G.R. No.

85691 July 31, 1990 much as possible accidents; the incident on August 1, 1980 was not a traffic accident or vehicular
accident; it was an incident or event very much beyond the control of the defendants; defendants
BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners, were not parties to the incident complained of as it was an act of a third party who is not in any way
vs. connected with the defendants and of which the latter have no control and supervision; ..." (Rollo, pp.
THE HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER, TEOFILO 112-113).
RAUTRAUT and ZOETERA RAUTRAUT, respondents.
After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.
Aquino W. Gambe for petitioners.
Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of
Tranquilino O. Calo, Jr. for private respondents. the decision of the Court of Appeals states:

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

This is a petition for review of the decision of the Court of Appeals which reversed and set aside the 1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos
order of the Regional Trial Court, Branch I, Butuan City dismissing the private respondents' complaint (P75,000.00) in loss of earnings and support, moral damages, straight death
for collection of "a sum of money" and finding the petitioners solidarily liable for damages in the total indemnity and attorney's fees; and,
amount of One Hundred Twenty Thousand Pesos (P120,000.00). The petitioners also question the
appellate court's resolution denying a motion for reconsideration. 2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos
(P45,000.00) for straight death indemnity, moral damages and attorney's fees. Costs
On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was against appellees. (Rollo, pp. 71-72)
the situs of a stampede which resulted in the death of passengers Ornominio Beter and Narcisa
Rautraut. The petitioners now pose the following questions

The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing What was the proximate cause of the whole incident? Why were the passengers on
Butuan City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that about fifteen board the bus panicked (sic) and why were they shoving one another? Why did
(15) minutes later, a passenger at the rear portion suddenly stabbed a PC soldier which caused Narcisa Rautraut and Ornominio Beter jump off from the running bus?
commotion and panic among the passengers; that when the bus stopped, passengers Ornominio
Beter and Narcisa Rautraut were found lying down the road, the former already dead as a result of The petitioners opine that answers to these questions are material to arrive at "a fair, just and
head injuries and the latter also suffering from severe injuries which caused her death later. The equitable judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension
passenger assailant alighted from the bus and ran toward the bushes but was killed by the police. of facts and its conclusion is grounded on speculation, surmises or conjectures.
Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private respondents herein (Ricardo
Beter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should be As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners
Zotera] Rautraut are the parents of Narcisa) filed a complaint for "sum of money" against Bachelor maintain that it was the act of the passenger who ran amuck and stabbed another passenger of the
Express, Inc. its alleged owner Samson Yasay and the driver Rivera. bus. They contend that the stabbing incident triggered off the commotion and panic among the
passengers who pushed one another and that presumably out of fear and moved by that human
In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. instinct of self-preservation Beter and Rautraut jumped off the bus while the bus was still running
They alleged that ... the driver was able to transport his passengers safely to their respective places of resulting in their untimely death." (Rollo, p. 6) Under these circumstances, the petitioners asseverate
destination except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the that they were not negligent in the performance of their duties and that the incident was completely
knowledge and consent, much less, the fault of the driver and conductor and the defendants in this and absolutely attributable to a third person, the passenger who ran amuck, for without his criminal
case; the defendant corporation had exercised due diligence in the choice of its employees to avoid as act, Beter and Rautraut could not have been subjected to fear and shock which compelled them to
jump off the running bus. They argue that they should not be made liable for damages arising from effect, the petitioner, in order to overcome the presumption of fault or negligence under the law,
acts of third persons over whom they have no control or supervision. states that the vehicular incident resulting in the death of passengers Beter and Rautraut was caused
by force majeure or caso fortuito over which the common carrier did not have any control.
Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident
was driving cautiously giving due regard to traffic rules, laws and regulations. The petitioners also Article 1174 of the present Civil Code states:
argue that they are not insurers of their passengers as ruled by the trial court.
Except in cases expressly specified by law, or when it is otherwise declared by
The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of stipulations, or when the nature of the obligation requires the assumption of risk,
carriage. The applicable provisions of law under the New Civil Code are as follows: no person shall be responsible for those events which could not be foreseen, or
which though foreseen, were inevitable.
ART. 1732. Common carriers are persons, corporations, firms or associations
engaged in the business of carrying or transporting passengers or goods or both by The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which
land, water, or air, for compensation, offering their services to the public. states"

ART. 1733. Common carriers, from the nature of their business and for reasons of No one shall be liable for events which could not be foreseen or which, even if
public policy, are bound to observe extraordinary diligence in the vigilance over the foreseen, were inevitable, with the exception of the cases in which the law expressly
goods and for the safety of the passengers transported by them, according to all the provides otherwise and those in which the obligation itself imposes liability.
circumstances of each case.
In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and
xxx xxx xxx which, having been foreseen, are inevitable in the following manner:

ART. 1755. A common carrier is bound to carry the passengers safely as far as ... The Spanish authorities regard the language employed as an effort to define the
human care and foresight can provide, using the utmost diligence of very cautious term 'caso fortuito' and hold that the two expressions are synonymous. (Manresa
persons, with a due regard for all the circumstances. Comentarios al Codigo Civil Español, vol. 8, pp. 88 et seq.; Scaevola, Codigo Civil, vol.
19, pp. 526 et seq.)
ART. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines
they observed extraordinary diligence as prescribed in Articles 1733 and 1755. caso fortuito as 'occasion que acaese por aventura de que non se puede ante ver. E
son estos, derrivamientos de casas e fuego que enciende a so ora, e
There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its quebrantamiento de navio, fuerca de ladrones' (An event that takes place by
business and for reasons of public policy Bachelor Express, Inc. is bound to carry its passengers safely incident and could not have been foreseen. Examples of this are destruction of
as far as human care and foresight can provide using the utmost diligence of very cautious persons, houses, unexpected fire, shipwreck, violence of robbers ...)
with a due regard for all the circumstances.
Escriche defines caso fortuito as an unexpected event or act of God which could
In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to neither be foreseen nor resisted, such as floods, torrents, shipwrecks,
petitioner Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their conflagrations, lightning, compulsion, insurrections, destruction of buildings by
death. Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is unforeseen accidents and other occurrences of a similar nature.
presumed to have acted negligently unless it can prove that it had observed extraordinary diligence in
accordance with Articles 1733 and 1755 of the New Civil Code. In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española
says: 'In a legal sense and, consequently, also in relation to contracts, a caso fortuito
Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death presents the following essential characteristics: (1) The cause of the unforeseen and
of the said passengers was caused by a third person who was beyond its control and supervision. In unexpected occurrence, or of the failure of the debtor to comply with his obligation,
 must be independent of the human will. (2) It must be impossible to foresee the The parties presented conflicting evidence as to how the two deceased Narcisa
event which constitutes the caso fortuito, or if it can be foreseen, it must be Rautruat and Ornominio Beter met their deaths.
impossible to avoid. (3) The occurrence must be such as to render it impossible for
the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) However, from the evidence adduced by the plaintiffs, the Court could not see why
must be free from any participation in the aggravation of the injury resulting to the the two deceased could have fallen off the bus when their own witnesses testified
creditor. (5) Enciclopedia Juridica Española, 309) that when the commotion ensued inside the bus, the passengers pushed and
shoved each other towards the door apparently in order to get off from the bus
As will be seen, these authorities agree that some extraordinary circumstance through the door. But the passengers also could not pass through the door because
independent of the will of the obligor or of his employees, is an essential element of according to the evidence the door was locked.
a caso fortuito. ...
On the other hand, the Court is inclined to give credence to the evidence adduced
The running amuck of the passenger was the proximate cause of the incident as it triggered off a by the defendants that when the commotion ensued inside the bus, the two
commotion and panic among the passengers such that the passengers started running to the sole exit deceased panicked and, in state of shock and fear, they jumped off from the bus by
shoving each other resulting in the falling off the bus by passengers Beter and Rautraut causing them passing through the window.
fatal injuries. The sudden act of the passenger who stabbed another passenger in the bus is within the
context of force majeure. It is the prevailing rule and settled jurisprudence that transportation companies are
not insurers of their passengers. The evidence on record does not show that
However, in order that a common carrier may be absolved from liability in case of force majeure, it is defendants' personnel were negligent in their duties. The defendants' personnel
not enough that the accident was caused by force majeure. The common carrier must still prove that have every right to accept passengers absent any manifestation of violence or
it was not negligent in causing the injuries resulting from such accident. Thus, as early as 1912, we drunkenness. If and when such passengers harm other passengers without the
ruled: knowledge of the transportation company's personnel, the latter should not be
faulted. (Rollo, pp. 46-47)
From all the foregoing, it is concluded that the defendant is not liable for the loss
and damage of the goods shipped on the lorcha Pilar by the Chinaman, Ong Bien A thorough examination of the records, however, show that there are material facts ignored by the
Sip, inasmuch as such loss and damage were the result of a fortuitous event or force trial court which were discussed by the appellate court to arrive at a different conclusion. These
majeure, and there was no negligence or lack of care and diligence on the part of circumstances show that the petitioner common carrier was negligent in the provision of safety
the defendant company or its agents. (Tan Chiong Sian v. Inchausti & Co., 22 Phil. precautions so that its passengers may be transported safely to their destinations. The appellate court
152 [1912]; Emphasis supplied). states:

This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate A critical eye must be accorded the lower court's conclusions of fact in its tersely
Appellate Court (167 SCRA 379 [1988]), wherein we ruled: written ratio decidendi. The lower court concluded that the door of the bus was
closed; secondly, the passengers, specifically the two deceased, jumped out of the
... [F]or their defense of force majeure or act of God to prosper the accident must be window. The lower court therefore concluded that the defendant common carrier is
due to natural causes and exclusively without human intervention. (Emphasis not liable for the death of the said passengers which it implicitly attributed to the
supplied) unforeseen acts of the unidentified passenger who went amuck.

Therefore, the next question to be determined is whether or not the petitioner's common carrier There is nothing in the record to support the conclusion that the solitary door of the
observed extraordinary diligence to safeguard the lives of its passengers. bus was locked as to prevent the passengers from passing through. Leonila Cullano,
testifying for the defense, clearly stated that the conductor opened the door when
In this regard the trial court and the appellate court arrived at conflicting factual findings. the passengers were shouting that the bus stop while they were in a state of panic.
Sergia Beter categorically stated that she actually saw her son fall from the bus as
the door was forced open by the force of the onrushing passengers.
The trial court found the following facts:
Pedro Collango, on the other hand, testified that he shut the door after the last Q So what happened to the passengers inside your bus?
passenger had boarded the bus. But he had quite conveniently neglected to say that
when the passengers had panicked, he himself panicked and had gone to open the A Some of the passengers jumped out of the window.
door. Portions of the testimony of Leonila Cullano, quoted below, are illuminating:
COURT:
xxx xxx xxx
Q While the bus was in motion?
Q When you said the conductor opened the door, the door at the front or rear
portion of the bus? A Yes, your Honor, but the speed was slow because we have just picked up a
passenger.
A Front door.
Atty. Gambe:
Q And these two persons whom you said alighted, where did they pass, the fron(t)
door or rear door? Q You said that at the time of the incident the bus was running slow because you
have just picked up a passenger. Can you estimate what was your speed at that
A Front door. time?

xxx xxx xxx Atty. Calo:

(Tsn., p. 4, Aug. 8, 1984) No basis, your Honor, he is neither a driver nor a conductor.

xxx xxx xxx COURT:

Q What happened after there was a commotion at the rear portion of the bus? Let the witness answer. Estimate only, the conductor experienced.

A When the commotion occurred, I stood up and I noticed that there was a Witness:
passenger who was sounded (sic). The conductor panicked because the passengers
were shouting 'stop, stop'. The conductor opened the bus.' Not less than 30 to 40 miles.

(Tsn. p. 3, August 8, 1984). COURT:

Accordingly, there is no reason to believe that the deceased passengers jumped Kilometers or miles?
from the window when it was entirely possible for them to have alighted through
the door. The lower court's reliance on the testimony of Pedro Collango, as the
A Miles.
conductor and employee of the common carrier, is unjustified, in the light of the
clear testimony of Leonila Cullano as the sole uninterested eyewitness of the entire
Atty. Gambe:
episode. Instead we find Pedro Collango's testimony to be infused by bias and
fraught with inconsistencies, if not notably unreliable for lack of veracity. On direct
examination, he testified: Q That is only your estimate by your experience?

xxx xxx xxx A Yes, sir, estimate.

 (Tsn., pp. 4-5, Oct. 17, 1983). Ornominio Beter was 32 years of age at the time of his death, single, in good health
and rendering support and service to his mother. As far as Narcisa Rautraut is
At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per concerned, the only evidence adduced is to the effect that at her death, she was 23
hour, the speed of the bus could scarcely be considered slow considering that years of age, in good health and without visible means of support.
according to Collango himself, the bus had just come from a full stop after picking a
passenger (Tsn, p. 4, Id.) and that the bus was still on its second or third gear (Tsn., In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and
p. 12, Id.). established jurisprudence, several factors may be considered in determining the
award of damages, namely: 1) life expectancy (considering the state of health of the
In the light of the foregoing, the negligence of the common carrier, through its deceased and the mortality tables are deemed conclusive) and loss of earning
employees, consisted of the lack of extraordinary diligence required of common capacity; (2) pecuniary loss, loss of support and service; and (3) moral and mental
carriers, in exercising vigilance and utmost care of the safety of its passengers, suffering (Alcantara, et al. v. Surro, et al., 93 Phil. 470).
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 fast speed. At the same time, In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page
the common carrier itself acknowledged, through its administrative officer, 104), the High Tribunal, reiterating the rule in Villa Rey Transit, Inc. v. Court of
Benjamin Granada, that the bus was commissioned to travel and take on passengers Appeals (31 SCRA 511), stated that the amount of loss of earring capacity is based
and the public at large, while equipped with only a solitary door for a bus its size mainly on two factors, namely, (1) the number of years on the basis of which the
and loading capacity, in contravention of rules and regulations provided for under damages shall be computed; and (2) the rate at which the losses sustained by the
the Land Transportation and Traffic Code (RA 4136 as amended.) (Rollo, pp. 23-26) heirs should be fixed.

Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop the As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at
bus at the height of the commotion; the bus was speeding from a full stop; the victims fell from the the age of 30 one's normal life expectancy is 33-1/3 years based on the American
bus door when it was opened or gave way while the bus was still running; the conductor panicked and Expectancy Table of Mortality (2/3 x 80-32).i•t•c-aüsl By taking into account the
blew his whistle after people had already fallen off the bus; and the bus was not properly equipped pace and nature of the life of a carpenter, it is reasonable to make allowances for
with doors in accordance with law-it is clear that the petitioners have failed to overcome the these circumstances and reduce the life expectancy of the deceased Ornominio
presumption of fault and negligence found in the law governing common carriers. Beter to 25 years (People v. Daniel, supra). To fix the rate of losses it must be noted
that Art. 2206 refers to gross earnings less necessary living expenses of the
The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no deceased, in other words, only net earnings are to be considered (People v.
merit in view of the failure of the petitioners to prove that the deaths of the two passengers were Daniel, supra; Villa Rey Transit, Inc. v. Court of Appeals, supra).
exclusively due to force majeure and not to the failure of the petitioners to observe extraordinary
diligence in transporting safely the passengers to their destinations as warranted by law. (See Applying the foregoing rules with respect to Ornominio Beter, it is both just and
Batangas Laguna Tayabas Co. v. Intermediate Appellate Court, supra). reasonable, considering his social standing and position, to fix the deductible, living
and incidental expenses at the sum of Four Hundred Pesos (P400.00) a month, or
The petitioners also contend that the private respondents failed to show to the court that they are the Four Thousand Eight Hundred Pesos (P4,800.00) annually. As to his income,
parents of Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal personality considering the irregular nature of the work of a daily wage carpenter which is
to sue the petitioners. This argument deserves scant consideration. We find this argument a belated seasonal, it is safe to assume that he shall have work for twenty (20) days a month
attempt on the part of the petitioners to avoid liability for the deaths of Beter and Rautraut. The at Twenty Five Pesos (P150,000.00) for twenty five years. Deducting therefrom his
private respondents were Identified as the parents of the victims by witnesses during the trial and the necessary expenses, his heirs would be entitled to Thirty Thousand Pesos
trial court recognized them as such. The trial court dismissed the complaint solely on the ground that (P30,000.00) representing loss of support and service (P150,000.00 less
the petitioners were not negligent. 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,
Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court is supra). For damages for their moral and mental anguish, his heirs are entitled to the
supported by the evidence. The appellate court stated: 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)

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

SO ORDERED.

G.R. No. 119756 March 18, 1999

FORTUNE EXPRESS, INC., petitioner, passengers, including Atty. Caorong, stepped out of the bus and went behind the bushes in a field
vs. some distance from the highway. 2
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. However, Atty. Caorong returned to the bus to retrieve something from the overhead rack. at that
CAORONG, respondents. time, one of the armed men was pouring gasoline on the head of the driver. Cabatuan, who had
meantime regained consciousness, heard Atty. Caorong pleading with the armed men to spare the
driver as he was innocent of any wrong doing and was only trying to make a living. The armed men
were, however, adamant as they repeated the warning that they were going to burn the bus along
MENDOZA, J.: with its driver. During this exchange between Atty. Caorong and the assailants, Cabatuan climbed out
of the left window of the bus and crawled to the canal on the opposite side of the highway. He heard
This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of the Court shots from inside the bus. Larry de la Cruz, one of the passengers, saw that Atty. Caorong was hit.
of Appeals, which reversed the decision of the Regional Trial Court, Branch VI, Iligan City. The Then the bus was set on fire. Some of the passengers were able to pull Atty. Caorong out of the
aforesaid decision of the trial court dismissed the complaint of public respondents against petitioner burning bus and rush him to the Mercy Community Hospital in Iligan City, but he died while
for damages for breach of contract of carriage filed on the ground that petitioner had not exercised undergoing operation.3
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 The private respondents brought this suit for breach of contract of carriage in the Regional Trial Court,
said bus. Branch VI, Iligan City. In its decision, dated December 28, 1990, the trial court dismissed the
complaint, holding as follows:
The facts of the instant case are as follows:
The fact that defendant, through Operations Manager Diosdado Bravo, was
Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is the widow of informed of the "rumors" that the Moslems intended to take revenge by burning
Atty. Caorong, while private respondents Yasser King, Rose Heinni, and Prince Alexander are their five buses of defendant is established since the latter also utilized Crisanto
minor children. Generalao as a witness. Yet despite this information, the plaintiffs charge, defendant
did not take proper precautions. . . . Consequently, plaintiffs now fault the
defendant for ignoring the report. Their position is that the defendant should have
On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in Kauswagan, Lanao
provided its buses with security guards. Does the law require common carriers to
del Norte, resulting in the death of several passengers of the jeepney, including two Maranaos.
install security guards in its buses for the protection and safety of its passengers? Is
Crisanto Generalao, a volunteer field agent of the Constabulary Regional Security Unit No. X,
the failure to post guards on omission of the duty to "exercise the diligence of a
conducted an investigation of the accident. He found that the owner of the jeepney was a Maranao
good father of the family" which could have prevented the killing of Atty. Caorong?
residing in Delabayan, Lanao del Norte and that certain Maranaos were planning to take revenge on
To our mind, the diligence demanded by law does not include the posting of security
the petitioner by burning some of its buses. Generalao rendered a report on his findings to Sgt.
guard in buses. It is an obligation that properly belongs to the State. Besides, will the
Reynaldo Bastasa of the Philippine Constabulary Regional Headquarters at Cagayan de Oro. Upon the
presence of one or two security guards suffice to deter a determined assault of the
instruction of Sgt. Bastasa, he went to see Diosdado Bravo, operations manager of petitioner, its main
lawless and thus prevent the injury complained of? Maybe so, but again, perhaps
office in Cagayan de Oro City. Bravo assured him that the necessary precautions to insure the safety of
not. In other words, the presence of a security guard is not a guarantee that the
lives and property would be taken.1
killing of Atty. Caorong would have been definitely avoided.
At about 6:45 P.M. on November 22, 1989, three armed Maranaos who pretended to be passengers,
xxx xxx xxx
seized a bus of petitioner at Linamon, Lanao del Norte while on its way to Iligan City. Among the
passengers of the bus was Atty. Caorong. The leader of the Maranaos, identified as one Bashier
Mananggolo, ordered the driver, Godofredo Cabatuan, to stop the bus on the side of the highway. Accordingly, the failure of defendant to accord faith and credit to the report of Mr.
Mananggolo then shot Cabatuan on the arm, which caused him to slump on the steering wheel. The Generalao and the fact that it did not provide security to its buses cannot, in the
one of the companions of Mananggolo started pouring gasoline inside the bus, as the other held the light of the circumstances, be characterized as negligence.
passenger at bay with a handgun. Mananggolo then ordered the passenger to get off the bus. The
 Finally, the evidence clearly shows that the assalants did not have the least intention from the "Maranao threats." It must be observed that frisking is not a novelty as a
of the harming any of the passengers. They ordered all the passengers to alight and safety measure in our society. Sensitive places — in fact, nearly all important places
set fire on the bus only after all the passengers were out of danger. The death of — have applied this method of security enhancement. Gadgets and devices are
Atty. Caorong was an unexpected and unforseen occurrense over which defendant avilable in the market for this purpose. It would not have weighed much against the
had no control. Atty. Caorong performed an act of charity and heroism in coming to budget of the bus company if such items were made available to its personnel to
the succor of the driver even in the face of danger. He deserves the undying cope up with situations such as the "Maranaos threats."
gratitude of the driver whose life he saved. No one should blame him for an act of
extraordinary charity and altruism which cost his life. But neither should any blame In view of the constitutional right to personal privacy, our pronouncement in this
be laid on the doorstep of defendant. His death was solely due to the willfull acts of decision should not be construed as an advocacy of mandatory frisking in all public
the lawless which defendant could neither prevent nor to stop. conveyances. What we are saying is that given the circumstances obtaining in the
case at bench that: (a) two Maranaos died because of a vehicular collision involving
WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For lack of one of appellee's vehicles; (b) appellee received a written report from a member of
merit, the counter-claim is likewise dismissed. No costs. 4 the Regional Security Unit, Constabulary Security Group, that the tribal/ethnic group
of the two deceased were planning to burn five buses of appellee out of revenge;
On appeal, however, the Court of Appeals reversed. It held: and (c) appelle did nothing — absolutely nothing — for the safety of its passengers
travelling in the area of influence of the victims, appellee has failed to exercise the
In the case at bench, how did defendant-appellee react to the tip or information degree of dilegence required of common carriers. Hence, appellee must be adjudge
that certain Maranao hotheads were planning to burn five of its buses out of liable.
revenge for the deaths of two Maranaos in an earlier collision involving appellee's
bus? Except for the remarks of appellee's operations manager that "we will have our xxx xxx xxx
action . . . . and I'll be the one to settle it personally," nothing concrete whatsoever
was taken by appellee or its employees to prevent the execution of the threat. WHEREFORE the decision appealed from is hereby REVERSED and another rendered
Defendant-appellee never adopted even a single safety measure for the protection ordering defendant-appellee to pay plaintiffs-appellants the following:
of its paying passengers. Were there available safeguards? Of course, there were:
one was frisking passengers particularly those en route to the area where the 1) P3,399,649.20 as death indemnity;
threats were likely to be carried out such as where the earlier accident occurred or
the place of influence of the victims or their locality. If frisking was resorted to, even 2) P50,000.00 and P500.00 per appearance as
temporarily, . . . . appellee might be legally excused from liabilty. Frisking of attorney's fee and
passengers picked up along the route could have been implemented by the bus
conductor; for those boarding at the bus terminal, frisking could have been
Costs against defendant-appellee.5
conducted by him and perhaps by additional personnel of defendant-appellee. On
hindsight, the handguns and especially the gallon of gasoline used by the felons all
Hence, this appeal. Petitioner contends:
of which were brought inside the bus would have been discovered, thus preventing
the burning of the bus and the fatal shooting of the victim.
(A) THAT PUBLIC RESPONDENT ERRED IN
REVERSING THE DECISION OF THE REGIONAL
Appellee's argument that there is no law requiring it to provide guards on its buses
TRIAL COURT DATED DECEMBER 28, 1990
and that the safety of citizens is the duty of the government, is not well taken. To be
DISMISSING THE COMPLAINT AS WELL AS THE
sure, appellee is not expected to assign security guards on all its buses; if at all, it
COUNTERCLAIM, AND FINDING FOR PRIVATE
has the duty to post guards only on its buses plying predominantly Maranaos areas.
RESPONDENTS BY ORDERING PETITIONER TO
As discussed in the next preceding paragraph, least appellee could have done in
PAY THE GARGANTUAN SUM OF P3,449,649.20
response to the report was to adopt a system of verification such as the frisking of
PLUS P500.00 PER APPEARANCE AS ATTORNEY'S
passengers boarding at its buses. Nothing, and no repeat, nothing at all, was done
FEES, AS WELL AS DENYING PETITIONERS
by defendant-appellee to protect its innocent passengers from the danger arising
MOTION FRO RECONSIDERATION AND THE
 SUPPLEMENT TO SAID MOTION, WHILE From the foregoing, it is evident that petitioner's employees failed to prevent the attack on one of
HOLDING, AMONG OTHERS, THAT THE petitioner's buses because they did not exercise the diligence of a good father of a family. Hence,
PETITIONER BREACHED THE CONTRACT OF THE petitioner should be held liable for the death of Atty. Caorong.
CARRIAGE BY ITS FAILURE TO EXCERCISE THE
REQUIRED DEGREE OF DILIGENCE; Second. Seizure of Petitioner's Bus not a Case of Force Majeure

(B) THAT THE ACTS OF THE MARANAO OUTLAWS The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous event for
WERE SO GRAVE, IRRESISTABLE, VIOLENT, AND which it could not be held liable.
FORCEFULL, AS TO BE REGARDED AS CASO
FORTUITO; AND Art. 1174 of the Civil Code defines a fortuitous event as an occurence which could not be foreseen, is
inevitable. In Yobido v. Court of Appeals, 7 we held that to considered as force majeure, it is necessary
(C) THAT PUBLIC RESPONDENT COURT OF that (1) the cause of the breach of the obligation must be independent of the human will; (2) the
APPEALS SERIOUSLY ERRED IN HOLDING THAT event must be either unforeseeable or unavoidable; (3) the occurence must be render it impossible
PETITIONER COULD HAVE PROVIDED ADEQUATE for the debtor to fulfill the obligation in a normal manner; and (4) the obligor must be free of
SECURITY IN PREDOMINANTLY MUSLIM AREAS participation in, or aggravation of, the injury to the creditor. The absence of any of the requisites
AS PART OF ITS DUTY TO OBSERVE EXTRA- mentioned above would prevent the obligor from being excused from liability.
ORDINARY DILIGENCE AS A COMMON CARRIER.
Thus, in Vasquez v. Court of Appeals, 8 it was held that the common carrier was liable for its failure to
The instant has no merit. take the necessary precautions against an approaching typhoon, of which it was warned, resulting in
the loss of the lives of several passengers. The event was forseeable, and, thus, the second requisite
First. Petitioner's Breach of the Contract of Carriage. mentioned above was not fulfilled. This ruling applies by analogy to the present case. Despite the
report of PC agent Generalao that the Maranaos were going to attack its buses, petitioner took no
Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by a steps to safeguard the lives and properties of its passengers. The seizure of the bus of the petitioner
passenger on account of wilfull acts of other passengers, if the employees of the common carrier was foreseeable and, therefore, was not a fortuitous event which would exempt petitioner from
could have prevented the act through the exercise of the diligence of a good father of a family. In the liabilty.
present case, it is clear that because of the negligence of petitioner's employees, the seizure of the
bus by Mananggolo and his men was made possible. Petitioner invokes the ruling in Pilapil v. Court of Appeals, 9 and De Guzman v. Court of Appeals, 10 in
support of its contention that the seizure of its bus by the assailants constitutes force majeure.
Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were planning In Pilapil v. Court of Appeals, 11 it was held that a common carrier is not liable for failing to install
to take revenge on the petitioner by burning some of its buses and the assurance of petitioner's window grills on its buses to protect the passengers from injuries cause by rocks hurled at the bus by
operation manager, Diosdado Bravo, that the necessary precautions would be taken, petitioner did lawless elements. On the other hand, in De Guzman v. Court of Appeals, 12 it was ruled that a common
nothing to protect the safety of its passengers. carriers is not responsible for goods lost as a result of a robbery which is attended by grave or
irresistable threat, violence, or force.
Had petitioner and its employees been vigilant they would not have failed to see that the malefactors
had a large quantity of gasoline with them. Under the circumstances, simple precautionary measures It is clear that the cases of Pilapil and De Guzman do not apply to the prensent case. Art. 1755 of the
to protect the safety of passengers, such as frisking passengers and inspecting their baggages, Civil Code provides that "a common carrier is bound to carry the passengers as far as human care and
preferably with non-intrusive gadgets such as metal detectors, before allowing them on board could foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the
have been employed without violating the passenger's constitutional rights. As this Court amended circumstances." Thus, we held in Pilapil and De Guzman that the respondents therein were not
in Gacal v. Philippine Air Lines, Inc., 6 a common carrier can be held liable for failing to prevent a negligent in failing to take special precautions against threats to the safety of passengers which could
hijacking by frisking passengers and inspecting their baggages. not be foreseen, such as tortious or criminal acts of third persons. In the present case, this factor of
unforeseeability (the second requisite for an event to be considered force majeure) is lacking. As
already stated, despite the report of PC agent Generalao that the Maranaos were planning to burn
some of petitioner's buses and the assurance of petitioner's operation manager (Diosdado Bravo) that
the necessary precautions would be taken, nothing was really done by petitioner to protect the safety Exemplary Damages. Art. 2232 provides that "in contracts and quasi-contracts, the court may award
of passengers. exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent reckless manner." In the present case, the petitioner acted in a wanton and reckless
Third. Deceased not Guilty of Contributory Negligence manner. Despite warning that the Maranaos were planning to take revenge against the petitioner by
burning some of its buses, and contary to the assurance made by its operations manager that the
The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to the necessary precautions would be take, the petitioner and its employees did nothing to protect the
bus to retrieve something. But Atty. Caorong did not act recklessly. It should be pointed out that the safety of passengers. Under the circumtances, we deem it reasonable to award private respondents
intended targets of the violence were petitioners and its employees, not its passengers. The exemplary damages in the amount of P100,000.00.17
assailant's motive was to retaliate for the loss of life of two Maranaos as a result of the collision
between petitioner's bus and the jeepney in which the two Maranaos were riding. Mananggolo, the Attorney's Fees. Pursuant to Art. 2208, attorney's fees may be recovered when, as in the instant case,
leader of the group which had hijacked the bus, ordered the passengers to get off the bus as they exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals, 18 we
intended to burn it and its driver. The armed men actually allowed Atty. Caorong to retrieve held an award of P50,000.00 as attorney's fees to be reasonable. Hence, the private respondents are
something from the bus. What apparently angered them was his attempt to help the driver of the bus entitled to attorney's fees in that amount.
by pleading for his life. He was playing the role of the good Samaritan. Certainly, this act cannot
considered an act of negligence, let alone recklessness. Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof,
provides that in addition to the indemnity for death arising from the breach of contrtact of carriage by
Fourth. Petitioner Liable to Private Respaondents for Damages a common carrier, the "defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter." The formula established in decided cases for
We now consider the question of damages that the heirs of Atty. Caorong, private respondents herein, computing net earning capacity is as follows: 19
are entitled to recover from the petitioner.
Gross Necessary
Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for the
payment of indemnity for the death of passengers caused by the breach of contract of carriage by a Net Earning = Life x Annual — Living
common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death
has through the years been gradually increased in view of the declining value of the peso. It is Capacity Expectancy Income Expenses
presently fixed at P50,000.00. 13 Private respondents are entitled to this amount.
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and the age
Actual Damages. Art. 2199 provides that "except as provided by law or by stipulation, one is entitled of the deceased. 20 Since Atty. Caorong was 37 years old at that time of his death, 21 he had a life
to an adequate compensation only for such pecuniary loss suffered by him as has duly proved." The expectancy of 28 2/3 more years.22 His projected gross annual income, computed based on his
trial court found that the private respondents spent P30,000.00 for the wake and burial of Atty. monthly salary of P11,385.00. 23 as a lawyer in the Department of Agrarian Reform at the time of his
Caorong. 14 Since petitioner does not question this finding of the trial court, it is liable to private death, was P148,005.00. 24 Allowing for necessary living expenses of fifty percent (50%) 25 of his
respondent in the said amount as actual damages. projected gross annual income, his total earning capacity amounts to P2,121,404.90. 26 Hence, the
petitioner is liable to the private respondents in the said amount as a compensation for loss of earning
Moral Damages. Under Art. 2206, the "spouse, legitimate and illegitimate descendants and capacity.
ascendants of the deceased may demand moral damages for mental anguish by reason of the death
of the deceased." The trial court found that private respondent Paulie Caorong suffered pain from the WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is hereby AFFIRMED with the
death of her husband and worry on how to provide support for their minor children, private MODIFICATION that petitioner Fortune Express, Inc. is ordered to pay the following amounts to
respondents Yasser King, Rose Heinni, and Prince Alexander. 15 The petitioner likewise does not private respondents Paulie, Yasser King, Rose Heinni, and Prince Alexander Caorong:
question this finding of the trial court. Thus, in accordance with recent decisions of this Court, 16 we
hold that the petitioner is liable to the private respondents in the amount of P100,000.00 as moral 1. death indemnity in the amount of fifty thousand pesos (P50,000.00);
damages for the death of Atty. Caorong.
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.

SO ORDERED.
G.R. No. L-11037 December 29, 1960 providing a crossing bar at the point where the national highway crossed the railway track, and for this
reason filed the corresponding cross-claim against the latter company to recover the total sum of
EDGARDO CARIAGA, ET AL., plaintiffs-appellants, P18,194.75 representing the expenses paid to Edgardo Cariaga. The Manila Railroad Company, in turn,
vs. denied liability upon the complaint and cross-claim alleging that it was the reckless negligence of the
LAGUNA TAYABAS BUS COMPANY, defendant-appellant. bus driver that caused the accident.
MANILA RAILROAD COMPANY, defendant-appellee.
The lower court held that it was the negligence of the bus driver that caused the accident and, as a
Ozaeta, Lichauco and Picazo for defendant and appellant. result, rendered judgment sentencing the LTB to pay Edgardo Cariaga the sum of P10,490.00 as
E.A. Fernandez and L.H. Fernandez for plaintiffs and appellants. compensatory damages, with interest at the legal rate from the filing of the complaint, and dismissing
Gov't. Corp. Counsel A. Padilla and Atty. F.A. Umali for appellee. the cross-claim against the Manila Railroad Company. From this decision the Cariagas and the LTB
appealed.

The Cariagas claim that the trial court erred: in awarding only P10,490.00 as compensatory damages
to Edgardo; in not awarding them actual and moral damages, and in not sentencing appellant LTB to
DIZON, J.: pay attorney's fees.

At about 1:00 p.m. on June 18, 1952, Bus No. 133 of the Laguna Tayabas Bus On the other hand, the LTB's principal contention in this appeal is that the trial court should have held
Co. — hereinafter referred to as the LTB — driven by Alfredo Moncada, left its station at Azcarraga St., that the collision was due to the fault of both the locomotive driver and the bus driver and erred, as a
Manila, for Lilio, Laguna, with Edgardo Cariaga, a fourth-year medical student of the University of consequence, in not holding the Manila Railroad Company liable upon the cross-claim filed against it.
Santo Tomas, as one of its passengers. At about 3:00 p.m., as the bus reached that part of the
poblacion of Bay, Laguna, where the national highway crossed a railroad track, it bumped against the We shall first dispose of the appeal of the bus company. Its first contention is that the driver of the
engine of a train then passing by with such terrific force that the first six wheels of the latter were train locomotive, like the bus driver, violated the law, first, in sounding the whistle only when the
derailed, the engine and the front part of the body of the bus was wrecked, the driver of the bus died collision was about to take place instead of at a distance at least 300 meters from the crossing, and
instantly, while many of its passengers, Edgardo among them, were severely injured. Edgardo was first second, in not ringing the locomotive bell at all. Both contentions are without merits.
confined at the San Pablo City Hospital from 5:00 p.m., June 18, 1952, to 8:25 a.m., June 20 of the
same year when he was taken to the De los Santos Clinic, Quezon City. He left that clinic on October After considering the evidence presented by both parties the lower court expressly found:
14 to be transferred to the University of Santo Tomas Hospital where he stayed up to November 15.
On this last date he was taken back to the De los Santos Clinic where he stayed until January 15, 1953. . . . While the train was approximately 300 meters from the crossing, the engineer sounded
He was unconscious during the first 35 days after the accident; at the De los Santos Clinic Dr. Gustilo two long and two short whistles and upon reaching a point about 100 meters from the
removed the fractured bones which lacerated the right frontal lobe of his brain and at the University highway, he sounded a long whistle which lasted up to the time the train was about to cross
of Santo Tomas Hospital Dr. Gustilo performed another operation to cover a big hole on the right it. The bus proceeded on its way without slackening its speed and it bumped against the train
frontal part of the head with a tantalum plate. engine, causing the first six wheels of the latter to be derailed.

The LTB paid the sum of P16,964.45 for all the hospital, medical and miscellaneous expenses incurred xxx xxx xxx
from June 18, 1952 to April, 1953. From January 15, 1953 up to April of the same year Edgardo stayed
in a private house in Quezon, City, the LTB having agreed to give him a subsistence allowance of . . . that the train whistle had been sounded several times before it reached the crossing. All
P10.00 daily during his convalescence, having spent in this connection the total sum of P775.30 in witnesses for the plaintiffs and the defendants are uniform in stating that they heard the
addition to the amount already referred to. train whistle sometime before the impact and considering that some of them were in the bus
at the time, the driver thereof must have heard it because he was seated on the left front
On April 24, 1953 the present action was filed to recover for Edgardo Cariaga, from the LTB and the part of the bus and it was his duty and concern to observe such fact in connection with the
MRR Co., and total sum of P312,000.00 as actual, compensatory, moral and exemplary damages, and safe operation of the vehicle. The other L.T.B. bus which arrived ahead at the crossing,
for his parents, the sum of P18,00.00 in the same concepts. The LTB disclaimed liability claiming that heeded the warning by stopping and allowing the train to pass and so nothing happened to
the accident was due to the negligence of its co-defendant, the Manila Railroad Company, for not said vehicle. On the other hand, the driver of the bus No. 133 totally ignored the whistle and
 noise produced by the approaching train and instead he tried to make the bus pass the probable consequences of the breach and which the parties had forseen or could have reasonably
crossing before the train by not stopping a few meters from the railway track and in forseen at the time the obligation was constituted, provided such damages, according to Art. 2199 of
proceeding ahead. the same Code, have been duly proved. Upon this premise it claims that only the actual damages
suffered by Edgardo Cariaga consisting of medical, hospital and other expenses in the total sum of
The above findings of the lower court are predicated mainly upon the testimony of Gregorio Ilusondo, P17,719.75 are within this category. We are of the opinion, however, that the income which Edgardo
a witness for the Manila Railroad Company. Notwithstanding the efforts exerted by the LTB to assail Cariaga could earn if he should finish the medical course and pass the corresponding board
his credibility, we do not find in the record any fact or circumstance sufficient to discredit his examinations must be deemed to be within the same category because they could have reasonably
testimony. We have, therefore, no other alternative but to accept the findings of the trial court to the been foreseen by the parties at the time he boarded the bus No. 133 owned and operated by the LTB.
effect, firstly, that the whistle of locomotive was sounded four times — two long and two short — "as At that time he was already a fourth-year student in medicine in a reputable university. While his
the train was approximately 300 meters from the crossing"; secondly, that another LTB bus which scholastic may not be first rate (Exhibits 4, 4-A to 4-C), it is, nevertheless, sufficient to justify the
arrived at the crossing ahead of the one where Edgardo Cariaga was a passenger, paid heed to the assumption that he could have passed the board test in due time. As regards the income that he could
warning and stopped before the "crossing", while — as the LTB itself now admits (Brief p. 5) — the possibly earn as a medical practitioner, it appears that, according to Dr. Amado Doria, a witness for
driver of the bus in question totally disregarded the warning. the LTB, the amount of P300.00 could easily be expected as the minimum monthly income of Edgardo
had he finished his studies.
But to charge the MRR Co. with contributory negligence, the LTB claims that the engineer of the
locomotive failed to ring the bell altogether, in violation of the section 91 of Article 1459, incorporated Upon consideration of all the facts mentioned heretofore this Court is of the opinion, and so holds,
in the charter of the said MRR Co. This contention — as is obvious — is the very foundation of the that the compensatory damages awarded to Edgardo Cariaga should be increased to P25,000.00.
cross-claim interposed by the LTB against its
co-defendant. The former, therefore, had the burden of proving it affirmatively because a violation of Edgardo Cariaga's claim for moral damages and attorney's fees was denied by the trial court, the
law is never presumed. The record discloses that this burden has not been satisfactorily discharged. pertinent portion of its decision reading as follows:

The Cariagas, as appellants, claim that the award of P10,000.00 compensatory damages to Eduardo is Plaintiffs' claim for moral damages cannot also be granted. Article 2219 of the Civil Code
inadequate considering the nature and the after effects of the physical injuries suffered by him. After enumerates the instances when moral damages may be covered and the case under
a careful consideration of the evidence on this point we find their contentions to be well-founded. consideration does not fall under any one of them. The present action cannot come under
paragraph 2 of said article because it is not one of the quasi-delict and cannot be considered
From the deposition of Dr. Romeo Gustilo, a neurosurgeon, it appears that, as a result of the injuries as such because of the pre-existing contractual relation between the Laguna Tayabas Bus
suffered by Edgardo, his right forehead was fractured necessitating the removal of practically all of the Company and Edgardo Cariaga. Neither could defendant Laguna Tayabas Bus Company be
right frontal lobe of his brain. From the testimony of Dr. Jose A. Fernandez, a psychiatrist, it may be held liable to pay moral damages to Edgardo Cariaga under Article 2220 of the Civil Code on
gathered that, because of the physical injuries suffered by Edgardo, his mentality has been so reduced account of breach of its contract of carriage because said defendant did not act fraudulently
that he can no longer finish his studies as a medical student; that he has become completely misfit for or in bad faith in connection therewith. Defendant Laguna Tayabas Bus Company had
any kind of work; that he can hardly walk around without someone helping him, and has to use a exercised due diligence in the selection and supervision of its employees like the drivers of its
brace on his left leg and feet. buses in connection with the discharge of their duties and so it must be considered an
obligor in good faith.
Upon the whole evidence on the matter, the lower court found that the removal of the right frontal
lobe of the brain of Edgardo reduced his intelligence by about 50%; that due to the replacement of The plaintiff Edgardo Cariaga is also not entitled to recover for attorney's fees, because this
the right frontal bone of his head with a tantalum plate Edgardo has to lead a quite and retired life case does not fall under any of the instances enumerated in Article 2208 of the Civil Code.
because "if the tantalum plate is pressed in or dented it would cause his death."
We agree with the trial court and, to the reason given above, we add those given by this Court in
The impression one gathers from this evidence is that, as a result of the physical injuries suffered by Cachero vs. Manila Yellow Taxicab Co., Inc.(101 Phil., 523, 530, 533):
Edgardo Cariaga, he is now in a helpless condition, virtually an invalid, both physically and mentally.
A mere perusal of plaintiff's complaint will show that this action against the defendant is
Appellant LTB admits that under Art. 2201 of the Civil Code the damages for which the obligor, guilty predicated on an alleged breach of contract of carriage, i.e., the failure of the defendants to
of a breach of contract but who acted in good faith, is liable shall be those that are the natural and bring him "safely and without mishaps" to his destination, and it is to be noted that the
chauffeur of defendant's taxicab that plaintiff used when he received the injuries involved of any of the articles of the codes just mentioned and against all the persons who might be
herein, Gregorio Mira, has not even made a party defendant to this case. liable for the damages caused, but as a result of an admitted breach of contract of carriage
and against the defendant employer alone. We, therefore, hold that the case at bar does not
Considering, therefore, the nature of plaintiff's action in this case, is he entitled to come within the exception of paragraph 1, Article 2219 of the Civil Code.
compensation for moral damages? Article 2219 of the Civil Code says the following:
The present complaint is not based either on a "quasi-delict causing physical injuries" (Art.
Art. 2219. Moral damages may be recovered in the following and analogous cases: 2219, par. 2 of the Civil Code). From the report of the Code Commission on the new Civil
Code. We copy the following:
(1) A criminal offense resulting in physical injuries;
A question of nomenclature confronted the Commission. After a careful deliberation, it was
(2) Quasi-delicts causing physical injuries; agreed to use the term "quasi-delict" for those obligations which do not arise from law,
contracts, quasi-contracts, or criminal offenses. They are known in Spanish legal treaties as
"culpa aquiliana", "culpa-extra-contractual" or "cuasi-delitos". The phrase "culpa-extra-
(3) Seduction, abduction, rape, or other lascivious acts;
contractual" or its translation "extra-contractual-fault" was eliminated because it did not
exclude quasi-contractual or penal obligations. "Aquilian fault" might have been selected, but
(4) Adultery or concubinage; it was thought inadvisable to refer to so ancient a law as the "Lex Aquilia". So "quasi-delict"
was chosen, which more nearly corresponds to the Roman Law classification of the
(5) Illegal or arbitrary detention or arrest; obligations and is in harmony with the nature of this kind of liability.

(6) Illegal search; The Commission also thought of the possibility of adopting the word "tort" from Anglo-
American law. But "tort" under that system is much broader than the Spanish-Philippine
(7) Libel, slander or any other form of defamation; concept of obligations arising from non-contractual negligence. "Tort" in Anglo-American
jurisprudence includes not only negligence, but also intentional criminal act, such as assault
(8) Malicious prosecution; and battery, false imprisonment and deceit. In the general plan of the Philippine legal system,
intentional and malicious acts are governed by the Penal Code, although certain exceptions
(9) Acts mentioned in Article 309; are made in the Project. (Report of the Code Commission, pp. 161-162).

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. In the case of Cangco, vs. Manila Railroad, 38 Phil. 768, We established the distinction
between obligation derived from negligence and obligation as a result of a breach of
xxx xxx xxx contract. Thus, we said:

Of course enumerated in the just quoted Article 2219 only the first two may have any bearing It is important to note that the foundation of the legal liability of the defendant is the
on the case at bar. We find, however, with regard to the first that the defendant herein has contract of carriage, and that the obligation to respond for the damage which plaintiff has
not committed in connection with this case any "criminal offense resulting in physical suffered arises, if at all, from the breach of that contract by reason of the failure of defendant
injuries". The one that committed the offense against the plaintiff is Gregorio Mira, and that to exercise due care in its performance. That is to say, its liability is direct and immediate,
is why he has been already prosecuted and punished therefor. Altho (a) owners and differing essentially in the legal viewpoint from the presumptive responsibility for the
managers of an establishment and enterprise are responsible for damages caused by their negligence of its servants, imposed by Article 1903 of the Civil Code (Art. 2180 of the new),
employees in the service of the branches in which the latter are employed or on the occasion which can be rebutted by proof of the exercise of due care in their selection of supervision.
of their functions; (b) employers are likewise liable for damages caused by their employees Article 1903 is not applicable to obligations arising EX CONTRACTU, but only to extra-
and household helpers acting within the scope of their assigned task (Article 218 of the Civil contractual obligations — or to use the technical form of expression, that article relates only
Code); and (c) employers and corporations engaged in any kind of industry are subsidiary to CULPA AQUILIANA' and not to CULPA CONTRACTUAL.lawphil.net
civilly liable for felonies committed by their employees in the discharge of their duties (Art.
103, Revised Penal Code), plaintiff herein does not maintain this action under the provisions
 The decisions in the cases of Castro vs. Acro Taxicab Co., (82 Phil., 359; 46 Off. Gaz., No. 5, p.
2023); Lilius, et al. vs. Manila Railroad, 59 Phil., 758) and others, wherein moral damages
were awarded to the plaintiffs, are not applicable to the case at bar because said decision
were rendered before the effectivity of the new Civil Code (August 30, 1950) and for the
further reason that the complaints filed therein were based on different causes of action.

In view of the foregoing the sum of P2,000 was awarded as moral damages by the trial court
has to be eliminated, for under the law it is not a compensation awardable in a case like the
one at bar.

What has been said heretofore relative to the moral damages claimed by Edgardo Cariaga obviously
applies with greater force to a similar claim (4th assignment of error) made by his parents.

The claim made by said spouses for actual and compensatory damages is likewise without merits. As
held by the trial court, in so far as the LTB is concerned, the present action is based upon a breach of
contract of carriage to which said spouses were not a party, and neither can they premise their claim
upon the negligence or quasi-delict of the LTB for the simple reason that they were not themselves
injured as a result of the collision between the LTB bus and train owned by the Manila Railroad
Company.

Wherefore, modified as above indicated, the appealed judgement is hereby affirmed in all other
respects, with costs against appellant LTB.
G.R. No. L-56487 October 21, 1991 That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said
Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while passing through the
National Highway No. 3;

REYNALDA GATCHALIAN, petitioner,

vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents. That after a thorough investigation the said Thames met the accident due to mechanical defect and
went off the road and turned turtle to the east canal of the road into a creek causing physical injuries
Pedro G. Peralta for petitioner. to us;

Florentino G. Libatique for private respondent.

xxx xxx xxx

FELICIANO, J.:
That we are no longer interested to file a complaint, criminal or civil against the said driver and owner
of the said Thames, because it was an accident and the said driver and owner of the said Thames have
gone to the extent of helping us to be treated upon our injuries.
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger,
respondent's "Thames" mini bus at a point in San Eugenio, Aringay, La Union, bound for Bauang, of
the same province. On the way, while the bus was running along the highway in Barrio Payocpoc,
Bauang, Union, "a snapping sound" was suddenly heard at one part of the bus and, shortly thereafter, xxx xxx xxx 2
the vehicle bumped a cement flower pot on the side of the road, went off the road, turned turtle and
fell into a ditch. Several passengers, including petitioner Gatchalian, were injured. They were promptly
taken to Bethany Hospital at San Fernando, La Union, for medical treatment. Upon medical
examination, petitioner was found to have sustained physical injuries on the leg, arm and forehead,
(Emphasis supplied)
specifically described as follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left;
abrasion, lateral surface, leg, left. 1

Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La
Union an action extra contractu to recover compensatory and moral damages. She alleged in the
On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of
complaint that her injuries sustained from the vehicular mishap had left her with a conspicuous white
respondent, visited them and later paid for their hospitalization and medical expenses. She also gave
scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an inferiority
petitioner P12.00 with which to pay her transportation expense in going home from the hospital.
complex on her part; and that as a result, she had to retire in seclusion and stay away from her
However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already
friends. She also alleged that the scar diminished her facial beauty and deprived her of opportunities
prepared Joint Affidavit which stated, among other things:
for employment. She prayed for an award of: P10,000.00 for loss of employment and other
opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead;
P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and that We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of
petitioner had already been paid and moreover had waived any right to institute any action against action had been made by petitioner. The relevant language of the Joint Affidavit may be quoted again:
him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14
July 1973.

That we are no longer interested to file a complaint, criminal or civil against the said driver and owner
of the said Thames, because it was an accident and the said driver and owner of the said Thames have
After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied)
signed the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she may
have had against respondent and the driver of the mini-bus.

A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms
which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been to him. 4 A waiver may not casually be attributed to a person when the terms thereof do not explicitly
a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages: and clearly evidence an intent to abandon a right vested in such person.

We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes
although we conform to the trial court's disposition of the case — its dismissal. and Susaya v. Samar Express Transit (supra), where the Court in reading and rejecting a purported
waiver said:

IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in
dismissing the plaintiff-appellant's complaint, the judgment of dismissal is hereby affirmed. . . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign
as, in fact, they signed the document Exhibit I wherein they stated that "in consideration of the
expenses which said operator has incurred in properly giving us the proper medical treatment, we
hereby manifest our desire to waive any and all claims against the operator of the Samar Express
Without special pronouncement as to costs. Transit."

SO ORDERED. 3 xxx xxx xxx

In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court Even a cursory examination of the document mentioned above will readily show that appellees did
of Appeals and ask this Court to award her actual or compensatory damages as well as moral not actually waive their right to claim damages from appellant for the latter's failure to comply with
damages. their contract of carriage. All that said document proves is that they expressed a "desire" to make the
waiver — which obviously is not the same as making an actual waiver of their right. A waiver of the
kind invoked by appellant must be clear and unequivocal (Decision of the Supreme Court of Spain of
July 8, 1887) — which is not the case of the one relied upon in this appeal. (Emphasis supplied)
 the diligence of a good paterfamilias established in respect of the ordinary relations between
members of society. A common carrier is bound to carry its passengers safely" as far as human care
If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the and foresight can provide, using the utmost diligence of a very cautious person, with due regard to all
Joint Affidavit in the instant case cannot be regarded as a waiver cast in "clear and unequivocal" the circumstances". 11
terms. Moreover, the circumstances under which the Joint Affidavit was signed by petitioner
Gatchalian need to be considered. Petitioner testified that she was still reeling from the effects of the
vehicular accident, having been in the hospital for only three days, when the purported waiver in the
form of the Joint Affidavit was presented to her for signing; that while reading the same, she Thus, the question which must be addressed is whether or not private respondent has successfully
experienced dizziness but that, seeing the other passengers who had also suffered injuries sign the proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus.
document, she too signed without bothering to read the Joint Affidavit in its entirety. Considering The records before the Court are bereft of any evidence showing that respondent had exercised the
these circumstances there appears substantial doubt whether petitioner understood fully the import extraordinary diligence required by law. Curiously, respondent did not even attempt, during the trial
of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether before the court a quo, to prove that he had indeed exercised the requisite extraordinary diligence.
she actually intended thereby to waive any right of action against private respondent. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of
force majeure. But allegation is not proof and here again, respondent utterly failed to substantiate his
defense of force majeure. To exempt a common carrier from liability for death or physical injuries to
passengers upon the ground of force majeure, the carrier must clearly show not only that the efficient
Finally, because what is involved here is the liability of a common carrier for injuries sustained by cause of the casualty was entirely independent of the human will, but also that it was impossible to
passengers in respect of whose safety a common carrier must exercise extraordinary diligence, we avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense
must construe any such purported waiver most strictly against the common carrier. For a waiver to be of force majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court summed up the
valid and effective, it must not be contrary to law, morals, public policy or good essential characteristics of force majeure by quoting with approval from the Enciclopedia Juridica
Española:
customs. 5 To uphold a supposed waiver of any right to claim damages by an injured passenger, under
circumstances like those exhibited in this case, would be to dilute and weaken the standard of
extraordinary diligence exacted by the law from common carriers and hence to render that standard
unenforceable. 6 We believe such a purported waiver is offensive to public policy. Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the
obligor is exempt from liability non-performance. The Partidas, the antecedent of Article 1174 of the
Civil Code, defines "caso fortuito" as 'an event that takes place by accident and could not have been
foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robber.
Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there
was no enforceable waiver of her right of action, should have awarded her actual or compensatory
and moral damages as a matter of course.
In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says: 'In legal sense
and, consequently, also in relation to contracts, a "caso fortuito" presents the following essential
characteristics: (1) the cause of the unforeseen and unexpected occurence, or of the failure of the
We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its debtor to comply with his obligation, must be independent of the human will; (2) it must be
passengers is imposed upon a common carrier. 7 In case of death or injuries to passengers, a statutory impossible to foresee the event which constitutes the "caso fortuito", or if it can be foreseen, it must
presumption arises that the common carrier was at fault or had acted negligently "unless it proves be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to
that it [had] observed extraordinary diligence as prescribed in Articles 1733 and 1755." 8 In fact, fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the
because of this statutory presumption, it has been held that a court need not even make an express aggravation of the injury resulting to the creditor.
finding of fault or negligence on the part of the common carrier in order to hold it liable. 9 To
overcome this presumption, the common carrier must slow to the court that it had exercised
extraordinary diligence to prevent the injuries. 10 The standard of extraordinary diligence imposed
upon common carriers is considerably more demanding than the standard of ordinary diligence, i.e.,
Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of Court awarded actual or compensatory damages for, among other things, the surgical removal of the
respondent common carrier. In her direct examination, petitioner Gatchalian narrated that shortly scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:
before the vehicle went off the road and into a ditch, a "snapping sound" was suddenly heard at one
part of the bus. One of the passengers, an old woman, cried out, "What happened?" ("Apay addan
samet nadadaelen?"). The driver replied, nonchalantly, "That is only normal" ("Ugali ti makina dayta").
The driver did not stop to check if anything had gone wrong with the bus. Moreover, the driver's reply We agree with the appellants that the damages awarded by the lower court for the injuries suffered
necessarily indicated that the same "snapping sound" had been heard in the bus on previous by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as compensation for the
occasions. This could only mean that the bus had not been checked physically or mechanically to "permanent deformity and — something like an inferiority complex" as well as for the "pathological
determine what was causing the "snapping sound" which had occurred so frequently that the driver condition on the left side of the jaw" caused to said plaintiff, the court below overlooked the clear
had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating evidence on record that to arrest the degenerative process taking place in the mandible and restore
condition, and even a modicum of concern for life and limb of passengers dictated that the bus be the injured boy to a nearly normal condition, surgical intervention was needed, for which the doctor's
checked and repaired. The obvious continued failure of respondent to look after the roadworthiness charges would amount to P3,000.00, exclusive of hospitalization fees, expenses and medicines.
and safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had Furthermore, the operation, according to Dr. Diño, would probably have to be repeated in order to
heard once again the "snapping sound" and the cry of alarm from one of the passengers, constituted effectuate a complete cure, while removal of the scar on the face obviously demanded plastic surgery.
wanton disregard of the physical safety of the passengers, and hence gross negligence on the part of
respondent and his driver.

xxx xxx xxx

We turn to petitioner's claim for damages. The first item in that claim relates to revenue which
petitioner said she failed to realize because of the effects of the vehicular mishap. Petitioner
maintains that on the day that the mini-bus went off the road, she was supposed to confer with the
The father's failure to submit his son to a plastic operation as soon as possible does not prove that
district supervisor of public schools for a substitute teacher's job, a job which she had held off and on
such treatment is not called for. The damage to the jaw and the existence of the scar in Benjamin
as a "casual employee." The Court of Appeals, however, found that at the time of the accident, she
Araneta's face are physical facts that can not be reasoned out of existence. That the injury should be
was no longer employed in a public school since, being a casual employee and not a Civil Service
treated in order to restore him as far as possible to his original condition is undeniable. The father's
eligible, she had been laid off. Her employment as a substitute teacher was occasional and episodic,
delay, or even his negligence, should not be allowed to prejudice the son who has no control over the
contingent upon the availability of vacancies for substitute teachers. In view of her employment status
parent's action nor impair his right to a full indemnity.
as such, the Court of Appeals held that she could not be said to have in fact lost any employment after
and by reason of the accident. 13 Such was the factual finding of the Court of Appeals, a finding
entitled to due respect from this Court. Petitioner Gatchalian has not submitted any basis for
overturning this finding of fact, and she may not be awarded damages on the basis of speculation or
conjecture. 14 . . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage;
the pain suffered by the injured party; his feelings of inferiority due to consciousness of his present
deformity, as well as the voluntary character of the injury inflicted; and further considering that a
repair, however, skillfully conducted, is never equivalent to the original state, we are of the opinion
that the indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another
supplied)
matter. A person is entitled to the physical integrity of his or her body; if that integrity is violated or
diminished, actual injury is suffered for which actual or compensatory damages are due and
assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she
was before the mishap. A scar, especially one on the face of the woman, resulting from the infliction
of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to Petitioner estimated that the cost of having her scar surgically removed was somewhere between
her conditio ante. If the scar is relatively small and does not grievously disfigure the victim, the cost of P10,000.00 to P15,000.00. 16 Upon the other hand, Dr. Fe Tayao Lasam, a witness presented as an
surgery may be expected to be correspondingly modest. In Araneta, et al. vs. Areglado, et al., 15 this expert by petitioner, testified that the cost would probably be between P5,000.00 to P10,000.00. 17 In
view of this testimony, and the fact that a considerable amount of time has lapsed since the mishap in
1973 which may be expected to increase not only the cost but also very probably the difficulty of
removing the scar, we consider that the amount of P15,000.00 to cover the cost of such plastic
surgery is not unreasonable.

Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may
be awarded where gross negligence on the part of the common carrier is shown. 18 Since we have
earlier concluded that respondent common carrier and his driver had been grossly negligent in
connection with the bus mishap which had injured petitioner and other passengers, and recalling the
aggressive manuevers of respondent, through his wife, to get the victims to waive their right to
recover damages even as they were still hospitalized for their injuries, petitioner must be held entitled
to such moral damages. Considering the extent of pain and anxiety which petitioner must have
suffered as a result of her physical injuries including the permanent scar on her forehead, we believe
that the amount of P30,000.00 would be a reasonable award. Petitioner's claim for P1,000.00 as
atttorney's fees is in fact even more modest. 19

WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of
the then Court of First Instance of La Union dated 4 December 1975 are hereby REVERSED and SET
ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1)
P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of
the scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's
fees, the aggregate amount to bear interest at the legal rate of 6% per annum counting from the
promulgation of this decision until full payment thereof. Costs against private respondent.

SO ORDERED.
 reservation to institute a separate civil action for damages and indemnity against the MRR and the
BAL.
G.R. No. L-19407 November 23, 1966
Because of the loss of the eggs and the destruction of the personal effects that Juana brought with
JUANA SOBERANO and JOSE B. SOBERANO, plaintiffs-appellants, her in that trip, Jose Soberano, her husband, demanded from the defendant companies the value
vs. thereof amounting to P370.66 (exh. C-3), of which sum the MRR paid P300 (exh. 2). The MRR also
MANILA RAILROAD COMPANY, through the Acting General Manager, Colonel Salvador T. Villa; THE paid the daily expenses, allowances, subsistence, hospitalization, medical fees and medicines of Juana
BENGUET AUTO LINE, through the Superintendent, Mr. Casiano Rivera; and SANTIAGO CACCAM, Soberano, as well as the service fees of her caretaker. The MRR has paid a total sum of P4,219 (exhs. 3
Driver, defendants-appellees. & 4). Later the MRR offered to settle the case extrajudicially, tendering to the Soberanos the
additional sum of P5,000. The offer was rejected, and the Soberanos filed the present action against
the defendant companies and Caccam, to recover from them damages in the total sum of
M.A. Vega for plaintiffs and appellants.
P76,757.76.2 The defendant companies in due time filed their answer to the complaint with
Tomas A. Matic, Jr. for defendant and appellee.
counterclaim for damages by way of attorney's fees, and praying that the complaint against them be
dismissed, or, in the alternative, that the court approve their offer of settlement. The Soberanos filed
CASTRO, J.: a reply to the counterclaim and prayed for its dismissal.

This is an appeal, purely on questions of law, from a decision of the Court of First Instance of Baguio After due trial, the lower court rendered the decision appealed from, dismissing at the same time the
City, ordering the defendant Manila Railroad Company to pay the plaintiffs Juana Soberano and her complaint against Caccam. The Soberanos moved to have the decision reconsidered. The motion for
husband Jose Soberano the sum of P5,070.60, with legal interest from June 6, 1956, the date of the reconsideration was denied; hence the present recourse.
filing of the complaint, and to pay the costs.
The nine errors imputed by the Soberanos to the lower court actually pose only two basic issues,
In the morning of March 8, 1955 in Cabugao, Ilocos Sur, Juana Soberano boarded bus No. 155, with namely, whether the dismissal of the complaint against Caccam is proper, and whether the amount of
plate No. TPU-5994, of the Benguet Auto Line (BAL), a subsidiary of the Manila Railroad Co. damages awarded is adequate.
(MRR),1 driven by Santiago Caccam, bound for Baguio City. In that trip, Juana brought with her 3,024
chicken eggs to be sold in Baguio City, and some personal belongings which she needed in that trip.
Upon the first issue it is the contention of the Soberanos that the lower court, instead of dismissing
About three kilometers away from Baguio City, along the Naguilian road, the bus hit a stone
their complaint against Caccam, should have priorly declared him in default for failure to file an
embankment, causing it to fall into a 65-foot deep precipice, resulting in death to two of its
answer to the complaint. It is true that Caccam did not file any answer to the complaint; but it is also
passengers and serious physical injuries to Juana and loss and destruction of all her belongings.
true that the plaintiffs did not move to declare him in default. And no default order may be issued
against a defendant who fails to file a timely answer to a complaint except "upon motion of the
From the scene of the accident, Juana was brought to the Baguio General Hospital. Radiologist Dr. plaintiff" (sec. 6, Rule 35, old Rules of Court, now sec. 1, Rule 18, Revised Rules of Court), and a court
Hector Lopez after examining her injuries, certified that she sustained comminuted fracture in the left cannot issue a default order motu proprio (Viacrucis, et al. vs. Estenzo, etc., et al., L-18457, June 30,
mandible near the articulation, cracked fracture in the right temporal bone, crushed fractures, both 1962). In spite of the lack of a formal motion to secure a default order against Caccam, however, the
scapular, and fracture in the 2nd, 3rd and 4th ribs. She was confined in that hospital until April 14, Soberanos contend that at the hearing held on July 11, 1959, their counsel, Atty. Marcos Vega, before
1955, when she was transferred to the National Orthopedic Hospital, whereat she stayed until June 6, closing his evidence, manifested to the lower court that because Caccam failed to file an answer to
1955 when she was discharged. She was also treated by Dr. Luis Martinez of the V. Luna Hospital, and the complaint, he should "be declared in default and that we be allowed to present evidence against
Dr. J.V. de los Santos, both orthopedists, and late by Dr. J. O. Floirendo, an EENT specialist, for "visual him in accordance with our complaint." This manifestation would nevertheless not have precluded
and other defects." the dismissal of the complaint against Caccam. In resolving this manifestation, the lower court asked
Vega upon what basis the complaint is predicated, whether on culpa contractual or culpa aquiliana.
Santiago Caccam was thereafter charged in the Court of First Instance of Baguio City with the crime of Vega at first said, "It can be taken as both." But when the lower court pointedly declared that it
double homicide and serious physical injuries thru reckless imprudence. He pleaded guilty to the "cannot allow you or give you both remedies," said counsel replied that the complaint is predicated
crime of double homicide and serious physical injuries thru simple imprudence and was sentenced upon culpa contractual. Because of this reply, the lower court ruled that the Soberanos cannot go
accordingly. Juana Soberano did not intervene in the criminal case because she filed a formal against Caccam, because he cannot be held liable on culpa contractual. Vega was given another
chance to make a choice, but he finally decided to proceed on the basis of "culpa contractual because
we cannot get anything from Caccam", adding that we are ready to present evidence to sustain our 1954; Araneta et al. v. Arreglado, et al., L-11394, Sept. 9, 1958). In this case it was Juana Soberano, not
allegations against Santiago Caccam, we will close because moral damages against him cannot be her husband Jose, who sustained the bodily injuries.
recovered just the same."
With respect to the claim of Juana Soberano for moral damages, the rule is well-settled in this
That the complaint is in fact predicated on culpa contractual can be seen front a perusal thereof. jurisdiction that in cases of breach of contract of carriage, moral damages are recoverable only "where
While it names three defendants, the MRR the BAL, and Santiago Caccam, the prayer thereof shows the defendant has acted fraudulently or in bad faith" (art. 2220, N.C.C.), and the terms fraud and bad
that the action is directed against the first two only, "to declare the defendant companies Manila faith have reference to "wanton, reckless, oppressive, malevolent conduct", or, in the very least, to
Railroad Company and Benguet Auto Line solidarily liable." And although paragraph 11 of the "negligence so gross as to amount to malice." (Fores Miranda, L-12163, March 4, 1959; Necesito, etc.
complaint recites that the incident was "due to the negligence and reckless imprudence of the v. Paras,et al., L-10605-10606, June 30, 1958).
defendant driver Santiago Caccam," it is significant that there is no prayer for declaration of liability
against Caccam. To prove malice and bad faith on the part of the defendant companies, the Soberanos aver that the
said defendants intentionally omitted the name of Juana as one of the offended parties in the
The complaint against Caccam was therefore properly dismissed. He was not a party to the contract; information in criminal case 1086, and that her name was included therein only upon the intervention
he was a mere employee of the BAL. The parties to that contract are Juana Soberano, the passenger, of the Soberanos themselves; that the defendant companies prevailed upon Caccam to plead guilty to
and the MRR and its subsidiary, the BAL, the bus owner and operator, respectively; and consequent to the lesser crime of double homicide and serious physical injuries thru simple imprudence, purposely
the inability of the defendant companies to carry Juana Soberano and her baggage and personal to prevent the introduction of evidence of gross negligence amounting to malice against the said
effects securely and safely to her destination as imposed by law (art. 1733, in relation to arts. 1736 companies; that the BAL physician, Dr. Nievera, disowned having been an attending physician of Juana
and 1755, N.C.C.), their liability to her becomes direct and immediate. Soberano, and, together with MRR physician Dr. Salvador, suppressed the introduction of the X-ray
plates takenof Juana as evidence to prove the extent of the injuries suffered by the latter; and that the
We now come to the question of damages. defendant companies exerted undue influence upon Dr. Fernandez, who treated Juana's dental
injuries, not to testify to such matters or identify a medical certificate issued by him, describing the
The Soberanos initially contend that the lower court erred in disallowing their claim of P200, dental injuries suffered by Juana. These incidents, even if true, cannot be considered as acts
representing the expenses of Juana Soberano in attending as a witness in the criminal case and committed fraudulently or in bad faith by the defendant companies in the operation of their
attorney's fees incurred in connection therewith. This claim was correctly denied by the lower court, transportation business which directly resulted in the mishap that caused the injuries to Juana.
because these expenses were properly taxable in the criminal case. It may be argued that the Moreover, the allegation in paragraph 11 of the complaint that the incident was "due to the
Soberanos could not have recovered this sum in the criminal case because Juana Soberano expressly negligence and reckless imprudence of the defendant driver Santiago Caccam", does not per se justify
filed a formal reservation to institute a separate civil action for damages, but such reservation did not an inference of malice or bad faith on the part of the defendant companies (Rex Taxicab Co. v.
preserve whatever rights they had against Caccam on the basis of the latter's imprudence. The Bautista, et al., L-15392, Sept. 30, 1962; Cachero v. Manila Yellow Taxicab Co., Inc., L-8721, May 23,
reservation is ineffective as to Caccam as it did not include him among those against whom their 1957), for fraud, malice, or bad faith must be proved to support a claim for moral damages if only
rights had been reserved. And the Soberanos not having intervened in the criminal case, this claim physical injuries are sustained (Lira vs. Mercado, L-13358, Sept. 29, 1961).
must be considered as having been impliedly adjudicated in the criminal case, and cannot therefore
be ventilated in the present action. The absence of fraud, malice, or bad faith on the part of the defendant companies justifies the denial
of Juana Soberano's claim for moral damages as well as the denial of the claim for exemplary damages
The Soberanos next contend that the lower court erred in denying their claim for moral damages in (art. 2232, N.C.C.).
the sum of P15,000, for the physical suffering, mental anguish, serious anxiety and fright they suffered
as a consequence of the mishap. The lower court denied this claim on the strength of the oft- The third claim — for attorney's fees — was also properly denied by the lower court. The Soberanos
reiterated ruling of this Court that moral damages cannot be recovered against the employer in aver that they were obliged to file a separate civil action for damages against the defendant
actions based on a breach of contract of carriage in the absence of malice, fraud, or bad faith. companies. This claim is predicated upon paragraphs (2) and (5) of article 2208 of the New Civil Code,
which provide that attorney's fees and expenses of litigation may be recovered when the defendant's
The lower court rightly denied the claim for moral damages as far as Jose Soberano is concerned. In act or omission has compelled the plaintiff to litigate with third persons or incur expenses to protect
case of physical injuries, moral damages are recoverable only by the party injured and not by his next his interest, or when the defendant acted in gross and evident bad faith in refusing to satisfy the
of kin, unless there is express statutory provision to the contrary (Strebel v. Figueras, L-4722, Dec. 29, plaintiff's plainly valid, just and demandable claim. It will be observed that the defendant companies
offered to settle the case by offering to the Soberanos the additional sum of P5,000. The Soberanos,
however, rejected the offer and proceeded to court to recover damages in the total sum of finding however, that she is not altogether a helpless woman and can still engage in business, the
P76,757.76. It was not, therefore, the defendant companies that compelled the Soberanos to litigate, lower court awarded to her P5,000 to compensate loss of earnings as a result of her partial disability.
or to incur expenses in connection with the litigation instituted by them. The Soberanos went to court
after rejecting the defendant companies' offer of settlement. The latter can not likewise be considered The appellants contend that the award is inadequate. We agree.
to have acted in gross and evident bad faith in not satisfying the claim of the Soberanos, because, as
the lower court puts it, the Soberanos "have asked for too much", and the "defendant was justified in This Court, in three cases, allowed in one, and increased in the two others, the amount of
resisting this action." We are not without precedent on this point. In Globe Assn. vs. Arcache, L-12378, compensatory damages. In Borromeo v. Manila Electric Railroad and Light Co., 44 Phil. 165 (1922),
May 28, 1958, this Court observed that the refusal of the defendant therein to pay the amount this Court awarded P2,000 in future damages to the plaintiff therein, after finding that due to the
claimed was due not to malice but to the fact that the plaintiff therein demanded more than it should, accident, wherein Borromeo's left foot was passed over by the rear wheels of the electric car of the
and consequently ruled that the defendant had the right to refuse it; and in the Cachero case, supra, defendant company and had to be amputated, he had to use an artificial foot in order to be able to
this Court held that the plaintiff in that case cannot recover attorney's fees, because the litigation was walk; that he could no longer be employed as a marine engineer which he had been for sixteen years;
caused not by the defendant's failure to pay but by the plaintiff's "exorbitant charge." that at the time of the accident he was a chief engineer with a monthly salary of P375; and that
because he knew of no other profession, his incapacity had put an end to his activities and had
We now come to the claim for additional unpaid allowances of Juana Soberano while she was destroyed his principal source of professional earnings in the future. In Cariaga, et al. v. Laguna
undergoing medical and dental treatment in Manila and Quezon City, in the total sum of P600. In our Tayabas Bus Co., et al., L-11037, Dec. 29, 1960, this Court increased the award of compensatory
view, this claim has merit. damages from P10,490 to P25,000, after finding that Edgardo Cariaga's right forehead was fractured,
necessitating the removal of practically all of the right frontal lobe of his brain; that he had become a
The allowance of ten pesos for each day of stay in Quezon City of Juana Soberano was recommended misfit for any kind of work; that he could hardly walk around without someone helping him and he
for approval by the superintendent of the BAL, Mr. C. Rivera (exh. C-4) and by the MRR physician, Dr. had to use a brace on his left leg and foot; that he was a virtual invalid, physically and mentally; that at
Salgado, and appears to have been "OK" by the MRR administrative officer, Mr. F.C. Unson (exh. C-5). the time of the accident he was already a fourth-year student in medicine in a reputable university;
These exhibits C-4 and C-5 were admitted in evidence without objection from the Government that his scholastic record is sufficient to justify the assumption that had he continued his studies, he
Corporate Counsel who represented the defendant companies. The defendant companies have would have finished the course and would have passed the board examinations; and that he could
already paid to Jose Soberano the total sum of P600, covering Juana Soberano's stay for 60 days in a possibly have earned as a medical practitioner the minimum monthly income of P300. And
private house, from June 7 to July 5, 1955, and from July 7 to August 5, 1955 (exhs. 3-I and 3-J). in Araneta, et al. v. Arreglado, et al., L-11394, September 9, 1958, this Court increased the award of
compensatory damages from P1,000 to P18,000, after finding that Benjamin Araneta sustained
As to the balance of P600, it was error for the lower court to include this sum in the assessment of "permanent deformity and — something like an inferiority complex" as well as a "pathological
loss of earning capacity, because this amount represents expenses for board and lodging, short order condition on the left side of the jaw" caused by the defendant Dario Arreglado who inflicted the injury
such as milk and fruit, laundry and transportation of Juana Soberano incurred during her stay in a upon him voluntarily; that to arrest the degenerative process taking place in the mandible and to
private house in Quezon City, after her discharge from the National Orthopedic Hospital, which restore the injured boy to a nearly normal condition, surgical intervention was needed; that a repair,
continued stay was upon the advice of her attending physician that she go to that hospital every other however skillfully conducted, is never equivalent to the original state; and that because of the injury,
day for physical therapy (exh. C-3). It will be seen under exhibits C-4 and C-5 that the defendant the boy had suffered greatly.
companies agreed to pay the Soberanos the sum of P10.00 a day for her said stay beginning "June 7,
1955 not to exceed 60 days, depending upon the advice of the attending physician or other bone In the case at bar, the nature and extent of the physical injuries suffered by Juana Soberano and
specialist." The deposition of, and a medical certificate issued by, Dr. Juan 0. Floirendo, in EENT thereafter effects upon her life and activities, are by three reputable physicians: Dr. Hector Lopes, a
specialist who treated Juana Soberano for "visual and other defects", show that he treated her for radiologist of the Baguio General Hospital; Dr. Angel Poblete, an orthopedist of the National
more than sixty days, from September 10, 1955 to February 2, 1956 (exh. L). The balance of P600 Orthopedic Hospital; and Dr. Juan O. Floirendo, an EENT specialist. Dr. Lopez declared that Juana
should, therefore, be paid to Juana Soberano. Soberano suffered comminuted fracture in the left mandible near the articulation, cracked fracture in
the right temporal bone, crushed fractures both scapular, and fracture in the 2nd, 3rd and 4th ribs. As
We come finally to the claim for loss of earning capacity in the total sum of P50,000, based upon the a result of these injuries, Dr. Poblete said that she suffered and would continue to suffer limitation of
expectancy that Juana Soberano, who was 37 years old at the time of the accident, would live for 20 mouth opening, bad approximation of the jaw alignment which is drawn inside, limitation of neck and
more years and be able to earn an average annual income of P2,500. On this point, the lower court shoulder movements with numbness on the right side of the face and right and left side of the body,
found that "Juana Soberano suffered greatly and that her injuries left her permanently disfigured and disturbance in vision, and poor mastication resulting in indigestion. Dr. Poblete further testified that
partially disabled as she walks with a stiff neck and her arms have partly lost their full freedom." After she will be "abnormal and naturally she could not be expected to live a normal life." Dr. Floirendo
declared that she suffers from pain along the cheeks on both sides of her face, double vision, and
paralysis of the ocular muscles due to partial disequilibrium of the eye muscles.

Juana Soberano herself categorically declared, and this was not contradicted, that prior to the
accident, she had a complete and healthy set of teeth; that as a result of the accident she lost three of
her teeth, and the remaining ones in the upper jaw had to be extracted because they were already
loose and a denture had perforce to be made for her; and that her face is permanently disfigured
(exhs. K & K-1).

There is absolutely no doubt that the resultant physical handicaps would entail for Juana Soberano a
loss of positive economic values. In fact, they will greatly adversely affect her occupation as a pending
merchant which she has been since 1950 (exh. A), earning from 1950 to March 8, 1955, when the
accident happened, an average annual net income of about P1,500 (exhs. B, B-1 to B-5, inclusive). It is
to be assumed that had the interruption to her occupation through defendant's wrongful act not
occurred, she would continue earning this average income.

Considering all the facts detailed above, this Court is of the opinion that the sum of P5,000 in
compensatory damages awarded to her for loss of earning capacity is inadequate; the amount should
be increased to P15,000.

She should also be awarded the sum of P45.35, representing unrealized profits from the 3,024 chicken
eggs which she brought with her in the trip and which were destroyed. She brought those eggs to be
sold in Baguio City. She bought them at nine centavos each, was to sell them in Baguio City to definite
customers at an agreed price of ten and a half centavos each, or with a profit of one and a half
centavos per egg.

Finally, all the awards to Juana Soberano should earn interest at the legal rate from the date the
judgment a quo was rendered, on November 25, 1960, and not from the date of the filing of the
complaint.

ACCORDINGLY, the judgment appealed from is modified to read as follows: "Judgment is therefore
rendered ordering the Manila Railroad Company to pay to the plaintiffs (1) P600 representing the
balance of the unpaid allowances due to Juana Soberano in connection with her stay in a private
house in Quezon City during the period of her medical treatment; (2) P15,000 for loss of earning
capacity; and (3) P45.36 for unrealized profits, all of these sums to earn interest at the legal rate from
November 25, 1960." Costs against the defendants-appellees.
 The Court of Appeals in the decision under review found that there was a preponderance of evidence
to the effect that while respondents Arsenio Mendoza, his wife, Leonarda Ilaya, and child, Zenaida
G.R. No. L-24471 August 30, 1968 Mendoza "were waiting for a passenger bus on January 22, 1954 at about 9:00 in the evening at
Malanday, they boarded defendants-appellants' bus bearing No. 141 of the Philippine Rabbit Bus
SILVERIO MARCHAN and PHILIPPINE RABBIT BUS CO., INC., petitioners, Lines with Plate No. TPU-708 bound for Manila. And they were treated as passengers thereto, for they
vs. paid their corresponding fares. As they travelled along the highway bound for Manila, said bus was
ARSENIO MENDOZA, LEONARDA ILAYA, and ZENAIDA MENDOZA, respondents. traveling at a high rate of speed without due regard to the safety of the passengers. So much so that
one of the passengers had to call the attention of Silverio Marchan who was then at the steering
wheel of said bus to lessen the speed or to slow down, but then defendant Silverio Marchan did not
Angel A. Sison for petitioners.
heed the request of said passenger; neither did he slacken his speed. On the contrary, defendant
Manuel M. Crudo for respondents.
Silverio Marchan even increased his speed while approaching a six-by-six truck which was then parked
ahead, apparently for the purpose of passing the said parked truck and to avoid collision with the
FERNANDO, J.: incoming vehicle from the opposite direction. But, when appellant Silverio Marchan veered his truck
to resume position over the right lane, the rear tires of said truck skidded because of his high rate of
Petitioners, the driver of the passenger bus responsible for the injuries sustained by respondent for speed, thereby causing said truck to fall into a ditch. Substantially, the happening of the accident'
which he was duly prosecuted and thereafter convicted for serious, less serious, and slight physical resulting to the multiple injuries of plaintiffs-appellees, was explained by defendant Silverio Marchan
injuries, and the bus firm, the Philippine Rabbit Bus Lines, seek the reversal of a Court of Appeals who declared that while he was driving his bus from Barrio Malanday bound towards Manila on a
decision of December 14, 1964 and a resolution of March 31, 1965, holding them liable both for road test, he suddenly noticed an oncoming vehicle. He thus shifted his light from dim to bright. Just
compensatory and exemplary damages as well as attorney's fees. It is the contention of petitioners then, he noticed a six-by-six truck parked on the right lane of the road where he was driving.
that errors of law were committed when, in the aforesaid decision, it was held that there was an Confronted with such situation that if he would apply his brake he would bump his bus against the
implied contract of carriage between the petitioner bus firm and respondents, the breach of which parked truck he then increased his speed with the view of passing the said parked truck, and
was the occasion for their liability for compensatory and exemplary damages as well as attorneys fees. thereafter he veered to negotiate for the proper position on the right lane, but in so doing he swerved
to the right in order to avoid collision from the oncoming vehicle the rear portion of the bus skidded
The facts as found by the Court of Appeals follow: "In the evening of February 22, 1954, between 9:00 and fell into the ditch."2
and 9:30 o'clock, a passenger bus No. 141 of the Philippine Rabbit Bus Lines, bearing Plate No. TPU-
708 which was then driven by Silverio Marchan fell into a ditch somewhere in Barrio Malanday, Polo, Hence the finding of negligence in the decision under review. Thus: "From the facts as established
Bulacan, while travelling on its way to Manila; as a result of which plaintiffs-appellees Arsenio preponderantly by the plaintiff and substantially corroborated by the defendant Silverio Marchan, it is
Mendoza, his wife and child, [respondents in this proceeding], who were then inside the bus as clear that the cause of the accident was the gross negligence of the defendant Silverio Marchan who
passengers were thrown out to the ground resulting in their multiple injuries. Plaintiff Arsenio when driving his vehicle on the night in question was expected to have employed the highest degree
Mendoza suffered the most serious injuries which damaged his vertebrae causing the paralysis of his of care; and should have been assiduously prudent in handling his vehicle to insure the safety of his
lower extremities which up to the time when this case was tried he continued to suffer. The physician passengers. There is no reason why he could not have stopped his vehicle when noticing a parked
who attended and treated plaintiff Arsenio Mendoza opined that he may never walk again. truck ahead of him if he was not driving at a high speed. His admission to the effect that if he would
Consequently the driver of said bus Silverio Marchan [now petitioner] was prosecuted for serious, less apply his brake he would bump or hit the parked truck ahead of him, since there was no time for him
serious and slight physical injuries through reckless imprudence before the Justice of the Peace Court to stop the bus he was driving, is a patent indication that he was travelling at a high rate of speed
of Polo Bulacan, and thereafter convicted as charged on June 29, 1956 ..., which judgment of without taking the necessary precaution under the circumstance, considering that it was then
conviction was subsequently affirmed by the Court of First Instance of same province ... In this present nighttime. It is our considered view that under the situation as pictured before us by the driver of said
action before us, plaintiffs-appellees Arsenio Mendoza, his wife and child sought to recover damages bus, he should not have increased his speed and by-passed the parked truck obviously with the view
against defendant-appellant Arsenio Marchan, then the driver of bus No. 141 of the Philippine Rabbit of preventing a collision with the incoming vehicle. Any prudent person placed under the situation of
Bus Lines, and from defendants-appellants Bienvenido P. Buan and Natividad Paras in their capacity as the appellant would not have assumed the risk as what appellant did. The most natural reaction that
administrator and administratix, respectively of the estate of the late Florencio P. Buan, doing could be expected from one under the circumstance was for him to have slackened and reduced his
business under the style name of the Philippine Rabbit Bus Lines, predicated not only on a breach of speed. But this was not done simply because defendant-appellant could not possibly do so under the
contract of carriage for failure of defendants operator as well as the defendant driver to safely convey circumstance because he was then travelling at a high rate of speed. In fact, he had increased his
them to their destination, but also on account of a criminal negligence on the part of defendant speed in order to avoid ramming the parked truck without, however, taking the necessary precaution
Silverio Marchan resulting to plaintiff-appellee's multiple physical damages." 1 to insure the safety of his passengers."3
On the above facts, the Court of Appeals, in its decision of December 14, 1964, affirmed the amount condemned for the remainder of his life to be a paralytic, in effect leading a maimed, well-nigh useless
of P40,000.00 awarded by the court below as compensatory damages modifying the appealed lower existence, the fixing of such liability in the amount of P40,000.00 as compensatory damages was well
court decision by holding petitioners to pay the amount of P30,000.00 as exemplary damages and within the discretion of the Court of Appeals. 1äwphï1.ñët
sustaining the award of attorney's fees in the amount of P5,000.00. Then came the resolution of
March 31, 1965 by the Court of Appeals, where the motion for reconsideration of petitioners was As to the finding of liability for exemplary damages, the Court of Appeals, in its resolution of March
denied for lack of merit. 31, 1965, stated the following: "We now come to the imposition of exemplary damages upon
defendants-appellants' carrier. It is argued that this Court is without jurisdiction to adjudicate this
In their brief as petitioners, the first error assigned is the alleged absence of an implied contract of exemplary damages since there was no allegation nor prayer, nor proof, nor counterclaim of error for
carriage by the petitioner bus firm and respondent. On this point, it was the holding of the Court of the same by the appellees. It is to be observed however, that in the complaint, plaintiffs "prayed for
Appeals: "Since it is undisputed by the evidence on record that appellant Silverio Marchan was then at such other and further relief as this Court may deem just and equitable." Now, since the body of the
the steering wheel of the vehicle of the defendant transportation company at that moment, the riding complaint sought to recover damages against the defendant-carrier wherein plaintiffs prayed for
public is not expected to inquire from time to time before they board the passenger bus whether or indemnification for the damages they suffered as a result of the negligence of said Silverio Marchan
not the driver who is at the steering wheel of said bus was authorized to drive said vehicle or that said who is appellant's employee; and since exemplary damages is intimately connected with general
driver is acting within the scope of his authority and observing the existing rules and regulations damages, plaintiffs may not be expected to single out by express term the kind of damages they are
required of him by the management. To hold otherwise would in effect render the aforequoted trying to recover against the defendant's carrier. Suffice it to state that when plaintiffs prayed in their
provision of law (Article 1759) ineffective." 4 It is clear from the above Civil Code provision that complaint for such other relief and remedies that may be availed of under the premises, in effect,
common carriers cannot escape liability "for the death of or injuries to passengers through the therefore, the court is called upon the exercise and use its discretion whether the imposition of
negligence and willful acts of the former's employees, although such employees may have acted punitive or exemplary damages even though not expressly prayed or pleaded in the plaintiffs'
beyond the scope of their authority or in violation of the orders..." 5 From Vda. de Medina v. complaint."9
Cresencia,6 where this Court, through Justice J.B.L. Reyes, stressed the "direct and immediate" liability
of the carrier under the above legal provision, "not merely subsidiary or secondary," to Maranan v. In support of the above view, Singson v. Aragon was cited by the Court of Appeals. 10 As was there
Perez,7 a 1967 decision, the invariable holding has been the responsibility for breach of the contract of held by this Court: "From the above legal provisions it appears that exemplary damages may be
carriage on the part of the carrier. According to the facts as above disclosed, which this Court cannot imposed by way of example or correction only in addition, among others, to compensatory damages,
disturb, the applicability of Article 1759 is indisputable. Hence, the total absence of merit of the first but that they cannot be recovered as a matter of right, their determination depending upon the
assignment of error. discretion of the court. It further appears that the amount of exemplary damages need not be proved,
because its determination depends upon the amount of compensatory damages that may be awarded
The next two errors assigned would dispute the holding of the Court of Appeals in imposing liability in to the claimant. If the amount of exemplary damages need not be proved, it need not also be alleged,
the respective amounts of P40,000.00 for compensatory damages and P30,000.00 for exemplary and the reason is obvious because it is merely incidental or dependent upon what the court may
damages. Again, such assignments of error cannot be looked upon with favor. What the Court of award as compensatory damages. Unless and until this premise is determined and established, what
Appeals did deserves not reprobation but approval by this Court. may be claimed as exemplary damages would amount to a mere surmise or speculation. It follows as
a necessary consequence that the amount of exemplary damages need not be pleaded in the
As to why the amount in compensatory damages should be fixed in the sum of P40,000.00 is complaint because the same cannot be predetermined. One can merely ask that it be determined by
explained in the appealed decision thus: "Likewise, it is our considered view that the amount of the court if in the use of its discretion the same is warranted by the evidence, and this is just what
P40,000.00 awarded by the court below as compensatory damages is quite reasonable and fair, appellee has done.".
considering that plaintiff Arsenio Mendoza had suffered paralysis on the lower extremities, which will
incapacitate him to engage in his customary occupation throughout the remaining years of his life, Such a principle has been repeatedly upheld. 11 In Corpuz v. Cuaderno, 12 this Court, again through
especially so if we take into account that plaintiff Arsenio Mendoza was only 26 years old when he Justice J.B.L. Reyes, made clear that the amount "lies within the province of the court a quo, ..." It
met an accident on January 22, 1954; and taking the average span of life of a Filipino, he may be must be admitted, of course, that where it could be shown that a tribunal acted "with vindictiveness
expected to live for 30 years more; and bearing in mind the earning capacity of Arsenio Mendoza who or wantonness and not in the exercise of honest judgment," then there is room for the interposition
before the happening of this accident derived an income of almost P100.00 a month from the of the corrective power of this Tribunal.
business of his father-in-law as Assistant Supervisor of the small [fairs] and his income of P100.00 a
month which he derived as a professional boxer." 8 Considering that respondent Arsenio Mendoza was
only in his middle twenties when, thru the negligence of petitioners, he lost the use of his limbs, being
No such reproach can be hurled at the decision and resolution now under review. No such indictment
would be justified. As noted earlier, both the second and the third assignments of error are devoid of
merit.

Nor is there any occasion to consider further the fourth assigned error, petitioner being dissatisfied
with the award of P5,000.00 as attorney's fees to respondents. On its face, such an assignment of an
alleged error is conspicuously futile. 1äwphï1.ñët

The judgment, however, must be modified in accordance with the ruling of this Court in Soberano v.
Manila Railroad Co. 13 Respondents are entitled to interest for the amount of compensatory damages
from the date of the decision of the lower court and legal interest on the exemplary damages from
the date of the decision of the Court of Appeals.

WHEREFORE, as thus modified, the decision is affirmed, petitioners being liable for the sum of
P40,000.00 in the concept of compensatory damages with interest at the legal rate from and after
January 26, 1960, and the sum of P30,000.00 as exemplary damages with interest at the legal rate
from and after December 14, 1964, as well as for the sum of P5,000.00 as attorney's fees, likewise
earning a legal rate of interest from and after January 26, 1960. Costs against petitioners.

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

PHILIPPINE AIRLINES, INC., Petitioner, vs. COURT OF APPEALS and PEDRO ZAPATOS, Respondents.

Leighton R. Liazon for petitioner.chanrobles virtual law library

Balmes L. Ocampo for private respondent. The following day, private respondent purchased a PAL ticket to Iligan City. He informed PAL personnel
that he would not use the free ticket because he was filing a case against PAL. 7 In Iligan City, private
BELLOSILLO, J.: respondent hired a car from the airport to Kolambugan, Lanao del Norte, reaching Ozamiz City by
crossing the bay in a launch. 8 His personal effects including the camera, which were valued at
This petition for review in certiorari seeks to annul and set aside the decision of the then Intermediate P2,000.00 were no longer recovered.chanroblesvirtualawlibrarychanrobles virtual law library
Appellant Court, 1 now Court of Appeals, dated 28 February 1985, in AC-G.R. CV No. 69327 ("Pedro
Zapatos v. Philippine Airlines, Inc.") affirming the decision of the then Court of first Instance, now On 13 January 1977, PAL filed its answer denying that it unjustifiably refused to accommodate private
Regional Trial Court, declaring Philippine Airlines, Inc., liable in damages for breach of respondent. 9 It alleged that there was simply no more seat for private respondent on Flight 560 since
contract.chanroblesvirtualawlibrarychanrobles virtual law library there were only six (6) seats available and the priority of accommodation on Flight 560 was based on
the check-in sequence in Cebu; that the first six (6) priority passengers on Flight 477 chose to take
On 25 November 1976, private respondent filed a complaint for damages for breach of contract of Flight 560; that its Station Agent explained in a courteous and polite manner to all passengers the
carriage 2 against Philippine Airlines, Inc. (PAL), before the then Court of First Instance, now Regional reason for PAL's inability to transport all of them back to Cebu; that the stranded passengers agreed
Trial Court, of Misamis Occidental, at Ozamiz City. According to him, on 2 August 1976, he was among to avail of the options and had their respective tickets exchanged for their onward trips; that it was
the twenty-one (21) passengers of PAL Flight 477 that took off from Cebu bound for Ozamiz City. The only the private respondent who insisted on being given priority in the accommodation; that pieces of
routing of this flight was Cebu-Ozamiz-Cotabato. While on flight and just about fifteen (15) minutes checked-in baggage and had carried items of the Ozamiz City passengers were removed from the
before landing at Ozamiz City, the pilot received a radio message that the airport was closed due to aircraft; that the reason for their pilot's inability to land at Ozamis City airport was because the
heavy rains and inclement weather and that he should proceed to Cotabato City runway was wet due to rains thus posing a threat to the safety of both passengers and aircraft; and,
instead.chanroblesvirtualawlibrarychanrobles virtual law library that such reason of force majeure was a valid justification for the pilot to bypass Ozamiz City and
proceed directly to Cotabato City.chanroblesvirtualawlibrarychanrobles virtual law library
Upon arrival at Cotabato City, the PAL Station Agent informed the passengers of their options to
return to Cebu on flight 560 of the same day and thence to Ozamiz City on 4 August 1975, or take the On 4 June 1981, the trial court rendered its decision 10 the dispositive portion of which states:
next flight to Cebu the following day, or remain at Cotabato and take the next available flight to
Ozamiz City on 5 August 1975. 3 The Station Agent likewise informed them that Flight 560 bound for WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant
Manila would make a stop-over at Cebu to bring some of the diverted passengers; that there were Philippine AirLines, Inc. ordering the latter to pay:chanrobles virtual law library
only six (6) seats available as there were already confirmed passengers for Manila; and, that the basis
for priority would be the check-in sequence at Cebu.chanroblesvirtualawlibrarychanrobles virtual law (1) As actual damages, the sum of Two Hundred Pesos (P200.00) representing plaintiff's expenses for
library transportation, food and accommodation during his stranded stay at Cotabato City; the sum of Forty-
Eight Pesos (P48.00) representing his flight fare from Cotabato City to Iligan city; the sum of Five
Private respondent chose to return to Cebu but was not accommodated because he checked-in as Hundred Pesos (P500.00) representing plaintiff's transportation expenses from Iligan City to Ozamiz
passenger No. 9 on Flight 477. He insisted on being given priority over the confirmed passengers in City; and the sum of Five Thousand Pesos (P5,000.00) as loss of business opportunities during his
the accommodation, but the Station Agent refused private respondent's demand explaining that the stranded stay in Cotabato City;chanrobles virtual law library
latter's predicament was not due to PAL's own doing but to be a force majeure. 4chanrobles virtual law
library (2) As moral damages, the sum of Fifty Thousand Pesos (P50,000.00) for plaintiff's hurt feelings,
serious anxiety, mental anguish and unkind and discourteous treatment perpetrated by defendant's
Private respondent tried to stop the departure of Flight 560 as his personal belongings, including a employees during his stay as stranded passenger in Cotabato City;chanrobles virtual law library
package containing a camera which a certain Miwa from Japan asked him to deliver to Mrs. Fe Obid of
Gingoog City, were still on board. His plea fell on deaf ears. PAL then issued to private respondent a (3) As exemplary damages, the sum of Ten Thousand Pesos (P10,000.00) to set a precedent to the
free ticket to Iligan city, which the latter received under protest. 5 Private respondent was left at the defendant airline that it shall provide means to give comfort and convenience to stranded
airport and could not even hitch a ride in the Ford Fiera loaded with PAL personnel. 6 PAL neither passengers;chanrobles virtual law library
provided private respondent with transportation from the airport to the city proper nor food and
accommodation for his stay in Cotabato City.chanroblesvirtualawlibrarychanrobles virtual law library (4) The sum of Three Thousand Pesos (P3,000.00) as attorney's fees;chanrobles virtual law library

(5) To pay the costs of this suit.

PAL appealed to the Court of Appeals which on 28 February 1985, finding no reversible error, affirmed Q After that what did you do?chanrobles virtual law library
the judgment of the court a quo. 11chanrobles virtual law library
A I tried to look for a transportation that could bring me down to the City of
12
PAL then sought recourse to this Court by way of a petition for review on certiorari upon the Cotabato.chanroblesvirtualawlibrarychanrobles virtual law library
following issues: (1) Can the Court of Appeals render a decision finding petitioner (then defendant-
appellant in the court below) negligent and, consequently, liable for damages on a question of Q Were you able to go there?chanrobles virtual law library
substance which was neither raised on a question nor proved at the trial? (2) Can the Court of Appeals
award actual and moral damages contrary to the evidence and established A I was at about 7:00 o'clock in the evening more or less and it was a private jeep that I boarded. I was
jurisprudence? 13chanrobles virtual law library even questioned why I and who am (sic) I then. Then I explained my side that I am (sic) stranded
passenger. Then they brought me downtown at Cotabato.chanroblesvirtualawlibrarychanrobles virtual
An assiduous examination of the records yields no valid reason for reversal of the judgment on law library
appeal; only a modification of its disposition.chanroblesvirtualawlibrarychanrobles virtual law library
Q During your conversation with the Manager were you not offered any vehicle or transportation to
In its petition, PAL vigorously maintains that private respondent's principal cause of action was its Cotabato airport downtown?chanrobles virtual law library
alleged denial of private respondent's demand for priority over the confirmed passengers on Flight
560. Likewise, PAL points out that the complaint did not impute to PAL neglect in failing to attend to A In fact I told him (Manager) now I am by-passed passenger here which is not my destination what
the needs of the diverted passengers; and, that the question of negligence was not and never put in can you offer me. Then they answered, "it is not my fault. Let us forget that."chanrobles virtual law
issue by the pleadings or proved at the trial.chanroblesvirtualawlibrarychanrobles virtual law library library

Contrary to the above arguments, private respondent's amended complaint touched on PAL's Q In other words when the Manager told you that offer was there a vehicle ready?chanrobles virtual
indifference and inattention to his predicament. The pertinent portion of the amended law library
complaint 14 reads:
A Not yet. Not long after that the Ford Fiera loaded with PAL personnel was passing by going to the
10. That by virtue of the refusal of the defendant through its agent in Cotabato to accommodate (sic) City of Cotabato and I stopped it to take me a ride because there was no more available
and allow the plaintiff to take and board the plane back to Cebu, and by accomodating ( sic) and transportation but I was not accommodated.
allowing passengers from Cotabato for Cebu in his stead and place, thus forcing the plaintiff against
his will, to be left and stranded in Cotabato, exposed to the peril and danger of muslim rebels
Significantly, PAL did not seem to mind the introduction of evidence which focused on its alleged
plundering at the time, the plaintiff, as a consequence, (have) suffered mental anguish, mental
negligence in caring for its stranded passengers. Well-settled is the rule in evidence that the protest or
torture, social humiliation, bismirched reputation and wounded feeling, all amounting to a
objection against the admission of evidence should be presented at the time the evidence is offered,
conservative amount of thirty thousand (P30,000.00) Pesos.
and that the proper time to make protest or objection to the admissibility of evidence is when the
question is presented to the witness or at the time the answer thereto is given. 16 There being no
To substantiate this aspect of apathy, private respondent testified 15 objection, such evidence becomes property of the case and all the parties are amenable to any
favorable or unfavorable effects resulting from the evidence. 17chanrobles virtual law library
A I did not even notice that I was I think the last passenger or the last person out of the PAL
employees and army personnel that were left there. I did not notice that when I was already outside PAL instead attempted to rebut the aforequoted testimony. In the process, it failed to substantiate its
of the building after our conversation.chanroblesvirtualawlibrarychanrobles virtual law library counter allegation for want of concrete proof 18 -

Q What did you do next?chanrobles virtual law library Atty. Rubin O. Rivera - PAL's counsel:chanrobles virtual law library

A I banished (sic) because it seems that there was a war not far from the airport. The sound of guns Q You said PAL refused to help you when you were in Cotabato, is that right?chanrobles virtual law
and the soldiers were plenty.chanroblesvirtualawlibrarychanrobles virtual law library library
Private respondent:chanrobles virtual law library The contract of air carriage, therefore, generates a relation attended with a public duty . . . .
( emphasis supplied).
A Yes.chanroblesvirtualawlibrarychanrobles virtual law library
The position taken by PAL in this case clearly illustrates its failure to grasp the exacting standard
Q Did you ask them to help you regarding any offer of transportation or of any other matter asked of required by law. Undisputably, PAL's diversion of its flight due to inclement weather was a fortuitous
them?chanrobles virtual law library event. Nonetheless, such occurrence did not terminate PAL's contract with its passengers. Being in the
business of air carriage and the sole one to operate in the country, PAL is deemed equipped to deal
A Yes, he (PAL PERSONNEL) said what is? It is not our fault.chanroblesvirtualawlibrarychanrobles with situations as in the case at bar. What we said in one case once again must be stressed, i.e., the
virtual law library relation of carrier and passenger continues until the latter has been landed at the port of destination
and has left the carrier's premises. 22 Hence, PAL necessarily would still have to exercise extraordinary
diligence in safeguarding the comfort, convenience and safety of its stranded passengers until they
Q Are you not aware that one fellow passenger even claimed that he was given Hotel accommodation
have reached their final destination. On this score, PAL grossly failed considering the then ongoing
because they have no money?
battle between government forces and Muslim rebels in Cotabato City and the fact that the private
respondent was a stranger to the place. As the appellate court correctly ruled -
xxx xxx xxx
While the failure of plaintiff in the first instance to reach his destination at Ozamis City in accordance
A No, sir, that was never offered to me. I said, I tried to stop them but they were already riding that with the contract of carriage was due to the closure of the airport on account of rain and inclement
PAL pick-up jeep, and I was not accommodated. weather which was radioed to defendant 15 minutes before landing, it has not been disputed by
defendant airline that Ozamis City has no all-weather airport and has to cancel its flight to Ozamis City
Having joined in the issue over the alleged lack of care it exhibited towards its passengers, PAL cannot or by-pass it in the event of inclement weather. Knowing this fact, it becomes the duty of defendant to
now turn around and feign surprise at the outcome of the case. When issues not raised by the provide all means of comfort and convenience to its passengers when they would have to be left in a
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as strange place in case of such by-passing. The steps taken by defendant airline company towards this
if they had been raised in the pleadings. 19chanrobles virtual law library end has not been put in evidence, especially for those 7 others who were not accommodated in the
return trip to Cebu, only 6 of the 21 having been so accommodated. It appears that plaintiff had to
With regard to the award of damages affirmed by the appellate court, PAL argues that the same is leave on the next flight 2 days later. If the cause of non-fulfillment of the contract is due to a
unfounded. It asserts that it should not be charged with the task of looking after the passengers' fortuitous event, it has to be the sole and only cause (Art. 1755 CC., Art. 1733 C.C.) Since part of the
comfort and convenience because the diversion of the flight was due to a fortuitous event, and that if failure to comply with the obligation of common carrier to deliver its passengers safely to their
made liable, an added burden is given to PAL which is over and beyond its duties under the contract of destination lay in the defendant's failure to provide comfort and convenience to its stranded
carriage. It submits that granting arguendo that negligence exists, PAL cannot be liable in damages in passengers using extra-ordinary diligence, the cause of non-fulfillment is not solely and exclusively
the absence of fraud or bad faith; that private respondent failed to apprise PAL of the nature of his due to fortuitous event, but due to something which defendant airline could have prevented,
trip and possible business losses; and, that private respondent himself is to be blamed for defendant becomes liable to plaintiff. 23chanrobles virtual law library
unreasonably refusing to use the free ticket which PAL issued.chanroblesvirtualawlibrarychanrobles
virtual law library While we find PAL remiss in its duty of extending utmost care to private respondent while being
stranded in Cotabato City, there is no sufficient basis to conclude that PAL failed to inform him about
The contract of air carriage is a peculiar one. Being imbued with public interest, the law requires his non-accommodation on Flight 560, or that it was inattentive to his queries relative
common carriers to carry the passengers safely as far as human care and foresight can provide, using thereto.chanroblesvirtualawlibrarychanrobles virtual law library
the utmost diligence of very cautious persons, with due regard for all the circumstances. 20 In Air
France v. Carrascoso, 21 we held that - On 3 August 1975, the Station Agent reported to his Branch Manager in Cotabato City that -

A contract to transport passengers is quite different in kind and degree from any other contractual 3. Of the fifteen stranded passengers two pax elected to take F478 on August 05, three pax opted to
relation. And this, because of the relation which an air carrier sustains with the public. Its business is take F442 August 03. The remaining ten (10) including subject requested that they be instead
mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. accommodated (sic) on F446 CBO-IGN the following day where they intended to take the surface
transportation to OZC. Mr. Pedro Zapatos had by then been very vocal and boiceterous (sic) at the
counter and we tactfully managed to steer him inside the Station Agent's office. Mr. Pedro Zapatos A There were plenty of argument and I was one of those talking about my
then adamantly insisted that all the diverted passengers should have been given priority over the case.chanroblesvirtualawlibrarychanrobles virtual law library
originating passengers of F560 whether confirmed or otherwise. We explained our policies and after
awhile he seemed pacified and thereafter took his ticket (in-lieued (sic) to CBO-IGN, COCON basis), at Q Did you hear anybody complained (sic) that he has not been informed of the decision before the
the counter in the presence of five other passengers who were waiting for their tickets too. The rest of plane left for Cebu?chanrobles virtual law library
the diverted pax had left earlier after being assured their tickets will be ready the following
day. 24chanrobles virtual law library A No. 25

Aforesaid Report being an entry in the course of business is prima facie evidence of the facts therein Admittedly, private respondent's insistence on being given priority in accommodation was
stated. Private respondent, apart from his testimony, did not offer any controverting evidence. If unreasonable considering the fortuitous event and that there was a sequence to be observed in the
indeed PAL omitted to give information about the options available to its diverted passengers, it booking, i.e., in the order the passengers checked-in at their port of origin. His intransigence in fact
would have been deluged with complaints. But, only private respondent complained - was the main cause for his having to stay at the airport longer than was necessary.

Atty. Rivera (for PAL)chanrobles virtual law library Atty. Rivera:chanrobles virtual law library

Q I understand from you Mr. Zapatos that at the time you were waiting at Cotabato Airport for the Q And, you were saying that despite the fact that according to your testimony there were at least 16
decision of PAL, you were not informed of the decision until after the airplane left is that correct? passengers who were stranded there in Cotabato airport according to your testimony, and later you
chanrobles virtual law library said that there were no other people left there at that time, is that correct?chanrobles virtual law
library
A Yes.chanroblesvirtualawlibrarychanrobles virtual law library
A Yes, I did not see anyone there around. I think I was the only civilian who was left
COURT:chanrobles virtual law library there.chanroblesvirtualawlibrarychanrobles virtual law library

Q What do you mean by "yes"? You meant you were not informed?chanrobles virtual law library Q Why is it that it took you long time to leave that place?chanrobles virtual law library

A Yes, I was not informed of their decision, that they will only accommodate few A Because I was arguing with the PAL personnel. 26
passengers.chanroblesvirtualawlibrarychanrobles virtual law library
Anent the plaint that PAL employees were disrespectful and inattentive toward private respondent,
Q Aside from you there were many other stranded passengers?chanrobles virtual law library the records are bereft of evidence to support the same. Thus, the ruling of respondent Court of
Appeals in this regard is without basis. 27 On the contrary, private respondent was attended to not only
A I believed, yes.chanroblesvirtualawlibrarychanrobles virtual law library by the personnel of PAL but also by its Manager." 28chanrobles virtual law library

Q And you want us to believe that PAL did not explain (to) any of these passengers about the decision In the light of these findings, we find the award of moral damages of Fifty Thousand Pesos
regarding those who will board the aircraft back to Cebu?chanrobles virtual law library (P50,000.00) unreasonably excessive; hence, we reduce the same to Ten Thousand Pesos
(P10,000.00). Conformably herewith, the award of exemplary damages is also reduced to five
A No, Sir.chanroblesvirtualawlibrarychanrobles virtual law library Thousand Pesos (5,000.00). Moral damages are not intended to enrich the private respondent. They
are awarded only to enable the injured party to obtain means, diversion or amusements that will
Q Despite these facts Mr. Zapatos did any of the other passengers complained (sic) regarding that serve to alleviate the moral suffering he has undergone by reason of the defendant's culpable
incident? action. 29chanrobles virtual law library

xxx xxx xxx With regard to the award of actual damages in the amount of P5,000.00 representing private
respondent's alleged business losses occasioned by his stay at Cotabato City, we find the same
unwarranted. Private respondent's testimony that he had a scheduled business "transaction of shark
liver oil supposedly to have been consummated on August 3, 1975 in the morning" and that "since
(private respondent) was out for nearly two weeks I missed to buy about 10 barrels of shark liver
oil," 30 are purely speculative. Actual or compensatory damages cannot be presumed but must be duly
proved with reasonable degree of certainty. A court cannot rely on speculation, conjecture or
guesswork as to the fact and amount of damages, but must depend upon competent proof that they
have suffered and on evidence of the actual amount thereof. 31chanrobles virtual law library

WHEREFORE the decision appealed from is AFFIRMED with modification however that the award of
moral damages of Fifty Thousand Pesos (P50,000.00) is reduced to Ten Thousand Pesos (P10,000.00)
while the exemplary damages of Ten Thousand Pesos (P10,000.00) is also reduced to Five Thousand
Pesos (P5,000.00). The award of actual damages in the amount Five Thousand Pesos (P5,000.00)
representing business losses occasioned by private respondent's being stranded in Cotabato City is
deleted.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

G.R. No. L-63135 June 24, 1983

GLORIA DARROCHA DE CALISTON, petitioner,

vs.
THE HONORABLE COURT OF APPEALS AND GERONIMO DALMACIO, respondents.

Alexander J. Cawit for petitioner.

Rexco U. Alejano for private respondent.

RESOLUTION WHEREFORE, the petition is hereby granted partially in that the P10,000.00 award for loss of pension
deleted in the appealed Court of Appeals decision is hereby reinstated. Costs against private
respondent.

PLANA, J.: SO ORDERED.

While driving a passenger bus in Bacolod City, private respondent Geronimo Dalmacio ran over Juana
Sonza Vda. de Darrocha (a USVA pensioner) who died instantly, survived by her only child, Gloria
Darrocha de Caliston, the herein petitioner.

Prosecuted for homicide thru reckless imprudence, Dalmacio was convicted by the Court of First
Instance of Negros Occidental, sentenced to imprisonment and ordered to pay the herein petitioner
P15,000.00 for the death of the victim, P5,000.00 as moral damages, P5,000.00 for burial expenses
and P10,000.00 for loss of pension which the deceased had failed to receive.

On appeal, the former Court of Appeals modified the CFI decision by absolving Dalmacio from the
payment of the P10,000.00 for loss of pension and credited him for the amount of P5,000.00
previously paid to the herein petitioner under a vehicular insurance policy obtained by the bus owner.

The above modifications are now assailed in this petition for review on which the private respondent
has filed his comment.

The deletion of the P10,000.00 awarded for loss of pension is unjustified. Under Article 2206 of the
Civil Code —

The amount of damages for death caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may have been mitigating circumstances.
In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shag be paid to the heirs of the latter. . .

The pension of the decedent being a sure income that was cut short by her death for which Dalmacio
was responsible, the surviving heir of the former is entitled to the award of P 10,000.00 which is just
equivalent to the pension the decedent would have received for one year if she did not die.

On the other hand, the P5,000.00 paid to the herein petitioner by the insurer of the passenger bus
which figured in the accident may be deemed to have come from the bus owner who procured the
insurance. Since the civil liability (ex-delicto) of the latter for the death caused by his driver is
subsidiary and, at bottom, arises from the same culpa, the insurance proceeds should be credited in
favor of the errant driver.