. The witness, Ciriaco Guevara, also stated that, as theplaintiff started to board the car, he grasped the handpost on either sidewith both right and left hand. The latter statement may possibly beincorrect as regards the use of his right hand by the plaintiff, but weare of the opinion that the finding of the trial court to the effect that themotorman slowed up slightly as the plaintiff was boarding the car that

the plaintiff's fall was due in part at lease to a sudden forwardmovement at the moment when the plaintiff put his foot on theplatform is supported by the evidence and ought not to be disturbed byus.

The motorman stated at the trial that he did not see the plaintiffattempting to board the car; that he did not accelerate the speed of thecar as claimed by the plaintiff's witnesses; and that he in fact knewnothing of the incident until after the plaintiff had been hurt and someone called to him to stop. We are not convinced of the complete

candor of this statement, for we are unable to see how a motormanoperating this car could have failed to see a person boarding the carunder the circumstances revealed in this case. It must be rememberedthat the front handpost which, as all witness agree, was grasped by theplaintiff in attempting to board the car, was immediately on the leftside of the motorman.

With respect to the legal aspects of the case we may observe at theoutset that there is no obligation on the part of a street railwaycompany to stop its cars to let on intending passengers at other points

than those appointed for stoppage. In fact it would be impossible tooperate a system of street cars if a company engage in this business

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were required to stop any and everywhere to take on people who weretoo indolent, or who imagine themselves to be in too great a hurry, togo to the proper places for boarding the cars. Nevertheless, althoughthe motorman of this car was not bound to stop to let the plaintiff on, itwas his duty to do act that would have the effect of increasing theplaintiff's peril while he was attempting to board the car. Thepremature acceleration of the car was, in our opinion, a breach of this

duty.

The relation between a carrier of passengers for hire and its patrons isof a contractual nature; and in failure on the part of the carrier to usedue care in carrying its passengers safely is a breach of duty (culpacontructual) under articles 1101, 1103 and 1104 of the Civil Code.Furthermore, the duty that the carrier of passengers owes to its patronsextends to persons boarding the cars as well as to those alightingtherefrom. The case of Cangco vs. Manila Railroad Co. (38 Phil., 768),supplies an instance of the violation of this duty with respect to a

passenger who was getting off of a train. In that case the plaintiffstepped off of a moving train, while it was slowing down in a station,and at the time when it was too dark for him to see clearly where hewas putting his feet. The employees of the company had carelessly leftwatermelons on the platform at the place where the plaintiff alighted,with the result that his feet slipped and he fell under the car, where hisright arm badly injured. This court held that the railroad company wasliable for breach positive duty (culpa contractual), and the plaintiffwas awarded damages in the amount of P2,500 for the loss of his arm.In the opinion in that case the distinction is clearly drawn between a

liability for negligence arising from breach of contructual duty and thatarising articles 1902 and 1903 of the Civil Code (culpa aquiliana).

The distiction between these two sorts of negligence is important inthis jurisdiction, for the reason that where liability arises from a meretort (culpa aquiliana), not involving a breach of positive obligation, anemployer, or master, may exculpate himself, under the last paragraphof article 1903 of the Civil Code, by providing that he had exerciseddue degligence to prevent the damage; whereas this defense is notavailable if the liability of the master arises from a breach of

contrauctual duty (culpa contractual). In the case bfore us thecompany pleaded as a special defense that it had used all the deligence

of a good father of a family to prevent the damage suffered by theplaintiff; and to establish this contention the company introducedtestimony showing that due care had been used in training andinstructing the motorman in charge of this car in his art. But this proofis irrelevant in view of the fact that the liability involved was derivedfrom a breach of obligation under article 1101 of the Civil Code andrelated provisions. (Manila Railroad Co. vs. Compana Transatlantica

and Atlantic, Gulf & Pacific Co., 38 Phil., 875, 887; De Guia vs.Manila Electric Railroad & Light Co., 40 Phil., 706, 710.)

Another practical difference between liability for negligence arisingunder 1902 of the Civil Code and liability arising from negligence inthe performance of a positive duty, under article 1101 and relatedprovisions of the Civil Code, is that, in dealing with the latter form ofnegligence, the court is given a discretion to mitigate liabilityaccording to the circumstances of the case (art 1103). No such generaldiscretion is given by the Code in dealing with liability arising under

article 1902; although possibly the same end is reached by courts indealing with the latter form of liability because of the latitude of theconsiderations pertinent to cases arising under this article.

As to the contributory negligence of the plaintiff, we are of the opinionthat it should be treated, as in Rakes vs. Atlantic, Gulf and Pacific Co.(7 Phil., 359), as a mitigating circumstance under article 1103 of theCivil Code. It is obvious that the plaintiff's negligence in attempting toboard the moving car was not the proximate cause of the injury. Thedirect and proximate cause of the injury was the act of appellant's

motorman in putting on the power prematurely. A person boarding amoving car must be taken to assume the risk of injury from boardingthe car under the conditions open to his view, but he cannot fairly beheld to assume the risk that the motorman, having the situation inview, will increase his peril by accelerating the speed of the car beforehe is planted safely on the platform. Again, the situation before us isone where the negligent act of the company's servant succeeded thenegligent act of the plaintiff, and the negligence of the company mustbe considered the proximate cause of the injury. The rule hereapplicable seems to be analogous to, if not identical with that which is

sometimes referred to as the doctrine of "the last clear chance." Inaccordance with this doctrine, the contributory negligence of the party

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injured will not defeat the action if it be shown that the defendantmight, by the exercise of reasonable care and prudence, have avoidedthe consequences of the negligence of the injured party (20 R. C. L., p.139; Carr vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W., 167). Thenegligence of the plaintiff was, however, contributory to the accidentand must be considered as a mitigating circumstance.

With respect to the effect of this injury upon the plaintiff's earningpower, we note that, although he lost his foot, he is able to use anartificial member without great inconvenience and his earning capacityhas probably not been reduced by more than 30 per centum. In view ofthe precedents found in our decisions with respect to the damages thatought to be awarded for the loss of limb, and more particularly Rakesvs. Atlantic, Gulf and Pacific Co. (7 Phil., 359); Cangco vs. ManilaRailroad Co. (38 Phil., 768); and Borromeo vs. Manila ElectricRailroad and Light Co. (44 Phil., 165), and in view of all thecircumstances connected with the case, we are of the opinion that the

plaintiff will be adequately compensated by an award of P2,500.

It being understood, therefore, that the appealed judgment is modifiedby reducing the recovery to the sum of P2,500, the judgment, as thusmodified, is affirmed. So ordered, with costs against the appellant.

Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Separate Opinions

JOHNSON,J., dissenting:

This appeal presents a hard case, whichever way it is decided.

I read the entire record in this case before it was submitted to thesecond division for decision. I was then the ponente. I was thenconvinced, as I am now, after a re-examination of the record, that thejudgment of the lower court should be revoked for the following

reasons:

(a) That the motorman managed the car carefully and withordinary prudence at the moment the alleged accident occured;

(b) That the appellee acted with imprudence and lack of duecare in attempting to board a street car while the same was inmotion; and

(c) That he contributed to his own injury, without anynegligence or malice or imprudence on the part of thedefendant.

There is nothing in the record which even remotely justifies acontribution of damages between the appellee and the appellant. Theappellee should be required to suffer the damages which he himself,through his own negligence, occasioned, without any negligence,imprudence or malice on the part of the appellant.

Therefore, the judgment of the court a quo should be revoked, and theappellant absolved from all liability under the complaint.

Johns, J., concur.

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

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

ET AL., respondents.

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

BARRERA,J.:

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

damages.

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

On December 20, 1953, at about noontime, plaintiffs, husbandand 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, bearingplate TPU No. 757 (1953 Pampanga), owned and operated bythe defendant, at San Fernando, Pampanga, bound for Anao,

Mexico, Pampanga. At the time, they were carrying with themfour pieces of baggages containing their personal belonging.The conductor of the bus, who happened to be a half-brother ofplaintiff Mariano Beltran, issued three tickets (Exhs. A, B, &C) covering the full fares of the plaintiff and their eldest child,Milagros. No fare was charged on Raquel and Fe, since bothwere below the height at which fare is charged in accordancewith the appellant's rules and regulations.

After about an hour's trip, the bus reached Anao whereat it

stopped to allow the passengers bound therefor, among whom

were the plaintiffs and their children to get off. With respect tothe group of the plaintiffs, Mariano Beltran, then carrying someof their baggages, was the first to get down the bus, followedby his wife and his children. Mariano led his companions to ashaded spot on the left pedestrians side of the road about fouror five meters away from the vehicle. Afterwards, he returnedto the bus in controversy to get his otherbayong, which he had

left behind, but in so doing, his daughter Raquel followed him,unnoticed by her father. While said Mariano Beltran was on therunning board of the bus waiting for the conductor to hand himhis bayongwhich he left under one of its seats near the door,the bus, whose motor was not shut off while unloading,suddenly started moving forward, evidently to resume its trip,notwithstanding the fact that the conductor has not given thedriver the customary signal to start, since said conductor wasstill 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 theplaintiffs had gotten off.

Sensing that the bus was again in motion, Mariano Beltranimmediately jumped from the running board without gettinghis bayongfrom the conductor. He landed on the side of theroad almost in front of the shaded place where he left his wifeand children. At that precise time, he saw people beginning togather around the body of a child lying prostrate on the ground,her skull crushed, and without life. The child was none other

than his daughter Raquel, who was run over by the bus inwhich she rode earlier together with her parents.

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

On the basis of these facts, the trial court found defendant liable forbreach of contract of carriage and sentenced it to pay P3,000.00 for the

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death of the child and P400.00 as compensatory damages representingburial expenses and costs.

On appeal to the Court of Appeals, La Mallorca claimed that therecould not be a breach of contract in the case, for the reason that whenthe child met her death, she was no longer a passenger of the businvolved in the incident and, therefore, the contract of carriage had

already terminated. Although the Court of Appeals sustained thistheory, it nevertheless found the defendant-appellant guilty ofquasi-delictand held the latter liable for damages, for the negligence of itsdriver, in accordance with Article 2180 of the Civil Code. And, theCourt of Appeals did not only find the petitioner liable, but increasedthe damages awarded the plaintiffs-appellees to P6,000.00, instead ofP3,000.00 granted by the trial court.

In its brief before us, La Mallorca contends that the Court of Appealserred (1) in holding it liable forquasi-delict, considering that

respondents complaint was one for breach of contract, and (2) inraising the award of damages from P3,000.00 to P6,000.00 althoughrespondents did not appeal from the decision of the lower court.

Under the facts as found by the Court of Appeals, we have to sustainthe judgement holding petitioner liable for damages for the death ofthe child, Raquel Beltran. It may be pointed out that although it is truethat respondent Mariano Beltran, his wife, and their children(including the deceased child) had alighted from the bus at a placedesignated for disembarking or unloading of passengers, it was also

established that the father had to return to the vehicle (which was stillat a stop) to get one of his bags orbayongthat was left under one ofthe seats of the bus. There can be no controversy that as far as thefather is concerned, when he returned to the bus for his bayongwhichwas not unloaded, the relation of passenger and carrier between himand the petitioner remained subsisting. For, the relation of carrier andpassenger does not necessarily cease where the latter, after alightingfrom the car, aids the carrier's servant or employee in removing hisbaggage from the car.1 The issue to be determined here is whether asto the child, who was already led by the father to a place about 5

meters away from the bus, the liability of the carrier for her safetyunder the contract of carriage also persisted.

It has been recognized as a rule that the relation of carrier andpassenger does not cease at the moment the passenger alights from thecarrier's vehicle at a place selected by the carrier at the point ofdestination, but continues until the passenger has had a reasonabletime or a reasonable opportunity to leave the carrier's premises. And,what is a reasonable time or a reasonable delay within this rule is to bedetermined from all the circumstances. Thus, a person who, after

alighting from a train, walks along the station platform is consideredstill a passenger.2 So also, where a passenger has alighted at hisdestination and is proceeding by the usual way to leave the company'spremises, but before actually doing so is halted by the report that hisbrother, a fellow passenger, has been shot, and he in good faith andwithout intent of engaging in the difficulty, returns to relieve hisbrother, he is deemed reasonably and necessarily delayed and thuscontinues to be a passenger entitled as such to the protection of therailroad and company and its agents.3

In the present case, the father returned to the bus to get one of hisbaggages which was not unloaded when they alighted from the bus.Raquel, the child that she was, must have followed the father.However, although the father was still on the running board of the busawaiting for the conductor to hand him the bag orbayong, the busstarted to run, so that even he (the father) had to jump down from themoving vehicle. It was at this instance that the child, who must be nearthe bus, was run over and killed. In the circumstances, it cannot beclaimed that the carrier's agent had exercised the "utmost diligence" ofa "very cautions person" required by Article 1755 of the Civil Code to

be observed by a common carrier in the discharge of its obligation totransport safely its passengers. In the first place, the driver, althoughstopping the bus, nevertheless did not put off the engine. Secondly, hestarted to run the bus even before the bus conductor gave him thesignal to go and while the latter was still unloading part of thebaggages of the passengers Mariano Beltran and family. The presenceof said passengers near the bus was not unreasonable and they are,therefore, to be considered still as passengers of the carrier, entitled tothe protection under their contract of carriage.

But even assuming arguendo that the contract of carriage has alreadyterminated, herein petitioner can be held liable for the negligence of its

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driver, as ruled by the Court of Appeals, pursuant to Article 2180 ofthe Civil Code. Paragraph 7 of the complaint, which reads

That aside from the aforesaid breach of contract, the death ofRaquel Beltran, plaintiffs' daughter, was caused by thenegligence and want of exercise of the utmost diligence of avery cautious person on the part of the defendants and their

agent, necessary to transport plaintiffs and their daughter safelyas far as human care and foresight can provide in the operationof their vehicle.

is clearly an allegation forquasi-delict. The inclusion of this avermentforquasi-delict, while incompatible with the other claim under thecontract of carriage, is permissible under Section 2 of Rule 8 of theNew Rules of Court, which allows a plaintiff to allege causes of actionin the alternative, be they compatible with each other or not, to the endthat the real matter in controversy may be resolved and determined. 4

The plaintiffs sufficiently pleaded the culpa or negligence upon whichthe claim was predicated when it was alleged in the complaint that "thedeath of Raquel Beltran, plaintiffs' daughter, was caused by thenegligence and want of exercise of the utmost diligence of a verycautious person on the part of the defendants and their agent." Thisallegation was also proved when it was established during the trial thatthe driver, even before receiving the proper signal from the conductor,and while there were still persons on the running board of the bus andnear it, started to run off the vehicle. The presentation of proof of the

negligence of its employee gave rise to the presumption that thedefendant employer did not exercise the diligence of a good father ofthe family in the selection and supervision of its employees. And thispresumption, as the Court of Appeals found, petitioner had failed toovercome. Consequently, petitioner must be adjudged peculiarilyliable for the death of the child Raquel Beltran.

The increase of the award of damages from P3,000.00 to P6,000.00 bythe Court of Appeals, however, cannot be sustained. Generally, theappellate court can only pass upon and consider questions or issues

raised and argued in appellant's brief. Plaintiffs did not appeal fromthat portion of the judgment of the trial court awarding them on

P3,000.00 damages for the death of their daughter. Neither does itappear that, as appellees in the Court of Appeals, plaintiffs havepointed out in their brief the inadequacy of the award, or that theinclusion of the figure P3,000.00 was merely a clerical error, in orderthat the matter may be treated as an exception to the general rule. 5

Herein petitioner's contention, therefore, that the Court of Appealscommitted error in raising the amount of the award for damages is,

evidently, meritorious.1wph1.t

Wherefore, the decision of the Court of Appeals is hereby modified bysentencing, the petitioner to pay to the respondents Mariano Beltran, etal., 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 thisinstance. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P.,

Zaldivar, Sanchez and Castro, JJ., concur.

Makalintal, J., concurs in the result.

Footnotes

1Ormond v. Hayer, 60 Tex. 180, cited in 10 C.J. 626.

2Keefe v. Boston, etc., R. Co., 142 Mass. 251, 7 NE 874.

3Layne v. Chesapeake, etc. R. Co., 68 W. Va. 213, 69 SE 700,31 LRANS 414.

4Melayan, et al. v. Melayan, et al., G.R. No. L-14518, Aug. 29,1960.

5Sec. 7, Rule 51, new Rules of Court.

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G.R. No. 84458 November 6, 1989

ABOITIZ SHIPPING CORPORATION, petitioner,vs.HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILAC. VIANA, SPS. ANTONIO VIANA and GORGONIA VIANA,

and PIONEER STEVEDORING CORPORATION, respondents.

Herenio E. Martinez for petitioner.

M.R. Villaluz Law Office for private respondent.

REGALADO, J.:

In this appeal by certiorari, petitioner Aboitiz ShippingCorporation seeks a review of the decision 1of respondent Courtof Appeals, dated July 29, 1988, the decretal portion of whichreads:

WHEREFORE, the judgment appealed from as modified bythe order of October 27, 1982, is hereby affirmed with themodification that appellant Aboitiz Shipping is herebyordered to pay plaintiff-appellees the amount of P30,000.00for the death of Anacleto Viana; actual damages ofP9,800.00; P150,000.00 for unearned income; P7,200.00 as

support for deceased's parents; P20,000.00 as moraldamages; P10,000.00 as attorney's fees; and to pay thecosts.

The undisputed facts of the case, as found by the court a quoand adopted by respondent court, are as follows: .

The evidence disclosed that on May 11, 1975, AnacletoViana boarded the vessel M/V Antonia, owned by defendant,at the port at San Jose, Occidental Mindoro, bound forManila, having purchased a ticket (No. 117392) in the sum ofP23.10 (Exh. 'B'). On May 12, 1975, said vessel arrived atPier 4, North Harbor, Manila, and the passengers therein

disembarked, a gangplank having been provided connectingthe side of the vessel to the pier. Instead of using saidgangplank Anacleto Viana disembarked on the third deckwhich was on the level with the pier. After said vessel hadlanded, the Pioneer Stevedoring Corporation took over theexclusive control of the cargoes loaded on said vesselpursuant to the Memorandum of Agreement dated July 26,1975 (Exh. '2') between the third party defendant PioneerStevedoring Corporation and defendant Aboitiz Shipping

Corporation.

The crane owned by the third party defendant and operatedby its crane operator Alejo Figueroa was placed alongsidethe vessel and one (1) hour after the passengers of saidvessel had disembarked, it started operation by unloadingthe cargoes from said vessel. While the crane was beingoperated, Anacleto Viana who had already disembarkedfrom said vessel obviously remembering that some of hiscargoes were still loaded in the vessel, went back to thevessel, and it was while he was pointing to the crew of thesaid vessel to the place where his cargoes were loaded thatthe crane hit him, pinning him between the side of the vesseland the crane. He was thereafter brought to the hospitalwhere he later expired three (3) days thereafter, on May 15,1975, the cause of his death according to the DeathCertificate (Exh. "C") being "hypostatic pneumoniasecondary to traumatic fracture of the pubic bone laceratingthe urinary bladder" (See also Exh. "B"). For hishospitalization, medical, burial and other miscellaneousexpenses, Anacleto's wife, herein plaintiff, spent a total ofP9,800.00 (Exhibits "E", "E-1", to "E-5"). Anacleto V