Art. 2177.
Responsibility for fault or negligence despite the care he took in driving the bus, because it
under the preceding article is entirely separate
and distinct from the civil liability arising from
negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the
same act or omission of the defendant. (n)
MR. & MRS. ENGRACIO FABRE, JR.* and PORFIRIO
CABIL, petitioners, vs. COURT OF APPEALS
This is a petition for review on certiorari of the decision
of the Court of Appeals[1] 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 jointly and severally to
pay damages to private respondent Amyline Antonio,
and its resolution which denied petitioners motion for
reconsideration for lack of merit.
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.
On November 2, 1984 private respondent Word for the
World Christian Fellowship Inc. (WWCF) arranged with
petitioners for the transportation of 33 members 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 members 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 passengers 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
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.
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 admitted 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.
Accordingly, it gave judgment for private respondents
holding:
Considering that plaintiffs Word for the World Christian
Fellowship, Inc. and Ms. Amyline Antonio were the only
ones who adduced evidence in support of their claim
for damages, the Court is therefore not in a position to
award damages to the other plaintiffs.
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
jointly 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.
SO ORDERED.
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.
Petitioners raise the following 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.
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
passenger and carrier is contractual both in origin and
nature, nevertheless the act that breaks the contract
may be also a tort.[2] 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
supported by the evidence on record. These factual
findings of the two courts we regard as final and
conclusive, supported as they are by the evidence.
Indeed, it was admitted by Cabil that on the night in
question, it was raining, and, as a consequence, the
road was slippery, and it was dark. He averred these
facts to justify his failure to see that there lay a sharp
curve ahead. However, it is undisputed that Cabil drove
his bus at the speed of 50 kilometers per hour and only
slowed down when he noticed the curve some 15 to 30
meters ahead.[3] By then it was too late for him to
avoid falling off the road. Given the conditions of the
road and considering that the trip was Cabils first one
outside of Manila, Cabil should have driven his vehicle
at a moderate speed. There is testimony[4] that the
vehicles passing on that portion of the road should only
be running 20 kilometers per hour, so that at 50
kilometers per hour, Cabil was running at a very high
speed.
Considering the foregoing 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.[5] 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.
[6]
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.[7] They had hired him only after a
two-week apprenticeship. They had tested him for
certain matters, such as whether he could remember
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.[8]
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.[9]
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:[10]
Art. 1732. Common carriers are persons, corporations,
firms or associations engaged in the business of
carrying or transporting passengers 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 passengers 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 passengers 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.
The same circumstances detailed above, supporting
the finding of the trial court and of the appellate court
that petitioners are liable under Arts. 2176 and 2180
for quasi delict, fully justify finding them guilty of
breach of contract of carriage under Arts. 1733, 1755
and 1759 of the Civil Code.
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.[11] 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 supported 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.[12] Amyline
Antonios testimony, as well as the testimonies of her
father and co-passengers, 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.[13]
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
jointly and severally to private respondent. We hold
that they may be. In Dangwa Trans. Co. Inc. v. Court of
Appeals,[14] on facts similar to those in this case, this
Court held the bus company and the driver jointly and
severally liable for damages for injuries suffered by a
passenger. Again, in Bachelor Express, Inc. v. Court of
Appeals[15] a driver found negligent in failing to stop
the bus in order to let off passengers when a fellow
passenger ran amuck, as a result of which the
passengers jumped out of the speeding bus and
suffered injuries, was held also jointly and severally
liable with the bus company to the injured passengers.
The same rule of liability was applied in situations
where the negligence of the driver of the bus on which
plaintiff was riding concurred with the negligence of a
third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buo,[16] Batangas
Laguna Tayabas Bus Co. v. Intermediate Appellate
Court,[17] and Metro Manila Transit Corporation v.
Court of Appeals,[18] the bus company, its driver, the
operator of the other vehicle and the driver of the
vehicle were jointly and severally held liable to the
injured passenger or the latters heirs. The basis of this
allocation of liability was explained in Viluan v. Court of
Appeals,[19] thus:
Nor should it make any difference that the liability of
petitioner [bus owner] springs from contract while that
of respondents [owner and driver of other vehicle]
arises from quasi-delict. As early as 1913, we already
ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in
case of injury to a passenger due to the negligence of
the driver of the bus on which he was riding and of the
driver of another vehicle, the drivers as well as the
owners of the two vehicles are jointly and severally
liable for damages. Some members of the Court,
though, are of the view that under the circumstances
they are liable on quasi-delict.[20]
It is true that in Philippine Rabbit Bus Lines, Inc. v.
Court of Appeals[21] this Court exonerated the jeepney
driver from liability to the injured passengers and their
families while holding the owners of the jeepney jointly
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 jointly
and severally liable with Manalo is erroneous. The
driver cannot be held jointly 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
passenger, and in the event of contractual liability, the
carrier is exclusively responsible therefore to the
passenger, even if such breach be due to the
negligence of his driver (see Viluan v. The Court of
Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16
SCRA 742) . . .[22]
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 join as many parties as may be
liable on such causes of action[23] 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 jointly 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 jointly 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.
VICENTE CALALAS, petitioner vs. COURT OF
APPEALS, ELIZA JUJEURCHE SUNGA and
FRANCISCO SALVA,
This is a petition for review on certiorari of the
decision1 of the Court of Appeals, dated March 31,
1991, reversing the contrary decision of the Regional
Trial Court, Branch 36, Dumaguete City, and awarding
damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of
carriage.
The facts, as found by the Court of Appeals, are as
follows:
At 10 o'clock in the morning of August 23, 1989,
private respondent Eliza Jujeurche G. Sunga, then a
college freshman majoring in Physical Education at the
Siliman University, took a passenger jeepney owned
and operated by petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24 passengers,
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.
On the way to Poblacion Sibulan, Negros Occidental,
the jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to
the outgoing passenger. Just as she was doing so, an
Isuzu truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the
jeepney. As a result, Sunga was injured. She sustained
a fracture of the "distal third of the left tibia-fibula 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. Danilo
V. 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 Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against Salva as
third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck 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 jointly liable to Calalas for the damage to his
jeepney.
On appeal to the Court of Appeals, the ruling of the
lower court was reversed 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.
The appellate court dismissed the third-party complaint
against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay
plaintiff-appellant:

(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.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling
in Civil Case No. 3490 that the negligence of Verena
was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make
the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the
jeepney by the truck owned by Salva was a caso
fortuito. Petitioner further assails the award of moral
damages to Sunga on the ground that it is not
supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil
Case No. 3490 finding the driver and the owner of the
truck liable for quasi-delict ignores the fact that she
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
present case 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
petitioner's jeepney. On the other hand, the issue in
this case is whether petitioner 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 passenger
safely to his destination.2 In case of death or injuries to
passengers, 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 petitioner's
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 the truck
driver. 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
passengers as well as the presumption of negligence in
cases of death or injury to passengers. 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
passengers transported by them, according to all the
circumstances of each case.
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 passengers is further set
forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the
passengers 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
passengers, 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.
In the case at bar, upon the happening of the accident,
the presumption of negligence at once arose, and it
became the duty of petitioner to prove that he had to
observe extraordinary diligence in the care of his
passengers.
Now, did the driver of jeepney 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? We do not think so. Several factors militate
against petitioner's 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 passage of any vehicle, nor,
while discharging or taking on passengers or loading or
unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioner's driver took in
more passengers than the allowed seating capacity of
the jeepney, a violation of 32(a) of the same law. It
provides:
Exceeding registered capacity. No person operating
any motor vehicle shall allow more passengers or more
freight or cargo in his vehicle than its registered
capacity.
The fact that Sunga was seated in an "extension seat"
placed her in a peril greater than that to which the
other passengers were exposed. Therefore, not only
was petitioner 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 passengers.
We find it hard to give serious thought to petitioner's
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 our seas should not be compensated
merely because those passengers assumed a greater
risk of drowning by boarding an overloaded ferry. This
is also true of petitioner's 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.3 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 fulfill
his obligation in a normal manner, and (d) the debtor
did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger
of parking his jeepney with its body protruding two
meters into the highway.
Finally, petitioner challenges the award of moral
damages alleging that it is excessive and without basis
in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals
stated:
Plaintiff-appellant at the time of the accident was a
first-year college student in that school year 1989-1990
at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to
enroll in the second semester of that school year. She
testified that she had no more intention of continuing
with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical
Education "because of my leg which has a defect
already."
Plaintiff-appellant likewise testified that even while she
was under confinement, she cried in pain because of
her injured left foot. As a result of her injury, the
Orthopedic Surgeon also certified that she has
"residual bowing of the fracture side." She likewise
decided not to further pursue Physical Education as her
major subject, because "my left leg . . . has a defect
already."
Those are her physical pains and moral sufferings, the
inevitable bedfellows of the injuries that she suffered.
Under Article 2219 of the Civil Code, she is entitled to
recover moral damages in the sum of P50,000.00,
which is fair, just and reasonable.
As a general rule, moral damages are not recoverable
in actions for damages predicated on a breach of
contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code.5 As an exception,
such damages are recoverable: (1) in cases in which
the mishap results in the death of a passenger, as
provided in Art. 1764, in relation to Art. 2206(3) of the
Civil Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral
damages since there was no factual finding by the
appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sunga's
contention that petitioner's admission in open court
that the driver of the jeepney failed to assist her in
going to a nearby hospital cannot be construed as an
admission of bad faith. The fact that it was the driver of
the Isuzu truck who took her to the hospital does not
imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely
implied recognition by Verena that he was the one at
fault for the accident.
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.
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay 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. (1902a)
PORFIRIO P. CINCO vs. HON. MATEO CANONOY,
This is a Petition for Review on certiorari of the
Decision of the Court of First Instance of Cebu rendered
on November 5, 1970.
The background facts to the controversy may be set
forth as follows:
Petitioner herein filed, on February 25, 1970, a
Complaint in the City Court of Mandaue City, Cebu,
Branch II, for the recovery of damages on account of a
vehicular accident involving his automobile and a
jeepney driven by Romeo Hilot and operated by
Valeriana Pepito and Carlos Pepito, the last three being
the private respondents in this suit. Subsequent
thereto, a criminal case was filed against the driver,
Romeo Hilot, arising from the same accident. At the
pre-trial in the civil case, counsel for private
respondents moved to suspend the civil action pending
the final determination of the criminal suit, invoking
Rule 111, Section 3 (b) of the Rules of Court, which
provides:
(b) After a criminal action has been commenced.
no civil action arising from the same offense can be
prosecuted, and the same shall be suspended, in
whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered;
The City Court of Mandaue City in an Order dated
August 11, 1970, ordered the suspension of the civil
case. Petitioner's Motion for Reconsideration thereof,
having been denied on August 25, 1970, 1 petitioner
elevated the matter on certiorari to the Court of First
Instance of Cebu, respondent Judge presiding, on
September 11, 1970, alleging that the City Judge had
acted with grave abuse of discretion in suspending the
civil action for being contrary to law and jurisprudence.
2 their employees and household helpers acting within
On November 5, 1970, respondent Judge dismissed the
Petition for certiorari on the ground that there was no
grave abuse of discretion on the part of the City Court
in suspending the civil action inasmuch as damage to
property is not one of the instances when an
independent civil action is proper; that petitioner has
another plain, speedy, and adequate remedy under the
law, which is to submit his claim for damages in the
criminal case; that the resolution of the City Court is
interlocutory and, therefore, certiorari is improper; and
that the Petition is defective inasmuch as what
petitioner actually desires is a Writ of mandamus
(Annex "R"). Petitioner's Motion for Reconsideration
was denied by respondent Judge in an Order dated
November 14,1970 (Annex "S" and Annex "U").
Hence, this Petition for Review before this Tribunal, to
which we gave due course on February 25, 1971. 3
Petitioner makes these:
ASSIGNMENTS OF ERROR
1. THE TRIAL COURT, RESPONDENT JUDGE MATEO
CANONOY, ERRED IN HOLDING THAT THE TRIAL OF THE
CIVIL CASE NO. 189 FILED IN THE CITY COURT OF
MANDAUE SHOULD BE SUSPENDED UNTIL AFTER A
FINAL JUDGMENT IS RENDERED IN THE CRIMINAL CASE.
2. THAT THE COURT ERRED IN HOLDING THAT IN
ORDER TO AVOID DELAY THE OFFENDED PARTY MAY
SUBMIT HIS CLAIM FOR DAMAGES IN THE CRIMINAL
CASE.
3. THAT THE COURT ERRED IN HOLDING THAT THE
PETITION FOR certiorari IS NOT PROPER, BECAUSE THE
RESOLUTION IN QUESTION IS INTERLOCUTORY.
4. THAT THE COURT ERRED IN HOLDING THAT THE
PETITION IS DEFECTIVE. 4
all of which can be synthesized into one decisive issue:
whether or not there can be an independent civil action
for damage to property during the pendency of the
criminal action.
From the Complaint filed by petitioner before the City
Court of Mandaue City, Cebu, it is evident that the
nature and character of his action was quasi-delictual
predicated principally on Articles 2176 and 2180 of the
Civil Code, which provide:
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is caned a quasi-delict
and is governed by the provisions of this Chapter.
(1902a)
Art. 2180. 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.
Employers shall be liable for the damages cause by
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family
to prevent damage. (1903a)
Thus, plaintiff made the essential averments that it
was the fault or negligence of the driver, Romeo Hilot,
in the operation of the jeepney owned by the Pepitos
which caused the collision between his automobile and
said jeepney; that damages were sustained by
petitioner because of the collision; that there was a
direct causal connection between the damages he
suffered and the fault and negligence of private
respondents.
Similarly, in the Answer, private respondents
contended, among others, that defendant, Valeriana
Pepito, observed due diligence in the selection and
supervision of her employees, particularly of her co-
defendant Romeo Hilot, a defense peculiar to actions
based on quasi-delict. 5
Liability being predicated on quasi-delict the civil case
may proceed as a separate and independent civil
action, as specifically provided for in Article 2177 of the
Civil Code.
Art. 2177. Responsibility for fault or negligence
under the preceding article is entirely separate and
distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the
defendant. (n)
The crucial distinction between criminal negligence and
quasi-delict, which is readily discernible from the
foregoing codal provision, has been expounded in
Barredo vs. Garcia, et al., 73 Phil. 607, 620-621, 6 thus:
Firstly, the Revised Penal Code in article 365 punishes
not only reckless but also simple imprudence. if we
were to hold that articles 1902 to 1910 of the Civil
Code refer only to fault or negligence not punished by
law, according to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana
would have very little scope and application in actual
life. Death or injury to persons and damage to property
through any degree of negligence even the slightest
would have to be indemnified only through the
principle of civil hability arising from crime. In such a
state of affairs, what sphere would remain for
quasidelito or culpa aquiliana We are loath to impute to
the lawmaker any intention to bring about a situation
so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will
not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin
and such full-grown development as culpa aquiliana or
quasi-delito, which is conserved and made enduring in
articles 1902 to 11910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages.
There are numerous cases of criminal negligence which
cannot be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases,
the defendant can and should be made responsible in a
civil action under articles 1902 to 1910 of the Civil
Code, otherwise, there would be many instances of
unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make
defendants liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first,
would be tantamount to compelling the plaintiff to
follow a devious and cumbersome method of obtaining
a reliel True, there is such a remedy under our laws,
but there is also a more expeditious way, which is
based on the primary and direct responsibility of the
defendant under article 1903 of the Civil Code. Our
view of the law is more likely to facilitate remedy for
civil wrongs because the procedure indicated by the
defendant is wasteful and productive of delay, it being
a matter of common knowledge that professional
drivers of taxis and similar public conveyances usually
do not have sufficient means with which to pay
damages. Why, then, should the plaintiff be required in
all cases to go through this round-about, unnecessary,
and probably useless procedure? In construing the
laws, courts have endeavored to shorten and facilitate
the pathways of right and justice.
At this juncture, it should be said that the primary and
direct responsibility of employers and their presumed
negligence are principles calculated to protect society.
Workmen and employees should be carefully chosen
and supervised in order to avoid injury to the public. It
is the masters or employers who principally reap the
profits resulting from the services of these servants
and employees. It is but right that they should
guarantee the latter's careful conduct for the personnel
and patrimonial safety of others. As Theilhard has said,
"they should reproach themselves, at least, some for
their weakness, others for their poor selection and all
for their negligence." And according to Manresa, "It is
much more equitable and just that such responsibility
should fail upon the principal or director who could
have chosen a careful and prudent employee, and not
upon the such employee because of his confidence in
the principal or director." (Vol. 12, p. 622, 2nd Ed.)
Many jurists also base this primary responsibility of the
employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the work
already cited (Vol. 7, p. 747) that before third persons
the employer and employee vienen a ser como una
sola personalidad, por refundicion de la del
dependiente en la de quien la emplea y utihza
(become as one personality by the merging of the
person of the employee in that of him who employs
and utilizes him.) All these observations acquire a
peculiar force and significance when it comes to motor
accidents, and there is need of stressing and
accentuating the responsibility of owners of motor
vehicles.
Fourthly, because of the broad sweep of the provisions
of both the Penal Code and the Civil Code on this
subject, which has given rise to overlapping or
concurrence of spheres already discussed, and for lack
of understanding of the character and efficacy of the
action for culpaaquiliana there has grown up a
common practice to seek damages only by virtue of
the Civil responsibility arising from crime, forgetting
that there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has
nevertheless rendered practically useless and nugatory
the more expeditious and effective remedy based on
culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this
usual course. But we believe it is high time we pointed
out to the harm done by such practice and to restore
the principle of responsibility for fault or negligence
under articles 1902 et seq. of the Civil Code to its full
rigor. It is high time we cause the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel,
so that its waters may no longer be diverted into that
of a crime under the Penal Code. This will, it is
believed, make for the bet ter safeguarding of private
rights because it re-establishes an ancient and
additional remedy, and for the further reason that an
independent civil action, not depending on the issues,
stations and results of a criminal prosecution, and
entirely directed by the party wronged or his counsel is
more likely to secure adequate and efficacious redress.
(Garcia vs. Florida 52 SCRA 420, 424-425, Aug. 31,
1973). (Emphasis supplied)
The separate and independent civil action for a quasi-
delict is also clearly recognized in section 2, Rule 111
of the Rules of Court, reading:
Sec. 2. Independent civil action. In the cases
provided for in Articles 31, 32, 33, 34 and 2177 of the
Civil Code of the Philippines, Are independent civil
action entirely separate and distinct from the c action,
may be brought by the injured party during the
pendency of the criminal case, provided the right is
reserved as required in the preceding section. Such
civil action shag proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence.
Significant to note is the fact that the foregoing section
categorically lists cases provided for in Article 2177 of
the Civil Code, supra, as allowing of an "independent
civil action."
Tested by the hereinabove-quoted legal tenets, it has
to be held that the City Court, in surrounding the civil
action, erred in placing reliance on section 3 (b) of Rule
111 of the Rules of Court, supra which refers to "other
civil actions arising from cases not included in the
section just cited" (i.e., Section 2, Rule 111 above
quoted), in which case 6 once the criminal action has
being commenced, no civil action arising from the
same offense can be prosecuted and the same shall be
suspended in whatever stage it may be found, until
final judgment in the criminal proceeding has been
rendered." Stated otherwise, the civil action referred to
in Secs. 3(a) and 3(b) of Rule 111 of the Rules of Court,
which should be suspended after the criminal action
has been instituted is that arising from the criminal
offense not the civil action based on quasi-delict
Article 31 of the Civil Code then clearly assumes
relevance when it provides:
Art. 31. When the civil action is based on an obligation
not arising from the act or omission complained of as a
felony, such civil action may proceed independently of
the criminal proceedings and regardless of the result of
the latter.
For obviously, the jural concept of a quasi-delict is that
of an independent source of obligation "not arising
from the act or omission complained of as a felony."
Article 1157 of the Civil Code bolsters this conclusion
when it specifically recognizes that:
Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
It bears emphasizing that petitioner's cause of action is
based on quasi-delict. The concept of quasidelica as
enunciated in Article 2176 of the Civil Code (supra), is
so broad that it includes not only injuries to persons
but also damage to property. 7 It makes no distinction
between "damage to persons" on the one hand and
"damage to property" on the other. Indeed, the word
"damage" is used in two concepts: the "harm" done
and "reparation" for the harm done. And with respect
to harm it is plain that it includes both injuries to
person and property since "harm" is not limited to
personal but also to property injuries. In fact, examples
of quasi-delict in the law itself include damage to
property. An instance is Article 2191(2) of the Civil
Code which holds proprietors responsible for damages
caused by excessive smoke which may be harmful to
persons or property."
In the light of the foregoing disquisition, we are
constrained to hold that respondent Judge gravely
abused his discretion in upholding the Decision of the
City Court of Mandaue City, Cebu, suspending the civil
action based on a quasi-delict until after the criminal
case is finally terminated. Having arrived at this
conclusion, a discussion of the other errors assigned
becomes unnecessary.
WHEREFORE, granting the Writ of certiorari prayed for,
the Decision of the Court of First Instance of Cebu
sought to be reviewed is hereby set aside, and the City
Court of Mandaue City, Cebu, Branch 11, is hereby
ordered to proceed with the hearing of Civil Case No.
189 of that Court.
Without pronouncement as to costs.
Art. 2177. Responsibility for fault or negligence under
the preceding article is entirely separate and distinct
from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages
twice for the same act or omission of the defendant.
(n)
Art. 365. Imprudence and negligence. Any
person who, by reckless imprudence, shall commit any
act which, had it been intentional, would constitute a
grave felony, shall suffer the penalty of arresto mayor
in its maximum period to prision correccional in its
medium period; if it would have constituted a less
grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed; if it
would have constituted a light felony, the penalty of
arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor
in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.
When the execution of the act covered by this article
shall have only resulted in damage to the property of
another, the offender shall be punished by a fine
ranging from an amount equal to the value of said
damages to three times such value, but which shall in
no case be less than twenty-five pesos. A fine not
exceeding two hundred pesos and censure shall be
imposed upon any person who, by simple imprudence
or negligence, shall cause some wrong which, if done
maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall
exercise their sound discretion, without regard to the
rules prescribed in Article sixty-four.
The provisions contained in this article shall not be
applicable:
1. When the penalty provided for the offense is equal
to or lower than those provided in the first two
paragraphs of this article, in which case the court shall
impose the penalty next lower in degree than that
which should be imposed in the period which they may
deem proper to apply.
2. When, by imprudence or negligence and with
violation of the Automobile Law, to death of a person
shall be caused, in which case the defendant shall be
punished by prision correccional in its medium and
maximum periods.Reckless imprudence consists in
voluntary, but without malice, doing or falling to do an
act from which material damage results by reason of
inexcusable lack of precaution on the part of the
person performing of failing to perform such act, taking
into consideration his employment or occupation,
degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage
impending to be caused is not immediate nor the
danger clearly manifest. The penalty next higher in
degree to those provided for in this article shall be
imposed upon the offender who fails to lend on the
spot to the injured parties such help as may be in this
hand to give. (As amended by R.A. 1790, approved
June 21, 1957).
Art. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence, or delay,
and those who in any manner contravene the tenor
thereof, are liable for damages. (1101)
Art. 1171. Responsibility arising from fraud is
demandable in all obligations. Any waiver of an action
for future fraud is void. (1102a)
Art. 1172. Responsibility arising from negligence in
the performance of every kind of obligation is also
demandable, but such liability may be regulated by the
courts, according to the circumstances. (1103)
Art. 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad
faith, the provisions of Articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence which
is to be observed in the performance, that which is
expected of a good father of a family shall be required.
(1104a)
Art. 1174. Except in cases expressly specified by the
law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the
assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which,
though foreseen, were inevitable. (1105a)
Art. 2178. The provisions of Articles 1172 to 1174 are
also applicable to a quasi-delict. (n)
FAR EAST BANK AND TRUST COMPANY vs. THE
HONORABLE COURT OF APPEALS
Some time in October 1986, private respondent Luis A.
Luna applied for, and was accorded, a FAREASTCARD
issued by petitioner Far East Bank and Trust Company
("FEBTC") at its Pasig Branch. Upon his request, the
bank also issued a supplemental card to private
respondent Clarita S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was
forthwith informed. In order to replace the lost card,
Clarita submitted an affidavit of loss. In cases of this
nature, the bank's internal security procedures and
policy would appear to be to meanwhile so record the
lost card, along with the principal card, as a "Hot Card"
or "Cancelled Card" in its master file.
On 06 October 1988, Luis tendered a despedida lunch
for a close friend, a Filipino-American, and another
guest at the Bahia Rooftop Restaurant of the Hotel
Intercontinental Manila. To pay for the lunch, Luis
presented his FAREASTCARD to the attending waiter
who promptly had it verified through a telephone call
to the bank's Credit Card Department. Since the card
was not honored, Luis was forced to pay in cash the bill
amounting to P588.13. Naturally, Luis felt embarrassed
by this incident.
In a letter, dated 11 October 1988, private respondent
Luis Luna, through counsel, demanded from FEBTC the
payment of damages. Adrian V. Festejo, a vice-
president of the bank, expressed the bank's apologies
to Luis. In his letter, dated 03 November 1988, Festejo,
in part, said:
In cases when a card is reported to our office as lost,
FAREASTCARD undertakes the necessary action to
avert its unauthorized use (such as tagging the card as
hotlisted), as it is always our intention to protect our
cardholders.
An investigation of your case however, revealed that
FAREASTCARD failed to inform you about its security
policy. Furthermore, an overzealous employee of the
Bank's Credit Card Department did not consider the
possibility that it may have been you who was
presenting the card at that time (for which reason, the
unfortunate incident occurred). 1
Festejo also sent a letter to the Manager of the Bahia
Rooftop Restaurant to assure the latter that private
respondents were "very valued clients" of FEBTC.
William Anthony King, Food and Beverage Manager of
the Intercontinental Hotel, wrote back to say that the
credibility of private respondent had never been "in
question." A copy of this reply was sent to Luis by
Festejo.
Still evidently feeling aggrieved, private respondents,
on 05 December 1988, filed a complaint for damages
with the Regional Trial Court ("RTC") of Pasig against
FEBTC.
On 30 March 1990, the RTC of Pasig, given the
foregoing factual settings, rendered a decision ordering
FEBTC to pay private respondents (a) P300,000.00
moral damages; (b) P50,000.00 exemplary damages;
and (c) P20,000.00 attorney's fees.
On appeal to the Court of Appeals, the appellate court
affirmed the decision of the trial court.
Its motion for reconsideration having been denied by
the appellate court, FEBTC has come to this Court with
this petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered
where the defendant is shown to have acted in bad
faith or with malice in the breach of the contract. 2 The
Civil Code provides:
Art. 2220. Willful injury to property may be a legal
ground for awarding moral damages if the court should
find that, under the circumstances, such damages are
justly due. The same rule applies to breaches of
contract where the defendant acted fraudulently or in
bad faith. (Emphasis supplied)
Bad faith, in this context, includes gross, but not
simple, negligence. 3 Exceptionally, in a contract of
carriage, moral damages are also allowed in case of
death of a passenger attributable to the fault (which is
presumed 4) of the common carrier. 5
Concededly, the bank was remiss in indeed neglecting
to personally inform Luis of his own card's cancellation.
Nothing in the findings of the trial court and the
appellate court, however, can sufficiently indicate any
deliberate intent on the part of FEBTC to cause harm to
private respondents. Neither could FEBTC's negligence
in failing to give personal notice to Luis be considered
so gross as to amount to malice or bad faith.
Malice or bad faith implies a conscious and intentional
design to do a wrongful act for a dishonest purpose or
moral obliquity; it is different from the negative idea of
negligence in that malice or bad faith contemplates a
state of mind affirmatively operating with furtive
design or ill will. 6
We are not unaware of the previous rulings of this
Court, such as in American Express International, Inc.,
vs. Intermediate Appellate Court (167 SCRA 209) and
Bank of Philippine Islands vs. Intermediate Appellate
Court (206 SCRA 408), sanctioning the application of
Article 21, in relation to Article 2217 and Article 2219 7
of the Civil Code to a contractual breach similar to the
case at bench. Article 21 states:
Art. 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.
Article 21 of the Code, it should be observed,
contemplates a conscious act to cause harm. Thus,
even if we are to assume that the provision could
properly relate to a breach of contract, its application
can be warranted only when the defendant's disregard
of his contractual obligation is so deliberate as to
approximate a degree of misconduct certainly no less
worse than fraud or bad faith. Most importantly, Article
21 is a mere declaration of a general principle in
human relations that clearly must, in any case, give
way to the specific provision of Article 2220 of the Civil
Code authorizing the grant of moral damages in culpa
contractual solely when the breach is due to fraud or
bad faith.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs.
Miranda 8 explained with great clarity the
predominance that we should give to Article 2220 in
contractual relations; we quote:
Anent the moral damages ordered to be paid to the
respondent, the same must be discarded. We have
repeatedly ruled (Cachero vs. Manila Yellow Taxicab Co.
Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599; Necesito,
et al. vs. Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023),
that moral damages are not recoverable in damage
actions predicated on a breach of the contract of
transportation, in view of Articles 2219 and 2220 of the
new Civil Code, which provide as follows:
Art. 2219. Moral damages may be recovered in
the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
Art. 2220. Wilful injury to property may be a legal
ground for awarding moral damages if the court should
find that, under the circumstances, such damages are
justly due. The same rule applies to breaches of
contract where the defendant acted fraudulently or in
bad faith.
By contrasting the provisions of these two articles it
immediately becomes apparent that:
(a) In case of breach of contract (including one of
transportation) proof of bad faith or fraud (dolus), i.e.,
wanton or deliberately injurious conduct, is essential to
justify an award of moral damages; and
(b) That a breach of contract cannot be considered
included in the descriptive term "analogous cases"
used in Art. 2219; not only because Art. 2220
specifically provides for the damages that are caused
contractual breach, but because the definition of quasi-
delict in Art. 2176 of the Code expressly excludes the
cases where there is a "preexisitng contractual
relations between the parties."
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay 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.
The exception to the basic rule of damages now under
consideration is a mishap resulting in the death of a
passenger, in which case Article 1764 makes the
common carrier expressly subject to the rule of Art.
2206, that entitles the spouse, descendants and
ascendants of the deceased passenger to "demand
moral damages for mental anguish by reason of the
death of the deceased" (Necesito vs. Paras, 104 Phil.
84, Resolution on motion to reconsider, September 11,
1958). But the exceptional rule of Art. 1764 makes it all
the more evident that where the injured passenger
does not die, moral damages are not recoverable
unless it is proved that the carrier was guilty of malice
or bad faith. We think it is clear that the mere
carelessness of the carrier's driver does not per se
constitute or justify an inference of malice or bad faith
on the part of the carrier; and in the case at bar there
is no other evidence of such malice to support the
award of moral damages by the Court of Appeals. To
award moral damages for breach of contract, therefore,
without proof of bad faith or malice on the part of the
defendant, as required by Art. 2220, would be to
violate the clear provisions of the law, and constitute
unwarranted judicial legislation.
The distinction between fraud, bad faith or malice in
the sense of deliberate or wanton wrong doing and
negligence (as mere carelessness) is too fundamental
in our law to be ignored (Arts. 1170-1172); their
consequences being clearly differentiated by the Code.
Art. 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in good faith
is liable shall be those that are the natural and
probable consequences of the breach of the obligation,
and which the parties have foreseen or could have
reasonably foreseen at the time the obligation was
constituted.
In case of fraud, bad faith, malice or wanton attitude,
the obligor shall be responsible for all damages which
may be reasonably attributed to the non-performance
of the obligation.
It is to be presumed, in the absence of statutory
provision to the contrary, that this difference was in the
mind of the lawmakers when in Art. 2220 they limited
recovery of moral damages to breaches of contract in
bad faith. It is true that negligence may be occasionally
so gross as to amount to malice; but the fact must be
shown in evidence, and a carrier's bad faith is not to be
lightly inferred from a mere finding that the contract
was breached through negligence of the carrier's
employees.
The Court has not in the process overlooked another
rule that a quasi-delict can be the cause for breaching
a contract that might thereby permit the application of
applicable principles on tort 9 even where there is a
pre-existing contract between the plaintiff and the
defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA
143; Singson vs. Bank of Phil. Islands, 23 SCRA 1117;
and Air France vs. Carrascoso, 18 SCRA 155). This
doctrine, unfortunately, cannot improve private
respondents' case for it can aptly govern only where
the act or omission complained of would constitute an
actionable tort independently of the contract. The test
(whether a quasi-delict can be deemed to underlie the
breach of a contract) can be stated thusly: Where,
without a pre-existing contract between two parties, an
act or omission can nonetheless amount to an
actionable tort by itself, the fact that the parties are
contractually bound is no bar to the application of
quasi-delict provisions to the case. Here, private
respondents' damage claim is predicated solely on
their contractual relationship; without such agreement,
the act or omission complained of cannot by itself be
held to stand as a separate cause of action or as an
independent actionable tort.
The Court finds, therefore, the award of moral damages
made by the court a quo, affirmed by the appellate
court, to be inordinate and substantially devoid of legal
basis.
Exemplary or corrective damages, in turn, are intended
to serve as an example or as correction for the public
good in addition to moral, temperate, liquidated or
compensatory damages (Art. 2229, Civil Code; see
Prudenciado vs. Alliance Transport System, 148 SCRA
440; Lopez vs. Pan American World Airways, 16 SCRA
431). In criminal offenses, exemplary damages are
imposed when the crime is committed with one or
more aggravating circumstances (Art. 2230, Civil
Code). In quasi-delicts, such damages are granted if
the defendant is shown to have been so guilty of gross
negligence as to approximate malice (See Art. 2231,
Civil Code; CLLC E.G. Gochangco Workers Union vs.
NLRC, 161 SCRA 655; Globe Mackay Cable and Radio
Corp. vs. CA, 176 SCRA 778). In contracts and quasi-
contracts, the court may award exemplary damages if
the defendant is found to have acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner
(Art. 2232, Civil Code; PNB vs. Gen. Acceptance and
Finance Corp., 161 SCRA 449).
Given the above premises and the factual
circumstances here obtaining, it would also be just as
arduous to sustain the exemplary damages granted by
the courts below (see De Leon vs. Court of Appeals,
165 SCRA 166).
Nevertheless, the bank's failure, even perhaps
inadvertent, to honor its credit card issued to private
respondent Luis should entitle him to recover a
measure of damages sanctioned under Article 2221 of
the Civil Code providing thusly:
Art. 2221. Nominal damages are adjudicated in
order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.
Reasonable attorney's fees may be recovered where
the court deems such recovery to be just and equitable
(Art. 2208, Civil Code). We see no issue of sound
discretion on the part of the appellate court in allowing
the award thereof by the trial court.
WHEREFORE, the petition for review is given due
course. The appealed decision is MODIFIED by deleting
the award of moral and exemplary damages to private
respondents; in its stead, petitioner is ordered to pay
private respondent Luis A. Luna an amount of
P5,000.00 by way of nominal damages. In all other
respects, the appealed decision is AFFIRMED. No costs.
VICENTE CALALAS vs. SUNGA
This is a petition for review on certiorari of the
decision[1] of the Court of Appeals, dated March 31,
1991, reversing the contrary decision of the Regional
Trial Court, Branch 36, Dumaguete City, and awarding
damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of
carriage.
The facts, as found by the Court of Appeals, are as
follows:
At 10 oclock in the morning of August 23, 1989, private
respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and
operated by petitioner Vicente Calalas. As the jeepney
was filled to capacity of about 24 passengers, 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. Sclaw
On the way to Poblacion Sibulan, Negros Occidental,
the jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to
the outgoing passenger. Just as she was doing so, an
Isuzu truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the
jeepney. As a result, Sunga was injured. She sustained
a fracture of the "distal third of the left tibia-fibula 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. Danilo
V. 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 Francisco Salva, the owner of the Isuzu truck.
Korte
The lower court rendered judgment against Salva as
third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck 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 jointly liable to Calalas for the damage to his
jeepney. Rtcspped
On appeal to the Court of Appeals, the ruling of the
lower court was reversed on the ground that Sungas
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.
The appellate court dismissed the third-party complaint
against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay
plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling
in Civil Case No. 3490 that the negligence of Verena
was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make
the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the
jeepney by the truck owned by Salva was a caso
fortuito. Petitioner further assails the award of moral
damages to Sunga on the ground that it is not
supported by evidence. Sdaadsc
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil
Case No. 3490 finding the driver and the owner of the
truck liable for quasi-delict ignores the fact that she
was never a party to that case and, therefore, the
principle of res judicata does not apply. Missdaa
Nor are the issues in Civil Case No. 3490 and in the
present case 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
petitioners jeepney. On the other hand, the issue in this
case is whether petitioner 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 passenger
safely to his destination.[2] In case of death or injuries
to passengers, 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.
Slxmis
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 petitioners
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 the truck
driver. 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
passengers as well as the presumption of negligence in
cases of death or injury to passengers. It provides:
Slxsc
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 passengers
transported by them, according to all the
circumstances of each case.
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 passengers is further set forth in
articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the
passengers 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 passengers,
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.
In the case at bar, upon the happening of the accident,
the presumption of negligence at once arose, and it
became the duty of petitioner to prove that he had to
observe extraordinary diligence in the care of his
passengers. Scslx
Now, did the driver of jeepney 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? We do not think so. Several factors militate
against petitioners contention. Slx
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 passage of any vehicle, nor, while
discharging or taking on passengers or loading or
unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioners driver took in
more passengers than the allowed seating capacity of
the jeepney, a violation of 32(a) of the same law. It
provides: Mesm
Exceeding registered capacity. - No person operating
any motor vehicle shall allow more passengers or more
freight or cargo in his vehicle than its registered
capacity.
The fact that Sunga was seated in an "extension seat"
placed her in a peril greater than that to which the
other passengers were exposed. Therefore, not only
was petitioner 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 passengers. Calrky
We find it hard to give serious thought to petitioners
contention that Sungas 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 our seas should not be compensated
merely because those passengers assumed a greater
risk of drowning by boarding an overloaded ferry. This
is also true of petitioners 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.[3] This requires that the
following requirements be present: (a) the cause of the
breach is independent of the debtors will; (b) the event
is unforeseeable or unavoidable; (c) the event is such
as to render it impossible for the debtor to fulfill his
obligation in a normal manner, and (d) the debtor did
not take part in causing the injury to the creditor.[4]
Petitioner should have foreseen the danger of parking
his jeepney with its body protruding two meters into
the highway. Kycalr
Finally, petitioner challenges the award of moral
damages alleging that it is excessive and without basis
in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals
stated: Kyle
Plaintiff-appellant at the time of the accident was a
first-year college student in that school year 1989-1990
at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to
enroll in the second semester of that school year. She
testified that she had no more intention of continuing
with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical
Education "because of my leg which has a defect
already."
Plaintiff-appellant likewise testified that even while she
was under confinement, she cried in pain because of
her injured left foot. As a result of her injury, the
Orthopedic Surgeon also certified that she has
"residual bowing of the fracture side." She likewise
decided not to further pursue Physical Education as her
major subject, because "my left leg x x x has a defect
already."
Those are her physical pains and moral sufferings, the
inevitable bedfellows of the injuries that she suffered.
Under Article 2219 of the Civil Code, she is entitled to
recover moral damages in the sum of P50,000.00,
which is fair, just and reasonable.
As a general rule, moral damages are not recoverable
in actions for damages predicated on a breach of
contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code.[5] As an exception,
such damages are recoverable: (1) in cases in which
the mishap results in the death of a passenger, as
provided in Art. 1764, in relation to Art. 2206(3) of the
Civil Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art. 2220.[6]
In this case, there is no legal basis for awarding moral
damages since there was no factual finding by the
appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sungas
contention that petitioners admission in open court
that the driver of the jeepney failed to assist her in
going to a nearby hospital cannot be construed as an
admission of bad faith. The fact that it was the driver of
the Isuzu truck who took her to the hospital does not
imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely
implied recognition by Verena that he was the one at
fault for the accident. Exsm
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.
Art. 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify
the latter for the same.
Art. 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad
faith, the provisions of Articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence which
is to be observed in the performance, that which is
expected of a good father of a family shall be required.
(1104a)
AMADO PICART vs. FRANK SMITH, JR.
In this action the plaintiff, Amado Picart, seeks to
recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by
an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province
of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this
action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears
that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had
gotten half way across, the defendant approached from
the opposite direction in an automobile, going at the
rate of about ten or twelve miles per hour. As the
defendant neared the bridge he saw a horseman on it
and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge
he gave two more successive blasts, as it appeared to
him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming
and heard the warning signals. However, being
perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge
instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient
time to get over to the other side. The bridge is shown
to have a length of about 75 meters and a width of
4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the
proper side of the road for the machine. In so doing the
defendant assumed that the horseman would move to
the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing
down, continued to approach directly toward the horse
without diminution of speed. When he had gotten quite
near, there being then no possibility of the horse
getting across to the other side, the defendant quickly
turned his car sufficiently to the right to escape hitting
the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in
such close proximity to the animal that it became
frightened and turned its body across the bridge with
its head toward the railing. In so doing, it as struck on
the hock of the left hind leg by the flange of the car
and the limb was broken. The horse fell and its rider
was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident
occurred the free space where the pony stood between
the automobile and the railing of the bridge was
probably less than one and one half meters. As a result
of its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness
and required medical attention for several days.
The question presented for decision is whether or not
the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives
rise to a civil obligation to repair the damage done; and
we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right
to assume that the horse and the rider would pass over
to the proper side; but as he moved toward the center
of the bridge it was demonstrated to his eyes that this
would not be done; and he must in a moment have
perceived that it was too late for the horse to cross
with safety in front of the moving vehicle. In the nature
of things this change of situation occurred while the
automobile was yet some distance away; and from this
moment it was not longer within the power of the
plaintiff to escape being run down by going to a place
of greater safety. The control of the situation had then
passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing
that there were no other persons on the bridge, to take
the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost
upon the horse. He was, we think, deceived into doing
this by the fact that the horse had not yet exhibited
fright. But in view of the known nature of horses, there
was an appreciable risk that, if the animal in question
was unacquainted with automobiles, he might get
exited and jump under the conditions which here
confronted him. When the defendant exposed the
horse and rider to this danger he was, in our opinion,
negligent in the eye of the law.
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by
reference to the personal judgment of the actor in the
situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines
liability by that.
The question as to what would constitute the conduct
of a prudent man in a given situation must of course be
always determined in the light of human experience
and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value
but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are
before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is
something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually
pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable
foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary
before negligence can be held to exist. Stated in these
terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct
is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to
warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in
the present case we think that negligence is clearly
established. A prudent man, placed in the position of
the defendant, would in our opinion, have recognized
that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to
the horse and the rider as reasonable consequence of
that course. Under these circumstances the law
imposed on the defendant the duty to guard against
the threatened harm.
It goes without saying that the plaintiff himself was not
free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the
road. But as we have already stated, the defendant
was also negligent; and in such case the problem
always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent
acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval.
Under these circumstances the law is that the person
who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the
consequences, without reference to the prior
negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held
that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it
could be received in evidence to reduce the damages
which would otherwise have been assessed wholly
against the other party. The defendant company had
there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails
were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the
track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed.
The car was in consequence upset; the rails slid off;
and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the
supports of the track. The court found that the
defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the
car instead of being in front or behind. It was held that
while the defendant was liable to the plaintiff by reason
of its negligence in having failed to keep the track in
proper repair nevertheless the amount of the damages
should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the
defendant's negligence in that case consisted in an
omission only. The liability of the company arose from
its responsibility for the dangerous condition of its
track. In a case like the one now before us, where the
defendant was actually present and operating the
automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage
according to the degree of their relative fault. It is
enough to say that the negligence of the defendant
was in this case the immediate and determining cause
of the accident and that the antecedent negligence of
the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in
the special defense pleaded in the defendant's answer,
to the effect that the subject matter of the action had
been previously adjudicated in the court of a justice of
the peace. In this connection it appears that soon after
the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of
the peace charging the defendant with the infliction of
serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the
magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the
trial upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an
opinion -- the action of the justice of the peace in
dismissing the criminal proceeding upon the
preliminary hearing can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of
the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the
sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of
his apparel, and lawful interest on the whole to the
date of this recovery. The other damages claimed by
the plaintiff are remote or otherwise of such character
as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and
Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to
concur with the judgment in this case. I do so because
of my understanding of the "last clear chance" rule of
the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked
where the negligence of the plaintiff is concurrent with
that of the defendant. Again, if a traveler when he
reaches the point of collision is in a situation to
extricate himself and avoid injury, his negligence at
that point will prevent a recovery. But Justice Street
finds as a fact that the negligent act of the interval of
time, and that at the moment the plaintiff had no
opportunity to avoid the accident. Consequently, the
"last clear chance" rule is applicable. In other words,
when a traveler has reached a point where he cannot
extricate himself and vigilance on his part will not avert
the injury, his negligence in reaching that position
becomes the condition and not the proximate cause of
the injury and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
BENGUET ELECTRIC COOPERATIVE, INC.,
petitioner, vs. COURT OF APPEALS
This case involves a review on certiorari of the Decision
of the Court of Appeals[1]affirming with modification
the decision of the Regional Trial Court of Baguio City,
and ordering petitioner Benguet Electric Cooperative
Inc. (BENECO) to pay Caridad O. Bernardo, as guardian
ad litem of the three (3) minor children of the late Jose
Bernardo P50,000.00 as indemnity for his death, with
interest thereon at the legal rate from February 6,
1985, the date of the filing of the complaint, until fully
paid, P100,000.00 for moral damages, P20,000.00 for
exemplary damages, another P20,000.00 for attorney's
fees, P864,000.00 for net income loss for the remaining
thirty (30) years of the life expectancy of the deceased,
and to pay the costs of suit.
The appellate court dismissed for lack of merit the
counterclaim of BENECO against the Bernardos and its
third party complaint against Guillermo Canave, Jr., as
well as the latter's counterclaim.
For five (5) years up to the time of his death, Jose
Bernardo managed a stall at the Baguio City meat
market. On 14 January 1985 at around 7:50 in the
morning, Jose together with other meat vendors went
out of their stalls to meet a jeepney loaded with
slaughtered pigs in order to select the meat they would
sell for the day. Jose was the very first to reach the
parked jeepney. Grasping the handlebars at the rear
entrance of the vehicle, and as he was about to raise
his right foot to get inside, Jose suddenly stiffened and
trembled as though suffering from an epileptic seizure.
Romeo Pimienta who saw Jose thought he was merely
joking but noticed almost in disbelief that he was
already turning black. In no time the other vendors
rushed to Jose and they discovered that the antenna of
the jeepney bearing the pigs had gotten entangled
with an open electric wire at the top of the roof of a
meat stall. Pimienta quickly got hold of a broom and
pried the antenna loose from the open wire. But shortly
after, Jose released his hold on the handlebars of the
jeep only to slump to the ground. He died shortly in the
hospital. Cause of his death was "cardio-respiratory
arrest secondary to massive brain congestion with
petheccial hemorrhage, brain bilateral pulmonary
edema and congestion and endocardial petecchial
hemorrhage and dilation (history of electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of Jose
Bernardo, and their minor children, Jojo, Jeffrey and Jo-
an, all surnamed Bernardo, filed a complaint against
BENECO before the Regional Trial Court of Baguio City
for a sum of money and damages arising from the
electrocution of Jose Bernardo. In the same civil action,
BENECO filed a third-party complaint against Guillermo
Canave, Jr., the jeepney owner.
In its decision dated 15 August 1994, the trial court
ruled in favor of the Bernardos and ordered BENECO to
pay them damages.[2] Both petitioner and private
respondents herein appealed to the Court of Appeals.
On 5 November 1996 the appellate court promulgated
its Decision which BENECO now assails contending
inter alia that the appellate court gravely erred in
ordering BENECO to pay damages in light of the clear
evidence that it was third-party defendant Canave's
fault or negligence which was the proximate and sole
cause, or at least the principal cause, of the
electrocution and death of Jose Bernardo.
First, BENECO questions the award of damages by
respondent court notwithstanding a clear showing that
the electrocution and death of Jose Bernardo were
directly attributable to the fault and negligence of
jeepney owner Guillermo Canave, Jr.
The records of the case show that respondent court did
not commit any reversible error in affirming the
findings of the trial court that BENECO was solely
responsible for the untimely death of Jose Bernardo
through accidental electrocution. According to the trial
court, which we find substantiated by the records -[3]
Through Virgilio Cerezo, a registered master electrician
and presently the Chief Electrical Building Inspector of
the General Services Division of the City of Baguio, who
was tasked to investigate the electrocution of
Bernardo, the plaintiffs adduced proof tending to show
that the defendant BENECO installed a No. 2 high
voltage main wire distribution line and a No. 6 service
line to provide power at the temporary meat market on
Hilltop Road. It put up a three-inch G.I. pipe pole to
which the No. 2 main line was strung on top of a stall
where a service drop line was connected. The height of
the electrical connection from the No. 2 line to the
service line was barely eight (8) to nine (9) feet (Exhibit
"E"; See Exhibit "D-1") which is in violation of the
Philippine Electrical Code which requires a minimum
vertical clearance of fourteen (14) feet from the level
of the ground since the wiring crosses a public street.
Another violation according to Cerezo, is that the main
line connected to the service line was not of rigid
conduit wiring but totally exposed without any safety
protection (Ibid). Worse, the open wire connections
were not insulated (Ibid); See Exhibits "D-6", "D-6-A",
"D-7"). The jeep's antenna which was more than eight
(8) feet high (Exhibit "D-9") from the ground ( It is
about six to seven feet long and mounted on the left
fender which is about three feet above the ground) got
entangled with the open wire connections (Exhibit "D-
8"), thereby electrically charging its handlebars which
Bernardo held on to enter the vehicle resulting in his
electrocution.
While Vedasto Augusto, an electrical engineer and the
line superintendent in the electrical department of the
defendant BENECO, admitted that the allowable
vertical clearance of the service drop line is even 15
feet from the ground level and not only 14 feet, he and
Jose Angeles, then an instrument man or surveyor of
the BENECO, insisted that BENECO installed (they do
not know by whom in particular) from the Apollo
Building nearby a service drop line carrying 220 volts
which was attached to a G.I. pipe pole (Exhibits "1" and
"1-A"). The vertical clearance of the point of
attachment of the service drop line on the G.I. post to
the ground is 15.5 feet (Exhibit "1-B"), which is more
than the allowable 15-foot clearance. To this service
drop line was connected the service entrance
conductor (Exhibit "1-D") to supply power inside the
premises to be serviced through an electric meter. At
the lower portion of the splicing or connecting point
between the service drop line and the service entrance
conductor is a three to four-inch bare wire to serve as a
ground. They saw the bare wire because the splicing
point was exposed as it was not covered with tape
(Exhibit "1-E"). The antenna of the jeep which
electrocuted Bernardo got entangled with this exposed
splicing point.
Augusto claimed that it was not BENECO's job to splice
or connect the service entrance conductor to the
service drop line but rather the owner of the premises
to be serviced whose identity they did not, however,
determine.
Significantly, on cross-examination, Augusto admitted
that the service drop line that BENECO installed did not
end at the point to which it is attached to the G.I. post.
Rather, it passed through a spool insulator that is
attached to the post (Exhibit "1-F") and extended down
to where the service entrance conductor is spliced with
the result that the exposed splicing point (Exhibit "1-
E") is only about eight (8) feet from the ground level.
There is no question that as an electric cooperative
holding the exclusive franchise in supplying electric
power to the towns of Benguet province, its primordial
concern is not only to distribute electricity to its
subscribers but also to ensure the safety of the public
by the proper maintenance and upkeep of its facilities.
It is clear to us then that BENECO was grossly negligent
in leaving unprotected and uninsulated the splicing
point between the service drop line and the service
entrance conductor, which connection was only eight
(8) feet from the ground level, in violation of the
Philippine Electrical Code. BENECO's contention that
the accident happened only on January 14, 1985,
around seven (7) years after the open wire was found
existing in 1978, far from mitigating its culpability,
betrays its gross neglect in performing its duty to the
public.[4] By leaving an open live wire unattended for
years, BENECO demonstrated its utter disregard for the
safety of the public. Indeed, Jose Bernardo's death was
an accident that was bound to happen in view of the
gross negligence of BENECO.
BENECO theorizes in its defense that the death of Jose
Bernardo could be attributed to the negligence of
Canave, Jr., in parking his jeepney so close to the
market stall which was neither a parking area nor a
loading area, with his antenna so high as to get
entangled with an open wire above the Dimasupil
store.[5] But this line of defense must be discarded.
Canave's act of parking in an area not customarily
used for that purpose was by no means the
independent negligent act adverted to by BENECO in
citing Manila Electric Co. v. Ronquillo.[6] Canave was
well within his right to park the vehicle in the said area
where there was no showing that any municipal law or
ordinance was violated nor that there was any
foreseeable danger posed by his act. One thing
however is sure, no accident would have happened had
BENECO installed the connections in accordance with
the prescribed vertical clearance of fifteen (15) feet.
Second. BENECO avers that the Court of Appeals
gravely erred in awarding P864,000.00 as net income
loss for the thirty (30) years remaining of the life
expectancy of the deceased Jose Bernardo, albeit the
trial court found no firm basis for awarding this item of
damages.
We recall that the trial court disallowed the award for
net loss income in view of the alleged contradictory
and untrustworthy testimony of the deceased's
surviving spouse Caridad Bernardo. Thus -
As to lost earnings. The court finds the allegations of
the plaintiffs, particularly Caridad Bernardo
contradictory and untrustworthy. While in the
complaint, which she herself verified, she asseverated
that at the time of his death on January 14, 1985, her
late husband was earning no less than P150.00 daily
after deducting personal expenses and household and
other family obligations; at the trial she bloated this up
to P3,000.00 gross daily or P300.00 profit a day or a
net income of P200.00 daily after deducting personal
and household expenses. But inexplicably she could
not present the income tax return of her husband for
1983 and 1984 although she stated that he had been
filing such returns. What she submitted are his income
tax returns for 1981 and 1982 showing a much lower
annual gross income of P12,960.00 and P16,120.00,
respectively. The Court, therefore, finds no firm basis
for awarding this item of damages.
In modifying the decision of the trial court, the Court of
Appeals relied on the testimony of Rosita Noefe, sister
of the deceased, that her brother started as her helper
in the several meat stalls she operated until 1982
when she allowed Jose to operate one of her stalls as
his own and gave him an initial capital of P15,000.00 to
add to his own. She explained that her brother sold
from 100 to 150 kilos of pork and 30 to 50 kilos of meat
a day earning an income of about P150.00 to P200.00
pesos daily. After deducting his personal expenses and
family obligations, Jose earned a daily net income
between P70.00 and P80.00. Jose Bernardo died of
electrocution at the age of thirty-three (33). Following
the ruling in Villa Rey Transit v. Court of Appeals[7] and
Davila v. PAL[8]his life expectancy would allow him
thirty and one third (30-1/3) years more. Assuming on
the basis of his P80.00 daily net income translated to
P2,400.00 monthly or P28,800.00 yearly, the net
income loss for the thirty (30) years remaining of his
life expectancy would amount to P864,000.00.[9]
While we are of the opinion that private respondent
Bernardo is entitled to indemnity for loss of earning
capacity of her deceased husband we however find
that a modification is in order. The amount
corresponding to the loss of earning capacity is based
mainly on two factors: (a) the number of years on the
basis of which the damages shall be computed; and,
(b) the rate at which the losses sustained by the widow
and her children should be fixed.[10]
We consider that the deceased was married with three
(3) children and thirty-three (33) years old at the time
of his death. By applying the formula: 2/3 x (80 - 33) =
Life Expectancy, the normal life expectancy of the
deceased would be thirty-one and one-third (31-1/3)
years and not thirty (30) as found by the respondent
court. By taking into account the nature and quality of
life of a meat vendor, it is hard to conceive that Jose
would still be working for the full stretch of the
remaining thirty-one (31) years of his life; and
therefore it is but reasonable to make allowances and
reduce his life expectancy to twenty-five (25) years.
[11]
Anent the second factor, we are of the view that the
Court of Appeals was correct in relying on the
unrebutted testimony of Rosita Noefe concerning the
income of Jose, thus providing a basis for fixing the
rate of damages incurred by the heirs of the deceased.
Rosita clarified as follows:
Q: Now you said that you brother's stall is just very
near, about 4 to 5 meters away from your stall. Do you
know more or less how your brother was earning by
way of income because the stall belongs also to you
and your husband?
A: Yes, sir (italics supplied).
Q: How much more or less would you say was his daily
income from the stall, if you know?
A: P150 to P200 more, sometimes more than P200.
Q: What is this? Monthly, daily, or what?
A: Daily sir.
Q: Now, when you said that he earns sometimes 150 or
200 in a day can (sic) you tell this court more or less
how many in terms of net or in terms of kilos that he
can sell with that amount daily?
A: More than one hundred (100) kilos, sir, or one
hundred fifty kilos (150).
Q: By the way what was your brother selling also in
that meat stall?
A: Pork and beef, sir.
Q: In terms of how many slaughter(ed) pigs would that
be if you know? 100 to 150 kilo
A: Two (2) pigs, sir.
Q: Is this... How about meat, I mean, aside from pigs?
A: About thirty (30) to fifty (50) kilos for beef.
Q: Now, will you tell this court why you know more or
less that this is his daily income?
A: I know it because I experienced it and I only
transferred this stall to him.
Q: And his income, you said, of 150 daily to 200 for the
sale of pork and meat will you know what are his family
expenses being your brother and is living with you in
the same place at the slaughter house?
A: About P70.00 to P80.00 a day.
Q: And what are the other income that your brother
derive (sic) aside from the meat stall after spending
these daily expenses?
A: None, sir.
Contrary to the assertion of BENECO, there is ample
basis for the fixing of damages incurred by the heirs of
the deceased. Notwithstanding the failure of private
respondent Bernardo to present documentary evidence
to support her claim, the unrebutted testimony of
Rosita Noefe supplied this deficiency. Indeed, there is
no reason to doubt the veracity of Rosita's testimony
considering that she owned the very same stall that
Jose was operating and managing before his death. Her
testimony on the earning capacity of Jose is enough to
establish the rationale for the award.
The discrepancy between private respondent
Bernardo's claims regarding her husband's income as
contained in the complaint, where she alleged that Jose
was earning no less than P150.00 a day, and her
testimony during trial that he earned P300.00 daily,
could not obviate the fact that at the time of his death
Jose was earning a living as a meat vendor.
Undoubtedly, his untimely death deprived his family of
his potential earnings. The allegation in the complaint
fixing his income at P150.00 a day was corroborated by
the unqualified declaration of Rosita Noefe that he was
earning P150.00 to P200.00 a day. Obviously the
bloated figure of P300.00 given by private respondent
Bernardo was an afterthought perhaps impelled by the
prospect of being awarded a greater sum.
We now fix Jose's daily gross income at P150.00 or his
annual gross income at P54,000.00. After deducting
personal expenses, household and other family
obligations, we can safely assume that his annual net
income at the time of death was P27,000.00 or 50% of
his yearly gross earnings of P54,000.00.[12]
Accordingly, in determining the indemnity for the loss
of earning capacity, we multiply the life expectancy of
the deceased as reduced to twenty-five (25) years by
the annual net income of P27,000.00 which gives us
P675,000.00. Therefore, we deduce that his net
earning capacity is P675,000.00 computed as follows:
[13] Net Earning Capacity = Life Expectancy x Gross
Annual Income - Necessary Living Expenses. Reduced
to simpler form:
Net Earning = Life x Gross Annual - Necessary
Capacity Expectancy Income Living Expenses
= 2 (80 - 33) x (P54,000 - P27,000)
3
= 31-1/3
(reduced to 25) x 27,000 = 675,000.00
=P675,000.00 NET INCOME LOSS (as reduced)
Third. BENECO contends that exemplary damages
should not be awarded as the amount claimed was not
specified in the body nor in the prayer of the
complaint, in contravention of the mandate in Rule 11
of the Interim Rules and Guidelines implementing BP
129 which requires the amount of damages to be
specifically alleged apparently for the purpose of
computing the docket fees.
BENECO's contention deserves no merit. The amount of
exemplary damages need not be pleaded in the
complaint because the same cannot be predetermined.
One can merely ask that it be fixed by the court as the
evidence may warrant and be awarded at its own
discretion.[14] In fact, the amount of exemplary
damages need not be proved because its
determination is contingent upon or incidental to the
amount of compensatory damages that may be
awarded to the claimant. Moreover, this Court in a
number of occasions ruled that the amount of docket
fees to be paid should be computed on the basis of the
amount of the damages stated in the complaint. Where
subsequently however the judgment awarded a claim
not specified in the pleading, or if specified, the same
was left for the determination of the court, an
additional filing fee therefor may be assessed and
considered to constitute a lien on the judgment.[15]
We are not unaware of the principle laid down in Tacay
v. Regional Trial Court of Tagum[16]where the trial
court was ordered to either expunge the unspecified
claim for exemplary damages or allow the private
respondent to amend the complaint within a
reasonable time and specify the amount thereof and
then pay the corresponding docket fees. However, we
prefer not to expunge the claim for exemplary
damages and pursue the Tacay lead, for to delete the
claim for exemplary damages would be to give
premium to BENECO's gross negligence while to order
the amendment of the complaint would be to unjustly
delay the proceedings and prolong further the almost
fifteen-year agony of the intended beneficiaries.
Exemplary damages are imposed by way of example or
correction for the public good, in addition to moral,
temperate, liquidated or compensatory damages. It is
awarded as a deterrent to socially deleterious actions.
In quasi-delict, exemplary damages are awarded when
the act or omission which caused injury is attended by
gross negligence.[17] Gross negligence has been
defined as negligence characterized by the want of
even slight care, acting or omitting to act in a situation
where there is duty to act, not inadvertently but
willfully and intentionally, with a conscious indifference
to consequences in so far as other persons may be
affected.[18]
In the instant case, there is a clear showing of
BENECO's gross negligence when it failed to detect,
much less to repair, for an inexcusably long period of
seven (7) years the uninsulated connection which
caused the death of Jose Bernardo. The gravity of its
ineptitude was compounded when it installed the
service drop line way below the prescribed minimum
vertical clearance of fifteen (15) feet. Again,
precautionary measures were not taken in wanton
disregard of the possible consequences. Under these
circumstances, we find no reason to disturb the finding
of respondent court awarding exemplary damages to
private respondent Bernardo in the amount of
P20,000.00.
Finally, BENECO questions the grant of moral damages
and attorney's fees on the same ground of non-
culpability. It is settled that moral damages are not
intended to enrich the complainant but to serve to
obviate his/her spiritual suffering by reason of the
culpable action of the defendant. Its award is aimed at
the restoration of the spiritual status quo ante, and it
must be commensurate to the suffering inflicted. As a
result of the accidental death of Jose, his widow
Caridad and their three (3) minor children had to
scrounge for a living in order to keep their heads above
water. Caridad had to depend on the generosity of her
relatives which came intermittently and far between
and augment whatever she received from them with
her meager income from her small business. She must
have agonized over the prospect of raising her three
(3) small children all by herself given her unstable
financial condition. For the foregoing reasons, we
sustain the award of moral damages by respondent
court except as to the amount thereof. In the instant
case, we are of the opinion that moral damages in the
amount of P50,000.00 are more in accord with the
injury suffered by private respondent and her children.
As for attorney's fees, we find no legal nor factual basis
to overturn the ruling of respondent court on the
matter; accordingly, the grant of P20,000.00 attorney's
fees to private respondent Bernardo is adopted.
WHEREFORE, the assailed Decision of the Court of
Appeals dated 5 November 1996 ordering petitioner
Benguet Electric Cooperative, Inc., to pay private
respondent Caridad O. Bernardo as guardian ad litem
for the minors Jojo, Jeffrey and Jo-an, all surnamed
Bernardo, P20,000.00 as exemplary damages, another
P20,000.00 for attorney's fees, and P50,000.00 as
indemnity for the death of Jose Bernardo, is AFFIRMED
with the MODIFICATION that the P864,000.00 as net
income loss is reduced to P675,000.00 and the
P100,000.00 as moral damages is also reduced to
P50,000.00.
RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. Burden of proof is
the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the
amount of evidence required by law. (1a, 2a)
Section 2. Conclusive presumptions. The
following are instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration,
act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act
upon such belief, he cannot, in any litigation arising out
of such declaration, act or omission, be permitted to
falsify it:
(b) The tenant is not permitted to deny the title of
his landlord at the time of commencement of the
relation of landlord and tenant between them. (3a)
Section 3. Disputable presumptions. The
following presumptions are satisfactory if
uncontradicted, but may be contradicted and
overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful
intent;
(c) That a person intends the ordinary
consequences of his voluntary act;
(d) That a person takes ordinary care of his
concerns;
(e) That evidence willfully suppressed would be
adverse if produced;
(f) That money paid by one to another was due to
the latter;
(g) That a thing delivered by one to another
belonged to the latter;
(h) That an obligation delivered up to the debtor
has been paid;
(i) That prior rents or installments had been paid
when a receipt for the later one is produced;
(j) That a person found in possession of a thing
taken in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that things
which a person possess, or exercises acts of ownership
over, are owned by him;
(k) That a person in possession of an order on
himself for the payment of the money, or the delivery
of anything, has paid the money or delivered the thing
accordingly;
(l) That a person acting in a public office was
regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether
in the Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
(o) That all the matters within an issue raised in a
case were laid before the court and passed upon by it;
and in like manner that all matters within an issue
raised in a dispute submitted for arbitration were laid
before the arbitrators and passed upon by them;
(p) That private transactions have been fair and
regular;
(q) That the ordinary course of business has been
followed;
(r) That there was a sufficient consideration for a
contract;
(s) That a negotiable instrument was given or
indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument
was made before the instrument was overdue and at
the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was
received in the regular course of the mail;
(w) That after an absence of seven years, it being
unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of
succession.
The absentee shall not be considered dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the vessel
or aircraft;
(2) A member of the armed forces who has taken
part in armed hostilities, and has been missing for four
years;
(3) A person who has been in danger of death
under other circumstances and whose existence has
not been known for four years;
(4) If a married person has been absent for four
consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded
belief that the absent spouse is already death. In case
of disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of
only two years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must
institute a summary proceedings as provided in the
Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that
the thing acquiesced in was conformable to the law or
fact;
(y) That things have happened according to the
ordinary course of nature and ordinary nature habits of
life;
(z) That persons acting as copartners have
entered into a contract of copartneship;
(aa) That a man and woman deporting themselves
as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman
who are capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under void marriage,
has been obtained by their joint efforts, work or
industry.
(cc) That in cases of cohabitation by a man and a
woman who are not capacitated to marry each other
and who have acquire properly through their actual
joint contribution of money, property or industry, such
contributions and their corresponding shares including
joint deposits of money and evidences of credit are
equal.
(dd) That if the marriage is terminated and the
mother contracted another marriage within three
hundred days after such termination of the former
marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty days
after the solemnization of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days
following the celebration of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(ee) That a thing once proved to exist continues as
long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to
be printed or published by public authority, was so
printed or published;
(hh) That a printed or published book, purporting
contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct
reports of such cases;
(ii) That a trustee or other person whose duty it
was to convey real property to a particular person has
actually conveyed it to him when such presumption is
necessary to perfect the title of such person or his
successor in interest;
(jj) That except for purposes of succession, when
two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who
died first, and there are no particular circumstances
from which it can be inferred, the survivorship is
determined from the probabilities resulting from the
strength and the age of the sexes, according to the
following rules:
1. If both were under the age of fifteen years, the
older is deemed to have survived;
2. If both were above the age sixty, the younger
is deemed to have survived;
3. If one is under fifteen and the other above
sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the
sex be different, the male is deemed to have survived,
if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the
other between those ages, the latter is deemed to
have survived.
(kk) That if there is a doubt, as between two or
more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death
of one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died
at the same time. (5a)
Section 4. No presumption of legitimacy or
illegitimacy. There is no presumption of legitimacy of
a child born after three hundred days following the
dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy
of such child must prove his allegation. (6)
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC.
vs. COURT OF APPEALS et al.
This case had its inception in an action for damages
instituted in the former Court of First Instance of
Negros Occidental 1 by private respondent spouses
against petitioner Philippine Long Distance Telephone
Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their
jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for
the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban
failed to notice the open trench which was left
uncovered because of the creeping darkness and the
lack of any warning light or signs. As a result of the
accident, respondent Gloria Esteban allegedly
sustained injuries on her arms, legs and face, leaving a
permanent scar on her cheek, while the respondent
husband suffered cut lips. In addition, the windshield of
the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention
that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent
contractor which undertook the construction of the
manhole and the conduit system. 3 Accordingly, PLDT
filed a third-party complaint against Barte alleging
that, under the terms of their agreement, PLDT should
in no manner be answerable for any accident or
injuries arising from the negligence or carelessness of
Barte or any of its employees. 4 In answer thereto,
Barte claimed that it was not aware nor was it notified
of the accident involving respondent spouses and that
it had complied with the terms of its contract with PLDT
by installing the necessary and appropriate standard
signs in the vicinity of the work site, with barricades at
both ends of the excavation and with red lights at night
along the excavated area to warn the traveling public
of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision
in favor of private respondents, the decretal part of
which reads:
IN VIEW OF THE FOREGOING considerations the
defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the plaintiff
Gloria Esteban the sum of P20,000.00 as moral
damages and P5,000.00 exemplary damages; to
plaintiff Antonio Esteban the sum of P2,000.00 as
moral damages and P500.00 as exemplary damages,
with legal rate of interest from the date of the filing of
the complaint until fully paid. The defendant is hereby
ordered to pay the plaintiff the sum of P3,000.00 as
attorney's fees.

(B) The third-party defendant is hereby ordered to
reimburse whatever amount the defendant-third party
plaintiff has paid to the plaintiff. With costs against the
defendant. 6
From this decision both PLDT and private respondents
appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of
the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava as
ponente, reversing the decision of the lower court and
dismissing the complaint of respondent spouses. It held
that respondent Esteban spouses were negligent and
consequently absolved petitioner PLDT from the claim
for damages. 7 A copy of this decision was received by
private respondents on October 10, 1979. 8 On
October 25, 1979, said respondents filed a motion for
reconsideration dated October 24, 1979. 9 On January
24, 1980, the Special Ninth Division of the Court of
Appeals denied said motion for reconsideration. 10 This
resolution was received by respondent spouses on
February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals
received private respondents' motion for leave of court
to file a second motion for reconsideration, dated
February 27, 1980. 12 On March 11, 1980, respondent
court, in a resolution likewise penned by Justice
Agrava, allowed respondents to file a second motion
for reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to
and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the
divergent opinions on the resolution of the second
motion for reconsideration, designated two additional
justices to form a division of five. 16 On September 3,
1980, said division of five promulgated its resolution,
penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in toto
the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion
to set aside and/or for reconsideration of the resolution
of September 3, 1980, contending that the second
motion for reconsideration of private respondent
spouses was filed out of time and that the decision of
September 25, 1979 penned by Justice Agrava was
already final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be
viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not
liable for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals
promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in toto
the decision of the lower court dated October 1, 1974.
19
Coming to this Court on a petition for review on
certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not
denying private respondents' second motion for
reconsideration on the ground that the decision of the
Special Second Division, dated September 25, 1979,
and the resolution of the Special Ninth Division, dated
January 24, 1980, are already final, and on the
additional ground that said second motion for
reconsideration is pro forma.
2. Respondent court erred in reversing the
aforesaid decision and resolution and in misapplying
the independent contractor rule in holding PLDT liable
to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the
respondent court, as shown by the records and
admitted by both parties, may be graphically
presented as follows:
(a) September 25, 1979, a decision was rendered
by the Court of Appeals with Justice Agrava as ponente;
(b) October 10, 1979, a copy of said decision was
received by private respondents;
(c) October 25, 1979, a motion for reconsideration
was filed by private respondents;
(d) January 24, 1980, a resolution was issued
denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial
resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a
second motion for reconsideration was filed by private
respondents
(g) March 7, 1980, a second motion for
reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued
allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued,
penned by Justice Zosa, reversing the original decision
dated September 25, 1979 and setting aside the
resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that
both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion
for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had
procedural governance at the time, provided that a
second motion for reconsideration may be presented
within fifteen (15) days from notice of the order or
judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed
their first motion for reconsideration on the last day of
the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt
of the order denying said motion to file, with leave of
court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980
of the resolution denying their first motion for
reconsideration, private respondents had two remedial
options. On February 23, 1980, the remaining one (1)
day of the aforesaid reglementary period, they could
have filed a motion for leave of court to file a second
motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so.
On the other hand, they could have appealed through a
petition for review on certiorari to this Court within
fifteen (15) days from February 23, 1980. 22 Instead,
they filed a motion for leave to file a second motion 'for
reconsideration on February 29, 1980, and said second
motion for reconsideration on March 7, 1980, both of
which motions were by then time-barred.
Consequently, after the expiration on February 24,
1980 of the original fifteen (15) day period, the running
of which was suspended during the pendency of the
first motion for reconsideration, the Court of Appeals
could no longer validly take further proceedings on the
merits of the case, much less to alter, modify or
reconsider its aforesaid decision and/or resolution. The
filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29,
1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary
period to file the same, produced no legal effects. Only
a motion for re-hearing or reconsideration filed in time
shall stay the final order or judgment sought to be re-
examined. 23
The consequential result is that the resolution of
respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving
them an extension of ten (10) days to file a second
motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had
already expired when private respondents sought leave
to file the same, and respondent court no longer had
the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private
respondents to file their second motion for
reconsideration was of no legal consequence since it
was given when there was no more period to extend. It
is an elementary rule that an application for extension
of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the
discretion of respondent court to grant said extension
for filing a second motion for reconsideration is
conditioned upon the timeliness of the motion seeking
the same.
No appeal having been taken seasonably, the
respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980.
The subsequent resolutions of respondent court, dated
March 11, 1980 and September 3, 1980, allowing
private respondents to file a second motion for
reconsideration and reversing the original decision are
null and void and cannot disturb the finality of the
judgment nor restore jurisdiction to respondent court.
This is but in line with the accepted rule that once a
decision has become final and executory it is removed
from the power and jurisdiction of the court which
rendered it to further alter or amend, much less revoke
it. 25 The decision rendered anew is null and void. 26
The court's inherent power to correct its own errors
should be exercised before the finality of the decision
or order sought to be corrected, otherwise litigation will
be endless and no question could be considered finally
settled. Although the granting or denial of a motion for
reconsideration involves the exercise of discretion, 27
the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity
with law, justice, reason and equity. 28
Prescinding from the aforesaid procedural lapses into
the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24,
1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane
of Lacson Street. If it had remained on that inside lane,
it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the
ACCIDENT MOUND was hit by the jeep swerving from
the left that is, swerving from the inside lane. What
caused the swerving is not disclosed; but, as the cause
of the accident, defendant cannot be made liable for
the damages suffered by plaintiffs. The accident was
not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the
inside lane. That may explain plaintiff-husband's
insistence that he did not see the ACCIDENT MOUND
for which reason he ran into it.
Second. That plaintiff's jeep was on the inside
lane before it swerved to hit the ACCIDENT MOUND
could have been corroborated by a picture showing
Lacson Street to the south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street
had already been covered except the 3 or 4 meters
where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not
in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation
could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers
an hour as plaintiff-husband claimed. At that speed, he
could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed
the ACCIDENT MOUND several feet as indicated by the
tiremarks in Exhibit B. The jeep must have been
running quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiff's would not have been
thrown against the windshield and they would not have
suffered their injuries.
Fourth. If the accident did not happen because the jeep
was running quite fast on the inside lane and for some
reason or other it had to swerve suddenly to the right
and had to climb over the ACCIDENT MOUND, then
plaintiff-husband had not exercised the diligence of a
good father of a family to avoid the accident. With the
drizzle, he should not have run on dim lights, but
should have put on his regular lights which should have
made him see the ACCIDENT MOUND in time. If he was
running on the outside lane at 25 kilometers an hour,
even on dim lights, his failure to see the ACCIDENT
MOUND in time to brake the car was negligence on his
part. The ACCIDENT MOUND was relatively big and
visible, being 2 to 3 feet high and 1-1/2 feet wide. If he
did not see the ACCIDENT MOUND in time, he would
not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND,
having seen it many previous times. With ordinary
precaution, he should have driven his jeep on the night
of the accident so as to avoid hitting the ACCIDENT
MOUND. 29
The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right
to recover damages. 30 The perils of the road were
known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only purpose of
said signs was to inform and warn the public of the
presence of excavations on the site. The private
respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to
fall into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes
the proximate cause only when the doing of the said
omitted act would have prevented the injury. 31 It is
basic that private respondents cannot charge PLDT for
their injuries where their own failure to exercise due
and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last
clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had
knowledge of the presence and location of the
excavations there. It was his negligence that exposed
him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent
Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the
part of PLDT. We have for consideration only the self-
serving testimony of respondent Antonio Esteban and
the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of
the incident and the non-submission of a medical
report from the hospital where private respondents
were allegedly treated have not even been
satisfactorily explained.
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980
(a) There was no third party eyewitness of the
accident. As to how the accident occurred, the Court
can only rely on the testimonial evidence of plaintiffs
themselves, and such evidence should be very
carefully evaluated, with defendant, as the party being
charged, being given the benefit of any doubt.
Definitely without ascribing the same motivation to
plaintiffs, another person could have deliberately
engineered a similar accident in the hope and
expectation that the Court can grant him substantial
moral and exemplary damages from the big
corporation that defendant is. The statement is made
only to stress the disadvantageous position of
defendant which would have extreme difficulty in
contesting such person's claim. If there were no
witness or record available from the police department
of Bacolod, defendant would not be able to determine
for itself which of the conflicting testimonies of
plaintiffs is correct as to the report or non-report of the
accident to the police department. 32
A person claiming damages for the negligence of
another has the burden of proving the existence of
such fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively
established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the
burden in the first instance of proving the existence of
the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of
Appeals, dated March 11, 1980 and September 3,1980,
are hereby SET ASIDE. Its original decision,
promulgated on September 25,1979, is hereby
REINSTATED and AFFIRMED.
Art. 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who was
in the vehicle, could have, by the use of the due
diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been
found guilty or reckless driving or violating traffic
regulations at least twice within the next preceding two
months.
If the owner was not in the motor vehicle, the
provisions of Article 2180 are applicable. (n)
Art. 2185. 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. (n)
Art. 2188. There is prima facie presumption of
negligence on the part of the defendant if the death or
injury results from his possession of dangerous
weapons or substances, such as firearms and poison,
except when the possession or use thereof is
indispensable in his occupation or business. (n)
Art. 1734. Common carriers are responsible for the
loss, destruction, or deterioration of the goods, unless
the same is due to any of the following causes only:
(1) Flood, storm, earthquake, lightning, or other natural
disaster or calamity;
(2) Act of the public enemy in war, whether
international or civil;
(3) Act of omission of the shipper or owner of the
goods;
(4) The character of the goods or defects in the
packing or in the containers;
(5) Order or act of competent public authority.
Art. 1735. In all cases other than those mentioned in
Nos. 1, 2, 3, 4, and 5 of the preceding article, if the
goods are lost, destroyed or deteriorated, common
carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they
observed extraordinary diligence as required in Article
1733.