Bascos vs CA

April 7, 1993

J. Campos, JR

NATURE: Petition for review on certiorari of decision of CA

- Cipriano, representing CIPTRADE entered into a hauling contract with Jibfair Shipping
Agency Corp

Ciptrade bound itself to haul Jibfairs 2000 m/tons of soya bean meal from Del Pan, Manila
to the warehouse of Purefoods Corp in Calamba, Laguna

- to carry out this obli, Ciptrade subcontracted with Bascos (petitioner) to transport and deliver
400 sacks of soya bean meal from Manila Port Area to Calamba, Laguna for P50/metric ton

- Bascos failed to deliver the cargo, so Cipriano paid Jibfair the amount of the lost goods in
accordance with the contract, which stated that:

Ciptrade shall be held liable and answerable for any loss in bags due to theft, hijacking
and non-delivery or damages to the cargo during transport at market value

- Cipriano demanded reimbursement but she refused to pay

- Cirpriano filed a complaint for sum of money and damages with writ of preliminary
attachment

TC granted writ of preliminary attachment

- Bascos Defenses:

no contract of carriage since Ciptrade leased her cargo truck to load the cargo

Ciptrade was liable to Bascos in the amount of P11,000 for loading the cargo

the truck carrying the cargo was hijacked along Paco, Manila on night of Oct. 21, 1988

- the hijacking was immediately reported to Ciptrade and that Bascos + the police
exerted all eorts to locate the hijacked properties

- after prelim investigation, information for robbery and carnapping were filed against
Jose Opriano et. al.

- the hijacking, being force majeure, exculpated petitioner from any liability to Ciptrade

- TC: judgment rendered against Bascos

- CA: armed TC decision

ISSUES/DISCUSSION/HOLDING:

W/N Bascos was a common carrier YES.

- CA Bascos was a common carrier because:

she admitted in her answer that she did business under name AM Bascos Trucking

CA adopted in toto the TC decision that petitioner was a common carrier

other evidence: truck driver of petitioner received the cargo (as evidenced by cargo receipt
signed by the driver); fact that truck helper was also an employee of petitioner; and fact
that control of the cargo was placed in petitioners care

- Petitioner Arg:

Alleged in her petition that the contract between her and Ciptrade was a lease of the truck

cited certain adavits which referred to the contract as lease

- adavits were made by Jesus Bascos and petitioner herself

said that she was not catering to the general public - she does business under AM Bascos
Trucking, oering her trucks for lease to those who have cargo to move, not to the general
public but to a few customers only since they are a small business

- SC: We agree with CA.

Art 1732 of the CC defines a common carrier as a person, corp or firm or association
engaged in the business of carrying or transporting passengers or goods or both, by land,
water or air, for compensation, oering their services to the public.

The test to determine a common carrier is whether the given undertaking is part
of the business engaged in by the carrier which he has held out to the general public
as his occupation rather than the quantity or extent of the business transacted
APPLICATION: in this case, petitioner herself admitted that she was in the trucking
business oering her trucks to those with cargo to move

- Judicial admissions are conclusive and no evidence is required to prove the same

- Regarding the argument that there was only a contract of lease since they only oer their
services to a small group of people

De Guzman vs CA says that "The above article makes no distinction between one
whoseprincipalbusiness activity is the carrying of persons or goods or both, and one who
does such carrying only as anancillaryactivity (in local idiom, as a "sideline"). Article 1732
also carefully avoids making any distinction between a person or enterprise oering
transportation service on aregular or scheduled basisand one oering such service on
anoccasional, episodic or unscheduled basis. Neither does Article 1732 distinguish
between a carrier oering its services to the "general public," i.e., the general community
or population, and one who oers services or solicits business only from a narrow
segmentof the general population. We think that Article 1732 deliberately refrained from
making such distinctions.

- Regarding the adavits presented, they were self-serving. Even if they werent, contracts are
what the law defines it to be and not what it is called by contracting parties. Plus petitioner
presented no other proof as to the existence of a contract of lease.

W/N the hijacking referred to was a force majeure NO.

- Common carriers are obliged to observe extraordinary diligence in the vigilance over the
goods transported by them they are thus presumed to have been at fault or to have acted
negligently if the goods are lost, destroyed or deteriorated

- Instances when the presumption of negligence doesnt attach are enumerated in Art 1734

- In the cases where the presumption is applied, the common carrier must prove that it
exercised extraordinary diligence in order to overcome the presumption
- Petitioner Arg: hijacking constituted force majeure which exculpated her from liability for the
loss of the cargo

SC cited De Guzman vs CA in that case, the court held that hijacking must be dealt
with in Art 1735 since its not within the enumeration in Art 1734.

 Since its not in Art. 1734, the common carrier is presumed to have been at fault/
negligent. To exculpate the carrier from liability arising from hijacking, he must prove
that the robbers or the hijackers acted with rave or irresistible threat, violence or
force
- In the instant case, to establish grave and irresistible force, petitioner presented her
accusatory adavit, Jesus Bascos adavit and the drivers salaysay

But the TC and CA concluded that these adavits were not enough to overcome the
presumption

- Petitioner's adavit about the hijacking was based on what had been told her by
Juanito Morden. It was not a first-hand account. While it had been admitted in court for
lack of objection on the part of private respondent, the respondent Court had discretion
in assigning weight to such evidence. We are bound by the conclusion of the appellate
court. In a petition for review on certiorari, We are not to determine the probative value
of evidence but to resolve questions of law.

- Secondly, the adavit of Jesus Bascos did not dwell on how the hijacking took place.

- Thirdly, while the adavit of Juanito Morden, the truck helper in the hijacked truck, was
presented as evidence in court, he himself was a witness as could be gleaned from the
contents of the petition. Adavits are not considered the best evidence if the aants
are available as witnesses.

- The subsequent filing of the information for carnapping and robbery against the
accused named in said adavits did not necessarily mean that the contents of the
adavits were true because they were yet to be determined in the trial of the criminal
cases.

- Presumption of negligence was raised against the petitioner and it was her burden to
overcome it. Contrary to her assertion, PR didnt need to introduce any evidence to prove
her negligence. Her own failure to adduce sucient proof of extraordinary diligence made
the presumption conclusive against her.

RULING: Petition is dismissed. CA decision armed.