Culpa Aquilana - Culpa Contractual 2h6c14

G.R. No. L-65295, 10 March 1987 PHOENIX CONSTRUCTION INC. and ARMANDO U. CARBONEL v. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO J. Feliciano

truck or whether those headlights accidently malfunctioned moments before the collision

In the early morning of 1975, Dionisio was driving (Volkswagen) on his way to home (Makati City) from a cocktails-dinner meeting with his boss and had taken a shot or two. On his way home, his headlights suddenly failed where he hit a dump truck (owned by Phoenix and driven by Carbonel, its regular driver) that was parked on the right hand side of the street directing toward Dionisio’s car. The dump truck was park askew or not parallel to the street curb in such a manner as to stick out onto the street partly blocking the way of oncoming traffic. There were no lights nor any early warning reflector devices set anywhere near the car that evening been driven by Carbonel. Dionisio claimed that he tried to avoid a collision by swerving to the left but it was too late and his car smashed into the said truck. As a result, Dioniso suffered physical injuries including some permanent facial scars, nervous breakdown and loss of two gold bridge dentures. Dioniso commenced an action for damages in the CFI of Pampanga claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel parked the dump track entrusted to him by his employer. Trial Court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered to tly pay the former for damages. Carbonel and Pheonix appealed to the Intermediate Appellate Court but the said court affirmed the decision of the trial court but modified the award of damages. Issue: Whether or not Carbonel and Phoenix may be held tly liable for damages as said dump truck was parked askew which was considered as the proximate cause of the accident. Ratio Decidendi: Both courts failed to upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck. Petitioners contended that if there was negligence in the manner in which the dump truck was parked, that negligence was merely “ive and static condition” and that Dionisio recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained. The Court raised the following factual issues and findings: Whether or not private respondent had a curfew valid and effective for that eventful nights

Whether Dionisio was driving fast or speeding just before the collision with the dump truck

Whether Dionisio had purposely turned off his car’s headlights before with the dump

No curfew was found on the person of Dionisio immediately after the accident nor was any found in his car (Dionisio also cannot produced any curfew during the trial). The Court find that he was unable to prove possession of a valid curfew during the night of the accident and that the preponderance of evidence shows that he did not have such a during that night. Patrolman Cuyno (presented witness) testified that people who had gathered at the scene of the accident told him that Dionisio’s car was moving fast and did not have its headlights on. Respondents objection fails to take of the fact that the testimony of Cuyno is issible not under the official records exception to the hearsay rule but rather as part of the res gestae. The Court believed that the contention of the petitioner is more credible, that Dionision

Whether Dionisio was intoxicated at the time of the accident

purposely shut off his headlights even before he reached the intersection so as not to be detected by the police in the police in the precinct which he knew because he was a resident in that place and is not far away from the intersection. The fact that he succeeded in switching his lights on again at “bright” split seconds before the with the dump truck rebutted his allegation of technical malfunction. There is no enough evidence to show how much liquor he had in fact taken and the effect of that upon his physical faculties or upon his judgment or mental alertness. We are also aware that “one shot or two” of hard liquor may affect different people differently.

The Supreme Court concluded from the factual circumstances outlined that Dionisio was negligent the night of the accident but agreed that the proximate cause of the accident and of his injuries was the wrongful – or negligent manner in which the dump truck was parked in other words, the negligence of Carbonel. That there was a reasonable relationship between Carbonel’s negligence on the one hand and t he accident and respondent’s injuries on the other hand, however, the collision of Dionisio’s car with the dump truck was a natural and foreseeable consequence of the truck driver’s negligence. Cause and Condition. If the defendant has created only a ive static condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result it is quite impossible to distinguish between active forces and ive situations, particularly since, as is invariably the case, the latter are the result of the other active forces which have gone before. BUT THE DISTINCTION IS NOW ALMOST ENTIRELY DISCREDITED. IT IS NOT THE DISTINCTION BETWEEN CAUSE AND CONDITION WHICH IS IMPORTANT BUT THE NATURE OF THE RISK AND THE CHARACTER OF THE INTERVENING CAUSE. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down the street and for having so created this risk, the truck driver must be held responsible. The truck driver owed a duty to private respondent Dionisio and other similarly situated not to impose upon them the very risk the truck driver had created. Foreseeable Intervening Causes was defined as one which in ordinary human experience is reasonably to be anticipated or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligence among other reasons, because of failure to guard against it; or the defendant may be negligent for that reason. The Court hold that Dionisio’s negligence was “only contributory” that the “immediate and proximate cause” of the injury remained the truck driver’s “lack of due care” Dionisio may recover damages though such damages are subject to mitigation by the Courts. Petitioners also asked to apply the “last clear chance” doctrine. The theory is that while petitioner’s truck was negligent, Dionisio had the last clear chance of avoiding the accident and hence his injuries alone. The common law doctrine of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff’s negligence was relatively minor as compared with the wrongful act or omission of the defendant. This doctrine permits the courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the 1

casualty and failed to do so. But this will not apply. Art. 2179 of the NCC is use to determine whose negligence (plaintiff or defendant) was the legal or proximate cause of the injury. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the foreseeable consequences of his own negligent act or omission. Our law on quasi delicts seeks to reduce the risk and burdens of living in society and to allocate them among the of the society. The circumstance that Phoenix had allowed its truck driver to bring to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoinex. Dispositive Portion: Decision of the appellate court is modified by reducing the aggregate amount of compensatory damages, loss of income and moral damages of Dionisio is entitled to by 20% of such amount. -------------------------XXX-------------------------PSBA v. CA G.R. No. 84698 February 4,1992 Civil Law; Quasi-Delicts; Article 2180 of the Civil Code provides that the damage should have been caused by pupils or students of the educational institution.—Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court of Appeals. In all such cases, it had been stressed that the law (Article 2180) plainly provides that the damage should have been caused or inflicted by pupils or students of the educational institution sought to be held liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable. Same; Contracts; An academic institution enters into a contract when it accepts students for enrollment; The contract between school and student is one "imbued with public interest".— Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof. Same; Human Relations; Article 21; Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.—Air penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-American, supra, the public embarrassment caused to the enger was the justification for the Circuit Court of Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi-delict. In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. In

other words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the school cannot exist independently on the contract, unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code. Overview: PSBA is being made to by the parents of its student, Carlitos Bautista, who was stabbed to death by assailants from outside the school inside the school premises. The Court of Appeals ruled that the RTC decision to deny the school’s motion to dismiss was correct, affirming the order, following the rule on quasi-delicts (NCC Arts. 2180 and 2176). The Supreme Court, however, ruled that the law on quasidelicts does not apply, as there exists a contract between school and student including an obligation to safety; it rules that torts may be the acts that break a contract and thus liability may still be incurred by the school following NCC Art. 21. Topic: Obligations; quasi-delicts; torts Statement of the Case The death of one Carlitos Bautista on the premises of the Philippine School of Business istration (PSBA) prompted his parents to file a suit for damages resulting from negligence, recklessness, and insufficiency of safety precautions against said school, specifically its officials, at the RTC of Manila, which was presided over by Judge Regina Ordonez-Benitez. As defendants, PSBA et al sought the dismissal of the case on the ground that PSBA, as an academic institution, is beyond the ambit of Article 2180 of the NCC, under which they are being sued. The RTC denied their motion to dismiss, then the subsequent motion for reconsideration. Defendants-turned-petitioners assailed the RTC’s dispositions before the CA, but the appellate court upheld the ruling given by the RTC, and denied the subsequent motion for reconsideration, bringing the appellants to the Supreme Court. Statement of Facts 30 August 1985: Carlitos Bautista was stabbed to death on the second floor balcony of PSBA. Bautista was a student in said school, a junior commerce major. It was established that the assailants were outsiders, not enrolled nor d with the school. o His parents (the private respondents Segunda [?] and Arsenia), filed suit for damages against the school and the following school officials: Juan D. Lim (President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and Lt. M. Soriano (Assistant Chief of Security). The last, during the proceedings, resigned from his position. 8 December 1987: The respondent Manila RTC, having overruled instant petitioners’ contentions, denies their motion to dismiss the case. 25 January 1988: The RTC dismisses the motion for reconsideration as well. 10 June 1988: The CA affirms the trial court’s orders; petitioners file a motion for reconsideration. 22 August 1988: The CA denies the motion for reconsideration. Applicable Laws: Art. 1157(5), NCC: Obligations arise from: (5) Quasi-delicts Art. 1162, NCC: Obligations derived from quasi-delicts shall be governed by the provisions of Chapter 2, Title XVII of this Book, and by special laws. Art. 2176, NCC: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay 2

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for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2180, pars. 1, 7, NCC: The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

XXX Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. Art. 21, NCC: Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Issues: 1. Was the Court of Appeals correct in affirming the decision of the RTC not to dismiss the case against PSBA? Held

Rationale: HOWEVER, the Supreme Court disagrees with the CA’s basis for the decision being anchored on Arts. 2176 and 2180 of the NCC. The SC agrees with the CA that the case must be remanded to the RTC for trial on its merits. But the reason provided by the CA, which is that in light of previous jurisprudence and the fact that Article 2180 is a holdover from the Spanish era, the school s should be made liable for damages until they prove themselves absolved of liability in trial by merits, is erroneous. The SC points out that Arts 2180 and 2176 establish the rule of in loco parentis (“in place of the parents” – Mikey) and that in the discussions provided in the cases cited by the CA, it was clear that the liability of the school exists only for the acts performed by students while in school custody, something which was established to have not been the case here. Thus the rule on quasi-delicts does not apply.

The SC rules that despite the inapplicability of the rule 1. Yes. on quasi-delicts, the school is still liable because all academic institutions enter into a contract with all its enrollees. Part of the obligations of this contract is the providence of an adequate atmosphere of safety for its students (“x x x no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb.”). Obligations from quasi-delict or tort* do not govern, since these are extra-contractual and a contract has been made here. However, in Air vs. Carroscoso, it was established that liability from tort may still exist even if there is a contract, because the act that breaks the contract may also be a tort. This rule obeys Art. 21. The SC here dictates that a trial is necessary in order to determine whether such willful negligence really lies, in order that liability should be properly determined. Judgment: Case remanded to Manila RTC, the court of origin. Notes: * tort. 1. A civil wrong for which a remedy may be obtained, usu. in the form of damages; a breach of duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction. 2. (pl.) The branch of law dealing with such wrongs. (Black’s Law Dictionary, 7th ed.) ------------------------XXX---------------------------

AIR , vs. RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS G.R. No. L-21438 , September 28, 1966 FACTS: Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air , through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino engers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man"; and plaintiff reluctantly gave his "first class" seat in the plane.

DECISION OF LOWER COURTS: 1. CFI – Manila: sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip BangkokRome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit. 2. CA: slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner. Air contends that respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. ISSUE: Whether or not Carrascoso was entitled to the 1st class seat and consequently, whether or not he was entitled to the damages awarded. HELD: YES TO BOTH. Was Carrascoso entitled to the first class seat he claims? Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any 3

reservation whatever. Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court.

Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. On the question of bad faith, the Court of Appeals declared:

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air enger is placed in the hollow of the hands of an airline. What security then can a enger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the enger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between enger and air carrier, adherence to the ticket so issued is desirable.

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows:

Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket.

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-enger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did neither. 37

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager".Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith; and that the decision of the Court of Appeals fails to make a finding of bad faith. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class age covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and

"First-class enger was forced to go to the tourist class against his will, and that the captain refused to intervene",

The Court of appeals further stated — Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to another enger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind 4

affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39 And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus: The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many engers to have him thrown out of the airplane to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued by the defendant to him.40 The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says: ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. A contract to transport engers is quite different in kind and degree from any other contractual relation. And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages. engers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a enger gives the latter an action for damages against the carrier. Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict. Damages are proper. Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class enger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think

so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is issible. We, therefore, hold that the transcribed testimony of Carrascoso is issible in evidence. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages — in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. We do not intend to break faith with the tradition that discretion well exercised — as it was here — should not be disturbed. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof. On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered. -----------------------------XXX--------------------------CONTRUCTION DEVELOPMENT CORP. OF THE PHILIPPINES v. ESTRELLA (Culpa Aquillana vs. Culpa Contractual) FACTS: 

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On Dec 29, 1978, Estrella and her granddaughter Fletcher boarded in San Pablo City, a BLTD bus bound for Pasay, they never reached their destination because their bus was rammed from behind by a tractor-truck of CD in South Expressway. Estrella and Fletcher were brought to Makati Medical Center and their injuries were diagnosed. Estrella and Fletcher filed a Complaint for damages against CD, BLTB, Payunan and Datingguinoo who were the drivers of the tractor and bus, alleging that: o that Payunan, Jr. and Datinguinoo, who were the drivers of CD and BLTB buses, respectively, were negligent and did not obey traffic laws; o that BLTB and CD did not exercise the diligence of a good father of a family in the selection and supervision of their employees; o that BLTB allowed its bus to operate knowing that it lacked proper maintenance thus exposing its engers to grave danger; o that they suffered actual damages amounting to P250,000.00 for Estrella and P300,000.00 for Fletcher; o that they suffered physical discomfort, serious anxiety, fright and mental anguish, besmirched reputation and wounded feelings, moral shock, and lifelong social humiliation; 5

o

o

that defendants failed to act with justice, give respondents their due, observe honesty and good faith which entitles them to claim for exemplary damage; and that they are entitled to a reasonable amount of attorney's fees and litigation expenses.

RTC:  

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Held that CD and BLTB and their employees are tly and severally liable for damages The trial court held that BLTB, as a common carrier, was bound to observe extraordinary diligence in the vigilance over the safety of its engers. It must carry the engers safely as far as human care and foresight provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. Thus, where a enger dies or is injured, the carrier is presumed to have been at fault or has acted negligently. BLTB's inability to carry respondents to their destination gave rise to an action for breach of contract of carriage while its failure to rebut the presumption of negligence made it liable to respondents for the breach. Regarding CD, the trial court found that the tractor-truck it owned bumped the BLTB bus from behind. Evidence showed that CD's driver was reckless and driving very fast at the time of the incident. The gross negligence of its driver raised the presumption that CD was negligent either in the selection or in the supervision of its employees which it failed to rebut thus making it and its driver liable to respondents.

-Unsatisfied, Estrella and Fletcher elevated the case to the CA. CA: 

Affirmed RTC with modifications for damages.

-Petitioner claims that the liability for actual damages and attorney’s fees are based on culpa contractual, thus, only BLTB should be held liable. SC:  

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Affirmed CA and RTC with modifications as to the damages awarded. The case filed by respondents against petitioner is an action for culpa aquiliana or quasi-delict under Article 2176 of the Civil Code. In this regard, Article 2180 provides that the obligation imposed by Article 2176 is demandable for the acts or omissions of those persons for whom one is responsible. Consequently, an action based on quasi-delict may be instituted against the employer for an employee's act or omission. The liability for the negligent conduct of the subordinate is direct and primary, but is subject to the defense of due diligence in the selection and supervision of the employee. In the instant case, the trial court found that petitioner failed to prove that it exercised the diligence of a good father of a family in the selection and supervision of Payunan, Jr. The trial court and the Court of Appeals found petitioner solidarily liable with BLTB for the actual damages suffered by respondents because of the injuries they sustained. It was established that Payunan, Jr. was driving recklessly because of the skid marks as shown in the sketch of the police investigator. It is well-settled in Fabre, Jr. v. Court of Appeals,15 that the owner of the other vehicle which collided with a common carrier is solidarily liable to the injured enger of the same. We held, thus:

-the bus company, its driver, the operator of the other vehicle and the driver of the vehicle were tly and severally held liable to the injured enger or the latter's heirs.

-After all, it was permitted for them to allege alternative causes of action and as many parties as may be liable on such causes of action so long as private respondent and her co-plaintiffs do not recover twice for the same injury. What is clear from the cases is the intent of the plaintiff there to recover from both the carrier and the driver, thus justifying the holding that the carrier and the driver were tly and severally liable because their separate and distinct acts concurred to produce the same injury. 

In a "t" obligation, each obligor answers only for a part of the whole liability; in a "solidary" or "t and several" obligation, the relationship between the active and the ive subjects is so close that each of them must comply with or demand the fulfillment of the whole obligation. In Lafarge Cement v. Continental Cement Corporation, we reiterated that t tort feasors are tly and severally liable for the tort which they commit. Citing Worcester v. Ocampo: o universal doctrine that each t tort feasor is not only individually liable for the tort in which he participates, but is also tly liable with his tort feasors. o general rule that t tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. o t tort feasors are tly and severally liable for the tort which they commit. The persons injured may sue all of them or any number less than all. Each is liable for the whole damages caused by all, and all together are tly liable for the whole damage. o t tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They cannot insist upon an apportionment, for the purpose of each paying an aliquot part. They are tly and severally liable for the whole amount. o Of course the court during trial may find that some of the alleged tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged tly and severally. -------------------------XXX-----------------------------TITLE: BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON vs. INTERMEDIATE APPELLATE COURT G.R. NO. And DATE: G.R. Nos. 74387-90 November 14, 1988 PONENTE: PARAS, J.: PRINCIPLE: FACTS: The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company (BLTB) driven by Armando Pon and Bus No. 404 of Superlines Transportation Company (Superlines) driven by Ruben Dasco took place at the highway traversing Barangay Isabong, Tayabas, Quezon which collision resulted in the death of Aniceto Rosales, Francisco Pamfilo and Romeo Neri and in several injuries to Nena Rosales (wife of Anecito) and Baylon Sales, all engers of the BLTB Bus No. 1046. The evidence shows that as BLTB Bus No. 1046 was negotiating the bend of the highway, it tried to overtake a Ford Fiera car just as Bus No. 404 of Superlines was coming from the opposite direction. Seeing thus, Armando Pon (driver of the BLTB Bus) made a belated attempt to slacken the speed of his bus and tried to return to his proper lane. It was an unsuccessful try as the two (2) buses collided with each other. Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased Francisco Pamfilo, Aniceto Rosales and Romeo Neri instituted separate cases in the Court of First Instance of Marinduque against BLTB and Superlines together with their respective drivers praying for damages, attorney's fees and litigation expenses plus costs. Criminal cases against the drivers of the two buses were filed in the Court of First Instance of Quezon. ISSUE: 6

W/N the actions of the private respondents are based on culpa contractual RULING: NO. A reading of the respondent court's decision shows that it anchored petitioners' liability both on culpa contractual and culpa aquiliana, to wit: The proximate cause of the collision resulting in the death of three and injuries to two of the engers of BLTB: was the negligence of the driver of the BLTB bus, who recklessly operated and drove said bus by overtaking a Ford Fiera car as he was negotiating the ascending bend of the highway which was divided into two lanes by a continuous yellow strip. The driver of the BLTB bus itted in his crossexamination that the continuous yellow line on the ascending bend of the highway signifies a no-overtaking zone . It is no surprise then that the driver of the Superlines bus was exonerated by the lower court. He had a valid reason to presuppose that no one would overtake in such a dangerous situation. These facts show that patient imprudence of the BLTB driver. It is well settled that a driver abandoning his proper lane for the purpose of overtaking another vehicle in ordinary situation has the duty to see that the road is clear and not to proceed if he can not do so in safety. When a motor vehicle is approaching or rounding a curve there is special necessity for keeping to the right side of the road and the driver has not the right to drive on the left hand side relying upon having time to turn to the right if a car is approaching from the opposite direction comes into view. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. (Art. 2165, Civil Code). In failing to observe these simple precautions, BLTB's driver undoubtedly failed to act with the diligence demanded by the circumstances. We now come to the subject of liability of the appellants. For his own negligence in recklessly driving the truck owned by his employer, appellant Armando Pon is primarily liable (Article 2176, Civil Code). On the other hand the liability of Pon's employer, appellant BLTB, is also primary, direct and immediate in view of the fact that the death of or injuries to its engers was through the negligence of its employee, and such liability does not cease even upon proof that BLTB had exercised all the diligence of a good father of a family in the selection and supervision of its employees (Article 1759, Civil Code). The common carrier's liability for the death of or injuries to its engers is based on its contractual obligation to carry its engers safely to their destination. That obligation is so serious that the Civil Code requires "utmost diligence of very cautious person (Article 1755, Civil Code). They are presumed to have been at fault or to have acted negligently unless they prove that they have observed extraordinary diligence" (Article 1756, Civil Code). In the present case, the appellants have failed to prove extraordinary diligence. Indeed, this legal presumption was confirmed by the fact that the bus driver of BLTB was negligent. It must follow that both the driver and the owner must answer for injuries or death to its engers. The liability of BLTB is also solidarily with its driver, even though the liability of the driver springs from quasi delict while that of the bus company from contract. Conclusively therefore in consideration of the foregoing findings of the respondent appellate court it is settled that the proximate cause of the collision resulting in the death of three and injuries to two of the engers of BLTB was the sole negligence of the driver of the BLTB Bus, who recklessly operated and drove said bus in a lane where overtaking is not allowed by Traffic Rules and Regulations. Such negligence and recklessness is binding against petitioner BLTB, more so when We consider the fact that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of the damages sought by the enger. By the contract of carriage, the carrier BLTB assumed the express obligation to transport the engers to their destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by its engers is right away attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code). Petitioners also contend that "a common carrier is not an absolute insurer against all risks of travel and are not liable for acts or accidents which cannot be foreseen or inevitable and that responsibility of a common carrier for the safety of its enger prescribed in Articles 1733 and 1755 of the New Civil Code is not susceptible of a precise and definite formulation." (p. 13, Rollo) Petitioners' contention holds no

water because they had totally failed to point out any factual basis for their defense of force majeure in the light of the undisputed fact that the cause of the collision was the sole negligence and recklessness of petitioner Armando Pon. For the defense offorce majeure or act of God to prosper the accident must be due to natural causes and exclusively without human intervention. ------------------------xxx-----------------------GUTIERREZ v. GUTIERREZ G.R. No. 34840 Sept. 23, 1931 MALCOLM, J.: FACTS: On February 2, 1930, a enger truck and an automobile of private ownership collided while attempting to each other on a bridge. The truck was driven by the chauffeur Abelardo Velasco, and was owned by saturnine Cortez. The automobile was being operated by Bonifacio Gutierrez (defendant), a lad 18 years of age, and was owned by Bonifacio’s father and mother, Mr. and Mrs. Manuel Gutierrez. At the time of the collision, the father was not in the car, but the mother, together with several other of the Gutierrez family were accommodated therein. A enger in the autobus, by the name of Narciso Gutierrez (plaintiff) suffered a fracture right leg from the collision which required medical attendance for a considerable period of time. ISSUE: 1. 2.

WON both the driver of the truck and automobile are liable for damages and indemnification due to their negligence; What are the legal obligations of the defendants?

HELD: Bonifacio Gutierrez’s obligation arises from culpa aquiliana. On the other hand, Saturnino Cortez’s and his chauffeur Abelardo Velasco’s obligation rise from culpa contractual. It is conceded that the collision was caused by negligence pure and simple. As to the Gutierrez Family, Bonifacio, being a minor, was an incompetent chauffeur that he was driving at an excessive rate of speed, and that, on approaching the bridge and the truck; he lost his head and so contributed by his negligence to the accident. The guaranty given by the father at the time the son was granted a license to operate motor vehicles made the father responsible for the acts of his son. Pursuant to the provisions of article 1903 of the Civil Code, the father alone and not the minor or the mother, would be liable for the damages caused by the minor. As to the liability of Saturnino Cortez, the owner of the truck, and of his chauffeur Abelardo Velasco, it arise from that of contract. Further, they contend that there existed a contributory negligence on the part of plaintiff, Narciso Gutierrez for keeping his foot outside the truck, which occasioned his injury. However, this was not pleaded. The evidence bearing out this theory of the case is contradictory in the extreme and leads us far afield into speculative matters. WHEREFORE, judgment rendered in favor of the plaintiff, Narciso Gutierrez. Gutierrez Family, Saturnino Cortez and Abelardo Velasco are tly and severally liable. --------------------------xxx-------------------------JOSEPH v. BAUTISTA G.R. No. L-41423 Feb. 23, 1989 REGALADO, J.: FACTS: Respondent Patrocinio Perez is the owner of a cargo truck for conveying cargoes and engers for a consideration from Dagupan City to Manila. On January 12, 1973, said cargo truck driven by defendant Domingo Villa was on its way to Bulacan from Pangasinan. Petitioner, Luis Joseph, with a cargo of livestock, boarded the cargo truck at Dagupan City after paying the sum of P 9.00 as one way fare to Bulacan. While said cargo truck was negotiating the National Highway proceeding towards Manila, defendant Domingo Villa tried to overtake a tricycle likewise proceeding in the same direction. At about the same time, a pick-up truck supposedly owned by respondents Antonio Sioson and Jacinto Pagarigan, then driven by respondent Lazaro Villanueva, tried to overtake the cargo truck which was then in the process of overtaking the tricycle, thereby forcing the cargo truck to veer towards the shoulder of the road and to ram a mango tree. As a 7

result, petitioner Luis Joseph sustained a bone fracture in one of his legs. Petitioner filed a complaint for damages against respondent Patrocinio Perez, as owner of the cargo truck, based on a breach of contract of carriage and against respondents Antonio Sioson and Lazaro Villanueva, as owner and driver, respectively, of the pick-up truck, based on quasi-delict. Respondent Sioson filed his answer alleging that he is not and never was an owner of the pick-up truck while petitioner Luis Joseph filed his amended complaint impleading respondents Jacinto Pagarigan, Patrocinio Perez and a certain Rosario Vargas as additional alternative defendants as he cannot ascertain who between them are the real owner of the cargo.

case is now pending appeal. Subsequently, Co, assisted by ACCRA law office, filed a separate civil case against Demetria and Janolo seeking to have the purported contract of sale be declared unenforceable against the Bank. Demetria et al argued that the second case constitutes forum shopping.

ISSUE: 1.

Held:

2.

WON the cause of action based on quasi-delict is a bar to the cause of action for breach of contract of carriage; WON respondents are solidary liable to the petitioner

HELD: A cause of action is understood to be the delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. It is true that a single act or omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However where there is only one delict or wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. The singleness of a cause of action lies in the singleness of the- delict or wrong violating the rights of one person. Nevertheless, if only one injury resulted from several wrongful acts, only one cause of action arises. 5 In the case at bar, there is no question that the petitioner sustained a single injury on his person. That vested in him a single cause of action, albeit with the correlative rights of action against the different respondents through the appropriate remedies allowed by law. The trial court was, therefore, correct in holding that there was only one cause of action involved and the judgment on the compromise agreement under the cause of action based on quasi-delict is not a bar to the cause of action for breach of contract of carriage, is untenable. There is no question that the respondents herein are solidarily liable to petitioner. On the evidence presented in the court below, the trial court found them to be so liable. It is undisputed that petitioner, in his amended complaint, prayed that the trial court hold respondents tly and severally liable. Furthermore, the allegations in the amended complaint clearly impleaded respondents as solidary debtors. We cannot accept the vacuous contention of petitioner that said allegations are intended to apply only in the event that execution be issued in his favor. There is nothing in law or jurisprudence which would countenance such a procedure. ------------------------------xxx-------------------------------G.R. No. 115849 January 24, 1996 FIRST PHILIPPINE INTERNATIONAL BANK (Formerly Producers Bank of the Philippines) and MERCURIO RIVERA, petitioners, vs. COURT OF APPEALS, CARLOS EJERCITO, in substitution of DEMETRIO DEMETRIA, and JOSE JANOLO,respondents. Ponente: Panganiban, J. Facts: Producers Bank (now called First Philippine International Bank), which has been under conservatorship since 1984, is the owner of 6 parcels of land. The Bank had an agreement with Demetrio Demetria and Jose Janolo for the two to purchase the parcels of land for a purchase price of P5.5 million pesos. The said agreement was made by Demetria and Janolo with the Bank’s manager, Mercurio Rivera. Later however, the Bank, through its conservator, Leonida Encarnacion, sought the repudiation of the agreement as it alleged that Rivera was not authorized to enter into such an agreement, hence there was no valid contract of sale. Subsequently, Demetria and Janolo sued Producers Bank. The regional trial court ruled in favor of Demetria et al. The Bank filed an appeal with the Court of Appeals. Meanwhile, Henry Co, who holds 80% shares of stocks with the said Bank, filed a motion for intervention with the trial court. The trial court denied the motion since the trial has been concluded already and the

Issue: 1. Whether or not there is forum shopping. 2. WON there was a perfected contract of sale between the parties?

1. Yes. There is forum shopping because there is identity of interest and parties between the first case and the second case. There is identity of interest because both cases sought to have the agreement, which involves the same property, be declared unenforceable as against the Bank. There is identity of parties even though the first case is in the name of the bank as defendant, and the second case is in the name of Henry Co as plaintiff. There is still forum shopping here because Henry Co essentially represents the bank. Both cases aim to have the bank escape liability from the agreement it entered into with Demetria et al. The Supreme Court did not lay down any disciplinary action against the ACCRA lawyers but they were warned that a repetition will be dealt with more severely. In the Philippines, forum shopping has acquired a connotation encoming not only a choice of venues, as it was originally understood in conflicts of laws, but also to a choice of remedies. As to the first (choice of venues), the Rules of Court, for example, allow a plaintiff to commence personal actions "where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff" (Rule 4, Sec, 2 [b]). As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities independently of the criminal, arising from the same set of facts. A enger of a public utility vehicle involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa criminal — each remedy being available independently of the others — although he cannot recover more than once. 2. Article 1318 of the Civil Code enumerates the requisites of a valid and perfected contract as follows: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. The 3 are present in this case. The procedure in the sale of acquired assets as well as the nature and scope of the authority of Rivera on the matter is clearly delineated in the testimony of Rivera himself, which testimony was relied upon by both the bank and by Rivera in their appeal briefs. The plaintiffs, therefore, at that meeting of August 1987 regarding their purpose of buying the property, dealt with and talked to the right person. Necessarily, the agenda was the price of the property, and plaintiffs were dealing with the bank official authorized to entertain offers, to accept offers and to present the offer to the Committee before which the said official is authorized to discuss information relative to price determination. Necessarily, too, it being inherent in his authority, Rivera is the officer from whom official information regarding the price, as determined by the Committee and approved by the Conservator, can be had. And Rivera confirmed his authority when he talked with the plaintiff in August 1987. At any rate, the bank placed its official, Rivera, in a position of authority to accept offers to buy and negotiate the sale by having the offer officially acted upon by the bank. The bank cannot turn around and later say, as it now does, that what Rivera states as the banks action on the matter is not in fact so. It is a familiar doctrine, the doctrine of ostensible authorityThe authority of a corporate officer in dealing with third persons may be actual or apparent. From the evidence found by respondent Court, it is obvious that petitioner Rivera has apparent or implied authority to act for the Bank in the matter of selling its acquired assets. Indeed, we see no reason to disturb the lower courts (both the RTC and the CA) common 8

finding that private respondents evidence is more in keeping with truth and logic - that during the meeting on September 28, 1987, Luis Co and Rivera confirmed that the P5.5 million price has been ed upon by the Committee and could no longer be lowered Hence, assuming arguendo that the counter-offer of P4.25 million extinguished the offer of P5.5 million, Luis Co’s reiteration of the said P5.5 million price during theSeptember 28, 1987 meeting revived the said offer. And by virtue of the September 30, 1987 letter accepting this revived offer, there was a meeting of the minds, as the acceptance in said letter was absolute and unqualified.Taken together, the factual findings of the respondent Court point to an implied ission on the part of the petitioners that the written offer made on September 1, 1987 was carried through during the meeting of September 28, 1987. This is the conclusion consistent with human experience, truth and good faith ----------------------------xxx---------------------------VDA DE SEVERO ET AL v. GO, ET AL FACTS: The late Ricardo Severo was an employee of the private respondents Luningning Feliciano Go and Joaquin Go (Go), first as baker of 'Joni's Cakes and Pastries," owned by GO located Sta Cruz, Manila and finally, as driver-mechanic from 1961 up to February 16, 1972. On the latter date, unidentified armed men forcibly took away and/or carnapped the car owned by GO and driven by Severo who, in his efforts to resist the carnappers, was shot and killed by the latter. Up to now, the parties responsible for Severo's death have not been Identified nor apprehended. On September 18, 1974, herein petitioners, the widow and minor children of Ricardo Severo, filed an action against respondentsemployers before the trial court for "Death Compensation and Damages" in the total amount of P74,500.00. GO, filed motion to dismiss on the ground that the court have no jurisdiction over the case but was denied by the court. On May 3, 1975, private respondents filed their answer traversing the material allegations of the complaint and raised as special affirmative defenses that the lower court has no jurisdiction over the claim of the petitioner and that the complaint failed to state a sufficient cause of action. During the pre-trial, GO again filed a motion to dismiss reiterating their allegation that the lower court has no jurisdiction over the claim of PETITIONERS and that the complaint failed to state a cause of action. Petitioners filed a reply (opposition) contending that their claim is not for compensation under the Workmen's Compensation Act but for damages under Article 1711 and Article 21 of the Civil Code, hence, cognizable by the regular courts. The respondent court (CFI SAMAR), acting on the latest motion to dismiss, issued an order stating that petitioners' cause of action falls within the purview of the Workmen's Compensation Act and the proper forum was the Workmen's Compensation Commission. It declared itself without jurisdiction: The Court after a careful consideration of the grounds in the defendants' motion, and considering the allegation of the complaint describing their main cause of action, which is a claim for death compensation and damages, is of the opinion and so holds that this Court has no jurisdiction to hear and decide the case. The plaintiffs' right to relief being derived on an accident resulting in death of Ricardo Severo, an employee of the defendants, while engaged in the performance of the task assigned to him, this Court is devoid of statutory competence to upon the subject matter of the plaintiffs' claim, as of the time the cause of action accrue, falls within the purview of the Workmen's Compensation Act, Workmen's Compensation Commission, thru its regional offices under the Department of Labor, a body empowered to act upon all claims for compensation for death, injury or sickness. Relying on Robles v. Yap Wing: claims for compensation under the Workmen's Compensation Act were cognizable by the regular courts,

but since then, as provided in Section 46 thereof as amended, 'the Workmen's Compensation shall have jurisdiction to hear and decide claims for compensation under the Workmen's Compensation Act, subject to appeal to the Supreme Court. ... In relation to this, Section 5 of the Act provides that the rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to an employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code or other laws, because of said injury. SC: Petition of Severo’s widow and child was remanded to the trial court. Ruling in Robles v. Yap Wing was already abandoned. In the case Floresca v. Philex Mining : The court lay down views available on complaint for damages regarding the death of an employee: One view is that the injured employee or his heirs, in case of death, may initiate an action to recover damages (not compensation under the Workmen's Compensation Act) with the regular courts on the basis of negligence of the employer pursuant to the Civil Code. Another view, as enunciated in the Robles case, is that the remedy of an employee for work connected injury or accident is exclusive in accordance with Section 5 of the WCA. A third view is that the action is selective and the employee of his heirs have a choice of availing themselves of the benefits under the WCA or of suing in the regular courts under the Civil Code for higher damages from the employer by reason of his negligence. But once the election has been exercised, the employee or his heirs are no longer free to opt for the other remedy. In other words, the employee cannot pursue both actions simultaneously. The Court rejected the doctrine of exclusivity of the rights and remedies granted by the WCA as laid down in the Robles case. As clarified by Mr. Chief Justice Claudio Teehankee in his concurring opinion in Ysmael, "the employee or his heirs have the choice of cause of action and corresponding relief, i.e., either an ordinary action for damages before the regular courts or a special claim for limited compensation under the Workmen's Compensation Act before the Workmen's Compensation Commission ... However, tills right of choice is qualified in that the employee should be held to the particular remedy in which he has staked his fortunes and must pursue even his alternative claim for compensation exclusively in the same regular courts once he has opted to seek his remedy there rather than in the Workmen's Compensation Commission. This is what the petitioners did in filing their complaint for "Death Compensation and Damages" before respondent Court. Petitioners have opted to seek their remedy before the regular court. Their demand for compensation is predicated on the employer's liability for the death of their employee (Ricardo Severo) imposed by Article 1711 of the Civil Code which reads: Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees even though the event may have been purely accidental or entirely due to fortuitous cause if the death or personal injury arose out of and in the course of employment ... Petitioner's claim for compensation based on the Civil Code pertain to the jurisdiction of the regular courts (Pacana vs. Cebu Autobus Co., 32 SCRA 442).x -----------------------------XXX---------------------------FABRE JR. ET AL v. CA, ET AL This is a petition for review on certiorari of the decision of the Court of Appeals in CA-GR No. 28245, dated September 30, 1992, which affirmed with modification the decision of the Regional Trial Court of Makati, Branch 58, ordering petitioners tly and severally to pay damages to private respondent Amyline Antonio, and its resolution which denied petitioners motion for reconsideration for lack of merit. FACTS: 9



Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model Mazda minibus.  They used the bus principally in connection with a bus service for school children which they operated in Manila.  The couple had a driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out for two weeks.  His job was to take school children to and from the St. Scholasticas College in Malate, Manila.  Private respondent Word for the World Christian Fellowship Inc. (WWCF) arranged with petitioners for the transportation of 33 of its Young Adults Ministry from Manila to La Union and back in consideration of which private respondent paid petitioners the amount of P3,000.00.  The group was scheduled to leave on November 2, 1984, at 5:00 oclock in the afternoon.  However, as several of the party were late, the bus did not leave the Tropical Hut at the corner of Ortigas Avenue and EDSA until 8:00 oclock in the evening. Petitioner Porfirio Cabil drove the minibus.  The usual route to Caba, La Union was through Carmen, Pangasinan. However, the bridge at Carmen was under repair, so that petitioner Cabil, who was unfamiliar with the area (it being his first trip to La Union), was forced to take a detour through the town of Ba-ay in Lingayen, Pangasinan.  At 11:30 that night, petitioner Cabil came upon a sharp curve on the highway, running on a south to east direction, which he described as siete. The road was slippery because it was raining, causing the bus, which was running at the speed of 50 kilometers per hour, to skid to the left road shoulder. The bus hit the left traffic steel brace and sign along the road and rammed the fence of one Jesus Escano, then turned over and landed on its left side, coming to a full stop only after a series of impacts. The bus came to rest off the road. A coconut tree which it had hit fell on it and smashed its front portion.  Several engers were injured. Private respondent Amyline Antonio was thrown on the floor of the bus and pinned down by a wooden seat which came off after being unscrewed. It took three persons to safely remove her from this position. She was in great pain and could not move.  The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said he was not familiar with the area and he could not have seen the curve despite the care he took in driving the bus, because it was dark and there was no sign on the road. He said that he saw the curve when he was already within 15 to 30 meters of it. He allegedly slowed down to 30 kilometers per hour, but it was too late.  The Lingayen police investigated the incident the next day, November 3, 1984. On the basis of their finding they filed a criminal complaint against the driver, Porfirio Cabil. The case was later filed with the Lingayen Regional Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for the damage to the latters fence. On the basis of Escanos affidavit of desistance the case against petitioners Fabre was dismissed. Amyline Antonio, who was seriously injured, brought this case in the RTC of Makati, Metro Manila. As a result of the accident, she is now suffering from paraplegia and is permanently paralyzed from the waist down. During the trial she described the operations she underwent and adduced evidence regarding the cost of her treatment and therapy. Immediately after the accident, she was taken to the Nazareth Hospital in Ba-ay, Lingayen. As this hospital was not adequately equipped, she was transferred to the Sto. Nio Hospital, also in the town of Ba-ay, where she was given sedatives. An x-ray was taken and the damage to her spine was determined to be too severe to be treated there. She was therefore brought to Manila, first to the Philippine General Hospital and later to the Makati Medical Center where she underwent an operation to correct the dislocation of her spine. DECISION OF THE LOWER COURTS: In its decision dated April 17, 1989, the trial court found that: No convincing evidence was shown that the minibus was properly checked for travel to a long distance trip and that the driver was properly screened and tested before being itted for employment. Indeed, all the evidence presented have shown the negligent act of the defendants which ultimately resulted to the accident subject of this case. WHEREFORE, premises considered, the Court hereby renders judgment against defendants Mr. & Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the Civil Code of the

Philippines and said defendants are ordered to pay tly and severally to the plaintiffs the following amount: 1) P93,657.11 as compensatory and actual damages; 2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio; 3) P20,000.00 as moral damages; 4) P20,000.00 as exemplary damages; and 5) 25% of the recoverable amount as attorneys fees; 6) Costs of suit. The Court of Appeals affirmed the decision of the trial court with respect to Amyline Antonio but dismissed it with respect to the other plaintiffs on the ground that they failed to prove their respective claims. The Court of Appeals modified the award of damages as follows: 1) P93,657.11 as actual damages; 2) P600,000.00 as compensatory damages; 3) P50,000.00 as moral damages; 4) P20,000.00 as exemplary damages; 5) P10,000.00 as attorneys fees; and 6) Costs of suit. The Court of Appeals sustained the trial courts finding that petitioner Cabil failed to exercise due care and precaution in the operation of his vehicle considering the time and the place of the accident. The Court of Appeals held that the Fabres were themselves presumptively negligent. Hence, this petition. ISSUES: I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT. II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES SUFFERED BY PRIVATE RESPONDENTS. III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP TO WHAT EXTENT. HELD:

Petitioners challenge the propriety of the award of compensatory damages in the amount of P600,000.00. It is insisted that, on the assumption that petitioners are liable, an award of P600,000.00 is unconscionable and highly speculative. Amyline Antonio testified that she was a casual employee of a company called Suaco, earning P1,650.00 a month, and a dealer of Avon products, earning an average of P1,000.00 monthly. Petitioners contend that as casual employees do not have security of tenure, the award of P600,000.00, considering Amyline Antonios earnings, is without factual basis as there is no assurance that she would be regularly earning these amounts. With the exception of the award of damages, the petition is devoid of merit. First, it is unnecessary for our purpose to determine whether to decide this case on the theory that petitioners are liable for breach of contract of carriage or culpa contractual or on the theory of quasi delict or culpa aquiliana as both the Regional Trial Court and the Court of Appeals held, for although the relation of enger and carrier is contractual both in origin and nature, nevertheless the act that breaks the contract may be also a tort. In either case, the question is whether the bus driver, petitioner Porfirio Cabil, was negligent. The finding that Cabil drove his bus negligently, while his employer, the Fabres, who owned the bus, failed to exercise the diligence of a good father of the family in the selection and supervision of their employee is fully ed by the evidence on record. These factual findings of the two courts we regard as final and conclusive, ed as they are by the evidence. Considering the fact that it was raining and the road was slippery, that it was dark, that he drove his bus at 50 kilometers an hour when even on a good day the normal speed was only 20 kilometers an hour, and that he was unfamiliar with the terrain, Cabil was grossly negligent and should be held liable for the injuries suffered by private respondent Amyline Antonio. Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the presumption that his employers, the Fabres, were themselves negligent in the selection and supervision of their employee. Due diligence in selection of employees is not satisfied by finding that the applicant possessed a professional drivers license. The employer should also examine the applicant for his qualifications, experience and record of service. Due diligence in supervision, on the other hand, requires the formulation of rules and regulations for the guidance of employees and the issuance of proper instructions as well as actual implementation and monitoring of consistent compliance with the rules. 10

In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently did not consider the fact that Cabil had been driving for school children only, from their homes to the St. Scholasticas College in Metro Manila. They had hired him only after a two-week apprenticeship. They had tested him for certain matters, such as whether he could the names of the children he would be taking to school, which were irrelevant to his qualification to drive on a long distance travel, especially considering that the trip to La Union was his first. The existence of hiring procedures and supervisory policies cannot be casually invoked to overturn the presumption of negligence on the part of an employer. Petitioners argue that they are not liable because (1) an earlier departure (made impossible by the congregations delayed meeting) could have averted the mishap and (2) under the contract, the WWCF was directly responsible for the conduct of the trip. Neither of these contentions hold water. The hour of departure had not been fixed. Even if it had been, the delay did not bear directly on the cause of the accident. With respect to the second contention, it was held in an early case that: [A] person who hires a public automobile and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for acts of negligence of the latter or prevented from recovering for injuries suffered from a collision between the automobile and a train, caused by the negligence either of the locomotive engineer or the automobile driver. As already stated, this case actually involves a contract of carriage. Petitioners, the Fabres, did not have to be engaged in the business of public transportation for the provisions of the Civil Code on common carriers to apply to them. As this Court has held: Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting engers or goods or both, by land, water, or air for compensation, offering their services to the public. The above article makes no distinction between one whose principal business activity is the carrying of persons or goods or both, and one who does such carrying only as an ancillary activity (in local idiom, as a sideline). Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services to the general public, i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population. We think that Article 1732 deliberately refrained from making such distinctions. As common carriers, the Fabres were bound to exercise extraordinary diligence for the safe transportation of the engers to their destination. This duty of care is not excused by proof that they exercised the diligence of a good father of the family in the selection and supervision of their employee. As Art. 1759 of the Code provides: Common carriers are liable for the death of or injuries to engers through the negligence or wilful acts of the formers employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we think the Court of Appeals erred in increasing the amount of compensatory damages because private respondents did not question this award as inadequate. To the contrary, the award of P500,000.00 for compensatory damages which the Regional Trial Court made is reasonable considering the contingent nature of her income as a casual employee of a company and as distributor of beauty products and the fact that the possibility that she might be able to work again has not been foreclosed. In fact she testified that one of her previous employers had expressed willingness to employ her again. With respect to the other awards, while the decisions of the trial court and the Court of Appeals do not sufficiently indicate the factual and legal basis for them, we find that they are nevertheless ed by evidence in the records of this case. Viewed as an action for quasi delict, this case falls squarely within the purview of Art. 2219(2) providing for the payment of moral damages in cases of quasi delict. On the theory that petitioners are liable for breach of contract of carriage, the award of moral damages is authorized by Art. 1764, in relation to Art. 2220, since Cabils gross negligence amounted to bad faith. Amyline Antonios

testimony, as well as the testimonies of her father and co-engers, fully establish the physical suffering and mental anguish she endured as a result of the injuries caused by petitioners negligence. The award of exemplary damages and attorneys fees was also properly made. However, for the same reason that it was error for the appellate court to increase the award of compensatory damages, we hold that it was also error for it to increase the award of moral damages and reduce the award of attorneys fees, inasmuch as private respondents, in whose favor the awards were made, have not appealed. As above stated, the decision of the Court of Appeals can be sustained either on the theory of quasi delict or on that of breach of contract. The question is whether, as the two courts below held, petitioners, who are the owners and driver of the bus, may be made to respond tly and severally to private respondent. We hold that they may be. It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals this Court exonerated the jeepney driver from liability to the injured engers and their families while holding the owners of the jeepney tly and severally liable, but that is because that case was expressly tried and decided exclusively on the theory of culpa contractual. As this Court there explained: The trial court was therefore right in finding that Manalo [the driver] and spouses Mangune and Carreon [the jeepney owners] were negligent. However, its ruling that spouses Mangune and Carreon are tly and severally liable with Manalo is erroneous. The driver cannot be held tly and severally liable with the carrier in case of breach of the contract of carriage. The rationale behind this is readily discernible. Firstly, the contract of carriage is between the carrier and the enger, and in the event of contractual liability, the carrier is exclusively responsible therefore to the enger, even if such breach be due to the negligence of his driver . As in the case of BLTB, private respondents in this case and her co-plaintiffs did not stake out their claim against the carrier and the driver exclusively on one theory, much less on that of breach of contract alone. After all, it was permitted for them to allege alternative causes of action and as many parties as may be liable on such causes of action so long as private respondent and her co-plaintiffs do not recover twice for the same injury. What is clear from the cases is the intent of the plaintiff there to recover from both the carrier and the driver, thus justifying the holding that the carrier and the driver were tly and severally liable because their separate and distinct acts concurred to produce the same injury. WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION as to the award of damages. Petitioners are ORDERED to PAY tly and severally the private respondent Amyline Antonio the following amounts: 1) P93,657.11 as actual damages; 2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio; 3) P20,000.00 as moral damages; 4) P20,000.00 as exemplary damages; 5) 25% of the recoverable amount as attorneys fees; and 6) costs of suit. -----------------------------XXX----------------------------EMERENCIANA VDA DE MEDINA ET AL v. CRESCENCIA 1. FRANCHISE; SALE WITHOUT APPROVAL OP THB PUBLIC SERVICE COMMISSION, EFFECT OF.—The sale of franchise, or any privilege pertaining thereto, without the approval of the Public Service Commission, is not binding against the public or the Service Commission; and in contemplation of law, the grantee of record continues to be responsible under the franchise in relation to the Commission and tp the public. 2. CONTRACT OF CARRIAGE; "CULPA CONTRACTUAL"; NATURE OF LlABILITY OF CARRIER.—Where there is a breach of the carrier's contractual obligation to carry his engers safely to their destination (culpa contractual), the liability of the carrier is not merely subsidiary or secondary, but direct and immediate (Article 1755, 1756, and 1759, New Civil Code). 3. DAMAGES; NOMINAL DAMAGES; WHEN AWARD IMPROPER.—Where the court has already awarded compensatory and exemplary damages that are in themselves a judicial recognition that plaintiffs' right was violated, the award of nominal damages is unnecessary and improper. Nominal damages can not coeyist with compensatory damages.

11

Appeal by defendant Guillermo Cresencia from the judgment of the Court of First Instance of Manila in its civil case No. 19890, sentencing appellant, tly and severally with his co-defendant Brigido Avorque, to pay plaintiffs Emerencia M. Vda. de Medina and her minor children damages in the total amount of P56,000, P50,000 attorneys' fees, and costs. It appears that on May 31, 1953, enger jeepney bearing plate No. TPU-2232 (Manila), driven by Brigido Avorque, smashed into a Meralco post on Azcarraga Street, resulting in the death of Vicente Medina, one of its engers. A criminal case for homicide through reckless imprudence was filed against' Avorque, to which he pleaded guilty on September 9, 1953. The heirs of the deceased, however, reserved their right to file a separate action for damages, and on June 16, 1953, brought suit against the driver Brigido Avorque and appellant Guillermo Cresencia, the ed owner and operator of the jeepney in question. Defendant Brigido Avorque did not file any answer; while defendant Cresencia answered, disclaiming liability on the ground that he had sold the jeepney in question on October 14, 1950 to one Maria A. Cudiamat; that the jeepney had been repeatedly sold by one buyer after another, until the vehicle was purchased on January 29, 1953 by Rosario Avorque, the absolute owner thereof at the time of the accident. In view of Cresencia's answer, plaintiffs filed leave, and was allowed, to amend their complaint making Rosario Avorque a codefendant; and the latter, by way of answer, itted having purchased the aforesaid jeepney on May 31, 1953, but alleged in defense that she was never the public utility operator thereof. The case then proceeded to trial, during which, after the plaintiffs had presented their evidence, defendants Guillermo Cresencia and Rosario Avorque made manifestations itting that the former was still the ed operator of the jeepney in question in the records of the Motor Vehicles Office and the Public Service Commission, while the latter was the owner thereof at the time of the accident; and submitted the case for the decision on the question of who, as between the two, should be held liable to plaintiffs for damages. The lower court, by Judge Jose Zulueta, held that as far as the public is concerned, defendant Cresencia, in the eyes of the law, continued to be the legal owner of the jeiepney in question; and rendered judgment against him, tly and severally with the driver Brigido Avorque, for P6,000 compensatory damages, P30,000 moral damages, P10,000 exemplary datmages, P10,000 nominal damages, F5,000 attorneys fees, and costs, while defendant Rosario Avorque was absolved from liability. From this judgment, defendant Cresencia appealed. RULING: As held in the case of Montoya vs. Ignacio, , which the court below cited, that the law (section 20 [g], C. A. No. 146 as amended) requires' the approval of the Public Service Commission in order that a franchise, or any privilege pertaining thereto, may be sold or leased without infringing the certificate issued to the grantee; and that if property covered by the franchise is transferred or leased without this requisite approval, the transfer is not binding against the public or the Service Commission; and in contemplation of law, the grantee of record continues to be responsible under the franchise in relation to the Commission and to the public. There we gave the reason for this rule to be as follows: "* * * Since a franchise is personal in nature any transfer or lease thereof should be notified to the Public Service Commission so that the latter may take proper safeguards to protect the interest of the public. In fact, the law requires that, before the approval is granted, there should be a public hearing, with notice to all interested parties, in order that the Commission may determine if there are good and reasonable grounds justifying the transfer or lease of the property covered by the franchise, or if the sale or lease is detrimental to public interest. * * *" The above ruling was later reiterated in the cases of Timbol vs. Osias, as the sale of the jeepney here in question was ittedly without the approval of the Public Service Commission, appellant herein, Guillermo Cresencia, who is the ed owner and operator thereof, continued to be liable to the Commission and the public for the

consequences incident to its operation. Wherefore, the lower court did not err in holding him, and not the buyer Rosario Avorque, responsible for the damages sustained by plaintiff by reason of the death of Vicente Medina resulting from the reckless negligence of the jeepney's driver, Brigido Avorque. Appellant also argues that the basis of plaintiffs' action being the employer's subsidiary liability under the Revised Penal Code for damages arising from his employee's criminal acts, it is defendant Rosario Avorque who should answer subsidiarily for the damages sustained by plaintiffs, since she its that she, and not appellant, is the employer of the negligent driver Brigido Avorque. The argument is untenable, because plaintiffs' action for damages is independent of the criminal case filed against Brigido Avorque, and based, not on the employer's subsidiary liability under the Revised Penal Code, but on a breach of the carrier's contractual obligation to carry his engers safely to their destination (culpa contractual). And it is also for this reason that there is no need of first proving the insolvency of the driver Brigido Avorque before damages can be recovered from the carrier for in culpa contractual, the liability of the carrier is not merely subsidiary or secondary, but direct and immediate (Articles 1755, 1756, and 1759, New Civil Code). The propriety of the damages awarded has not been questioned. Nevertheless, it is patent upon the record that the award of P10,000 by way of nominal damages is untenable as a matter of law, since nominal damages can not co-exist with compensatory damages. The purpose of nominal damages is to vindicate or recognize a right that has been violated, in order to preclude further contest thereon; "and not for the purpose of indemnifying the plaintiff for any loss suffered by him" (Articles 2221, 2223, new Civil Code.) Since the court below has already awarded compensatory and exemplary damages that are in themselves a judicial recognition that plaintiff's right was violated, the award of nominal damages is unnecessary and improper. Anyway, ten thousand pesos can not, in common sense, be deemed "nominal". With the modification that the award of P10,000 nominal damages" be eliminated, the decision appealed from is affirmed. Costs against appellant. So ordered. Vda. de Medina, et al. vs. Cresencia, et al., 99 Phil. 506, No. L-8194 July 11, 1956 ------------------------------XXX----------------------------G.R. No. 84458, 6 November 1989 ABOITIZ SHIPPING CORPORATION v. COURT OF APPEALS, LUCILA C. VIANA, SPS. ANTONIO VIANA AND GORGONIO VIANA, and PIONEER STEVEDORING CORPORATION J. Regalado On 11 May 1975, Anacleto Viana boarded the vessel M/V Antonia, owned by herein petitioner at the port of San Jose Mindoro, bound for Manila. On 12 May 1975, said vessel arrived at Pier 4, North Harbor, Manila, and the engers therein disembarked, a gangplank having been provided connecting the side of the vessel to the pier. Instead of using said gangplank Anacleto Viana disembarked on the third deck which was on the level with the pier. After said vessel had landed, the Pioneer Stevedoring Corp. took over the exclusive control of the cargoes loaded on said vessel. One hour after the engers of said vessel had disembarked, the Stevedoring Corp. started operation by unloading the cargoes from said vessel. While the crane was being operated, Anacleto Viana who had already disembarked from said vessel obviously ing that some of his cargoes were still loaded in the vessel, went back to the vessel, and it was while he was pointing to the crew of the said vessel to the place where his cargoes were loaded that the crane hit him, pinning him between the side of the vessel and the crane. He was thereafter brought to the hospital where he later expired 3 days thereafter. On 15 May 1975, the cause of his death according to the death certificate being hypostatic pneumonia secondary to traumatic fracture of the pubic bone lacerating the urinary bladder. 12

Private respondents filed a complaint for damages against petitioner for breach of contract of carriage. In its answer, Aboitiz denied responsibility contending that at the time of the accident, the vessel was completely under the control of respondent Stevedoring Corp. as the exclusive stevedoring contractor of Aboitiz; it is also averred that since the crane operator was not an employee of Aboitiz, the latter cannot be held liable under the follow-servant rule. Thereafter, Aboitiz filed a third party complaint against Pioneer Stevedoring Corp imputing liability thereto for Anacleto’s death as having been allegedly caused by the negligence of the crane operator who was an employee of the Stevedoring Corp. under its exclusive control and supervision. Stevedoring Corp on the other hand raised its defense that Aboitiz had no cause of action against them considering that the latter is being sued for breach of contract of carriage to which the former is not a party and that it was Anacleto’s gross negligence as the proximate cause of his death; and that the filing of the third party complaint was premature by reason of the pendency of the criminal case for homicide through reckless imprudence filed against the crane operator. The RTC ordered Aboitiz to pay the Vianas for damages incurred and Pioneer was ordered to reimbursed Aboitiz for whatever amount the latter paid to Vianas. Both company appealed but it only granted the Stevedoring Company and absolved the same for failure of the Vianas and Aboitiz to preponderantly establish a case of negligence against the crane operator. CA further affirmed the decision of the RTC. Issue: Whether or not the victim is guilty of contributory negligence that caused his death. Ratio: The rule is that the relation of carrier and enger continues until the enger has been landed at the port of destination and has left the vessel owner’s dock or premises. Once created, the relationship will not ordinarily terminate until the enger has, after reaching his destination, safely alighted from the carrier’s conveyance or had a reasonable opportunity to leave the carrier’s premises. All persons who remain on the premises a reasonable time after leaving the conveyance are to be deemed engers, and what is a reasonable time or reasonable delay within this rule is to be determined from all the circumstances, and includes a reasonable time to see after his baggage and prepare for his departure. The carrier –enger relationship is not terminated merely by the fact that the person transported has been carried to his destination if, for example, such person remains in the carrier’s premises to claim his baggage. It is apparent that what prompted the Court to rule as it did is the fact of the enger’s reasonable presence within the carrier’s premises. The primary factor to be considered is the existence of a reasonable cause as will justify the presence of the victim on or near the petitioner’s vessel. When the incident occurred, the victim was in the act of unloading his cargoes, which he had every right to do, form petitioner’s vessel. A carrier is duty bound not only to bring its engers safely to their destination but also to afford them a reasonable time to claim their baggage. It is not definitely shown that one hour prior to the incident, the victim had already disembarked from the vessel. Petitioner failed to prove this. What is clear is that at the time the victim was taking his cargoes, the vessel had already docked an hour earlier. In consonance with common shipping procedure as to the minijm time of one hour allowed for the engers to disembarked, it may be presumed that the victim had just gotten off the vessel when he went to retrieve his baggage. Yet, even if he had already

disembarked an hour earlier, his presence in petitioner’s premises was not without cause. The victim had to claim his baggage which was possible only one hour after the vessel arrived since it was ittedly standard procedure in the case of petitioner’s vessels that the unloading operations shall start only after that time. Consequently, under the foregoing circumstances, the victim is still deemed a enger of said carrier at the time of his tragic death. Under the law, common carriers are, form the nature of their business and for reasons of public policy, bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the engers transported by them, according to all the circumstances of each case. More particularly, a common carrier is bound to carry the engers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. Thus, were a enger dies or is injured, the common carrier is presumed to have been at fault or to have acted negligently. This gives rise to an action for breach of contract of carriage, that is, the failure of the carrier to carry the enger safely to his destination, which, in the instant case, necessarily includes its failure to safeguard its engers with extraordinary diligence which such relation subsists. There is no showing that petitioner was extraordinary diligent in requiring or seeing to it that said precautionary measures were strictly and actually enforced to subserve their purpose of preventing entry into the forbidden area. While the victim was ittedly contributorily negligent, still the petitioner’s aforesaid failure to exercise extraordinary diligence was the proximate cause and direct cause of, because it could definitely have prevented the victim’s death. Dispositive Portion: Petition is denied and the judgment appealed from is affirmed. Stevedoring Corp is not within the ambit of the rule on extraordinary diligence required of, and the corresponding presumption of negligence foisted on common carriers like Aboitiz. ---------------------------XXX-------------------------CALALAS v. CA CASE TITLE: VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents. G.R. No. 122039 May 31, 2000 PRINCIPLE/s: CULPA AQUILIANA v. CULPA CONTRACTUAL FACTS: At 10 o'clock in the morning of August 23, 1989, Sunga, then a college freshman majoring in Physical Education at the Siliman University, took a enger jeepney owned and operated by Calalas. As the jeepney was filled to capacity of about 24 engers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. While on its way, the jeepney stopped to let a enger off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing enger. Just as she was doing so, an Isuzu truck driven by Verena and owned by Salva bumped the left rear portion of the jeepney. As a result, Sunga sustained a fracture of the "distal third of the left tibiafibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting, and case wedging were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months and would have to ambulate in crutches during said period. On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against Salva, the owner of the Isuzu truck. RTC ruled against Salva as third-party defendant and absolved Calalas of liability, holding that it was the driver (Verena) of the Isuzu truck 13

who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena tly liable to Calalas for the damage to his jeepney. CA reversed RTC on the ground that Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the Civil Code. CA further dismissed the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga: (1)P50,000.00 as actual and compensatory damages; (2) P50,000.00 as moral damages; (3)P10,000.00 as attorney's fees; and (4)P1,000.00 as expenses of litigation; and (5)to pay the costs. Hence, this petition. ISSUE/s: Whether Sunga is bound by the ruling in Civil Case No. 3490 finding Verena (driver) and Salva (owner) of the truck liable for quasi-delict and therefore res judicata will set in. RULING: No. Sunga was never a party to that case and, therefore, the principle of res judicata does not apply. Nor are the issues in Civil Case No. 3490 and in the petition the same. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to Calalas' jeepney. On the other hand, the issue in the petition is whether Calalas is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation. Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in this case the common carrier, failed to transport his enger safely to his destination. In case of death or injuries to engers, Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof. There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for the damage to Calalas’ jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the jeepney and the truck was the negligence of Verena. The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard to the safety of engers as well as the presumption of negligence in cases of death or injury to engers. It provides: Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the engers transported by them, according to all the circumstances of each case.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of Calalas to prove that he had to observe extraordinary diligence in the care of his engers. Now, did Calalas’driver carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? The Court negates. Several factors militate against Calalas’ contention. First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides: Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such a manner as to obstruct or impede the age of any vehicle, nor, while discharging or taking on engers or loading or unloading freight, obstruct the free age of other vehicles on the highway. Second, it is undisputed that Calalas’ driver took in more engers than the allowed seating capacity of the jeepney, a violation of §32(a) of the same law. It provides: Exceeding ed capacity. — No person operating any motor vehicle shall allow more engers or more freight or cargo in his vehicle than its ed capacity. The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other engers were exposed. Therefore, not only was Calalas unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting engers. We find it hard to give serious thought to Calalas’ contention that Sunga's taking an "extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in the seas should not be compensated merely because those engers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of Calalas’ contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable. This requires that the following requirements be present: (a) the cause of the breach is independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfil his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the creditor. Calalas should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. Therefore, CA’s judgment was affirmed finding Calalas liable to Sunga since he failed to exercise the diligence required under the Civil Code. There’s discussion on the merit of awarding moral damages. Sunga is not entitled since no bad faith on the part of Calalas. DISPOSITIVE PORTION: WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the engers is further set forth in articles 1755 and 1756. Art. 1755. A common carrier is bound to carry the engers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances. Art. 1756. In case of death of or injuries to engers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733 and 1755. 14