G.R. No. L-11037 December 29, 1960 The LTB paid the sum of P16,964.
LTB paid the sum of P16,964.45 for all the hospital, We shall first dispose of the appeal of the bus company.
EDGARDO CARIAGA, ET AL., plaintiffs-appellants,
vs.
LAGUNA TAYABAS BUS COMPANY, defendant-
appellant.
MANILA RAILROAD COMPANY, defendant-appellee.
Ozaeta, Lichauco and Picazo for defendant and
appellant.
E.A. Fernandez and L.H. Fernandez for plaintiffs and
appellants.
Gov't. Corp. Counsel A. Padilla and Atty. F.A. Umali for
appellee.
DIZON, J.:
At about 1:00 p.m. on June 18, 1952, Bus No. 133 of the
Laguna Tayabas Bus
Co. — hereinafter referred to as the LTB — driven by
Alfredo Moncada, left its station at Azcarraga St., Manila,
for Lilio, Laguna, with Edgardo Cariaga, a fourth-year
medical student of the University of Santo Tomas, as one
of its passengers. At about 3:00 p.m., as the bus reached
that part of the poblacion of Bay, Laguna, where the
national highway crossed a railroad track, it bumped
against the engine of a train then passing by with such
terrific force that the first six wheels of the latter were
derailed, the engine and the front part of the body of the
bus was wrecked, the driver of the bus died instantly,
while many of its passengers, Edgardo among them,
were severely injured. Edgardo was first confined at the
San Pablo City Hospital from 5:00 p.m., June 18, 1952, to
8:25 a.m., June 20 of the same year when he was taken to
the De los Santos Clinic, Quezon City. He left that clinic on
October 14 to be transferred to the University of Santo
Tomas Hospital where he stayed up to November 15. On
this last date he was taken back to the De los Santos Clinic
where he stayed until January 15, 1953. He was
unconscious during the first 35 days after the accident;
at the De los Santos Clinic Dr. Gustilo removed the
fractured bones which lacerated the right frontal lobe of
his brain and at the University of Santo Tomas Hospital
Dr. Gustilo performed another operation to cover a big
hole on the right frontal part of the head with a tantalum
plate.
medical and miscellaneous expenses incurred from June
18, 1952 to April, 1953. From January 15, 1953 up to
April of the same year Edgardo stayed in a private house
in Quezon, City, the LTB having agreed to give him a
subsistence allowance of P10.00 daily during his
convalescence, having spent in this connection the total
sum of P775.30 in addition to the amount already
referred to.
On April 24, 1953 the present action was filed to recover
for Edgardo Cariaga, from the LTB and the MRR Co., and
total sum of P312,000.00 as actual, compensatory, moral
and exemplary damages, and for his parents, the sum of
P18,00.00 in the same concepts. The LTB disclaimed
liability claiming that the accident was due to the
negligence of its co-defendant, the Manila Railroad
Company, for not providing a crossing bar at the point
where the national highway crossed the railway track,
and for this reason filed the corresponding cross-claim
against the latter company to recover the total sum of
P18,194.75 representing the expenses paid to Edgardo
Cariaga. The Manila Railroad Company, in turn, denied
liability upon the complaint and cross-claim alleging that
it was the reckless negligence of the bus driver that
caused the accident.
The lower court held that it was the negligence of the bus
driver that caused the accident and, as a result, rendered
judgment sentencing the LTB to pay Edgardo Cariaga the
sum of P10,490.00 as compensatory damages, with
interest at the legal rate from the filing of the complaint,
and dismissing the cross-claim against the Manila
Railroad Company. From this decision the Cariagas and
the LTB appealed.
The Cariagas claim that the trial court erred: in awarding
only P10,490.00 as compensatory damages to Edgardo;
in not awarding them actual and moral damages, and in
not sentencing appellant LTB to pay attorney's fees.
On the other hand, the LTB's principal contention in this
appeal is that the trial court should have held that the
collision was due to the fault of both the locomotive
driver and the bus driver and erred, as a consequence, in
not holding the Manila Railroad Company liable upon the
cross-claim filed against it.
Its first contention is that the driver of the train
locomotive, like the bus driver, violated the law, first, in
sounding the whistle only when the collision was about
to take place instead of at a distance at least 300 meters
from the crossing, and second, in not ringing the
locomotive bell at all. Both contentions are without
merits.
After considering the evidence presented by both parties
the lower court expressly found:
. . . While the train was approximately 300 meters from
the crossing, the engineer sounded two long and two
short whistles and upon reaching a point about 100
meters from the highway, he sounded a long whistle
which lasted up to the time the train was about to cross
it. The bus proceeded on its way without slackening its
speed and it bumped against the train engine, causing the
first six wheels of the latter to be derailed.
xxx xxx xxx
. . . that the train whistle had been sounded several times
before it reached the crossing. All witnesses for the
plaintiffs and the defendants are uniform in stating that
they heard the train whistle sometime before the impact
and considering that some of them were in the bus at the
time, the driver thereof must have heard it because he
was seated on the left front part of the bus and it was his
duty and concern to observe such fact in connection with
the safe operation of the vehicle. The other L.T.B. bus
which arrived ahead at the crossing, heeded the warning
by stopping and allowing the train to pass and so nothing
happened to said vehicle. On the other hand, the driver
of the bus No. 133 totally ignored the whistle and noise
produced by the approaching train and instead he tried
to make the bus pass the crossing before the train by not
stopping a few meters from the railway track and in
proceeding ahead.
The above findings of the lower court are predicated
mainly upon the testimony of Gregorio Ilusondo, a
witness for the Manila Railroad Company.
Notwithstanding the efforts exerted by the LTB to assail
his credibility, we do not find in the record any fact or
circumstance sufficient to discredit his testimony. We
have, therefore, no other alternative but to accept the
findings of the trial court to the effect, firstly, that the
whistle of locomotive was sounded four times — two
long and two short — "as the train was approximately
300 meters from the crossing"; secondly, that another
LTB bus which arrived at the crossing ahead of the one
where Edgardo Cariaga was a passenger, paid heed to the
warning and stopped before the "crossing", while — as
the LTB itself now admits (Brief p. 5) — the driver of the
bus in question totally disregarded the warning.
But to charge the MRR Co. with contributory negligence,
the LTB claims that the engineer of the locomotive failed
to ring the bell altogether, in violation of the section 91
of Article 1459, incorporated in the charter of the said
MRR Co. This contention — as is obvious — is the very
foundation of the cross-claim interposed by the LTB
against its
co-defendant. The former, therefore, had the burden of
proving it affirmatively because a violation of law is
never presumed. The record discloses that this burden
has not been satisfactorily discharged.
The Cariagas, as appellants, claim that the award of
P10,000.00 compensatory damages to Eduardo is
inadequate considering the nature and the after effects
of the physical injuries suffered by him. After a careful
consideration of the evidence on this point we find their
contentions to be well-founded.
From the deposition of Dr. Romeo Gustilo, a
neurosurgeon, it appears that, as a result of the injuries
suffered by Edgardo, his right forehead was fractured
necessitating the removal of practically all of the right
frontal lobe of his brain. From the testimony of Dr. Jose
A. Fernandez, a psychiatrist, it may be gathered that,
because of the physical injuries suffered by Edgardo, his
mentality has been so reduced that he can no longer
finish his studies as a medical student; that he has
become completely misfit for any kind of work; that he
can hardly walk around without someone helping him,
and has to use a brace on his left leg and feet.
Upon the whole evidence on the matter, the lower court
found that the removal of the right frontal lobe of the
brain of Edgardo reduced his intelligence by about 50%;
that due to the replacement of the right frontal bone of
his head with a tantalum plate Edgardo has to lead a
quite and retired life because "if the tantalum plate is
pressed in or dented it would cause his death."
The impression one gathers from this evidence is that, as
a result of the physical injuries suffered by Edgardo
Cariaga, he is now in a helpless condition, virtually an
invalid, both physically and mentally.
Appellant LTB admits that under Art. 2201 of the Civil
Code the damages for which the obligor, guilty of a
breach of contract but who acted in good faith, is liable
shall be those that are the natural and probable
consequences of the breach and which the parties had
forseen or could have reasonably forseen at the time the
obligation was constituted, provided such damages,
according to Art. 2199 of the same Code, have been duly
proved. Upon this premise it claims that only the actual
damages suffered by Edgardo Cariaga consisting of
medical, hospital and other expenses in the total sum of
P17,719.75 are within this category. We are of the
opinion, however, that the income which Edgardo
Cariaga could earn if he should finish the medical course
and pass the corresponding board examinations must be
deemed to be within the same category because they
could have reasonably been foreseen by the parties at the
time he boarded the bus No. 133 owned and operated by
the LTB. At that time he was already a fourth-year
student in medicine in a reputable university. While his
scholastic may not be first rate (Exhibits 4, 4-A to 4-C), it
is, nevertheless, sufficient to justify the assumption that
he could have passed the board test in due time. As
regards the income that he could possibly earn as a
medical practitioner, it appears that, according to Dr.
Amado Doria, a witness for the LTB, the amount of
P300.00 could easily be expected as the minimum
monthly income of Edgardo had he finished his studies.
Upon consideration of all the facts mentioned heretofore
this Court is of the opinion, and so holds, that the
compensatory damages awarded to Edgardo Cariaga
should be increased to P25,000.00.
Edgardo Cariaga's claim for moral damages and
attorney's fees was denied by the trial court, the
pertinent portion of its decision reading as follows:
Plaintiffs' claim for moral damages cannot also be
granted. Article 2219 of the Civil Code enumerates the
instances when moral damages may be covered and the
case under consideration does not fall under any one of
them. The present action cannot come under paragraph
2 of said article because it is not one of the quasi-delict
and cannot be considered as such because of the pre-
existing contractual relation between the Laguna
Tayabas Bus Company and Edgardo Cariaga. Neither
could defendant Laguna Tayabas Bus Company be held
liable to pay moral damages to Edgardo Cariaga under
Article 2220 of the Civil Code on account of breach of its
contract of carriage because said defendant did not act
fraudulently or in bad faith in connection therewith.
Defendant Laguna Tayabas Bus Company had exercised
due diligence in the selection and supervision of its
employees like the drivers of its buses in connection with
the discharge of their duties and so it must be considered
an obligor in good faith.
The plaintiff Edgardo Cariaga is also not entitled to
recover for attorney's fees, because this case does not fall
under any of the instances enumerated in Article 2208 of
the Civil Code.
We agree with the trial court and, to the reason given
above, we add those given by this Court in Cachero vs.
Manila Yellow Taxicab Co., Inc.(101 Phil., 523, 530, 533):
A mere perusal of plaintiff's complaint will show that this
action against the defendant is predicated on an alleged
breach of contract of carriage, i.e., the failure of the
defendants to bring him "safely and without mishaps" to
his destination, and it is to be noted that the chauffeur of
defendant's taxicab that plaintiff used when he received
the injuries involved herein, Gregorio Mira, has not even
made a party defendant to this case.
Considering, therefore, the nature of plaintiff's action in
this case, is he entitled to compensation for moral
damages? Article 2219 of the Civil Code says the
following:
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;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27,
28, 29, 30, 32, 34, and 35.
xxx xxx xxx
Of course enumerated in the just quoted Article 2219
only the first two may have any bearing on the case at
bar. We find, however, with regard to the first that the
defendant herein has not committed in connection with
this case any "criminal offense resulting in physical
injuries". The one that committed the offense against the
plaintiff is Gregorio Mira, and that is why he has been
already prosecuted and punished therefor. Altho (a)
owners and managers of an establishment and
enterprise are responsible for damages caused by their
employees in the service of the branches in which the
latter are employed or on the occasion of their functions;
(b) employers are likewise liable for damages caused by
their employees and household helpers acting within the
scope of their assigned task (Article 218 of the Civil
Code); and (c) employers and corporations engaged in
any kind of industry are subsidiary civilly liable for
felonies committed by their employees in the discharge
of their duties (Art. 103, Revised Penal Code), plaintiff
herein does not maintain this action under the
provisions of any of the articles of the codes just
mentioned and against all the persons who might be
liable for the damages caused, but as a result of an
admitted breach of contract of carriage and against the
defendant employer alone. We, therefore, hold that the
case at bar does not come within the exception of
paragraph 1, Article 2219 of the Civil Code.
The present complaint is not based either on a "quasi-
delict causing physical injuries" (Art. 2219, par. 2 of the
Civil Code). From the report of the Code Commission on
the new Civil Code. We copy the following:
A question of nomenclature confronted the Commission. expression, that article relates only to CULPA
After a careful deliberation, it was agreed to use the term AQUILIANA' and not to CULPA
"quasi-delict" for those obligations which do not arise CONTRACTUAL.lawphil.net
from law, contracts, quasi-contracts, or criminal
The decisions in the cases of Castro vs. Acro Taxicab Co.,
offenses. They are known in Spanish legal treaties as
"culpa aquiliana", "culpa-extra-contractual" or "cuasi- (82 Phil., 359; 46 Off. Gaz., No. 5, p. 2023); Lilius, et al. vs.
delitos". The phrase "culpa-extra-contractual" or its Manila Railroad, 59 Phil., 758) and others, wherein moral
translation "extra-contractual-fault" was eliminated damages were awarded to the plaintiffs, are not
because it did not exclude quasi-contractual or penal applicable to the case at bar because said decision were
rendered before the effectivity of the new Civil Code
obligations. "Aquilian fault" might have been selected,
but it was thought inadvisable to refer to so ancient a law (August 30, 1950) and for the further reason that the
as the "Lex Aquilia". So "quasi-delict" was chosen, which complaints filed therein were based on different causes
more nearly corresponds to the Roman Law of action.
classification of the obligations and is in harmony with
In view of the foregoing the sum of P2,000 was awarded
the nature of this kind of liability.
as moral damages by the trial court has to be eliminated,
The Commission also thought of the possibility of for under the law it is not a compensation awardable in
adopting the word "tort" from Anglo-American law. But a case like the one at bar.
"tort" under that system is much broader than the
What has been said heretofore relative to the moral
Spanish-Philippine concept of obligations arising from
damages claimed by Edgardo Cariaga obviously applies
non-contractual negligence. "Tort" in Anglo-American
with greater force to a similar claim (4th assignment of
jurisprudence includes not only negligence, but also
error) made by his parents.
intentional criminal act, such as assault and battery, false
imprisonment and deceit. In the general plan of the The claim made by said spouses for actual and
Philippine legal system, intentional and malicious acts compensatory damages is likewise without merits. As
are governed by the Penal Code, although certain held by the trial court, in so far as the LTB is concerned,
exceptions are made in the Project. (Report of the Code the present action is based upon a breach of contract of
Commission, pp. 161-162). carriage to which said spouses were not a party, and
neither can they premise their claim upon the negligence
In the case of Cangco, vs. Manila Railroad, 38 Phil. 768,
or quasi-delict of the LTB for the simple reason that they
We established the distinction between obligation
were not themselves injured as a result of the collision
derived from negligence and obligation as a result of a
between the LTB bus and train owned by the Manila
breach of contract. Thus, we said:
Railroad Company.
It is important to note that the foundation of the legal
Wherefore, modified as above indicated, the appealed
liability of the defendant is the contract of carriage, and
judgement is hereby affirmed in all other respects, with
that the obligation to respond for the damage which
costs against appellant LTB.
plaintiff has suffered arises, if at all, from the breach of
that contract by reason of the failure of defendant to Paras, C.J., Bengzon, Bautista Angelo, Labrador, Reyes,
exercise due care in its performance. That is to say, its J.B.L., Barrera, Gutierrez David, and Paredes, JJ., concur.
liability is direct and immediate, differing essentially in
the legal viewpoint from the presumptive responsibility
for the negligence of its servants, imposed by Article
1903 of the Civil Code (Art. 2180 of the new), which can
be rebutted by proof of the exercise of due care in their
selection of supervision. Article 1903 is not applicable to
obligations arising EX CONTRACTU, but only to extra-
contractual obligations — or to use the technical form of
G.R. No. L-25499 February 18, 1970
VILLA REY TRANSIT, INC., petitioner,
vs.
THE COURT OF APPEALS, TRINIDAD A. QUINTOS,
PRIMA A. QUINTOS, AND JULITA A.
QUINTOS, respondents.
Laurea and Pison for petitioner.
Bonifacio M. Abad, Jr. for respondents.
CONCEPCION, C.J.:
Petitioner, Villa Rey Transit, Inc., seeks the review
by certiorari of a decision of the Court of Appeals
affirming that of the Court of First Instance of
Pangasinan. The basic facts are set forth in said decision
of the Court of Appeals, from which We quote:
At about 1:30 in the morning of March 17, 1960, an Izuzu
First Class passenger bus owned and operated by the
defendant, bearing Plate No. TPU-14871-Bulacan and
driven by Laureano Casim, left Lingayen, Pangasinan, for
Manila. Among its paying passengers was the deceased,
Policronio Quintos, Jr. who sat on the first seat, second
row, right side of the bus. At about 4:55 o'clock a.m. when
the vehicle was nearing the northern approach of the
Sadsaran Bridge on the national highway in barrio Sto.
Domingo, municipality of Minalin, Pampanga, it frontally
hit the rear side of a bullcart filled with hay. As a result
the end of a bamboo pole placed on top of the hayload
and tied to the cart to hold it in place, hit the right side of
the windshield of the bus. The protruding end of the
bamboo pole, about 8 feet long from the rear of the
bullcart, penetrated through the glass windshield and
landed on the face of Policronio Quintos, Jr. who, because
of the impact, fell from his seat and was sprawled on the
floor. The pole landed on his left eye and the bone of the
left side of his face was fractured. He suffered other
multiple wounds and was rendered unconscious due,
among other causes to severe cerebral concussion. A La
Mallorca passenger bus going in the opposite direction
towards San Fernando, Pampanga, reached the scene of
the mishap and it was stopped by Patrolman Felino
Bacani of the municipal police force of Minalin who, in
the meantime, had gone to the scene to investigate.
Patrolman Bacani placed Policronio Quintos, Jr. and
three other injured men who rode on the bullcart aboard
the La Mallorca bus and brought them to the provincial
hospital of Pampanga at San Fernando for medical
assistance. Notwithstanding such assistance, Policronio
Quintos, Jr. died at 3:15 p.m. on the same day, March 17,
1960, due to traumatic shock due to cerebral injuries.
The private respondents, Trinidad, Prima and Julita, all
surnamed Quintos, are the sisters and only surviving
heirs of Policronio Quintos Jr., who died single, leaving
no descendants nor ascendants. Said respondents herein
brought this action against herein petitioner, Villa Rey
Transit, Inc., as owner and operator of said passenger
bus, bearing Plate No. TPU-14871-Bulacan, for breach of
the contract of carriage between said petitioner and the
deceased Policronio Quintos, Jr., to recover the aggregate
sum of P63,750.00 as damages, including attorney's fees.
Said petitioner — defendant in the court of first instance
— contended that the mishap was due to a fortuitous
event, but this pretense was rejected by the trial court
and the Court of Appeals, both of which found that the
accident and the death of Policronio had been due to the
negligence of the bus driver, for whom petitioner was
liable under its contract of carriage with the deceased. In
the language of His Honor, the trial Judge:
The mishap was not the result of any unforeseeable
fortuitous event or emergency but was the direct result
of the negligence of the driver of the defendant. The
defendant must, therefore, respond for damages
resulting from its breach of contract for carriage. As the
complaint alleged a total damage of only P63,750.00
although as elsewhere shown in this decision the
damages for wake and burial expenses, loss of income,
death of the victim, and attorneys fee reach the aggregate
of P79,615.95, this Court finds it just that said damages
be assessed at total of only P63,750.00 as prayed for in
plaintiffs' amended complaint.
The despositive part of the decision of the trial Court
reads:
WHEREFORE, judgment is hereby rendered ordering the
defendant to pay to the plaintiffs the amount of
P63,750.00 as damages for breach of contract of carriage
resulting from the death of Policronio Quintos, Jr.
which, as above indicated, was affirmed by the Court of
Appeals. Hence, the present petition for review
on certiorari, filed by Villa Rey Transit, Inc.
The only issue raised in this appeal is the amount of
damages recoverable by private respondents herein. The
determination of such amount depends, mainly upon
two (2) factors, namely: (1) the number of years on the
basis of which the damages shall be computed and (2)
the rate at which the losses sustained by said
respondents should be fixed.
The first factor was based by the trial court — the view
of which was concurred in by the Court of Appeals —
upon the life expectancy of Policronio Quintos, Jr., which
was placed at 33-1/3 years — he being over 29 years of
age (or around 30 years for purposes of computation) at
the time of his demise — by applying the formula (2/3 x
[80-301 = life expectancy) adopted in the American
Expectancy Table of Mortality or the actuarial of
Combined Experience Table of Mortality. Upon the other
hand, petitioner maintains that the lower courts had
erred in adopting said formula and in not acting in
accordance with Alcantara v. Surro1 in which the
damages were computed on a four (4) year basis, despite
the fact that the victim therein was 39 years old, at the
time of his death, and had a life expectancy of 28.90
years.
The case cited is not, however, controlling in the one at
bar. In the Alcantara case, none of the parties had
questioned the propriety of the four-year basis adopted
by the trial court in making its award of damages. Both
parties appealed, but only as regards
the amount thereof. The plaintiffs assailed the non-
inclusion, in its computation, of the bonus that the
corporation, which was the victim's employer, had
awarded to deserving officers and employees, based
upon the profits earned less than two (2) months before
the accident that resulted in his death. The defendants, in
turn, objected to the sum awarded for the fourth year,
which was treble that of the previous years, based upon
the increases given, in that fourth year,
to other employees of the same corporation. Neither this
objection nor said claim for inclusion of the bonus was
sustained by this Court. Accordingly, the same had not
thereby laid down any rule on the length of time to be
used in the computation of damages. On the contrary, it
declared:
The determination of the indemnity to be awarded to the
heirs of a deceased person has therefore no fixed basis.
Much is left to the discretion of the court considering the
moral and material damages involved, and so it has been
said that "(t)here can be no exact or uniform rule for
measuring the value of a human life and the measure of
damages cannot be arrived at by precise mathematical
calculation, but the amount recoverable depends on the
particular facts and circumstances of each case. The life
expectancy of the deceased or of the beneficiary,
whichever is shorter, is an important factor.' (25 C.J.S.
1241.) Other factors that are usually considered are: (1)
pecuniary loss to plaintiff or beneficiary (25 C.J.S. 1243-
1250) ; (2) loss of support (25 C.J.S., 1250-1251); (3) loss
of service (25 C.J.S. 1251-1254); (4) loss of society (25
C.J.S. 1254-1255); (5) mental suffering of beneficiaries
(25 C.J.S., 1258-1259) ; and (6) medical and funeral
expenses (26 C.J.S., 1254-1260)."2
Thus, life expectancy is, not only relevant, but, also,
an important element in fixing the amount recoverable
by private respondents herein. Although it is not
the sole element determinative of said amount, no
cogent reason has been given to warrant its disregard
and the adoption, in the case at bar, of a purely arbitrary
standard, such as a four-year rule. In short, the Court of
Appeals has not erred in basing the computation of
petitioner's liability upon the life expectancy of
Policronio Quintos, Jr.
With respect to the rate at which the damages shall be
computed, petitioner impugns the decision appealed
from upon the ground that the damages awarded therein
will have to be paid now, whereas most of those sought
to be indemnified will be suffered years later. This
argument is basically true, and this is, perhaps, one of the
reasons why the Alcantara case points out the absence of
a "fixed basis" for the ascertainment of the damages
recoverable in litigations like the one at bar. Just the
same, the force of the said argument of petitioner herein
is offset by the fact that, although payment of the award
in the case at bar will have to take place upon the finality
of the decision therein, the liability of petitioner herein
had been fixed at the rate only of P2,184.00 a year, which
is the annual salary of Policronio Quintos, Jr. at the time
of his death, as a young "training assistant" in the private respondents for medical and burial expenses;
Bacnotan Cement Industries, Inc. In other words, unlike and (c) attorney's fee, which was fixed by the trial court,
the Alcantara case, on which petitioner relies, the lower at P500.00, but which, in view of the appeal taken by
courts did not consider, in the present case, Policronio's petitioner herein, first to the Court of Appeals and later
potentiality and capacity to increase his future income. to this Supreme Court, should be increased to P2,500.00.
Indeed, upon the conclusion of his training period, he In other words, the amount adjudged in the decision
was supposed to have a better job and be promoted from appealed from should be reduced to the aggregate sum
time to time, and, hence, to earn more, if not — of P49,561.28, with interest thereon, at the legal rate,
considering the growing importance of trade, commerce from December 29, 1961, date of the promulgation of the
and industry and the concomitant rise in the income decision of the trial court.
level of officers and employees
therein — much more. Thus modified, said decision and that of the Court of
Appeals are hereby affirmed, in all other respects, with
At this juncture, it should be noted, also, that We are costs against petitioner, Villa Rey Transit, Inc. It is so
mainly concerned with the determination of the losses or ordered.
damages sustained by the private respondents, as
dependents and intestate heirs of the deceased, and that Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
said damages consist, not of the full amount of his Fernando, Teehankee, Barredo and Villamor, JJ., concur.
earnings, but of the support, they received or would have
received from him had he not died in consequence of the
negligence of petitioner's agent. In fixing the amount of
that support, We must reckon with the "necessary
expenses of his own living", which should be deducted
from his earnings. Thus, it has been consistently held that
earning capacity, as an element of damages to one's
estate for his death by wrongful act is necessarily his net
earning capacity or his capacity to acquire money, "less
the necessary expense for his own living.3 Stated
otherwise, the amount recoverable is not loss of the
entire earning, but rather the loss of that portion of the
earnings which the beneficiary would have received.4 In
other words, only net earnings, not gross earning, are to
be considered5 that is, the total of the
earnings less expenses necessary in the creation of such
earnings or income6 and less living and other incidental
expenses.7
All things considered, We are of the opinion that it is fair
and reasonable to fix the deductible living and other
expenses of the deceased at the sum of P1,184.00 a year,
or about P100.00 a month, and that, consequently, the
loss sustained by his sisters may be roughly estimated at
P1,000.00 a year or P33,333.33 for the 33-1/3 years of
his life expectancy. To this sum of P33,333.33, the
following should be added: (a) P12,000.00, pursuant to
Arts. 104 and 107 of the Revised Penal Code, in relation
to Article 2206 of our Civil Code, as construed and
applied by this Court;8 (b) P1,727.95, actually spent by
G.R. No. 114061 August 3, 1994
KOREAN AIRLINES CO., LTD., petitioner,
vs.
COURT OF APPEALS and JUANITO C.
LAPUZ, respondents.
G.R. No. 113842 August 3, 1994
JUANITO C. LAPUZ, petitioner,
vs.
COURT OF APPEALS and KOREAN AIRLINES CO.,
LTD., respondents.
M.A. Aguinaldo and Associates for Korean Airlines
Co., Ltd.
Camacho and Associates for Juanito Lapuz.
CRUZ, J.:
Sometime in 1980, Juanito C. Lapuz, an automotive
electrician, was contracted for employment in Jeddah,
Saudi Arabia, for a period of one year through Pan Pacific
Overseas Recruiting Services, Inc. Lapuz was supposed
to leave on November 8, 1980, via Korean Airlines.
Initially, he was "wait-listed," which meant that he could
only be accommodated if any of the confirmed
passengers failed to show up at the airport before
departure. When two of such passengers did not appear,
Lapuz and another person by the name of Perico were
given the two unclaimed seats.
According to Lapuz, he was allowed to check in with one
suitcase and one shoulder bag at the check-in counter of
KAL. He passed through the customs and immigration
sections for routine check-up and was cleared for
departure as Passenger No. 157 of KAL Flight No. KE 903.
Together with the other passengers, he rode in the
shuttle bus and proceeded to the ramp of the KAL aircraft
for boarding. However, when he was at the third or
fourth rung of the stairs, a KAL officer pointed to him and
shouted "Down! Down!" He was thus barred from taking
the flight. When he later asked for another booking, his
ticket was canceled by KAL. Consequently, he was unable
to report for his work in Saudi Arabia within the
stipulated 2-week period and so lost his employment.
KAL, on the other hand, alleged that on November 8,
1980, Pan Pacific Recruiting Services Inc. coordinated
with KAL for the departure of 30 contract workers, of
whom only 21 were confirmed and 9 were wait-listed
passengers. The agent of Pan Pacific, Jimmie Joseph, after
being informed that there was a possibility of having one
or two seats becoming available, gave priority to Perico,
who was one of the supervisors of the hiring company in
Saudi Arabia. The other seat was won through lottery by
Lapuz. However, only one seat became available and so,
pursuant to the earlier agreement that Perico was to be
given priority, he alone was allowed to board.
After trial, the Regional Trial Court of Manila, Branch
30, 1 adjudged KAL liable for damages, disposing as
follows:
WHEREFORE, in view of the foregoing consideration,
judgment is hereby rendered sentencing the defendant
Korean Air Lines to pay plaintiff Juanito C. Lapuz the
following:
1. The amount of TWO HUNDRED SEVENTY-TWO
THOUSAND ONE HUNDRED SIXTY (P272,160.00) PESOS
as actual/compensatory damages, with legal interest
thereon from the date of the filing of the complaint until
fully paid.
2. The sum of TWENTY-FIVE THOUSAND (P25,000.00)
PESOS as and for attorney's fees; and
3. The costs of suit.
The case is hereby dismissed with respect to defendant
Pan Pacific Overseas Recruiting Services, Inc.
The counterclaims and cross-claim of defendant Korean
Air Lines Co., Ltd. are likewise dismissed.
On appeal, this decision was modified by the Court of
Appeals 2 as follows:
WHEREFORE, in view of all the foregoing, the appealed
judgment is hereby AFFIRMED with the following
modifications: the amount of actual damages and
compensatory damages is reduced to P60,000.00 and
defendant-appellant is hereby ordered to pay plaintiff-
appellant the sum of One Hundred Thousand Pesos
(P100,000.00) by way of moral and exemplary damages,
at 6% interest per annum from the date of the filing of
the Complaint until fully paid.
KAL and Lapuz filed their respective motions for
reconsideration, which were both denied for lack of
merit. Hence, the present petitions for review which
have been consolidated because of the identity of the
parties and the similarity of the issues.
In G. R. No. 114061, KAL assails the decision of the
appellate court on the following grounds:
1. That the Court of Appeals erred in concluding that
petitioner committed a breach of contract of carriage
notwithstanding lack of proper, competent and sufficient
evidence of the existence of such contract.
2. That the Court of Appeals erred in not according the
proper evidentiary weight to some evidence presented
and the fact that private respondent did not have any
boarding pass to prove that he was allowed to board and
to prove that his airline ticket was confirmed.
3. That the Court of Appeals erred in concluding that the
standby passenger status of private respondent Lapuz
was changed to a confirmed status when his name was
entered into the passenger manifest.
4. That the Court of Appeals abused its discretion in
awarding moral and exemplary damages in the amount
of P100,000.00 in favor of private respondent
notwithstanding its lack of basis and private respondent
did not state such amount in his complaint nor had
private respondent proven the said damages.
5. That the Court of Appeals erred in dismissing the
counterclaims.
6. That the Court of Appeals erred in dismissing the
counterclaim of petitioner against Pan Pacific.
7. That the Court of Appeals erred in ruling that the 6%
per annum legal interest on the judgment shall be
computed from the filing of the complaint.
In G. R. No. 113842, Lapuz seeks: (a) the setting aside of
the decision of the Court of Appeals insofar as it modifies
the award of damages; b) actual and compensatory
damages in the sum equivalent to 5 years' loss of
earnings based on the petitioner's monthly salary of
1,600 Saudi rials at the current conversion rate plus the
cost of baggage and personal belongings worth P2,000
and the service fee of P3,000 paid to the recruiting
agency, all with legal interest from the filing of the
complaint until fully paid; c) moral damages of not less
than P1 million and exemplary damages of not less than
P500,000.00, both with interest at 6% per annum from
the filing of the complaint; and d) attorney's fees in the
sum equivalent to 30% of the award of damages.
It is evident that the issues raised in these petitions relate
mainly to the correctness of the factual findings of the
Court of Appeals and the award of damages. The Court
has consistently affirmed that the findings of fact of the
Court of Appeals and the other lower courts are as a rule
binding upon it, subject to certain exceptions. As nothing
in the record indicates any of such exceptions, the factual
conclusions of the appellate court must be affirmed.
The status of Lapuz as standby passenger was changed
to that of a confirmed passenger when his name was
entered in the passenger manifest of KAL for its Flight
No. KE 903. His clearance through immigration and
customs clearly shows that he had indeed been
confirmed as a passenger of KAL in that flight. KAL thus
committed a breach of the contract of carriage between
them when it failed to bring Lapuz to his destination.
This Court has held that a contract to transport
passengers is different in kind and degree from any other
contractual relation. 3 The business of the carrier is
mainly with the traveling public. It invites people to avail
themselves of the comforts and advantages it offers. The
contract of air carriage generates a relation attended
with a public duty. Passengers have the right to be
treated by the carrier's employees with kindness,
respect, courtesy and due consideration. They are
entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such
employees. 4 So it is that any discourteous conduct on
the part of these employees toward a passenger gives the
latter an action for damages against the carrier.
The breach of contract was aggravated in this case when,
instead of courteously informing Lapuz of his being a
"wait-listed" passenger, a KAL officer rudely shouted
"Down! Down!" while pointing at him, thus causing him
embarrassment and public humiliation.
KAL argues that "the evidence of confirmation of a
chance passenger status is not through the entry of the
name of a chance passenger in the passenger manifest
nor the clearance from the Commission on Immigration
and Deportation, because they are merely means of
facilitating the boarding of a chance passenger in case his
status is confirmed." We are not persuaded.
The evidence presented by Lapuz shows that he had
indeed checked in at the departure counter, passed
through customs and immigration, boarded the shuttle
bus and proceeded to the ramp of KAL's aircraft. In fact,
his baggage had already been loaded in KAL's aircraft, to
be flown with him to Jeddah. The contract of carriage
between him and KAL had already been perfected when
he was summarily and insolently prevented from
boarding the aircraft.
KAL's allegation that the respondent court abused its
discretion in awarding moral and exemplary damages is
also not tenable.
The Court of Appeals granted moral and exemplary
damages because:
The findings of the court a quo that the defendant-
appellant has committed breach of contract of carriage in
bad faith and in wanton, disregard of plaintiff-appellant's
rights as passenger laid the basis and justification of an
award for moral damages.
xxxx
In the instant case, we find that defendant-appellant
Korean Air Lines acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner when it "bumped off"
plaintiff-appellant on November 8, 1980, and in addition
treated him rudely and arrogantly as a "patay gutom na
contract worker fighting Korean Air Lines," which clearly
shows malice and bad faith, thus entitling plaintiff-
appellant to moral damages.
xxxx
Considering that the plaintiff-appellant's entitlement to
moral damages has been fully established by oral and
documentary evidence, exemplary damages may be
awarded. In fact, exemplary damages may be awarded,
even though not so expressly pleaded in the complaint
(Kapoe vs. Masa, 134 SCRA 231). By the same token, to
provide an example for the public good, an award of
exemplary damages is also proper (Armovit vs. Court of
Appeals, supra).
On the other hand, Lapuz's claim that the award of
P100,000.00 as moral and exemplary damages is
inadequate is not acceptable either. His prayer for moral
damages of not less than P1 million and exemplary
damages of not less than P500,000.00 is overblown.
The well-entrenched principle is that moral damages
depend upon the discretion of the court based on the
circumstances of each case. 5 This discretion is limited
by the principle that the "amount awarded should not be
palpably and scandalously excessive" as to indicate that
it was the result of prejudice or corruption on the part of
the trial court. 6 Damages are not intended to enrich the
complainant at the expense of the defendant. They are
awarded only to alleviate the moral suffering that the
injured party had undergone by reason of the
defendant's culpable action. 7 There is no hard-and-fast
rule in the determination of what would be a fair amount
of moral damages since each case must be governed by
its own peculiar facts.
A review of the record of this case shows that the injury
suffered by Lapuz is not so serious or extensive as to
warrant an award of P1.5 million. The assessment of
P100,000 as moral and exemplary damages in his favor
is, in our view, reasonable and realistic.
Lapuz likewise claims that the respondent court could
not rule upon the propriety of the award of actual
damages because it had not been assigned as an error by
KAL. Not so. The rule is that only errors specifically
assigned and properly argued in the brief will be
considered except errors affecting jurisdiction over the
subject matter and plain as well as clerical errors. 8 But
this is not without qualification for, as the Court held
in Vda. de Javellana vs. Court of Appeals: 9
. . . [T]he Court is clothed with ample authority to review
matters, even if they are not assigned as errors in their
appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case.
A similar pronouncement was made in Baquiran vs.
Court of Appeals 10 in this wise:
Issues, though not specifically raised in the pleading in
the appellate court, may, in the interest of justice, be
properly considered by said court in deciding a case, if
they are questions raised in the trial court and are
matters of record having some bearing on the issue
submitted which the parties failed to raise or the lower
court ignored.
The Court of Appeals was therefore justified in
decreasing the award of actual damages even if the issue
was not assigned as an error by KAL. Consideration of
this question was necessary for the just and complete
resolution of the present case. Furthermore, there was
enough evidence to warrant the reduction of the original
award, as the challenged decision correctly observed:
A perusal of the plaintiff-appellant's contract of
employment shows that the effectivity of the contract is
for only one year, renewable every year for five years.
Although plaintiff-appellant intends to renew his
contract, such renewal will still be subject to his foreign
employer. Plaintiff-appellant had not yet started working
with his foreign employer, hence, there can be no basis
as to whether his contract will be renewed by his foreign
employer or not. Thus, the damages representing the
loss of earnings of plaintiff-appellant in the renewal of
the contract of employment is at most speculative.
Damages may not be awarded on the basis of speculation
or conjecture (Gachalian vs. Delim, 203 SCRA 126).
Hence, defendant-appellant's liability is limited to the
one year contract only. Plaintiff-appellant is, therefore,
entitled only to his lost earnings for one year, i.e.,
P60,000.00, which is 1/5 of P300,000.00, the total
amount of actual damages, representing lost earnings for
five years prayed for in the Complaint.
Plaintiff-appellant's contention that in computing his lost
earnings, the current rate of the Saudi Rial to the
Philippine Peso at the time of payment should be used, is
untenable, considering that in his Complaint, plaintiff-
appellant has quantified in Philippine Peso his lost
earnings for five years.
We disagree with the respondent court, however, on the
date when the legal interest should commence to run.
The rule is that the legal interest of six percent (6%) on
the amounts adjudged in favor of Lapuz should resume
from the time of the rendition of the trial court's decision
instead of November 28, 1980, the date of the filing of the Bellosillo, J., is on official leave.
complaint.
On this matter, the Court has held:
If suit were for payment of a definite sum of money, the
contention might be tenable. However, if it is for
damages, unliquidated and not known until definitely
ascertained, assessed and determined by the courts after
proof, interest should be from the date of the decision. 11
xxxx
The obligation to pay interest on a sum filed in a
judgment exists from the date of the sentence, when so
declared; for until the net amount of the debtor's liability
has been determined, he cannot he considered
delinquent in the fulfillment of his obligation to pay the
debt with interest thereon. 12
Finally, we find that the respondent court did not err in
sustaining the trial court's dismissal of KAL's
counterclaim against Pan Pacific Overseas Recruiting
Services Inc., whose responsibility ended with the
confirmation by KAL of Lapuz as its passenger in its
Flight No. 903.
This is still another case of the maltreatment of our
overseas contract workers, this time by the airline
supposed to bring the passenger to his foreign
assignment. Our OCW's sacrifice much in seeking
employment abroad, where they are deprived of the
company of their loved ones, the direct protection of our
laws, and the comfort of our own native culture and way
of life. This Court shall exert every effort to vindicate
their rights when they are abused and shall accord them
the commensurate reparation of their injuries consistent
with their dignity and worth as members of the working
class.
WHEREFORE, the appealed judgment is AFFIRMED, but
with the modification that the legal interest on the
damages awarded to private respondent should
commence from the date of the decision of the trial court
on November 14, 1990. The parties shall bear their own
costs.
SO ORDERED.
Davide, Jr., Quiason and Kapunan, JJ., concur.
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH
MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG
and ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH
TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and
ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG
and ROSALINDA MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the
Resolution of the Court of Appeals in C.A.-G.R. CV Nos.
69040-41, promulgated on 3 April 1984, which set aside
its previous Decision dated 29 November 1983 reversing
the Decision of the trial court which dismissed
petitioners' complaints in Civil Case No. 4477 and Civil
Case No. 4478 of the then Court of First Instance (now
Regional Trial Court) of Pampanga entitled "Carmen
Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh
McKee and Elizabeth Koh Turla vs. Jaime Tayag and
Rosalinda Manalo," and "George McKee and Araceli Koh
McKee vs. Jaime Tayag and Rosalinda Manalo,"
respectively, and granted the private respondents'
counterclaim for moral damages, attorney's fees and
litigation expenses.
The said civil cases for damages based on quasi-
delict were filed as a result of a vehicular accident which
led to the deaths of Jose Koh, Kim Koh McKee and Loida
Bondoc and caused physical injuries to George Koh
McKee, Christopher Koh McKee and petitioner Araceli
Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors
George Koh McKee, Christopher Koh McKee and the
deceased Kim Koh McKee, were the plaintiffs in Civil Case
No. 4478, while petitioner Carmen Dayrit Koh and her
co-petitioners in G.R. No. 68103, who are the wife and
children, respectively, of the late Jose Koh, were the
plaintiffs in Civil Case No. 4477. Upon the other hand,
private respondents are the owners of the cargo truck
which figured in the mishap; a certain Ruben Galang was
the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January
1977, in Pulong Pulo Bridge along MacArthur Highway,
between Angeles City and San Fernando, Pampanga, a
head-on-collision took place between an International
cargo truck, Loadstar, with Plate No. RF912-T
Philippines '76 owned by private respondents, and
driven by Ruben Galang, and a Ford Escort car bearing
Plate No. S2-850 Pampanga '76 driven by Jose Koh. The
collision resulted in the deaths of Jose Koh, Kim Koh
McKee and Loida Bondoc, and physical injuries to George
Koh McKee, Christopher Koh McKee and Araceli Koh
McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee,
the mother of minors George, Christopher and Kim Koh
McKee. Loida Bondoc, on the other hand, was the baby
sitter of one and a half year old Kim. At the time of the
collision, Kim was seated on the lap of Loida Bondoc who
was at the front passenger's seat of the car while Araceli
and her two (2) sons were seated at the car's back seat.
Immediately before the collision, the cargo truck, which
was loaded with two hundred (200) cavans of rice
weighing about 10,000 kilos, was traveling southward
from Angeles City to San Fernando Pampanga, and was
bound for Manila. The Ford Escort, on the other hand,
was on its way to Angeles City from San Fernando. When
the northbound car was about (10) meters away from
the southern approach of the bridge, two (2) boys
suddenly darted from the right side of the road and into
the lane of the car. The boys were moving back and forth,
unsure of whether to cross all the way to the other side
or turn back. Jose Koh blew the horn of the car, swerved
to the left and entered the lane of the truck; he then
switched on the headlights of the car, applied the brakes
and thereafter attempted to return to his lane. Before he
could do so, his car collided with the truck. The collision
occurred in the lane of the truck, which was the opposite
lane, on the said bridge.
The incident was immediately reported to the police
station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the
spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be sixty
(60) "footsteps" long and fourteen (14) "footsteps" wide
— seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. 2 Pulong Pulo Bridge,
which spans a dry brook, is made of concrete with soft
shoulders and concrete railings on both sides about
three (3) feet high.
The sketch of the investigating officer discloses that the
right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while its
left front portion was touching the center line of the
bridge, with the smashed front side of the car resting on
its front bumper. The truck was about sixteen (16)
"footsteps" away from the northern end of the bridge
while the car was about thirty-six (36) "footsteps" from
the opposite end. Skid marks produced by the right front
tire of the truck measured nine (9) "footsteps", while
skid marks produced by the left front tire measured five
(5) "footsteps." The two (2) rear tires of the truck,
however, produced no skid marks.
In his statement to the investigating police officers
immediately after the accident, Galang admitted that he
was traveling at thirty (30) miles (48 kilometers) per
hour.
As a consequence of the collision, two (2) cases, Civil
Case No. 4477 and No. 4478, were filed on 31 January
1977 before the then Court of First Instance of Pampanga
and were raffled to Branch III and Branch V of the said
court, respectively. In the first, herein petitioners in G.R.
No. 68103 prayed for the award of P12,000.00 as
indemnity for the death of Jose Koh, P150,000.00 as
moral damages, P60,000.00 as exemplary damages,
P10,000.00 for litigation expenses, P6,000.00 for burial
expenses, P3,650.00 for the burial lot and P9,500.00 for
the tomb, plus attorney's fees. 3 In the second case,
petitioners in G.R. No. 68102 prayed for the following:
(a) in connection with the death of Kim McKee, the sum
of P12,000.00 as death benefit, P3,150.00 for funeral
services, P3,650.00 for the cemetery lot, P3,000.00 for
the tomb, P50,000.00 as moral damages, P10,000.00 as
exemplary damages and P2,000.00 as miscellaneous
damages; (b) in the case of Araceli Koh McKee, in
connection with the serious physical injuries suffered,
the sum of P100,000.00 as moral damages, P20,000.00 as
exemplary damages, P12,000.00 for loss of earnings,
P5,000.00 for the hospitalization expenses up to the date
of the filing of the complaint; and (c) with respect to
George McKee, Jr., in connection with the serious
physical injuries suffered, the sum of P50,000.00 as
moral damages, P20,000.00 as exemplary damages and
the following medical expenses: P3,400 payable to the
Medical Center, P3,500.00 payable to the St. Francis
Medical Center, P5,175.00 payable to the Clark Air Base
Hospital, and miscellaneous expenses amounting to
P5,000.00. They also sought an award of attorney's fees
amounting to 25% of the total award plus traveling and
hotel expenses, with costs. 4
On 1 March 1977, an Information charging Ruben Galang
with the crime of "Reckless Imprudence Resulting to
(sic) Multiple Homicide and Physical Injuries and
Damage to Property" was filed with the trial court. It was
docketed as Criminal Case No. 3751 and was raffled to
Branch V of the court, the same Branch where Civil Case
No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477,
private respondents asserted that it was the Ford Escort
car which "invaded and bumped (sic) the lane of the
truck driven by Ruben Galang and, as counterclaim,
prayed for the award of P15,000.00 as attorney's fees,
P20,000.00 as actual and liquidated damages,
P100,000.00 as moral damages and P30,000.00 as
business losses. 6 In Civil Case No. 4478, private
respondents first filed a motion to dismiss on grounds of
pendency of another action (Civil Case No. 4477) and
failure to implead an indispensable party, Ruben Galang,
the truck driver; they also filed a motion to consolidate
the case with Civil Case No. 4477 pending before Branch
III of the same court, which was opposed by the
plaintiffs. 7 Both motions were denied by Branch V, then
presided over by Judge Ignacio Capulong. Thereupon,
private respondents filed their Answer with Counter-
claim 8 wherein they alleged that Jose Koh was the
person "at fault having approached the lane of the truck
driven by Ruben Galang, . . . which was on the right lane
going towards Manila and at a moderate speed observing
all traffic rules and regulations applicable under the
circumstances then prevailing;" in their counterclaim,
they prayed for an award of damages as may be guilty beyond reasonable doubt of the crime charged in
determined by the court after due hearing, and the sums the information and after applying the provisions of
of P10,000.00 as attorney's fees and P5,000.00 as Article 365 of the Revised Penal Code and indeterminate
expenses of litigation. sentence law, this Court, imposes upon said accused
Ruben Galang the penalty of six (6) months of arresto
Petitioners filed their Answers to the Counterclaims in mayor as minimum to two (2) years, four (4) months and
both cases. one (1) day of prision correccional as maximum; the
accused is further sentenced to pay and indemnify the
To expedite the proceedings, the plaintiffs in Civil Case
heirs of Loida Bondoc the amount of P12,000.00 as
No. 4478 filed on 27 March 1978 a motion to adopt the
indemnity for her death; to reimburse the heirs of Loida
testimonies of witnesses taken during the hearing of
Bondoc the amount of P2,000.00 representing the
Criminal Case No. 3751, which private respondents
funeral expenses; to pay the heirs of Loida Bondoc the
opposed and which the court denied. 9 Petitioners
amount of P20,000.00 representing her loss of income;
subsequently moved to reconsider the order denying the
to indemnify and pay the heirs of the deceased Jose Koh
motion for consolidation, 10 which Judge Capulong
the value of the car in the amount of P53,910.95, and to
granted in the Order of 5 September 1978; he then
pay the costs. 15
directed that Civil Case No. 4478 be consolidated with
Civil Case No. 4477 in Branch III of the court then The aforecited decision was promulgated only on 17
presided over by Judge Mario Castañeda, Jr. November 1980; on the same day, counsel for petitioners
filed with Branch III of the court — where the two (2)
Left then with Branch V of the trial court was Criminal
civil cases were pending — a manifestation to that effect
Case No. 3751.
and attached thereto a copy of the decision. 16
In the civil cases, the plaintiffs presented as witnesses
Upon the other hand, Judge Mario Castañeda, Jr.
Araceli Koh McKee, Fernando Nuñag, Col. Robert
dismissed the two (2) civil cases on 12 November 1980
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen
and awarded the private respondents moral damages,
Koh and Antonio Koh, 11 and offered several
exemplary damages and attorney's fees. 17 The
documentary exhibits. Upon the other hand, private
dispositive portion of the said decision reads as follows:
respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12 WHEREFORE, finding the preponderance of evidence to
be in favor of the defendants and against the plaintiffs,
In the criminal case, the prosecution presented as
these cases are hereby ordered DISMISSED with costs
witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
against the plaintiffs. The defendants had proven their
Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert
counter-claim, thru evidences (sic) presented and
Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc.
unrebutted. Hence, they are hereby awarded moral and
Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio
exemplary damages in the amount of P100,000.00 plus
Pineda, Benito Caraan and Eugenio Tanhueco, and
attorney's fee of P15,000.00 and litigation expenses for
offered several documentary exhibits. 13 Upon the other
(sic) P2,000.00. The actual damages claimed for (sic) by
hand, the defense presented the accused Ruben Galang,
the defendants is (sic) hereby dismissing for lack of proof
Luciano Punzalan, Zenaida Soliman and Roman Dayrit,
to that effect (sic). 18
and offered documentary exhibits. 14
A copy of the decision was sent by registered mail to the
On 1 October 1980, Judge Capulong rendered a decision
petitioners on 28 November 1980 and was received on 2
against the accused Ruben Galang in the aforesaid
December 1980. 19
criminal case. The dispositive portion of the decision
reads as follows: Accused Ruben Galang appealed the judgment of
conviction to the Court of Appeals. The appeal was
WHEREFORE, in view of the foregoing, judgment is
docketed as C.A.-G.R. Blg. 24764-CR and was assigned to
hereby rendered finding the accused Ruben Galang
the court's Third Division. Plaintiffs in Civil Cases Nos. P 950.00 for funeral services (Exh. M-1) In the face of these diametrically opposed judicial
4477 and 4478 likewise separately appealed the 12 P 375.00 for vault services (Exhs. V and V-1) positions, the determinative issue in this appeal is
November 1980 decision to the appellate court. The posited in the fourth assigned error as follows:
appeals were docketed as C.A.-G.R. No. 69041-R and C.A.- For the physical injuries suffered by George Koh McKee:
G.R. No. 69040-R, respectively, and were assigned to the IV
P 25,000.00 as moral damages
Fourth Civil Cases Division.
P 672.00 for Clark Field Hospital (Exh. E) THE TRIAL COURT ERRED WHEN IT HELD THE (sic)
On 4 October 1982, the respondent Court promulgated P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS
its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the and HORN SWITCHED ON HIS HEADLIGHTS AND COULD
conviction of Galang. 21 The dispositive portion of the D-2) NOT SWERVE TO THE RIGHT.
decision reads: P 1,555.00 paid to St. Francis Medical Center (Exhs. B and
B-1) Supportive of plaintiffs' version, principal witness
DAHIL DITO, ang hatol na paksa ng naritong paghahabol Araceli Koh McKee testified thus:
ay Aming pinagtitibay sa kanyang kabuuan. Ang For the physical injuries suffered by Araceli Koh McKee:
Q What happened after that, as you approached the
naghahabol pa rin ang pinagbabayad ng gugol ng
P 25,000.00 as moral damages bridge?
paghahabol.
P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1) A When we were approaching the bridge, two (2) boys
A motion for reconsideration of the decision was denied
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and tried to cross the right lane on the right side of the
by the respondent Court in its Kapasiyahan promulgated
G-3) highway going to San Fernando. My father, who is (sic)
on 25 November 1982. 22 A petition for its
P 428.00 to Carmelite General Hospital (Exh. F) the driver of the car tried to avoid the two (2) boys who
review 23 was filed with this Court; said petition was
P 114.20 to Muñoz Clinic (Exh. MM) were crossing, he blew his horn and swerved to the left
subsequently denied. A motion for its reconsideration
to avoid hitting the two (2) boys. We noticed the truck,
was denied with finality in the Resolution of 20 April
For the physical injuries suffered by Christopher Koh he switched on the headlights to warn the truck driver,
1983. 24
McKee: to slow down to give us the right of way to come back to
On 29 November 1983, respondent Court, by then known our right lane.
P 10,000.00 as moral damages
as the Intermediate Appellate Court, promulgated its
P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1) Q Did the truck slow down?
consolidated decision in A.C.-G.R. CV Nos. 69040 and
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
69041, 25 the dispositive portion of which reads: A No, sir, it did not, just (sic) continued on its way.
In addition, We award P10,000.00 as counsel (sic) fees in
WHEREFORE, the decision appealed from it hereby Q What happened after that?
Civil Case No. 4477 and another P10,000.00; as counsel
reversed and set aside and another one is rendered,
(sic) fees in Civil Case No. 4478.
ordering defendants-appellees to pay plaintiffs- A After avoiding the two (2) boys, the car tried to go back
appellants as follows: No pronouncement as to costs. to the right lane since the truck is (sic) coming, my father
stepped on the brakes and all what (sic) I heard is the
For the death of Jose Koh: SO ORDERED. 26 sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or
(Exhibit "O" in these Civil Cases).
P 50,000.00 as moral damages The decision is anchored principally on the respondent
P 12,000.00 as death indemnity Court's findings that it was Ruben Galang's xxx xxx xxx
P 16,000.00 for the lot and tomb (Exhs. U and U-1) inattentiveness or reckless imprudence which caused
P 4,000.00 expenses for holding a wake (p. 9, tsn April the accident. The appellate court further said that the law Q Mrs. how did you know that the truck driven by the
19, 1979) presumes negligence on the part of the defendants herein accused, Ruben Galang did not reduce its speed
P 950.00 for the casket (Exh. M) (private respondents), as employers of Galang, in the before the actual impact of collision (sic) as you narrated
P 375.00 for the vault services (Exhs. V and V-1) selection and supervision of the latter; it was further in this Exhibit "1," how did you know (sic)?
asserted that these defendants did not allege in their
For the death of Kim Koh McKee: A It just kept on coming, sir. If only he reduced his speed,
Answers the defense of having exercised the diligence of
we could have got (sic) back to our right lane on side (sic)
P 50,000.00 as moral damages a good father of a family in selecting and supervising the
of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or
P 12,000.00 as death indemnity said employee.27 This conclusion of reckless
(Exhibit "O" in these Civil Cases) (pp. 30-31, Appellants'
P 1,000.00 for the purchase of the burial lot (Exh. M) imprudence is based on the following findings of fact:
Brief).
Plaintiffs' version was successfully corroborated to Our
satisfaction by the following facts and circumstances:
1. An impartial eye-witness to the mishap, Eugenio
Tanhueco, declared that the truck stopped only when it
had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the
hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation
witness because he was one of the first to arrive at the
scene of the accident. As a matter of fact, he brought one
of the injured passengers to the hospital.
We are not prepared to accord faith and credit to
defendants' witnesses, Zenaida Soliman, a passenger of
the truck, and Roman Dayrit, who supposedly lived
across the street.
Regarding Soliman, experience has shown that in the
ordinary course of events people usually take the side of
the person with whom they are associated at the time of
the accident, because, as a general rule, they do not wish
to be identified with the person who was at fault. Thus an
imaginary bond is unconsciously created among the
several persons within the same group (People vs.
Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic)
that he is an accommodation witness. He did not go to the
succor of the injured persons. He said he wanted to call
the police authorities about the mishap, but his phone
had no dial tone. Be this (sic) as it may, the trial court in
the criminal case acted correctly in refusing to believe
Dayrit.
2. Exhibit 2, the statement of Galang, does not include the
claim that Galang stopped his truck at a safe distance
from the car, according to plaintiffs (p. 25, Appellants'
Brief). This contention of appellants was completely
passed sub-silencio or was not refuted by appellees in
their brief. Exhibit 2 is one of the exhibits not included in
the record. According to the Table of Contents submitted
by the court below, said Exhibit 2 was not submitted by
defendants-appellees. In this light, it is not far-fetched to
surmise that Galang's claim that he stopped was an
eleventh-hour desperate attempt to exculpate himself
from imprisonment and damages.
3. Galang divulged that he stopped after seeing the car
about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite of the
fact that you admitted that the road is straight and you
may be able to (sic) see 500-1000 meters away from you
any vehicle, you first saw that car only about ten (10)
meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your
oath that you have (sic) not noticed it before that ten (10)
meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants'
Brief)
Galang's testimony substantiate (sic) Tanhueco's
statement that Galang stopped only because of the
impact. At ten (10) meters away, with the truck running
at 30 miles per hour, as revealed in Galang's affidavit
(Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible
to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and
not because he waited for Jose Koh to return to his
proper lane. The police investigator, Pfc. Fernando L.
Nuñag, stated that he found skid marks under the truck
but there were not (sic) skid marks behind the truck (pp.
19-20, t.s.n., Nov. 3, 1978). The presence of skid marks
show (sic) that the truck was speeding. Since the skid
marks were found under the truck and none were found
at the rear of the truck, the reasonable conclusion is that
the skid marks under the truck were caused by the
truck's front wheels when the trucks (sic) suddenly
stopped seconds before the mishap in an endeavor to
avoid the same. But, as aforesaid, Galang saw the car at
barely 10 meters away, a very short distance to avoid a
collision, and in his futile endeavor to avoid the collision
he abruptly stepped on his brakes but the smashup
happened just the same.
For the inattentiveness or reckless imprudence of
Galang, the law presumes negligence on the part of the
defendants in the selection of their driver or in the
supervision over him. Appellees did not allege such
defense of having exercised the duties of a good father of
a family in the selection and supervision of their
employees in their answers. They did not even adduce
evidence that they did in fact have methods of selection
and programs of supervision. The inattentiveness or
negligence of Galang was the proximate cause of the
mishap. If Galang's attention was on the highway, he
would have sighted the car earlier or at a very safe
distance than (sic) 10 meters. He proceeded to cross the
bridge, and tried to stop when a collision was already
inevitable, because at the time that he entered the bridge
his attention was not riveted to the road in front of him.
On the question of damages, the claims of appellants
were amply proven, but the items must be reduced. 28
A motion for reconsideration alleging improper
appreciation of the facts was subsequently filed by
private respondents on the basis of which the
respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November
1983 decision and affirmed in toto the trial court's
judgment of 12 November 1980. A motion to reconsider
this Resolution was denied by the respondent Court on 4
July 1984.30
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR
WHEN IT TOTALLY REVERSED ITS DECISION BY
MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE
PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND
CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND
FOUND IN THE RECORDS; THEREFORE, RESPONDENT
COURT'S RESOLUTIONS (ANNEXES A and B, PETITION)
ARE CLEARLY ERRONEOUS, PURELY BASED ON
SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED
WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID
DOWN BY THIS HONORABLE COURT BY STATING
AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT
THE FINDINGS OF GUILT IN THE CRIMINAL CASE
WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF
DISCRETION AND MADE A MISLEADING
PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS
INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE
RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE
NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR;
COMMITTED GRAVE ABUSE OF DISCRETION AND CITED
ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO
THESE CASES.
V trial court. The records do not indicate any attempt on
. . . COMMITTED A PATENT ERROR AND GRAVELY
ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS
OF THE TRIAL COURT WHICH ARE CLEARLY
ERRONEOUS AND CONTRARY TO THE EVIDENCE
FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE
CONTRARY TO THE ADMITTED FACTS AND JUDICIAL
ADMISSIONS MADE BY THE PRIVATE RESPONDENTS'
DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT
AWARDED DAMAGES TO THE PRIVATE RESPONDENTS
WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE,
IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED
BY LAW AND THE CONSISTENT DECISIONS OF THIS
HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT
ERRONEOUSLY SET ASIDE ITS DECISION AWARDING
DAMAGES TO PETITIONERS WHICH IS CLEARLY IN
ACCORDANCE WITH THE EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO THE AWARD OF
DAMAGES. 31
In the Resolution of 12 September 1984, We required
private respondents to Comment on the
petition. 32 After the said Comment 33 was filed,
petitioners submitted a Reply 34 thereto; this Court then
gave due course to the instant petitions and required
petitioners to file their Brief, 35 which they accordingly
complied with.
There is merit in the petition. Before We take on the main
task of dissecting the arguments and counter-arguments,
some observations on the procedural vicissitudes of
these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the
recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of
the Civil Code, were filed ahead of Criminal Case No.
3751. Civil Case No. 4478 was eventually consolidated
with Civil Case No. 4477 for joint trial in Branch III of the
the part of the parties, and it may therefore be
reasonably concluded that none was made, to
consolidate Criminal Case No. 3751 with the civil cases,
or vice-versa. The parties may have then believed, and
understandably so, since by then no specific provision of
law or ruling of this Court expressly allowed such a
consolidation, that an independent civil action,
authorized under Article 33 in relation to Article 2177 of
the Civil Code, such as the civil cases in this case, cannot
be consolidated with the criminal case. Indeed, such
consolidation could have been farthest from their minds
as Article 33 itself expressly provides that the "civil
action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence." Be that as it may, there was then no legal
impediment against such consolidation. Section 1, Rule
31 of the Rules of Court, which seeks to avoid a
multiplicity of suits, guard against oppression and abuse,
prevent delays, clear congested dockets to simplify the
work of the trial court, or in short, attain justice with the
least expense to the parties litigants, 36 would have
easily sustained a consolidation, thereby preventing the
unseeming, if no ludicrous, spectacle of two (2) judges
appreciating, according to their respective orientation,
perception and perhaps even prejudice, the same
facts differently, and thereafter
rendering conflicting decisions. Such was what
happened in this case. It should not, hopefully, happen
anymore. In the recent case of Cojuangco vs. Court or
Appeals, 37 this Court held that the present provisions of
Rule 111 of the Revised Rules of Court allow a
consolidation of an independent civil action for the
recovery of civil liability authorized under Articles 32,
33, 34 or 2176 of the Civil Code with the criminal action
subject, however, to the condition that no final judgment
has been rendered in that criminal case.
Let it be stressed, however, that the judgment in Criminal
Case No. 3751 finding Galang guilty of reckless
imprudence, although already final by virtue of the
denial by no less than this Court of his last attempt to set
aside the respondent Court's affirmance of the verdict of
conviction, has no relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility
arising from fault or negligence in a quasi-delict is
entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. And, as
more concretely stated in the concurring opinion of
Justice J.B.L. Reyes, "in the case of independent civil
actions under the new Civil Code, the result of the
criminal case, whether acquittal or conviction, would be
entirely irrelevant to the civil action." 39 In Salta vs. De
Veyra and PNB vs. Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to conclude that the civil
actions mentioned in Article 33, permitted in the same
manner to be filed separately from the criminal case, may
proceed similarly regardless of the result of the criminal
case.
Indeed, when the law has allowed a civil case related to a
criminal case, to be filed separately and to proceed
independently even during the pendency of the latter
case, the intention is patent to make the court's
disposition of the criminal case of no effect whatsoever
on the separate civil case. This must be so because the
offenses specified in Article 33 are of such a nature,
unlike other offenses not mentioned, that they may be
made the subject of a separate civil action because of the
distinct separability of their respective juridical cause or
basis of action . . . .
What remains to be the most important consideration as
to why the decision in the criminal case should not be
considered in this appeal is the fact that private
respondents were not parties therein. It would have
been entirely different if the petitioners' cause of action
was for damages arising from a delict, in which case
private respondents' liability could only be subsidiary
pursuant to Article 103 of the Revised Penal Code. In the
absence of any collusion, the judgment of conviction in
the criminal case against Galang would have been
conclusive in the civil cases for the subsidiary liability of
the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the
principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution
are supported by evidence or are based on mere
speculations, conjectures and presumptions.
The principle is well-established that this Court is not a
trier of facts. Therefore, in an appeal by certiorari under
Rule 45 of the Revised Rules of Court, only questions of
law may be raised. The resolution of factual issues is the
function of the lower courts whose findings on these
matters are received with respect and are, as a rule,
binding on this Court. 42
The foregoing rule, however, is not without exceptions.
Findings of facts of the trial courts and the Court of
Appeals may be set aside when such findings are not
supported by the evidence or when the trial court failed
to consider the material facts which would have led to a
conclusion different from what was stated in its
judgment. 43 The same is true where the appellate
court's conclusions are grounded entirely on
conjectures, speculations and surmises 44 or where the
conclusions of the lower courts are based on a
misapprehension of facts. 45
It is at once obvious to this Court that the instant case
qualifies as one of the aforementioned exceptions as the
findings and conclusions of the trial court and the
respondent Court in its challenged resolution are not
supported by the evidence, are based on an
misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent
Court's decision of 29 November 1983 makes the correct
findings of fact.
In the assailed resolution, the respondent Court held that
the fact that the car improperly invaded the lane of the
truck and that the collision occurred in said lane gave
rise to the presumption that the driver of the car, Jose
Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded
that it was Jose Koh's negligence that was the immediate
and proximate cause of the collision. This is an
unwarranted deduction as the evidence for the
petitioners convincingly shows that the car swerved into
the truck's lane because as it approached the southern
end of the bridge, two (2) boys darted across the road
from the right sidewalk into the lane of the car. As
testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the
bridge?
A When we were approaching the bridge, two (2) boys
tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic)
the driver of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and swerved to the left
to avoid hitting the two (2) boys. We noticed the truck,
he switched on the headlights to warn the truck driver,
to slow down to give us the right of way to come back to
our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back
to the right lane since the truck is (sic) coming, my father
stepped on the brakes and all what (sic) I heard is the
sound of impact (sic), sir. 46
Her credibility and testimony remained intact even
during cross examination. Jose Koh's entry into the lane
of the truck was necessary in order to avoid what was, in
his mind at that time, a greater peril — death or injury to
the two (2) boys. Such act can hardly be classified as
negligent.
Negligence was defined and described by this Court
in Layugan vs. Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and
reasonable man would not do (Black's Law Dictionary,
Fifth Edition, 930), or as Judge Cooley defines it, "(T)he
failure to observe for the protection of the interests of
another person, that degree of care, precaution, and
vigilance which the circumstances justly demand,
whereby such other person suffers injury." (Cooley on
Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than
seventy years ago but still a sound rule, (W)e held:
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 (reasonable care and caution which an ordinarily
prudent 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 paterfamiliasof the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required by the
circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the
situation of the parties and the degree of care and
vigilance which the circumstances reasonably require.
Where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of
ordinary care under the circumstances. (citing Ahern v.
Oregon Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of
negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose
Koh. Any reasonable and ordinary prudent man would
have tried to avoid running over the two boys by
swerving the car away from where they were even if this
would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take
particularly where the vehicle in the opposite lane would
be several meters away and could very well slow down,
move to the side of the road and give way to the
oncoming car. Moreover, under what is known as the
emergency rule, "one who suddenly finds himself in a
place of danger, and is required to act without time to
consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence, if he
fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the
emergency in which he finds himself is brought about by
his own negligence." 49
Considering the sudden intrusion of the two (2) boys into
the lane of the car, We find that Jose Koh adopted the best
means possible in the given situation to avoid hitting
them. Applying the above test, therefore, it is clear that
he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is
negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has
been defined as:
. . . that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred. And more comprehensively, the proximate
legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion,
all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that
the person responsible for the first event should, as an
ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an injury to some person might probably
result therefrom. 50
Applying the above definition, although it may be said
that the act of Jose Koh, if at all negligent, was the initial
act in the chain of events, it cannot be said that the same
caused the eventual injuries and deaths because of the
occurrence of a sufficient intervening event, the
negligent act of the truck driver, which was the actual
cause of the tragedy. The entry of the car into the lane of
the truck would not have resulted in the collision had the
latter heeded the emergency signals given by the former
to slow down and give the car an opportunity to go back
into its proper lane. Instead of slowing down and
swerving to the far right of the road, which was the
proper precautionary measure under the given
circumstances, the truck driver continued at full speed
towards the car. The truck driver's negligence becomes
more apparent in view of the fact that the road is 7.50
meters wide while the car measures 1.598 meters and
the truck, 2.286 meters, in width. This would mean that
both car and truck could pass side by side with a
clearance of 3.661 meters to spare. 51 Furthermore, the
bridge has a level sidewalk which could have partially
accommodated the truck. Any reasonable man finding
himself in the given situation would have tried to avoid
the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records.
He himself said that his truck was running at 30 miles (48
kilometers) per hour along the bridge while the
maximum speed allowed by law on a bridge 52 is only 30
kilometers per hour. Under Article 2185 of the Civil Code,
a person driving a vehicle is presumed negligent if at the
time of the mishap, he was violating any traffic
regulation. We cannot give credence to private
respondents' claim that there was an error in the
translation by the investigating officer of the truck
driver's response in Pampango as to whether the speed
cited was in kilometers per hour or miles per hour. The
law presumes that official duty has been regularly
performed; 53 unless there is proof to the contrary, this
presumption holds. In the instant case, private
respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly
established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly
corroborated by the testimony of Eugenio Tanhueco, an
impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the
herein accused, Ruben Galang did not reduce its speed
before the actual impact of collision as you narrated in
this Exhibit "1," how did you know?
A It just kept on coming, sir. If only he reduced his speed,
we could have got (sic) back to our right lane on side (sic)
of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or
(Exhibit; "O" in these Civil Cases) (pp. 30-31, Appellants'
Brief)54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know
what happened?
A I saw the truck and a car collided (sic), sir, and I went
to the place to help the victims. (tsn. 28, April 19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the
impact, will you tell us if the said truck ever stopped?
A I saw it stopped (sic) when it has (sic) already collided
with the car and it was already motionless. (tsn. 31, April
19, 1979; Emphasis Supplied). (p. 27, Appellants'
Brief). 55
Clearly, therefore, it was the truck driver's
subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the
collision which was the proximate cause of the resulting
accident.
Even if Jose Koh was indeed negligent, the doctrine of last
clear chance finds application here. Last clear chance is a
doctrine in the law of torts which states that the
contributory negligence of the party injured will not
defeat the claim for damages if it is shown that the
defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person
who had the last clear chance to avoid the mishap is
considered in law solely responsible for the
consequences thereof.56
In Bustamante vs. Court of Appeals, 57 We held:
The respondent court adopted the doctrine of "last clear
chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery
for the negligence of the defendant where it appears that
the defendant, by exercising reasonable care and
prudence, might have avoided injurious consequences to
the plaintiff notwithstanding the plaintiff's negligence. In
other words, the doctrine of last clear chance means that
even though a person's own acts may have placed him in
a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is
usually stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent or that of a third person
imputed to the opponent is considered in law solely
responsible for the consequences of the accident.
(Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent
defendant is held liable to a negligent plaintiff, or even to
a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiff's peril, or
according to some authorities, should have been aware
of it in the reasonable exercise of due care, had in fact an
opportunity later than that of the plaintiff to avoid an
accident (57 Am. Jur., 2d, pp. 798-799).
vs. Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, et al., G.R. No. 70493, May, 18, 1989]. The
subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff
becomes the immediate or proximate cause of the
accident which intervenes between the accident and the
more remote negligence of the plaintiff, thus making the
defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for
the purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim
(sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule,
as We now rule, that it was the truck driver's negligence
in failing to exert ordinary care to avoid the collision
which was, in law, the proximate cause of the collision.
As employers of the truck driver, the private
respondents are, under Article 2180 of the Civil Code,
directly and primarily liable for the resulting damages.
The presumption that they are negligent flows from the
negligence of their employee. That presumption,
however, is only juris tantum, not juris et de
jure. 59 Their only possible defense is that they
exercised all the diligence of a good father of a family to
prevent the damage. Article 2180 reads as follows:
employees. 60 The answers of the private respondents
in Civil Cases Nos. 4477 and 4478 did not interpose this
defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of
29 November 1983 in reversing the decision of the trial
court which dismissed Civil Cases Nos. 4477 and 4478.
Its assailed Resolution of 3 April 1984 finds no sufficient
legal and factual moorings.
In the light of recent decisions of this Court, 61 the
indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The
assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November
1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED,
subject to the modification that the indemnity for death
is increased from P12,000.00 to P50,000.00 each for the
death of Jose Koh and Kim Koh McKee.
Costs against private respondents.
SO ORDERED.
Gutierrez, Jr., Feliciano and Romero, JJ., concur.
Bidin, J., took no part.

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:
The doctrine of last clear chance was defined by this
Court in the case of Ong v. Metropolitan Water District,
104 Phil. 397 (1958), in this wise:
The obligation imposed by Article 2176 is demandable
not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.
xxx xxx xxx

The doctrine of the last clear chance simply, means that
the negligence of a claimant does not preclude a recovery
for the negligence of defendant where it appears that the
latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant
notwithstanding his negligence.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the
scope of their assigned tasks, even though the former are
not engaged in any business or industry.
xxx xxx xxx

The doctrine applies only in a situation where the
plaintiff was guilty of prior or antecedent negligence but
the defendant, who had the last fair chance to avoid the
impending harm and failed to do so, is made liable for all
the consequences of the accident notwithstanding the
prior negligence of the plaintiff [Picart v. Smith, 37 Phil.
809 (1918); Glan People's Lumber and Hardware, et al.
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.
The diligence of a good father referred to means the
diligence in the selection and supervision of
G.R. No. L-20089 December 26, 1964
BEATRIZ P. WASSMER, plaintiff-appellee,
vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni & Jamir for defendant-appellant.
Samson S. Alcantara for plaintiff-appellee.
BENGZON, J.P., J.:
The facts that culminated in this case started with
dreams and hopes, followed by appropriate planning and
serious endeavors, but terminated in frustration and,
what is worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following
their mutual promise of love, decided to get married and
set September 4, 1954 as the big day. On September 2,
1954 Velez left this note for his bride-to-be:
Dear Bet —
Will have to postpone wedding — My mother opposes it.
Am leaving on the Convair today.
Please do not ask too many people about the reason why
— That would only create a scandal.
Paquing
But the next day, September 3, he sent her the following
telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY
SOON APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from
again.
Sued by Beatriz for damages, Velez filed no answer and
was declared in default. Plaintiff adduced evidence
before the clerk of court as commissioner, and on April
29, 1955, judgment was rendered ordering defendant to
pay plaintiff P2,000.00 as actual damages; P25,000.00 as
moral and exemplary damages; P2,500.00 as attorney's
fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief
from orders, judgment and proceedings and motion for
new trial and reconsideration." Plaintiff moved to strike
it cut. But the court, on August 2, 1955, ordered the
parties and their attorneys to appear before it on August
23, 1955 "to explore at this stage of the proceedings the
possibility of arriving at an amicable settlement." It
added that should any of them fail to appear "the petition
for relief and the opposition thereto will be deemed
submitted for resolution."
On August 23, 1955 defendant failed to appear before
court. Instead, on the following day his counsel filed a
motion to defer for two weeks the resolution on
defendants petition for relief. The counsel stated that he
would confer with defendant in Cagayan de Oro City —
the latter's residence — on the possibility of an amicable
element. The court granted two weeks counted from
August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks
given by the court had expired on September 8, 1955 but
that defendant and his counsel had failed to appear.
Another chance for amicable settlement was given by the
court in its order of July 6, 1956 calling the parties and
their attorneys to appear on July 13, 1956. This time.
however, defendant's counsel informed the court that
chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying
defendant's aforesaid petition. Defendant has appealed
to this Court. In his petition of June 21, 1955 in the
court a quo defendant alleged excusable negligence as
ground to set aside the judgment by default. Specifically,
it was stated that defendant filed no answer in the belief
that an amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud,
accident, mistake or excusable negligence, must be duly
supported by an affidavit of merits stating facts
constituting a valid defense. (Sec. 3, Rule 38, Rules of
Court.) Defendant's affidavit of merits attached to his
petition of June 21, 1955 stated: "That he has a good and
valid defense against plaintiff's cause of action, his failure
to marry the plaintiff as scheduled having been due to
fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere
conclusions or opinions instead of facts is not valid.
(Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani
vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
Defendant, however, would contend that the affidavit of
merits was in fact unnecessary, or a mere surplusage,
because the judgment sought to be set aside was null and
void, it having been based on evidence adduced before
the clerk of court. In Province of Pangasinan vs. Palisoc,
L-16519, October 30, 1962, this Court pointed out that
the procedure of designating the clerk of court as
commissioner to receive evidence is sanctioned by Rule
34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not
have to be obtained for he was declared in default and
thus had no standing in court (Velez vs. Ramas, 40 Phil.
787; Alano vs. Court of First Instance, L-14557, October
30, 1959).
In support of his "motion for new trial and
reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no
provision of the Civil Code authorizing" an action for
breach of promise to marry. Indeed, our ruling
in Hermosisima vs. Court of Appeals (L-14628, Sept. 30,
1960), as reiterated in Estopa vs. Biansay (L-14733, Sept.
30, 1960), is that "mere breach of a promise to marry" is
not an actionable wrong. We pointed out that Congress
deliberately eliminated from the draft of the new Civil
Code the provisions that would have it so.
It must not be overlooked, however, that the extent to
which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code
provides that "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."
The record reveals that on August 23, 1954 plaintiff and
defendant applied for a license to contract marriage,
which was subsequently issued (Exhs. A, A-1). Their
wedding was set for September 4, 1954. Invitations were
printed and distributed to relatives, friends and
acquaintances (Tsn., 5; Exh. C). The bride-to-be's
trousseau, party drsrses and other apparel for the
important occasion were purchased (Tsn., 7-8). Dresses
for the maid of honor and the flower girl were prepared.
A matrimonial bed, with accessories, was bought. Bridal Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera,
showers were given and gifts received (Tsn., 6; Exh. E). Paredes, Dizon, Regala, Makalintal, and Zaldivar, JJ.,
And then, with but two days before the wedding,
defendant, who was then 28 years old,: simply left a note
for plaintiff stating: "Will have to postpone wedding —
My mother opposes it ... " He enplaned to his home city in
Mindanao, and the next day, the day before the wedding,
he wired plaintiff: "Nothing changed rest assured
returning soon." But he never returned and was never
heard from again.

Surely this is not a case of mere breach of promise to

marry. As stated, mere breach of promise to marry is not
an actionable wrong. But to formally set a wedding and
go through all the above-described preparation and
publicity, only to walk out of it when the matrimony is
about to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good customs for
which defendant must be held answerable in damages in
accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the

damages awarded were excessive. No question is raised
as to the award of actual damages. What defendant
would really assert hereunder is that the award of moral
and exemplary damages, in the amount of P25,000.00,
should be totally eliminated.

Per express provision of Article 2219 (10) of the New

Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not be
adjudged against him because under Article 2232 of the
New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." The argument is
devoid of merit as under the above-narrated
circumstances of this case defendant clearly acted in a
"wanton ... , reckless [and] oppressive manner." This
Court's opinion, however, is that considering the
particular circumstances of this case, P15,000.00 as
moral and exemplary damages is deemed to be a
reasonable award.

PREMISES CONSIDERED, with the above-indicated

modification, the lower court's judgment is hereby
affirmed, with costs.
G.R. No. L-8721 May 23, 1957
TRANQUILINO CACHERO, plaintiff-appellant,
vs.
MANILA YELLOW TAXICAB CO., INC., defendant-
appellant.
Bernardino Guerrero and J. G. Madarang for plaintiff-
appellant.
Castaño and Ampil for the defendant-appellant.
FELIX, J.:
There is no dispute as to the following facts: on
December 13, 1952, Atty. Tranquilino F. Cachero
boarded a Yellow Taxicab, with plate No. 2159-52 driven
by Gregorio Mira Abinion and owned by the Manila
Yellow Taxicab Co., Inc. On passing Oroquieta between
Doroteo Jose and Lope de Vega streets, Gregorio Mira
Abinion bumped said taxicab against a Meralco post, No.
1-4/387, with the result that the cab was badly smashed
and the plaintiff fell out of the vehicle to the ground,
suffering thereby physical injuries, slight in nature.
The chauffeur was subsequently prosecuted by the City
Fiscal and on February 26, 1963, upon his plea of guilty
the Municipal Court of Manila sentenced him to suffer 1
month and 1 day of arresto mayor, and to pay the costs.
On December 17, 1952, Tranquilino F. Cachero
addressed a letter to the Manila Yellow Taxicab Co., Inc.,
which was followed by another of January 6, 1953, which
reads as follows:
MANILA, January 6, 1953
The MANILA YELLOW TAXICAB CO., INC.
1338 Arlegui, Manila
Dear Sirs:
As you have been already advised by the letter dated
December 17, 1952, on December 13, 1952, while I was
a passenger of your taxicab bearing plate No. 2159 and
driven by your chauffeur Gregorio Mira and through his
negligence and the bad condition of the said car, he
bumped the same against the pavement on the street
(Oroquieta — between Doroteo Jose and Lope de Vega
streets, Manila) and hit the Meralco post on said street,
resulting in the smashing of the said taxicab, and as a
result thereof I was gravely injured and suffered and is
still suffering physical, mental and moral damages and
not being able to resume my daily calling.
For the said damages, I hereby make a demand for the
payment of the sum of P79,245.65, covering expenses for
transportation to the hospital for medical treatment,
medicines, doctors bills, actual monetary loss, moral,
compensatory and exemplary damages, etc., within 5
days from date of receipt hereof.
I trust to hear from you on the matter within the period
of 5 days above specified.
Truly yours,
(Sgd.) TRANQUILINO F. CACHERO
2256 Int. B, Misericordia St.,
Sta. Cruz, Manila
(Exhibit K)
The Taxicab Co. to avoid expenses and time of litigation
offered to settle the case amicably with plaintiff but the
latter only agreed to reduce his demand to the sum of
P72,050.20 as his only basis for settlement which, of
course, was not accepted by said company. So plaintiff
instituted this action on February 2, 1953, in the Court of
First Instance of Manila, praying in the complaint that the
defendant be condemned to pay him:
(a) The sum of P72,050.20, the total sum of the itemized
losses and/or damages under paragraph 7 of the
complaint, with legal interest thereon from the date of
the filing of the complaint;
(b) The sum of P5,000 as attorney's fee; and the costs of
the suit; and
Plaintiff further respectfully prays for such other and
further reliefs as the facts and the law pertaining to the
case may warrant.
The defendant answered the complaint setting forth
affirmative defenses and a counterclaim for P930 as
damages and praying for the dismissal of plaintiff's
action. After hearing the Court rendered decision only
July 20, 1954, the dispositive part of which is as follows:
IN VIEW OF THE FOREGOING, the Court hereby renders
judgment in favor of the plaintiff and against the
defendant, sentencing the latter to pay the former the
following: (1) For medicine, doctor's fees for services
rendered and transportation, P700; (2) professional fee
as attorney for the defendant in Criminal Case No. 364,
"People vs. Manolo Maddela et al." of the Court of First
Instance of Nueva Vizcaya, P3,000; (3) professional fees
as attorney for the defendant in Civil Case No. 23891 of
the Municipal Court of Manila, "Virginia Tangulan vs.
Leonel da Silva," and for the taking of the deposition of
Gabina Angrepan in a case against the Philippine
National Bank, P200; and(4) moral damages in the
amount of P2,000.
Defendant's counterclaim is hereby dismissed.
Defendant shall also pay the costs."
From this decision both parties appealed to Us, plaintiff
limiting his appeal to the part of the decision which
refers to the moral damages awarded to him which he
considered inadequate, and to the failure of said
judgment to grant the attorney's fees asked for in the
prayer of his complaint. Defendant in turn alleges that
the trial Court erred in awarding to the plaintiff the
following:
(1) P700 — for medicine, doctor's fees and
transportation expenses;
(2) P3,000 — as supposedly unearned full professional
fees as attorney for the defendant in Criminal Case No.
364, "People vs. Manolo Maddela et al.";
(3) P200 — as supposedly unearned professional fees as
attorney for the defendant in Civil Case No. 23891 of the
Manila Municipal Court, "Virginia Tangulan vs. Leonel de
Silva", and for failure to take the deposition of a certain
Gabina Angrepan in an unnamed case; and
(4) P2,000 — as moral damages, amounting to the grand
total of P5,900, these amounts being very much greater
than what plaintiff deserves.
In connection with his appeal, plaintiff calls attention to
the testimonies of Dr. Modesto S. Purisima and of Dr.
Francisco Aguilar, a member of the staff of the National
Orthopedic Hospital, which he considers necessary as a
basis for ascertaining not only the physical sufferings
undergone by him, but also for determining the adequate
compensation for moral damages that he should be
awarded by reason of said accident.
The exact nature of plaintiff's injuries, their degree of
seriousness and the period of his involuntary disability
can be determined by the medical certificate (Exhibit D)
issued by the National Orthopedic Hospital on December
16, 1952, and the testimonies of Dr. Francisco Aguilar,
physician in said hospital, and of Dr. Modesto Purisima, a
private practitioner. The medical certificate (Exhibit D)
lists: (a) a subluxation of the right shoulder joint; (b)
a contusion on the right chest; and (c) a "suspicious
fracture" of the upper end of the right humerus. Dr.
Aguilar who issued the medical certificate admitted,
however, with regard to the "suspicious fracture", that in
his opinion with (the aid of) the x-ray there was no
fracture. According to this doctor plaintiff went to the
National 0rthopedic Hospital at least six times during the
period from December 16, 1952, to April 7, 1953; that he
strapped plaintiffs body (see Exhibit E), which strap was
not removed until after a period of six weeks had elapsed
Dr. Modesto Purisima, a private practitioner, testified
that he advised and treated plaintiff from, December 14,
1952, to the end of March (1953). Plaintiff was never
hospitalized for treatment of the injuries he received in
said accident.
Counsel for the defendant delves quite extensively on
these injuries. He says in his brief the following:
Just what is a subluxation? Luxation is another term for
dislocation (Dorland, W.A.N., The American Illustrated
Medical Dictionary (13th ed.), p. 652), and hence,
a sublaxation is an incomplete or
partial dislocation (Ibid., p. 1115). While a dislocation is
the displacement of a bone or bones from its or their
normal setting (and, therefore, applicable and occurs
only to joints and not to rigid or non-movable parts of the
skeletal system) (Ibid., p. 358; Christopher, F., A
Textbook of Surgery (5th ed.), p. 342), it should be
distinguished from a fracture which is a break or rupture
in a bone or cartilage, usually due to external violence
(Christopher, F., A Textbook of Surgery (5th Ed.) p. 194;
Dorland, W.A.N., The American Illustrated Medical
Dictionary (13th ed.), P.459). Because,
unlike fracture which may be partial (a crack in the
bone) or total (a complete break in the bone), there can
be no half-way situations with regard to dislocations of
the shoulder joint (the head or ball of the humerus — the
humerus is the bone from the elbow to the shoulder)
must be either inside the socket of the scapula or
shoulder blade (in which case there is no dislocation) or
out of the latter (in which event there is a dislocation), to
denote a condition where due to external violence, the
muscles and ligaments connecting the humerus to the
scapula have subjected to strain intense enough to
produce temporary distention or lessening of their
tautness and consequently resulting in the loosening or
wrenching of the ball of the humerus from its snug fit in
the socket of the scapula, by using the terms subluxation
or partial dislocation(as used in the medical certificate),
is to fall into a misnomer — a term often used by
"chiropractors" and by those who would want to sound
impressive, but generally unfavored by the medical
profession. To describe the above condition more aptly,
the medical profession usually employs the
expression luxatio imperfecta, or, in simple language,
a sprain (Dorland, W.A.N., The American Illustrated
Medical Dictionary (13th ed.), p. 652). The condition we
have described is a paraphrase of the definition of a
sprain. Plaintiff suffered this very injury (a sprained or
wrenched shoulder joint) and a cursory scrutiny of his x-
ray plates (Exhibits A and B) by a qualified orthopedic
surgeon or by a layman with a picture or x-ray plate of a
normal shoulder joint (found in any standard textbook
on human anatomy; the one we used was Schemer, J.P.,
Morris' Human Anatomy (10 ed., p. 194) for comparison
will bear out our claim.
Treatment for a sprain is by the use of adhesive or elastic
bandage, elevation of the joint, heat, effleurage and later
massage (Christopher, F., A Textbook of Surgery (5th ed.,
p. 116). The treatment given to the plaintiff was just
exactly that Dr. Aguilar bandaged (strapped) plaintiff's
right shoulder and chest (t.s.n., p. 31) in an elevated
position (with the forearm horizontal to the chest (see
photograph, Exhibit E), and certain vitamins were
prescribed for him (t.s.n., p. 131). He also underwent
massage for some time by Drs. Aguilar and Purisima. The
medicines and appurtenances to treatment purchased by
plaintiff from the Orthopedic Hospital, Botica Boie and
Metro Drug Store were, by his own admission, adhesive
plaster, bandage, gauze, oil and "tintura arnica" (t.s.n., p.
3 — continuation of transcript ), and Dr. Purisima also
prescribed "Numotizin", a beat generating ointment
(t.s.n., p. 23), all of which are indicated for a sprain, and
by their nature, can cure nothing more serious than a
sprain anyway. Fractures and true dislocations cannot be
cured by the kind of treatment and medicines which
plaintiff received. A true dislocation, for instance, is
treated by means of reduction through traction of the
arm until the humeral head returns to the proper
position in the scapular socket (pulling the arm at a 60
degree angle and guiding the ball of the humerus into
proper position, in its socket) while the patient is under
deep anaesthesia, and then, completely immobilizing the
part until the injured capsule has healed (Christopher, F.,
A Textbook of Surgery, pp. 343 and 344). No evidence
was submitted that plaintiff ever received the latter kind
of treatment. Dr. Purisima even declared that after the
plaintiff's first visit to the Orthopedic Hospital the latter
informed him that there was no fracture or
dislocation (t.s.n., p. 26). Dr. Purisima's statement is the
truth of the matter as we have already explained — joints
of the shoulder being only subject to total dislocation
(due to their anatomical design), not to partial ones, and
any injury approximating dislocation but not completely,
it being classified as mere sprains, slight or bad.
The second and last injury plaintiff sustained was
a contusion. What is a contusion? It is just a high flown
expression for a bruise or the act of bruising (Dorland,
W.A.N., The American Illustrated Medical Dictionary
(13th ed. p. 290). No further discussion need be made on
this particular injury since the nature of a bruise is of
common knowledge (it's a bit uncomfortable but not
disabling unless it occurs on movable parts like the
fingers or elbow which is not the case, herein having
occurred in the right chest) and the kind of medical
treatment or help it is also well known. (pp. 10-14,
defendant-appellant's brief).
The trial Judge undoubtedly did not give much value to
the testimonies of the doctors when in the statement of
facts made in his decision he referred to the physical
injuries received by the plaintiff as slight in nature and
the latter is estopped from discussing the same in order
to make them appear as serious, because in the
statement of facts made in his brief as appellant, he says
the following:
The facts of the case as found by the lower court in its
decision, with the permission of this Honorable
Court, we respectfully quote them hereunder as
our STATEMENT OF FACTS for the purpose of this
appeal.
Before entering into a discussion of the merits of
plaintiff's appeal, We will say a few words as to the
nature of the action on which his demand for damages is
predicated.
The nature of an action as in contract or in tort is
determined from the essential elements of the complaint,
taken as a whole, in the case of doubt a construction to
sustain the action being given to it.
While the prayer for relief or measure of damages sought
does not necessarily determine the character of the
action, it may be material in the determination of the
question and therefore entitled to consideration and in
case of doubt will open determine character of the action
and indeed there are actions whose character is
necessarily determined thereby. (1 C.J.S. 1100)
A mere perusal of plaintiff complaint will show that his
action against the defendant is predicated on an alleged
breach of contract of carriage, i.e., the failure of the
defendant to bring him "safely and without mishaps" to
his destination, and it is to be noted that the chauffeur of
defendant's taxicab that plaintiff used when he received
the injuries involved herein, Gregorio Mira, has not even
been made a party defendant to this case.
Considering, therefore, the nature of plaintiff's action in
this case, is he entitled to compensation for moral
damages? Article 2219 of the Civil Code says the
following:
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;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27,
28, 29, 30, 32, 34 and 35.
xxx xxx xxx
Of the cases enumerated in the just quoted Article 2219
only the first two may have any bearing on the case at
bar. We find, however, with regard to the first that the
defendant herein has not committed in connection with
this case any "criminal offense resulting in physical
injuries". The one that committed the offense against the
plaintiff is Gregorio Mira, and that is why he has been
already prosecuted and punished therefor. Although (a)
owners and managers of an establishment or enterprise
are responsible for damages caused by their employees
in the service of the branches in which the latter are
employed or on the occasion of their functions; (b)
employers are likewise liable for damages caused by
their employees and household helpers acting within the
scope of their assigned task (Article 2180 of the Civil
Code); and (c) employers and corporations engaged in
any kind of industry are subsidiarily civilly liable for
felonies committed by their employees in the discharge
of their duties (Art. 103, Revised Penal Code), plaintiff
herein does not maintain this action under the
provisions of any of the articles of the codes just
mentioned and against all the persons who might be
liable for the damages caused, but as a result of an
admitted breach of contract of carriage and against the
defendant employer alone. We, therefore, hold that the
case at bar does not come within the exception of
paragraph 1, Article 2219 of the Civil Code.
The present complaint is not based either on a "quasi
delict causing physical injuries" (Art. 2219 par. 2, of the
Civil Code). From the report of the Code Commission on
the new Civil Code We copy the following:
A question of nomenclature confronted the Commission.
After a careful deliberation, it was agreed to use the term
"quasi-delict" for those obligations which do not arise
from law, contracts quasi-contracts or criminal offenses.
They are known in Spanish legal treatises as "culpa
aquiliana", "culpa-extra-contractual" or "cuasi-
delitos". The phrase "culpa-extra-contractual" or its
translation "extra-contractual fault" was eliminated
because it did not exclude quasi-contractual or penal
obligations. "Aquilian fault" might have been selected,
but it was thought inadvisable to refer to so ancient a law
as the "Lex Aquilia". So "quasi-delicts" was chosen, which
more nearly corresponds to the Roman Law
classification of obligations, and is in harmony with the
nature of this kind of liability.
The Commission also thought of the possibility of
adopting the word "tort" from Anglo-American Law. But
"tort" under that system is much broader than the
Spanish-Philippine concept of obligations arising from
non-contractual negligence." "Tort" in Anglo-American
jurisprudence includes not only negligence, but also
intentional criminal acts, such as assault and battery,
false imprisonment and deceit. In the general plan of the
Philippine legal system, intentional and malicious are
governed by the Penal Code, although certain exceptions
are made in the Project. (Report of the Code Commission,
pp. 161-162).
In the case of Cangco vs. Manila Railroad, 38 Phil. 768,
We established the distinction between obligation
derived from negligence and obligation as a result of a
breach of a contract. Thus, We said:
It is important to note that the foundation of the legal
liability of the defendant is the contract of carriage, and
that the obligation to respond for the damage which
plaintiff has suffered arises, if at all, from the breach of
that contract by reason of the failure of defendant to
exercise due care in its performance. That is to say, its
liability is direct and immediate, differing essentially in
the legal view point from that presumptive responsibility
for the negligence of its servants, imposed by Article
1903 of the Civil Code (Art. 2180 of the new), which can
be rebutted by proof of the exercise of due care in their
selection or supervision. Article 1903 is not applicable to
obligation arising EX CONTRACTU, but only to extra-
contractual obligations or — to use the technical form of
expression, that article, relates only to CULPA
AQUILIANA and not to CULPA CONTRACTUAL.
The decisions in the cases of Castro vs. Acro Taxicab (82
Phil., 359, 46 Off. Gaz., Na. 5, p. 2023); Lilius et al. vs.
Manila Railroad, (59 Phil. 758) and others, wherein
moral damages, are awarded to the plaintiffs, are not
applicable to the case at bar because said decisions were
rendered before the effectivity of the new Civil Code
(August 30, 1950) and for the further reason that the
complaints filed therein were based on different causes
of action.
In view of the foregoing the sum of P2,000 awarded as
moral damages by the trial Court has to be eliminated,
for under the law it is not a compensation awardable in
a case like the one at bar.
As to plaintiff's demand for P5,000 as attorney's fees, the
Civil Code provides the following:
ART, 2208. In the absence of stipulation, attorney's fees
and expenses of litigation, other than judicial costs,
cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled
the plaintiff to litigate with third persons or to incur
expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the
plaintiff;
(4) In case of a clearly unfounded civil action or
proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident had
faith in refusing to satisfy the plaintiff's plainly valid, just
and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household
helpers, laborers and skilled workers;
(8) in actions for indemnity under workmen's
compensation and employers liability laws;
(9) In a separate civil action to recover civil liability
arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation
should be recovered.
In all cases, the attorney's fees and expenses of litigation
must be reasonable.
The present case does not come under any of exceptions
enumerated in the preceding article, specially of
paragraph 2 thereof, because defendant's failure to meet
its responsibility was not the plaintiff to litigate or to
incur expenses to protect his interests. The present
action was instituted because plaintiff an exorbitant
amount for damages (P60,000) and naturally the
defendant did not and could not yield to such demand.
This is neither a case that comes under paragraph 11 of
Article 2208 because the Lower Court did not deem it
just and equitable to award any amount for attorney's
fees. As We agree with the trial Judge on this point, We
cannot declare that he erred for not awarding to plaintiff
any such fees in this case.
Coming now to the appeal of the defendant, the Court,
after due consideration of the evidence appearing on
record:
(1) Approves the award of P700 for medicine, doctors'
fees and transportation expenses;
(2) Reduces the award of P3,000 as attorney's fees to the
sum of P2,000, as Manolo Maddela, defendant in Criminal
Case No. 364 of the Court of First Instance of Nueva
Vizcaya testified that he has already paid to plaintiff part
of the latter's fees of P3,000, the amount of which was
not disclosed, though it was incumbent upon the plaintiff
to establish how much he had been paid of said fees;
(3) Approves the award of P200 as unearned
professional fees as attorney for the defendant in Civil
Case No. 238191 of the Municipal Court of Manila whom
plaintiff was unable to represent, and for the latter's
failure to take the deposition of one Agripina Angrepan
due to the automobile accident referred to in this case.
Before closing this decision We deem it convenient to
quote the following passage of defendant's brief as
appellant:
Realizing its obligation under its contract of carriage
with the plaintiff, and because the facts of the case, as
have been shown, mark it as more proper for the
Municipal Court only, the defendant, to avoid the
expense and time of litigation, offered to settle the case
amicably with plaintiff, but the latter refused and
insisted on his demand for P72,050.20 (Exhibit K) as the
only basis for settlement, thus adding a clearly petty case
to the already overflowing desk of the Honorable
Members of this Court.
We admire and respect at all times a man for standing up
and fighting for his rights, and when said right consists
in injuries sustained due to a breach of a contract of
carriage with us, sympathy and understanding are added
thereto. But when a person starts demanding P72,050.20
for a solitary bruise and sprain, injuries for which the
trial court, even at its generous although erroneous best,
could only grant P5,900, then respect and sympathy give
way to something else. It is time to fight, for, in our
humble opinion, there is nothing more loathsome nor
truly worthy of condemnation than one who uses his
injuries for other purposes than just rectification. If
plaintiff's claim is granted, it would be a blessing, not a
misfortune, to be injured. (p. 34-35)
This case was instituted by a lawyer who, as an officer of
the courts, should be the first in helping Us in the
administration of justice, and after going over the record
of this case, we do not hesitate to say that the demand of
P72,050.20 for a subluxation of the right humerus bone
and an insignificant contusion in the chest, has not even
the semblance of reasonableness. As a matter of fact, Dr.
Aguilar himself said that the x-ray plates (Exhibits A,
Band C) " did not show anything significant except that it
shows a slight subluxation of the right shoulder, and that
there is a suspicious fracture", which ultimately he
admitted not to exist. The plaintiff himself must have felt
embarrassed by his own attitude when after receiving
defendant's brief as appellant, he makes in his brief as
appellee the categorical statement that he DOES NOT
NOW INSIST NOR PRETEND IN THE LEAST to Collect
from the defendant all the damages he had claimed in his
complaint, but instead he is submitting his case to the
sound discretion of the Honorable Court for the award of
a reasonable and equitable damages allowable by law, to
compensate the plaintiff of the suffering and losses he
had undergone and incurred of the accident oftentimes
mentioned in this brief in which plaintiff was injured" (p.
17-18).This acknowledgment comes too late, for plaintiff
has already deprived the Court of Appeals of the occasion
to exercise its appellate jurisdiction over this case which
he recklessly dumped to this Court. We certainly cannot
look with at favor at his attitude of plaintiff.

WHEREFORE, the decision appealed from is hereby

modified by reducing the amount awarded as
professional fees from P3,000 to P2,000 and by
eliminating the moral damages of P2,000 awarded by the
Lower Court to the plaintiff. Said decision is in all other
respects affirmed, without pronouncement as to costs. It
is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista

Angelo, Labrador, Concepcion, Reyes, J.B.L. and
Endencia, JJ.,concur.
G.R. No. L-12163 March 4, 1959
PAZ FORES, petitioner,
vs.
IRENEO MIRANDA, respondent.
Alberto O. Villaraza for petitioner.
Almazan and Ereneta for respondent.
REYES, J.B.L., J.:
Defendant-petitioner Paz Fores brings this petition for
review of the decision of the Court of Appeals (C.A. Case
No. 1437-R) awarding to the plaintiff-respondent Ireneo
Miranda the sums of P5,000 by way of actual damages
and counsel fees, and P10,000 as moral damages, with
costs.
Respondent was one of the passengers on a jeepney
driven by Eugenio Luga. While the vehicle was
descending the Sta. Mesa bridge at an excessive rate of
speed, the driver lost control thereof, causing it to
swerve and to his the bridge wall. The accident occurred
on the morning of March 22, 1953. Five of the passengers
were injured, including the respondent who suffered a
fracture of the upper right humerus. He was taken to the
National Orthopedic Hospital for treatment, and later
was subjected to a series of operations; the first on May
23, 1953, when wire loops were wound around the
broken bones and screwed into place; a second, effected
to insert a metal splint, and a third one to remove such
splint. At the time of the trial, it appears that respondent
had not yet recovered the use of his right arm.
The driver was charged with serious physical injuries
through reckless imprudence, and upon interposing a
plea of guilty was sentenced accordingly.
The contention that the evidence did not sufficiently
establish the identity of the vehicle as the belonging to
the petitioner was rejected by the appellate court which
found, among other things, that is carried plate No. TPU-
1163, SERIES OF 1952, Quezon City, registered in the
name of Paz Fores, (appellant herein) and that the
vehicle even had the name of "Doña Paz" painted below
its wind shield. No evidence to the contrary was
introduced by the petitioner, who relied on an attack
upon the credibility of the two policemen who went to
the scene of the incident.
A point to be further remarked is petitioner's contention
that on March 21, 1953, or one day before the accident
happened, she allegedly sold the passenger jeep that was
involved therein to a certain Carmen Sackerman.
The initial problem raised by the petitioner in this appeal
may be formulated thus — "Is the approval of the Public
Service Commission necessary for the sale of a public
service vehicle even without conveying therewith the
authority to operate the same?" Assuming
the dubious sale to be a fact, the court of Appeals
answered the query in the affirmative. The ruling should
be upheld.
Section 20 of the Public Service Act (Commonwealth Act
No. 146) provides:
Sec. 20. Subject to established limitations and exceptions
and saving provisions to the contrary, it shall be unlawful
for any public service or for the owner, lessee or operator
thereof, without the previous approval and authority of
the Commission previously had —
xxx xxx xxx
(g) To sell, alienate, mortgage, encumber or lease its
property, franchises, certificates, privileges, or rights, or
any part thereof; or merge or consolidate its property,
franchises, privileges or rights, or any part thereof, with
those of any other public service. The approval herein
required shall be given, after notice to the public and
after hearing the persons interested at a public hearing,
if it be shown that there are just and reasonable grounds
for making the mortgage or encumbrance, for liabilities
of more than one year maturity, or the sale, alienation,
lease, merger, or consolidation to be approved and that
the same are not detrimental to the public interest, and
in case of a sale, the date on which the same is to be
consummated shall be fixed in the order of
approval: Provided, however, That nothing herein
contained shall be construed to prevent the transaction
from being negotiated or completed before its approval
or to prevent the sale, alienation, or lease by any public
service of any of its property in the ordinary course of its
business.
Interpreting the effects of this particular provision of
law, we have held in the recent cases of Montoya vs.
Ignacio, *50 Off. Gaz. No. 1, p. 108; Timbol vs. Osias, et al.,
G. R. No. L-7547, April 30, 1955, and Medina vs.
Cresencia, 99 Phil., 506; 52 Off. Gaz. No. 10, p. 4606, that
a transfer contemplated by the law, if made without the
requisite approval of the Public Service Commission, is
not effective and binding in so far as the responsibility of
the grantee under the franchise in relation to the public
is concerned. Petitioner assails, however, the
applicability of these rulings to the instant case,
contending that in those cases, the operator did not
convey, by lease or by sale, the vehicle independently of
his rights under the franchise. This line of reasoning does
not find support in the law. The provisions of the statute
are clear and prohibit the sale, alienation, lease, or
encumbrance of the property, franchise, certificate,
privileges or rights, or any part thereof of the owner or
operator of the public service Commission. The law was
designed primarily for the protection of the public
interest; and until the approval of the public Service
Commission is obtained the vehicle is, in contemplation
of law, still under the service of the owner or operator
standing in the records of the Commission which the
public has a right to rely upon.
The proviso contained in the aforequoted law, to the
effect that nothing therein shall be construed "to prevent
the transaction from being negotiated or complete
before its approval", means only that the sale without the
required approval is still valid and binding between the
parties (Montoya vs. Ignacio, supra). The phrase "in the
ordinary course of its business" found in the
other proviso" or to prevent the sale, alienation, or lease
by any public service of any of its property". As correctly
observed by the lower court, could not have been
intended to include the sale of the vehicle itself, but at
most may refer only to such property that may be
conceivably disposed or by the carrier in the ordinary
course of its business, like junked equipment or spare
parts.
The case of Indalecio de Torres vs. Vicente Ona (63 Phil.,
594, 597) is enlightening; and there, it was held:
Under the law, the Public Service Commission has not
only general supervision and regulation of, but also full
jurisdiction and control over all public utilities including
the property, equipment and facilities used, and the
property rights and franchise enjoyed by every
individual and company engaged i the performance of a
public service in the sense this phrase is used in the
Public Service Act or Act No. 3108). By virtue of the
provisions of said Act, motor vehicles used in the
performance of a service, as the transportation of
freight from one point to another, have to this date been
considered — and they cannot but be so considered-
public service property; and, by reason of its own nature,
a TH truck, which means that the operator thereof places
it at the disposal of anybody who is willing to pay a rental
of its use, when he desires to transfer or carry his effects,
merchandise or any other cargo from one place to
another, is necessarily a public service property.
(Emphasis supplied)
Of course, this court has held in the case of Bachrach
Motor co. vs. Zamboanga Transportation Co., 52 Phil.,
244, that there may be a nunc pro tunc authorization
which has the effect of having the approval retroact to
the date of the transfer; but such outcome cannot
prejudice rights intervening in the meantime. It appears
that no such approval was given by the Commission
before the accident occurred.
The P10,000 actual damages awarded by the Court of
First Instance of Manila were reduced by the Court of
Appeals to only P2,000, on the ground that a review of
the records failed to disclose a sufficient basis for the
trial court's appraisal, since the only evidence presented
on this point consisted of respondent's bare statement
that his expenses and loss of income amounted to
P20,000. On the other hand, "it cannot be denied," the
lower court said, "that appellee (respondent) did incur
expenses"' It is well to note further that respondent was
a painter by profession and a professor of Fine Arts, so
that the amount of P2,000 awarded cannot be said to be
excessive (see Arts. 2224 and 2225, Civil Code of the
Philippines). The attorney's fees in the sum of P3,000
also awarded to the respondent are assailed on the
ground that the Court of First Instance did not provided
for the same, and since no appeal was interposed by said
respondent, it was allegedly error for the Court of
Appeals to award them motu proprio. Petitioner fails to
note that attorney's fees are included in the concept of
actual damages under the Civil Code and may be
awarded whenever the court deems it is just and
equitable (Art. 2208, Civil Code of the Philippines). We
see no reason to alter these awards.
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
predicted 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;
xxx xxx xxx
Art. 2220. Willful injury to property may be a legal
ground for awarding moral damages if the court should
find that, under circumstances, such damages are justify
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 article 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 can not 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 by contractual
breach, but because the definition of quasi-delict in Art.
2176 of the Code expressly excludes the cases where
there is a "preexisting contractual relation 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 dome. 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 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 of 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. 220,
would be to violate the clear provisions of the law, and
constitute unwarranted judicial legislation.
The Court of Appeals has invoked our rulings in Castro
vs. Acro Taxicab Co., G.R. No. 49155, December 14, 1948
and Layda vs. Court of Appeals, 90 Phil., 724; but these
doctrines were predicated upon our former law of
damages, before judicial discretion in fixing them
became limited by the express provisions of the new Civil
Code (previously quoted). Hence, the aforesaid rulings
are now inapplicable.
Upon the other hand, the advantageous position of a
party suing a carrier for breach of the contract of
transportations explains, to some extent, the limitations
imposed by the new Code on the amount of the recovery.
The action for breach of contract imposes on the
defendant carrier a presumption of liability upon mere
proof of injury to the passenger; that latter is relieved
from the duty to established the fault of the carrier, or of
his employees, and the burden is placed on the carrier to
prove that it was due to an unforseen event or to force
majeure (Cangco vs. Manila Railroad Co., 38 Phil., 768,
777). Moreover, the carrier, unlike in suits for quasi-
delict, may not escape liability by proving that it has
exercised due diligence in the selection and supervision
of its employees (Art. 1759, new civil code; Cangco vs.
Manila Railroad Co., supra; Prado vs. Manila Electric Co.,
51 Phil., 900).
The difference in conditions, defenses and proof, as well
as the codal concept of quasi-delict as
essentially extracontractual negligence, compel us to
differentiate between action ex contractu, and
actions quasi ex delicto, and prevent us from viewing the
action for breach of contract as simultaneously
embodying an action on tort. Neither can this action be
taken as one to enforce on employee's liability under Art.
103 of the Revised Penal Code, since the responsibility is
not alleged to be subsidiary, nor is there on record any
averment or proof that the driver of appellant was
insolvent. In fact, he is not even made a party to the suit.
It is also suggested that a carrier's violation of its
engagement to safety transport the passenger involves a
breach of the passenger's confidence, and therefore
should be regarded as a breach of contract in bad faith,
justifying recovery of moral damages under Art. 2220.
This theory is untenable, for under it the carrier would
always be deemed in bad faith, in every case its
obligation to the passenger is infringed, and it would be
never accountable for simple negligence; while under the
law (Art. 1756). the presumption is that common
carriers acted negligently (and not maliciously), and Art.
1762 speaks of negligence of the common carrier.
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 in article
1733 and 1755.
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 that 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.
In view of the foregoing considerations, the decision of
the Court of Appeals is modified by eliminating the
award of P5,000.00 by way of moral damages. (Court of
Appeals Resolution of May 5, 1957). In all other respects,
the judgment is affirmed. No costs in this instance. So
ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A.,
Bautista Angelo, Labrador, Concepcion and Endencia,
JJ.,concur.

ART. 1762. The contributory negligence of the passenger

does not bar recovery of damages for his death or
injuries, if the proximate cause thereof is the negligence
of the common carrier, but the amount of damages shall
be equitably reduced.

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
G.R. No. 135802 March 3, 2000
PRISCILLA L. TAN, petitioner,
vs.
NORTHWEST AIRLINES, INC., respondent.
PARDO, J.:
Petitioner Priscilla L. Tan appeals via certiorari from the
decision of the Court of Appeals 1 affirming with
modification 2 the decision of the trial court, 3 ordering
respondent to pay petitioner the following amounts: (1)
P15,000.00, as actual damages; (2) P100,000.00, as
moral damages; (3) P50,000.00, as exemplary damages;
(4) P30,000.00, as and for attorney's fees; and (6) costs.
The case before the Court traces its roots from an action
for damages for breach of contract of air carriage for
failure to deliver petitioner's baggages on the date of her
arrival filed on June 29, 1994 with the Regional Trial
Court, Makati, Branch 150 against respondent Northwest
Airlines, Inc., a foreign corporation engaged in the
business of air transportation.
The antecedent facts are as follows:
On May 31, 1994, Priscilla L. Tan and Connie Tan
boarded Northwest Airlines Flight 29 in Chicago, U. S. A.
bound for the Philippines, with a stop-over at Detroit, U.
S. A. They arrived at the Ninoy Aquino International
Airport (NAIA) on June 1, 1994 at about 10:40 in the
evening.
Upon their arrival, petitioner and her companion Connie
Tan found that their baggages were missing. They
returned to the airport in the evening of the following
day and they were informed that their baggages might
still be in another plane in Tokyo, Japan.
On June 3, 1994, they recovered their baggages and
discovered that some of its contents were destroyed and
soiled.
Claiming that they "suffered mental anguish, sleepless
nights and great damage" because of Northwest's failure
to inform them in advance that their baggages would not
be loaded on the same flight they boarded and because
of their delayed arrival, they demanded from Northwest
Airlines compensation for the damages they suffered. On
June 15, 1994 and June 22, 1994, petitioner sent demand
letters to Northwest Airlines, but the latter did not
respond. Hence, the filing of the case with the regional
trial court.
In its answer to the complaint, respondent Northwest
Airlines did not deny that the baggages of petitioners
were not loaded on Northwest Flight 29. Petitioner's
baggages could not be carried on the same flight because
of "weight and balance restrictions." However, the
baggages were loaded in another Northwest Airlines
flight, which arrived in the evening of June 2, 1994.
When petitioner received her baggages in damaged
condition, Northwest offered to either (1) reimburse the
cost or repair of the bags; or (2) reimburse the cost for
the purchase of new bags, upon submission of receipts.
After due trial, on June 10, 1996, the trial court rendered
decision finding respondent Northwest Airlines, Inc.
liable for damages, as follows:
WHEREFORE judgment is rendered ordering the
defendant to pay the plaintiff the following amounts:
1. P15,000.00, as actual damages;
2. P100,000.00, as moral damages;
3. P50,000.00, as exemplary damages;
4. P30,000.00, as and for attorney's fees and
5. Costs.
SO ORDERED.
Given this 10th day of June, 1996 at Makati City.
ERNA FALLORAN ALIPOSA
Judge4
Respondent Northwest Airlines, Inc. appealed from the
trial court's decision to the Court of Appeals contending
that the court a quo erred in finding it guilty of breach of
contract of carriage and of willful misconduct and
awarded damages which had no basis in fact or were
otherwise excessive.
On September 30, 1998, the Court of Appeals
promulgated its decision partially granting the appeal by
deleting the award of moral and exemplary damages and
reducing the attorney's fees, specifically providing that:
WHEREFORE, PREMISES CONSIDERED, the appeal is
hereby GRANTED partially. The Decision of the lower
court dated June 10, 1996 is AFFIRMED with the
modification that the award of moral and exemplary
damages is deleted and the amount of attorney's fees is
reduced to ten thousand pesos (P10,000.00).
No pronouncement as to costs.
SO ORDERED. 5
Hence, this appeal. 6
The issue is whether respondent is liable for moral and
exemplary damages for willful misconduct and breach of
the contract of air carriage.
The petition is without merit.
We agree with the Court of Appeals that respondent was
not guilty of willful misconduct. "For willful misconduct
to exist there must be a showing that the acts complained
of were impelled by an intention to violate the law, or
were in persistent disregard of one's rights. It must be
evidenced by a flagrantly or shamefully wrong or
improper conduct." 7
Contrary to petitioner's contention, there was nothing in
the conduct of respondent which showed that they were
motivated by malice or bad faith in loading her baggages
on another plane. Due to weight and balance restrictions,
as a safety measure, respondent airline had to transport
the baggages on a different flight, but with the same
expected date and time of arrival in the Philippines. As
aptly explained by respondent:
To ensure the safety of each flight, Northwest's
personnel determine every flight's compliance with
"weight and balance restrictions." They check the factors
like weight of the aircraft used for the flight gas input,
passenger and crew load, baggage weight, all in relation
to the wind factor anticipated on the flight. If there is an
overload, i.e., a perceived safety risk, the aircraft's load
will be reduced by off-loading cargo, which will then be
placed on the next available flight. 8
It is admitted that respondent failed to deliver
petitioner's luggages on time. However, there was no
showing of malice in such failure. By its concern for
safety, respondent had to ship the baggages in another
flight with the same date of arrival.

Hence, the Court of Appeals correctly held that

respondent did not act in bad faith. 9

"Bad faith does not simply connote bad judgment or

negligence, it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach
of known duty through some motive or interest or ill-will
that partakes of the nature of fraud." 10

"Where in breaching the contract of carriage the

defendant airline is not shown to have acted fraudulently
or in bad faith, liability for damages is limited to the
natural and probable consequences of the breach of
obligation which the parties had foreseen or could have
reasonably foreseen. In that case, such liability does not
include moral and exemplary damages." 11

Consequently, we have no reason to reverse the decision

of the Court of Appeals.

WHEREFORE, the Court DENIES the petition for lack of

merit. The Court AFFIRMS the decision of the Court of
Appeals deleting, however, the award of attorney's
fees.1âwphi1.nêt

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ.,

concur.
FIRST DIVISION
[G.R. No. 71929 : December 4, 1990.]
192 SCRA 9
ALITALIA, Petitioner, vs. INTERMEDIATE
APPELLATE COURT and FELIPA E. PABLO,
Respondents.
DECISION
NARVASA, J.:
Dr. Felipa Pablo — an associate professor in the
University of the Philippines, 1 and a research grantee of
the Philippine Atomic Energy Agency — was invited to
take part at a meeting of the Department of Research and
Isotopes of the Joint FAO-IAEA Division of Atomic Energy
in Food and Agriculture of the United Nations in Ispra,
Italy. 2 She was invited in view of her specialized
knowledge in "foreign substances in food and the
agriculture environment." She accepted the invitation,
and was then scheduled by the organizers, to read a
paper on "The Fate of Radioactive Fusion Products
Contaminating Vegetable Crops." 3 The program
announced that she would be the second speaker on the
first day of the meeting. 4 To fulfill this engagement, Dr.
Pablo booked passage on petitioner airline, ALITALIA.
She arrived in Milan on the day before the meeting in
accordance with the itinerary and time table set for her
by ALITALIA. She was however told by the ALITALIA
personnel there at Milan that her luggage was "delayed
inasmuch as the same . . . (was) in one of the succeeding
flights from Rome to Milan." 5 Her luggage consisted of
two (2) suitcases: one contained her clothing and other
personal items; the other, her scientific papers, slides
and other research material. But the other flights
arriving from Rome did not have her baggage on board.
By then feeling desperate, she went to Rome to try to
locate her bags herself. There, she inquired about her
suitcases in the domestic and international airports, and
filled out the forms prescribed by ALITALIA for people in
her predicament. However, her baggage could not be
found. Completely distraught and discouraged, she
returned to Manila without attending the meeting in
Ispra, Italy. : nad
Once back in Manila she demanded that ALITALIA make
reparation for the damages thus suffered by her.
ALITALIA offered her "free airline tickets to compensate
her for any alleged damages. . . ." She rejected the offer,
and forthwith commenced the action 6 which has given
rise to the present appellate proceedings.
As it turned out, Prof. Pablo's suitcases were in fact
located and forwarded to Ispra, 7 Italy, but only on the
day after her scheduled appearance and participation at
the U.N. meeting there. 8 Of course Dr. Pablo was no
longer there to accept delivery; she was already on her
way home to Manila. And for some reason or other, the
suitcases were not actually restored to Prof. Pablo by
ALITALIA until eleven (11) months later, and four (4)
months after institution of her action. 9
After appropriate proceedings and trial, the Court of
First Instance rendered judgment in Dr. Pablo's favor: 10
"(1) Ordering the defendant (ALITALIA) to pay . . . (her)
the sum of TWENTY THOUSAND PESOS (P20,000.00),
Philippine Currency, by way of nominal damages;
(2) Ordering the defendant to pay . . . (her) the sum of
FIVE THOUSAND PESOS (P5,000.00), Philippine
Currency, as and for attorney's fees; (and)
(3) Ordering the defendant to pay the costs of the suit."
ALITALIA appealed to the Intermediate Appellate Court
but failed to obtain a reversal of the judgment. 11 Indeed,
the Appellate Court not only affirmed the Trial Court's
decision but also increased the award of nominal
damages payable by ALITALIA to P40,000.00. 12 That
increase it justified as follows: 13
"Considering the circumstances, as found by the Trial
Court and the negligence committed by defendant, the
amount of P20,000.00 under present inflationary
conditions as awarded . . . to the plaintiff as nominal
damages, is too little to make up for the plaintiff's
frustration and disappointment in not being able to
appear at said conference; and for the embarrassment
and humiliation she suffered from the academic
community for failure to carry out an official mission for
which she was singled out by the faculty to represent her
institution and the country. After weighing carefully all
the considerations, the amount awarded to the plaintiff
for nominal damages and attorney's fees should be
increased to the cost of her round trip air fare or at the
present rate of peso to the dollar at P40,000,00."
ALITALIA has appealed to this Court on Certiorari. Here,
it seeks to make basically the same points it tried to make
before the Trial Court and the Intermediate Appellate
Court, i.e.:
1) that the Warsaw Convention should have been applied
to limit ALITALIA'S liability; and
2) that there is no warrant in fact or in law for the award
to Dr. Pablo of nominal damages and attorney's fees. 14
In addition, ALITALIA postulates that it was error for the
Intermediate Appellate Court to have refused to pass on
all the assigned errors and in not stating the facts and the
law on which its decision is based. 15
Under the Warsaw Convention, 16 an air carrier is made
liable for damages for:
1) the death, wounding or other bodily injury of a
passenger if the accident causing it took place on board
the aircraft or in the course of its operations of
embarking or disembarking; 17
2) the destruction or loss of, or damage to, any registered
luggage or goods, if the occurrence causing it took place
during the carriage by air;" 18 and
3) delay in the transportation by air of passengers,
luggage or goods. 19
In these cases, it is provided in the Convention that the
"action for damages, however, founded, can only be
brought subject to conditions and limits set out" therein.
20
The Convention also purports to limit the liability of the
carriers in the following manner: 21
1. In the carriage of passengers the liability of the carrier
for each passenger is limited to the sum of 250,000
francs . . . Nevertheless, by special contract, the carrier
and the passenger may agree to a higher limit of liability.:
nad
2. a) In the carriage of registered baggage and of cargo,
the liability of the carrier is limited to a sum of 250 francs
per kilogramme, unless the passenger or consignor has
made, at the time when the package was handed over to
the carrier, a special declaration of interest in delivery at
destination and has paid a supplementary sum if the case
so requires. In that case the carrier will be liable to pay a
sum not exceeding the declared sum, unless he proves
that sum is greater than the actual value to the consignor
at delivery.
b) In the case of loss, damage or delay of part of
registered baggage or cargo, or of any object contained
therein, the weight to be taken into consideration in
determining the amount to which the carrier's liability is
limited shall be only the total weight of the package or
packages concerned. Nevertheless, when the loss,
damage or delay of a part of the registered baggage or
cargo, or of an object contained therein, affects the value
of other packages covered by the same baggage check or
the same air way bill, the total weight of such package or
packages shall also be taken into consideration in
determining the limit of liability.
3. As regards objects of which the passenger takes charge
himself the liability of the carrier is limited to 5000
francs per passenger.
4. The limits prescribed . . shall not prevent the court
from awarding, in accordance with its own law, in
addition, the whole or part of the court costs and of the
other expenses of litigation incurred by the plaintiff. The
foregoing provision shall not apply if the amount of the
damages awarded, excluding court costs and other
expenses of the litigation, does not exceed the sum which
the carrier has offered in writing to the plaintiff within a
period of six months from the date of the occurrence
causing the damage, or before the commencement of the
action, if that is later.
The Warsaw Convention however denies to the carrier
availment "of the provisions which exclude or limit his
liability, if the damage is caused by his wilful misconduct
or by such default on his part as, in accordance with the
law of the court seized of the case, is considered to be
equivalent to wilful misconduct," or "if the damage is
(similarly) caused . . by any agent of the carrier acting
within the scope of his employment." 22 The Hague
Protocol amended the Warsaw Convention by removing
the provision that if the airline took all necessary steps
to avoid the damage, it could exculpate itself
completely, 23 and declaring the stated limits of liability
not applicable "if it is proved that the damage resulted
from an act or omission of the carrier, its servants or
agents, done with intent to cause damage or recklessly
and with knowledge that damage would probably
result." The same deletion was effected by the Montreal
Agreement of 1966, with the result that a passenger
could recover unlimited damages upon proof of wilful
misconduct. 24
The Convention does not thus operate as an exclusive
enumeration of the instances of an airline's liability, or as
an absolute limit of the extent of that liability. Such a
proposition is not borne out by the language of the
Convention, as this Court has now, and at an earlier time,
pointed out. 25 Moreover, slight reflection readily leads
to the conclusion that it should be deemed a limit of
liability only in those cases where the cause of the death
or injury to person, or destruction, loss or damage to
property or delay in its transport is not attributable to or
attended by any wilful misconduct, bad faith,
recklessness, or otherwise improper conduct on the part
of any official or employee for which the carrier is
responsible, and there is otherwise no special or
extraordinary form of resulting injury. The Convention's
provisions, in short, do not "regulate or exclude liability
for other breaches of contract by the carrier" 26 or
misconduct of its officers and employees, or for some
particular or exceptional type of damage. Otherwise, "an
air carrier would be exempt from any liability for
damages in the event of its absolute refusal, in bad faith,
to comply with a contract of carriage, which is
absurd." 27 Nor may it for a moment be supposed that if
a member of the aircraft complement should inflict some
physical injury on a passenger, or maliciously destroy or
damage the latter's property, the Convention might
successfully be pleaded as the sole gauge to determine
the carrier's liability to the passenger. Neither may the
Convention be invoked to justify the disregard of some
extraordinary sort of damage resulting to a passenger
and preclude recovery therefor beyond the limits set by
said Convention. It is in this sense that the Convention
has been applied, or ignored, depending on the peculiar
facts presented by each case.:-cralaw
In Pan American World Airways, Inc. v. I.A.C., 28 for
example, the Warsaw Convention was applied as regards
the limitation on the carrier's liability, there being a
simple loss of baggage without any otherwise improper
conduct on the part of the officials or employees of the
airline or other special injury sustained by the passenger.
On the other hand, the Warsaw Convention has
invariably been held inapplicable, or as not restrictive of
the carrier's liability, where there was satisfactory
evidence of malice or bad faith attributable to its officers
and employees. 29 Thus, an air carrier was sentenced to
pay not only compensatory but also moral and
exemplary damages, and attorney's fees, for instance,
where its employees rudely put a passenger holding a
first-class ticket in the tourist or economy section, 30 or
ousted a brown Asiatic from the plane to give his seat to
a white man, 31 or gave the seat of a passenger with a
confirmed reservation to another, 32 or subjected a
passenger to extremely rude, even barbaric treatment, as
by calling him a "monkey." 33
In the case at bar, no bad faith or otherwise improper
conduct may be ascribed to the employees of petitioner
airline; and Dr. Pablo's luggage was eventually returned
to her, belatedly, it is true, but without appreciable
damage. The fact is, nevertheless, that some special
species of injury was caused to Dr. Pablo because
petitioner ALITALIA misplaced her baggage and failed to
deliver it to her at the time appointed — a breach of its
contract of carriage, to be sure — with the result that she
was unable to read the paper and make the scientific
presentation (consisting of slides, autoradiograms or
films, tables and tabulations) that she had painstakingly
labored over, at the prestigious international conference,
to attend which she had traveled hundreds of miles, to
her chagrin and embarrassment and the disappointment
and annoyance of the organizers. She felt, not
unreasonably, that the invitation for her to participate at
the conference, extended by the Joint FAO/IAEA Division
of Atomic Energy in Food and Agriculture of the United
Nations, was a singular honor not only to herself, but to
the University of the Philippines and the country as well,
an opportunity to make some sort of impression among
her colleagues in that field of scientific activity. The
opportunity to claim this honor or distinction was
irretrievably lost to her because of Alitalia's breach of its
contract.
Apart from this, there can be no doubt that Dr. Pablo
underwent profound distress and anxiety, which
gradually turned to panic and finally despair, from the
time she learned that her suitcases were missing up to
the time when, having gone to Rome, she finally realized
that she would no longer be able to take part in the
conference. As she herself put it, she "was really shocked
and distraught and confused."
This Court also agrees that respondent Court of Appeals
correctly awarded attorney's fees to Dr. Pablo, and the
amount of P5,000.00 set by it is reasonable in the
premises. The law authorizes recovery of attorney's fees
inter alia where, as here, "the defendant's act or omission
has compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest," 34 or
"where the court deems it just and equitable." 35
WHEREFORE, no error being perceived in the challenged
decision of the Court of Appeals, it appearing on the
contrary to be entirely in accord with the facts and the
law, said decision is hereby AFFIRMED, with costs
against the petitioner.
SO ORDERED.

Certainly, the compensation for the injury suffered by Dr. Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
Pablo cannot under the circumstances be restricted to
that prescribed by the Warsaw Convention for delay in
the transport of baggage.

She is not, of course, entitled to be compensated for loss

or damage to her luggage. As already mentioned, her
baggage was ultimately delivered to her in Manila,
tardily but safely. She is however entitled to nominal
damages — which, as the law says, is adjudicated in
order that a right of the plaintiff, which has been violated
or invaded by the defendant, may be vindicated and
recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered — and this Court agrees
that the respondent Court of Appeals correctly set the
amount thereof at P40,000.00. As to the purely technical
argument that the award to her of such nominal damages
is precluded by her omission to include a specific claim
therefor in her complaint, it suffices to draw attention to
her general prayer, following her plea for moral and
exemplary damages and attorney's fees, "for such other
and further just and equitable relief in the premises,"
which certainly is broad enough to comprehend an
application as well for nominal damages. Besides,
petitioner should have realized that the explicit
assertion, and proof, that Dr. Pablo's right had been
violated or invaded by it — absent any claim for actual or
compensatory damages, the prayer thereof having been
voluntarily deleted by Dr. Pablo upon the return to her of
her baggage — necessarily raised the issue of nominal
damages.: rd
G.R. No. 95536 March 23, 1992
ANICETO G. SALUDO, JR., MARIA SALVACION
SALUDO, LEOPOLDO G. SALUDO and SATURNINO G.
SALUDO, petitioners,
vs.
HON. COURT OF APPEALS, TRANS WORLD AIRLINES,
INC., and PHILIPPINE AIRLINES, INC., respondents.
REGALADO, J.:
Assailed in this petition for review on certiorari is the
decision in CA-G.R. CV No. 20951 of respondent Court of
Appeals1 which affirmed the decision of the trial
court2 dismissing for lack of evidence herein petitioners'
complaint in Civil Case No R-2101 of the then Court of
First Instance of Southern Leyte, Branch I.
The facts, as recounted by the court a quo and adopted
by respondent court after "considering the evidence on
record," are as follows:
After the death of plaintiffs' mother, Crispina Galdo
Saludo, in Chicago Illinois, (on) October 23, 1976 (Exh.
A), Pomierski and Son Funeral Home of Chicago, made
the necessary preparations and arrangements for the
shipment, of the remains from Chicago to the Philippines.
The funeral home had the remains embalmed (Exb. D)
and secured a permit for the disposition of dead human
body on October 25, 1976 (Exh. C), Philippine Vice
Consul in Chicago, Illinois, Bienvenido M. Llaneta, at 3:00
p.m. on October 26, 1976 at the Pomierski & Son Funeral
Home, sealed the shipping case containing a hermetically
sealed casket that is airtight and waterproof wherein
was contained the remains of Crispina Saludo Galdo (sic)
(Exb. B). On the same date, October 26, 1976, Pomierski
brought the remains to C.M.A.S. (Continental Mortuary
Air Services) at the airport (Chicago) which made the
necessary arrangements such as flights, transfers, etc.;
C.M.A.S. is a national service used by undertakers to
throughout the nation (U.S.A.), they furnish the air pouch
which the casket is enclosed in, and they see that the
remains are taken to the proper air freight terminal (Exh.
6-TWA). C.M.A.S. booked the shipment with PAL thru the
carrier's agent Air Care International, with Pomierski
F.H. as the shipper and Mario (Maria) Saludo as the
consignee. PAL Airway Bill No. 079-01180454 Ordinary
was issued wherein the requested routing was from
Chicago to San Francisco on board TWA Flight 131 of
October 27, 1976 and from San Francisco to Manila on
board PAL Flight No. 107 of the same date, and from
Manila to Cebu on board PAL Flight 149 of October 29,
1976 (See Exh. E., Also Exh. 1-PAL).
In the meantime, plaintiffs Maria Salvacion Saludo and
Saturnino Saludo, thru a travel agent, were booked with
United Airlines from Chicago to California, and with PAL
from California to Manila. She then went to the funeral
director of Pomierski Funeral Home who had her
mother's remains and she told the director that they
were booked with United Airlines. But the director told
her that the remains were booked with TWA flight to
California. This upset her, and she and her brother had to
change reservations from UA to the TWA flight after she
confirmed by phone that her mother's remains should be
on that TWA flight. They went to the airport and watched
from the look-out area. She saw no body being brought.
So, she went to the TWA counter again, and she was told
there was no body on that flight. Reluctantly, they took
the TWA flight upon assurance of her cousin, Ani Bantug,
that he would look into the matter and inform her about
it on the plane or have it radioed to her. But no
confirmation from her cousin reached her that her
mother was on the West Coast.
Upon arrival at San Francisco at about 5:00 p.m., she
went to the TWA counter there to inquire about her
mother's remains. She was told they did not know
anything about it.
She then called Pomierski that her mother's remains
were not at the West Coast terminal, and Pomierski
immediately called C.M.A.S., which in a matter of 10
minutes informed him that the remains were on a plane
to Mexico City, that there were two bodies at the
terminal, and somehow they were switched; he relayed
this information to Miss Saludo in California; later
C.M.A.S. called and told him they were sending the
remains back to California via Texas (see Exh. 6-TWA).
It-turned out that TWA had carried a shipment under
PAL Airway Bill No. 079-ORD-01180454 on TWA Flight
603 of October 27, 1976, a flight earlier than TWA Flight
131 of the same date. TWA delivered or transferred the
said shipment said to contain human remains to PAL at
1400H or 2:00 p.m. of the same date, October 27, 1976
(Bee Exh. 1- TWA). "Due to a switch(ing) in Chicago", this
shipment was withdrawn from PAL by CMAS at 1805H
(or 6:05 p.m.) of the same date, October 27 (Exh. 3-PAL,
see Exh. 3-a-PAL).
What transpired at the Chicago (A)irport is explained in
a memo or incident report by Pomierski (Exh. 6-TWA) to
Pomierski's lawyers who in turn referred to said' memo
and enclosed it in their (Pomierski's lawyers) answer
dated July 18, 1981 to herein plaintiff's counsel (See Exh.
5-TWA). In that memo or incident report (Exh. 6-TWA),
it is stated that the remains (of Crispina Saludo) were
taken to CMAS at the airport; that there were two bodies
at the (Chicago Airport) terminal, and somehow they
were switched, that the remains (of Crispina Saludo)
were on a plane to Mexico City; that CMAS is a national
service used by undertakers throughout the nation
(U.S.A.), makes all the necessary arrangements, such as
flights, transfers, etc., and see(s) to it that the remains are
taken to the proper air freight terminal.
The following day October 28, 1976, the shipment or
remains of Crispina Saludo arrived (in) San Francisco
from Mexico on board American Airlines. This shipment
was transferred to or received by PAL at 1945H or 7:45
p.m. (Exh. 2-PAL, Exh. 2-a-PAL). This casket bearing the
remains of Crispina Saludo, which was mistakenly sent
to Mexico and was opened (there), was resealed by
Crispin F. Patagas for shipment to the Philippines (See
Exh. B-1). The shipment was immediately loaded on PAL
flight for Manila that same evening and arrived (in)
Manila on October 30, 1976, a day after its expected
arrival on October 29, 1976.3
In a letter dated December 15, 1976,4 petitioners'
counsel informed private respondent Trans World
Airlines (TWA) of the misshipment and eventual delay in
the delivery of the cargo containing the remains of the
late Crispin Saludo, and of the discourtesy of its
employees to petitioners Maria Salvacion Saludo and
Saturnino Saludo. In a separate letter on June 10, 1977
addressed to co-respondent Philippine Airlines
(PAL),5 petitioners stated that they were holding PAL
liable for said delay in delivery and would commence
judicial action should no favorable explanation be given.
Both private respondents denied liability. Thus, a
damage suit6 was filed by petitioners before the then
Court of First Instance, Branch III, Leyte, praying for the
award of actual damages of P50,000.00, moral damages
of P1,000,000.00, exemplary damages, attorney's fees
and costs of suit.
As earlier stated, the court below absolved the two
respondent airlines companies of liability. The Court of
Appeals affirmed the decision of the lower court in toto,
and in a subsequent resolution,7 denied herein
petitioners' motion for reconsideration for lack of merit.
In predictable disagreement and dissatisfaction with the
conclusions reached by respondent appellate court,
petitioners now urge this Court to review the appealed
decision and to resolve whether or not (1) the delay in
the delivery of the casketed remains of petitioners'
mother was due to the fault of respondent airline
companies, (2) the one-day delay in the delivery of the
same constitutes contractual breach as would entitle
petitioners to damages, (3) damages are recoverable by
petitioners for the humiliating, arrogant and indifferent
acts of the employees of TWA and PAL, and (4) private
respondents should be held liable for actual, moral and
exemplary damages, aside from attorney's fees and
litigation expenses.8
At the outset and in view of the spirited exchanges of the
parties on this aspect, it is to be stressed that only
questions of law may be raised in a petition filed in this
Court to review on certiorari the decision of the Court of
Appeals.9 This being so, the factual findings of the Court
of Appeals are final and conclusive and cannot be
reviewed by the Supreme Court. The rule, however,
admits of established exceptions, to wit: (a) where there
is grave abuse of discretion; (b) when the finding is
grounded entirely on speculations, surmises or
conjectures;(c) when the inference made is manifestly-
mistaken, absurd or impossible; (d) when the judgment
of the Court of Appeals was based on a misapprehension
of facts; (e) when the factual findings are conflicting; (f)
when the Court of Appeals, in making its findings, went
beyond the issues of the case and the same are contrary
to the admissions of both appellant and appellee; 10 (g)
when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties and which, if
properly considered, would justify a different
conclusion; 11 and (h) where the findings of fact of the
Court of Appeals are contrary to those of the trial court,
or are mere conclusions without citation of specific
evidence, or where the facts of set forth by the petitioner
are not disputed by the respondent, or where the
findings of fact of the Court of Appeals are premised on
the absence of evidence and are contradicted by the
evidence on record. 12
To distinguish, a question of law is one which involves a
doubt or controversy on what the law is on a certain state
of facts; and, a question of fact, contrarily, is one in which
there is a doubt or difference as to the truth or falsehood
of the alleged facts. 13 One test, it has been held, is
whether the appellate court can determine the issue
raised without reviewing or evaluating the evidence, in
which case it is a question of law, otherwise it will be a
question of fact.14
Respondent airline companies object to the present
recourse of petitioners on the ground that this petition
raises only factual questions. 15 Petitioners maintain
otherwise or, alternatively, they are of the position that,
assuming that the petition raises factual questions, the
same are within the recognized exceptions to the general
rule as would render the petition cognizable and worthy
of review by the Court. 16
Since it is precisely the soundness of the inferences or
conclusions that may be drawn from the factual issues
which are here being assayed, we find that the issues
raised in the instant petition indeed warrant a second
look if this litigation is to come to a reasonable
denouement. A discussion seriatim of said issues will
further reveal that the sequence of the events involved is
in effect disputed. Likewise to be settled is whether or
not the conclusions of the Court of Appeals subject of this
review indeed find evidentiary and legal support.
I. Petitioners fault respondent court for "not finding that
private respondents failed to exercise extraordinary
diligence required by law which resulted in the switching
and/or misdelivery of the remains of Crispina Saludo to
Mexico causing gross delay in its shipment to the
Philippines, and consequently, damages to
petitioners." 17
Petitioner allege that private respondents received the
casketed remains of petitioners' mother on October 26,
1976, as evidenced by the issuance of PAL Air Waybill
No. 079-01180454 18 by Air Care International as
carrier's agent; and from said date, private respondents
were charged with the responsibility to exercise
extraordinary diligence so much so that for the alleged
switching of the caskets on October 27, 1976, or one day
after private respondents received the cargo, the latter
must necessarily be liable.
To support their assertion, petitioners rely on the
jurisprudential dictum, both under American and
Philippine law, that "(t)he issuance of a bill of lading
carries the presumption that the goods were delivered to
the carrier issuing the bill, for immediate shipment, and
it is nowhere questioned that a bill of lading is prima
facie evidence of the receipt of the goods by the carrier. .
. . In the absence of convincing testimony establishing
mistake, recitals in the bill of lading showing that the
carrier received the goods for shipment on a specified
date control (13 C.J.S. 235)." 19
A bill of lading is a written acknowledgment of the
receipt of the goods and an agreement to transport and
deliver them at a specified place to a person named or on
his order. Such instrument may be called a shipping
receipt, forwarder's receipt and receipt for
transportation. 20 The designation, however, is
immaterial. It has been hold that freight tickets for bus
companies as well as receipts for cargo transported by
all forms of transportation, whether by sea or land, fall
within the definition. Under the Tariff and Customs Code,
a bill of lading includes airway bills of lading. 21 The two-
fold character of a bill of lading is all too familiar; it is a
receipt as to the quantity and description of the goods
shipped and a contract to transport the goods to the
consignee or other person therein designated, on the
terms specified in such instrument. 22
Logically, since a bill of lading acknowledges receipt of
goods to be transported, delivery of the goods to the
carrier normally precedes the issuance of the bill; or, to
some extent, delivery of the goods and issuance of the bill
are regarded in commercial practice as simultaneous
acts. 23 However, except as may be prohibited by law,
there is nothing to prevent an inverse order of events,
that is, the execution of the bill of lading even prior to
actual possession and control by the carrier of the cargo
to be transported. There is no law which requires that
the delivery of the goods for carriage and the issuance of
the covering bill of lading must coincide in point of time
or, for that matter, that the former should precede the
latter.
Ordinarily, a receipt is not essential to a complete
delivery of goods to the carrier for transportation but,
when issued, is competent and prima facie, but not
conclusive, evidence of delivery to the carrier. A bill of
lading, when properly executed and delivered to a
shipper, is evidence that the carrier has received the
goods described therein for shipment. Except as
modified by statute, it is a general rule as to the parties
to a contract of carriage of goods in connection with
which a bill of lading is issued reciting that goods have
been received for transportation, that the recital being in
essence a receipt alone, is not conclusive, but may be
explained, varied or contradicted by parol or other
evidence. 24
While we agree with petitioners' statement that "an
airway bill estops the carrier from denying receipt of
goods of the quantity and quality described in the bill," a
further reading and a more faithful quotation of the
authority cited would reveal that "(a) bill of lading may
contain constituent elements of estoppel and thus
become something more than a contract between the
shipper and the carrier. . . . (However), as between the
shipper and the carrier, when no goods have been
delivered for shipment no recitals in the bill can estop the
carrier from showing the true facts . . . Between the
consignor of goods and receiving carrier, recitals in a bill
of lading as to the goods shipped raise only a rebuttable
presumption that such goods were delivered for
shipment. As between the consignor and a receiving
carrier, the fact must outweigh the
recital." 25 (Emphasis supplied)
For this reason, we must perforce allow explanation by
private respondents why, despite the issuance of the
airway bill and the date thereof, they deny having
received the remains of Crispina Saludo on October 26,
1976 as alleged by petitioners.
The findings of the trial court, as favorably adopted by
the Court of Appeals and which we have earner quoted,
provide us with the explanation that sufficiently over
comes the presumption relied on by petitioners in
insisting that the remains of their mother were delivered
to and received by private respondents on October 26,
1976. Thus —
. . . Philippine Vice Consul in Chicago, Illinois, Bienvenido
M. Llaneta, at 3:00 p.m. on October 26, 1976 at the
Pomierski & Son Funeral Home, sealed the shipping case
containing a hermetically sealed casket that is airtight
and waterproof wherein was contained the remains of
Crispina Saludo Galdo (sic) (Exh. B). On the same date
October 26, 1976, Pomierski brought the remains to
C.M.A.S. (Continental Mortuary Air Services) at the
airport (Chicago) which made the necessary
arrangements such as flights, transfers, etc; C.M.A.S. is a
national service used by undertakers throughout the
nation (U.S.A.), they furnish the air pouch which the
casket is enclosed in, and they see that the remains are
taken to the proper air freight terminal (Exh. G-TWA).
C.M.A.S. booked the shipment with PAL thru the carrier's
agent Air Care International, with Pomierski F.H. as the
shipper and Mario (Maria) Saludo as the consignee. PAL
Airway Bill No. 079- 01180454 Ordinary was issued
wherein the requested routing was from Chicago to San
Francisco on board TWA Flight-131 of October 27;1976,
and from San Francisco to Manila on board PAL Flight No.
107 of the same date, and from Manila to Cebu on board
PAL Flight 149 of October 29, 1976 (See Exh. E, also Exh.
1-PAL).26 (Emphasis ours.)
Moreover, we are persuaded to believe private
respondent PAL's account as to what transpired October
26, 1976:
. . . Pursuant thereto, on 26 October 1976, CMAS acting
upon the instruction of Pomierski, F.H., the shipper
requested booking of the casketed remains of Mrs.
Cristina (sic) Saludo on board PAL's San Francisco-
Manila Flight No. PR 107 on October 27, 1976.
2. To signify acceptance and confirmation of said
booking, PAL issued to said Pomierski F.H., PAL Airway
Bill No. 079-01180454 dated October 27, 1976 (sic,
"10/26/76"). PAL confirmed the booking and
transporting of the shipment on board of its Flight PR
107 on October 27, 1976 on the basis of the
representation of the shipper and/or CMAS that the said
cargo would arrive in San Francisco from Chicago on
board United Airlines Flight US 121 on 27 October
1976.27
In other words, on October 26, 1976 the cargo containing
the casketed remains of Crispina Saludo was booked for
PAL Flight Number PR-107 leaving San Francisco for
Manila on October 27, 1976, PAL Airway Bill No. 079-
01180454 was issued, not as evidence of receipt of
delivery of the cargo on October 26, 1976, but merely as
a confirmation of the booking thus made for the San
Francisco-Manila flight scheduled on October 27, 1976.
Actually, it was not until October 28, 1976 that PAL
received physical delivery of the body at San Francisco,
as duly evidenced by the Interline Freight Transfer
Manifest of the American Airline Freight System and
signed for by Virgilio Rosales at 1945H, or 7:45 P.M. on
said date.28
Explicit is the rule under Article 1736 of the Civil Code
that the extraordinary responsibility of the common
carrier begins from the time the goods are delivered to
the carrier. This responsibility remains in full force and
effect even when they are temporarily unloaded or
stored in transit, unless the shipper or owner exercises
the right of stoppage in transitu, 29 and terminates only
after the lapse of a reasonable time for the acceptance, of
the goods by the consignee or such other person entitled
to receive them. 30 And, there is delivery to the carrier
when the goods are ready for and have been placed in the
exclusive possession, custody and control of the carrier
for the purpose of their immediate transportation and
the carrier has accepted them. 31 Where such a delivery
has thus been accepted by the carrier, the liability of the
common carrier commences eo instanti. 32
Hence, while we agree with petitioners that the
extraordinary diligence statutorily required to be
observed by the carrier instantaneously commences
upon delivery of the goods thereto, for such duty to
commence there must in fact have been delivery of the
cargo subject of the contract of carriage. Only when such
fact of delivery has been unequivocally established can
the liability for loss, destruction or deterioration of
goods in the custody of the carrier, absent the excepting
causes under Article 1734, attach and the presumption
of fault of the carrier under Article 1735 be invoked.
As already demonstrated, the facts in the case at bar belie
the averment that there was delivery of the cargo to the
carrier on October 26, 1976. Rather, as earlier explained,
the body intended to be shipped as agreed upon was
really placed in the possession and control of PAL on
October 28, 1976 and it was from that date that private
respondents became responsible for the agreed cargo
under their undertakings in PAL Airway Bill No. 079-
01180454. Consequently, for the switching of caskets
prior thereto which was not caused by them, and
subsequent events caused thereby, private respondents
cannot be held liable.
Petitioners, proceeding on the premise that there was
delivery of the cargo to private respondents on October
26,1976 and that the latter's extraordinary
responsibility had by then become operative, insist on
foisting the blame on private respondents for the
switching of the two caskets which occurred on October
27, 1976. It is argued that since there is no clear evidence
establishing the fault Continental Mortuary Air Services
(CMAS) for the mix-up, private respondents are
presumably negligent pursuant to Article 1735 of the
Civil Code and, for failure to rebut such presumption,
they must necessarily be held liable; or, assuming that
CMAS was at fault, the same does not absolve private
respondents of liability because whoever brought the
cargo to the airport or loaded it on the plane did so as
agent of private respondents.
This contention is without merit. As pithily explained by
the Court of Appeals:
The airway bill expressly provides that "Carrier certifies
goods described below were received for carriage", and
said cargo was "casketed human remains of Crispina
Saludo," with "Maria Saludo as Consignee; Pomierski F.H.
as Shipper; Air Care International as carrier's agent." On
the face of the said airway bill, the specific flight
numbers, specific routes of shipment and dates of
departure and arrival were typewritten, to wit: Chicago
TWA Flight 131/27 to San Francisco and from San
Francisco by PAL 107 on, October 27, 1976 to Philippines
and to Cebu via PAL Flight 149 on October 29, 1976. The
airway bill also contains the following typewritten
words, as follows: all documents have been examined
(sic). Human remains of Crispina Saludo. Please return
back (sic) first available flight to SFO.
But, as it turned out and was discovered later the
casketed human remains which was issued PAL Airway
Bill #079-1180454 was not the remains of Crispina
Saludo, the casket containing her remains having been
shipped to Mexico City.
However, it should be noted that, Pomierski F.H., the
shipper of Mrs. Saludo's remains, hired Continental
Mortuary Services (hereafter referred to as C.M.A.S.),
which is engaged in the business of transporting and
forwarding human remains. Thus, C.M.A.S. made all the
necessary arrangements such as flights, transfers, etc. —
for shipment of the remains of Crispina Saludo.
The remains were taken on October 26th, 1976, to
C.M.A.S. at the airport. These people made all the
necessary arrangements, such as flights, transfers, etc.
This is a national service used by undertakers
throughout the nation. They furnished the air pouch
which the casket is enclosed in, and they see that the
remains are taken to the proper air frieght terminal. I
was very surprised when Miss Saludo called me to say
that the remains were not at the west coast terminal. I
immediately called C.M.A.S. They called me back in a
matter of ten minutes to inform me that the remains
were on a plane to Mexico City. The man said that there
were two bodies at the terminal, and somehow they were
switched. . . . (Exb. 6 — "TWA", which is the memo or
incident report enclosed in the stationery of Walter
Pomierski & Sons Ltd.)
Consequently, when the cargo was received from
C.M.A.S. at the Chicago airport terminal for shipment,
which was supposed to contain the remains of Crispina
Saludo, Air Care International and/or TWA, had no way
of determining its actual contents, since the casket was
hermetically sealed by the Philippine Vice-Consul in
Chicago and in an air pouch of C.M.A.S., to the effect that
Air Care International and/or TWA had to rely on the
information furnished by the shipper regarding the
cargo's content. Neither could Air Care International
and/or TWA open the casket for further verification,
since they were not only without authority to do so, but
even prohibited.
Thus, under said circumstances, no fault and/or
negligence can be attributed to PAL (even if Air Care
International should be considered as an agent of PAL)
and/or TWA, the entire fault or negligence being
exclusively with C.M.A.S.33 (Emphasis supplied.)
It can correctly and logically be concluded, therefore,
that the switching occurred or, more accurately, was
discovered on October 27, 1976; and based on the above
findings of the Court of appeals, it happened while the
cargo was still with CMAS, well before the same was
place in the custody of private respondents.
Thus, while the Air Cargo Transfer Manifest of TWA of
October 27, 197634 was signed by Garry Marcial of PAL
at 1400H, or 2:00 P.M., on the same date, thereby
indicating acknowledgment by PAL of the transfer to
them by TWA of what was in truth the erroneous cargo,
said misshipped cargo was in fact withdrawn by CMAS
from PAL as shown by the notation on another copy of
said manifest35 stating "Received by CMAS — Due to
switch in Chicago 10/27-1805H," the authenticity of
which was never challenged. This shows that said
misshipped cargo was in fact withdrawn by CMAS from
PAL and the correct shipment containing the body of
Crispina Saludo was received by PAL only on October 28,
1976, at 1945H, or 7:45 P.M., per American Airlines
Interline Freight Transfer Manifest No. AA204312.36
Witness the deposition of TWA's ramp serviceman,
Michael Giosso, on this matter:
ATTY. JUAN COLLAS, JR.:
On that date, do (sic) you have occasion to handle or deal
with the transfer of cargo from TWA Flight No. 603 to
PAL San Francisco?
MICHAEL GIOSSO:
Yes, I did.
ATTY. JUAN COLLAS, JR.:
What was your participation with the transfer of the
cargo?
MICHAEL GIOSSO:
I manifested the freight on a transfer manifest and
physically moved it to PAL and concluded the transfer by
signing it off.
ATTY. JUAN COLLAS, JR.:
You brought it there yourself?
MICHAEL GIOSSO: xxx xxx xxx What time did you receive said body on October 28,
1976?
Yes sir. In what circumstances did you encounter Exhibit I-PAL?
ALBERTO A. LIM:
ATTY. JUAN COLIAS, JR.: ALBERTO A. LIM:
If I recall correctly, approximately 7:45 of October 28,
Do you have anything to show that PAL received the If I recall correctly, I was queried by Manila, our Manila 1976.
cargo from TWA on October 27, 1976? office with regard to a certain complaint that a consignee
filed that this shipment did not arrive on the day that the ATTY. CESAR P. MANALAYSAY:
MICHAEL GIOSSO: consignee expects the shipment to arrive.
Do you have any proof with you to back the statement?
Yes, I do. ATTY CESAR P. MANALAYSAY:
ALBERTO A. LIM:
(Witness presenting a document) Okay. Now, upon receipt of that query from your Manila
office, did you conduct any investigation to pinpoint the Yes. We have on our records a Transfer Manifest from
ATTY. JUAN COLLAS, JR.: American Airlines Number 204312 showing that we
possible causes of mishandling?
received a human remains shipment belong to Mrs.
For purposes of clarity, Exhibit I is designated as Exhibit
ALBERTO A. LIM: Cristina (sic) Saludo or the human remains of Mrs.
I-TWA.
Cristina (sic) Saludo.
Yes.
xxx xxx xxx
ATTY. CESAR P. MAIALAYSAY:
xxx xxx xxx
ATTY. JUAN COLLAS, JR.:
At this juncture, may I request that the Transfer Manifest
ATTY. CESAR P. MANALAYSAY: referred to by the witness be marked as an evidence as
This Exhibit I-TWA, could you tell what it is, what it
shows? Exhibit II-PAL.
What is the result of your investigation?
MICHAEL GIOSSO: xxx xxx xxx
ALBERTO A. LIM:
It shows transfer of manifest on 10-27-76 to PAL at 1400 Mr. Lim, yesterday your co-defendant TWA presented as
In the course of my investigation, I found that we
and verified with two signatures as it completed the their Exhibit I evidence tending to show that on October
received the body on October 28, 1976, from American
transfer. 27, 1976 at about 2:00 in the, afternoon they delivered to
Airlines.
you a cargo bearing human remains. Could you go over
ATTY. JUAN COLLAS, JR.: ATTY. CESAR P. MANALAYSAY: this Exhibit I and please give us your comments as to that
exhibit?
Very good,. Who was the PAL employee who received the What body are you referring to?
cargo? ATTY. ALBERTO C. MENDOZA:
xxx xxx xxx
MICHAEL GIOSSO: That is a vague question. I would rather request that
ALBERTO A. LIM: counsel propound specific questions rather than asking
The name is Garry Marcial." 37
for comments on Exhibit I-TWA.
The remains of Mrs. Cristina (sic) Saludo.
The deposition of Alberto A. Lim, PAL's cargo supervisor
ATTY. CESAR P. MANALAYSAY:
at San Francisco, as deponent-witness for PAL, makes ATTY. CESAR P. MANALAYSAY:
this further clarification: In that case, I will reform my question. Could you tell us
Is that the same body mentioned in this Airway Bill?
whether TWA in fact delivered to you the human remains
ATTY. CESAR P. MANALAYSAY:
ALBERTO A. LIM: as indicated in that Transfer Manifest?
You mentioned Airway Bill, Mr. Lim. I am showing to you
Yes. ALBERTO A. LIM:
a PAL Airway Bill Number 01180454 which for purposes
of evidence, I would like to request that the same be Yes, they did.
ATTY. CESAR P. MANALAYSAY:
marked as evidence Exhibit I for PAL.
ATTY. CESAR P. MANALAYSAY:
I noticed that the Transfer Manifest of TWA marked as
Exhibit I-TWA bears the same numbers or the same
entries as the Airway Bill marked as Exhibit I-A PAL
tending to show that this is the human remains of Mrs
Cristina (sic) Saludo. Could you tell us whether this is
true?
ALBERTO A. LIM:
It is true that we received human remains shipment from
TWA as indicated on this Transfer Manifest. But in the
course of investigation, it was found out that the human
remains transferred to us is not the remains of Mrs.
Cristina (sic) Saludo this is the reason why we did not
board it on our flight. 38
Petitioners consider TWA's statement that "it had to rely
on the information furnished by the shipper" a lame
excuse and that its failure to prove that its personnel
verified and identified the contents of the casket before
loading the same constituted negligence on the part of
TWA.39
We upbold the favorable consideration by the Court of
Appeals of the following findings of the trial court:
It was not (to) TWA, but to C.M.A.S. that the Pomierski &
Son Funeral Home delivered the casket containing the
remains of Crispina Saludo. TWA would have no
knowledge therefore that the remains of Crispina Saludo
were not the ones inside the casket that was being
presented to it for shipment. TWA would have to rely on
there presentations of C.M.A.S. The casket was
hermetically sealed and also sealed by the Philippine
Vice Consul in Chicago. TWA or any airline for that
matter would not have opened such a sealed casket just
for the purpose of ascertaining whose body was inside
and to make sure that the remains inside were those of
the particular person indicated to be by C.M.A.S. TWA
had to accept whatever information was being furnished
by the shipper or by the one presenting the casket for
shipment. And so as a matter of fact, TWA carried to San
Francisco and transferred to defendant PAL a shipment
covered by or under PAL Airway Bill No. 079-ORD-
01180454, the airway bill for the shipment of the
casketed remains of Crispina Saludo. Only, it turned out
later, while the casket was already with PAL, that what
was inside the casket was not the body of Crispina Saludo
so much so that it had to be withdrawn by C.M.A.S. from
PAL. The body of Crispina Saludo had been shipped to
Mexico. The casket containing the remains of Crispina
Saludo was transshipped from Mexico and arrived in San
Francisco the following day on board American Airlines.
It was immediately loaded by PAL on its flight for Manila.
The foregoing points at C.M.A.S., not defendant TWA
much less defendant PAL, as the ONE responsible for the
switching or mix-up of the two bodies at the Chicago
Airport terminal, and started a chain reaction of the
misshipment of the body of Crispina Saludo and a one-
day delay in the delivery thereof to its destination.40
Verily, no amount of inspection by respondent airline
companies could have guarded against the switching that
had already taken place. Or, granting that they could
have opened the casket to inspect its contents, private
respondents had no means of ascertaining whether the
body therein contained was indeed that of Crispina
Saludo except, possibly, if the body was that of a male
person and such fact was visually apparent upon opening
the casket. However, to repeat, private respondents had
no authority to unseal and open the same nor did they
have any reason or justification to resort thereto.
It is the right of the carrier to require good faith on the
part of those persons who deliver goods to be carried, or
enter into contracts with it, and inasmuch as the freight
may depend on the value of the article to be carried, the
carrier ordinarily has the right to inquire as to its value.
Ordinarily, too, it is the duty of the carrier to make
inquiry as to the general nature of the articles shipped
and of their value before it consents to carry them; and
its failure to do so cannot defeat the shipper's right to
recovery of the full value of the package if lost, in the
absence of showing of fraud or deceit on the part of the
shipper. In the absence of more definite information, the
carrier has a the right to accept shipper's marks as to the
contents of the package offered for transportation and is
not bound to inquire particularly about them in order to
take advantage of a false classification and where a
shipper expressly represents the contents of a package
to be of a designated character, it is not the duty of the
carrier to ask for a repetition of the statement nor
disbelieve it and open the box and see for
itself. 41 However, where a common carrier has
reasonable ground to suspect that the offered goods are
of a dangerous or illegal character, the carrier has the
right to know the character of such goods and to insist on
an inspection, if reasonable and practical under the
circumstances, as a condition of receiving and
transporting such goods.42
It can safely be said then that a common carrier is
entitled to fair representation of the nature and value of
the goods to be carried, with the concomitant right to
rely thereon, and further noting at this juncture that a
carrier has no obligation to inquire into the correctness
or sufficiency of such information. 43 The consequent
duty to conduct an inspection thereof arises in the event
that there should be reason to doubt the veracity of such
representations. Therefore, to be subjected to unusual
search, other than the routinary inspection procedure
customarily undertaken, there must exist proof that
would justify cause for apprehension that the baggage is
dangerous as to warrant exhaustive inspection, or even
refusal to accept carriage of the same; and it is the failure
of the carrier to act accordingly in the face of such proof
that constitutes the basis of the common carrier's
liability. 44
In the case at bar, private respondents had no reason
whatsoever to doubt the truth of the shipper's
representations. The airway bill expressly providing that
"carrier certifies goods received below were received for
carriage," and that the cargo contained "casketed human
remains of Crispina Saludo," was issued on the basis of
such representations. The reliance thereon by private
respondents was reasonable and, for so doing, they
cannot be said to have acted negligently. Likewise, no
evidence was adduced to suggest even an iota of
suspicion that the cargo presented for transportation
was anything other than what it was declared to be, as
would require more than routine inspection or call for
the carrier to insist that the same be opened for scrutiny
of its contents per declaration.
Neither can private respondents be held accountable on
the basis of petitioners' preposterous proposition that
whoever brought the cargo to the airport or loaded it on
the airplane did so as agent of private respondents, so
that even if CMAS whose services were engaged for the
transit arrangements for the remains was indeed at fault,
the liability therefor would supposedly still be
attributable to private respondents.
While we agree that the actual participation of CMAS has
been sufficiently and correctly established, to hold that it
acted as agent for private respondents would be both an
inaccurate appraisal and an unwarranted categorization
of the legal position it held in the entire transaction.
It bears repeating that CMAS was hired to handle all the
necessary shipping arrangements for the transportation
of the human remains of Crispina Saludo to Manila.
Hence, it was to CMAS that the Pomierski & Son Funeral
Home, as shipper, brought the remains of petitioners'
mother for shipment, with Maria Saludo as consignee.
Thereafter, CMAS booked the shipment with PAL
through the carrier's agent, Air Care
International. 45 With its aforestated functions, CMAS
may accordingly be classified as a forwarder which, by
accepted commercial practice, is regarded as an agent of
the shipper and not of the carrier. As such, it merely
contracts for the transportation of goods by carriers, and
has no interest in the freight but receives compensation
from the shipper as his agent. 46
At this point, it can be categorically stated that, as culled
from the findings of both the trial court and appellate
courts, the entire chain of events which culminated in the
present controversy was not due to the fault or
negligence of private respondents. Rather, the facts of
the case would point to CMAS as the culprit. Equally
telling of the more likely possibility of CMAS' liability is
petitioners' letter to and demanding an explanation from
CMAS regarding the statement of private respondents
laying the blame on CMAS for the incident, portions of
which, reading as follows:
. . . we were informed that the unfortunate a mix-up
occurred due to your negligence. . . .
Likewise, the two airlines pinpoint the responsibility
upon your agents. Evidence were presented to prove that
allegation.
On the face of this overwhelming evidence we could and
should have filed a case against you. . . . 47
clearly allude to CMAS as the party at fault. This is
tantamount to an admission by petitioners that they
consider private respondents without fault, or is at the
very least indicative of the fact that petitioners
entertained serious doubts as to whether herein private
respondents were responsible for the unfortunate turn
of events.
Undeniably, petitioners' grief over the death of their
mother was aggravated by the unnecessary
inconvenience and anxiety that attended their efforts to
bring her body home for a decent burial. This is
unfortunate and calls for sincere commiseration with
petitioners. But, much as we would like to give them
consolation for their undeserved distress, we are barred
by the inequity of allowing recovery of the damages
prayed for by them at the expense of private respondents
whose fault or negligence in the very acts imputed to
them has not been convincingly and legally
demonstrated.
Neither are we prepared to delve into, much less
definitively rule on, the possible liability of CMAS as the
evaluation and adjudication of the same is not what is
presently at issue here and is best deferred to another
time and addressed to another forum.
II. Petitioners further fault the Court of Appeals for ruling
that there was no contractual breach on the part of
private respondents as would entitle petitioners to
damages.
Petitioners hold that respondent TWA, by agreeing to
transport the remains of petitioners' mother on its Flight
131 from Chicago to San Francisco on October 27, 1976,
made itself a party to the contract of carriage and,
therefore, was bound by the terms of the issued airway
bill. When TWA undertook to ship the remains on its
Flight 603, ten hours earlier than scheduled, it
supposedly violated the express agreement embodied in
the airway bill. It was allegedly this breach of obligation
which compounded, if not directly caused, the switching
of the caskets.
In addition, petitioners maintain that since there is no
evidence as to who placed the body on board Flight 603,
or that CMAS actually put the cargo on that flight, or that
the two caskets at the Chicago airport were to be
transported by the same airline, or that they came from
the same funeral home, or that both caskets were
received by CMAS, then the employees or agents of TWA
presumably caused the mix-up by loading the wrong
casket on the plane. For said error, they contend, TWA
must necessarily be presumed negligent and this
presumption of negligence stands undisturbed unless
rebutting evidence is presented to show that the
switching or misdelivery was due to circumstances that
would exempt the carrier from liability.
Private respondent TWA professes otherwise. Having
duly delivered or transferred the cargo to its co-
respondent PAL on October 27, 1976 at 2:00 P.M., as
supported by the TWA Transfer Manifest, TWA faithfully
complied with its obligation under the airway bill. Said
faithful compliance was not affected by the fact that the
remains were shipped on an earlier flight as there was no
fixed time for completion of carriage stipulated on.
Moreover, the carrier did not undertake to carry the
cargo aboard any specified aircraft, in view of the
condition on the back of the airway bill which provides:
CONDITIONS OF CONTRACT
xxx xxx xxx
It is agreed that no time is fixed for the completion of
carriage hereunder and that Carrier may without notice
substitute alternate carriers or aircraft. Carrier assumes
no obligation to carry the goods by any specified aircraft
or over any particular route or routes or to make
connection at any point according to any particular
schedule, and Carrier is hereby authorized to select, or
deviate from the route or routes of shipment,
notwithstanding that the same may be stated on the face
hereof. The shipper guarantees payment of all charges
and advances.48
Hence, when respondent TWA shipped the body on
earlier flight and on a different aircraft, it was acting well
within its rights. We find this argument tenable.
The contention that there was contractual breach on the
part of private respondents is founded on the postulation
that there was ambiguity in the terms of the airway bill,
hence petitioners' insistence on the application of the
rules on interpretation of contracts and documents. We
find no such ambiguity. The terms are clear enough as to
preclude the necessity to probe beyond the apparent
intendment of the contractual provisions.
The hornbook rule on interpretation of contracts
consecrates the primacy of the intention of the parties,
the same having the force of law between them. When
the terms of the agreement are clear and explicit, that
they do not justify an attempt to read into any alleged
intention of the parties, the terms are to be understood
literally just as they appear on the face of the
contract.49 The various stipulations of a contract shall
be interpreted together50 and such a construction is to
be adopted as will give effect to all provisions
thereof.51 A contract cannot be construed by parts, but
its clauses should be interpreted in relation to one
another. The whole contract must be interpreted or read
together in order to arrive at its true meaning. Certain
stipulations cannot be segregated and then made to
control; neither do particular words or phrases
necessarily determine the character of a contract. The
legal effect of the contract is not to be determined alone
by any particular provision disconnected from all others,
but in the ruling intention of the parties as gathered from
all the language they have used and from their
contemporaneous and subsequent acts. 52
Turning to the terms of the contract at hand, as
presented by PAL Air Waybill No. 079-01180454,
respondent court approvingly quoted the trial court's
disquisition on the aforequoted condition appearing on
the reverse side of the airway bill and its disposition of
this particular assigned error:
The foregoing stipulation fully answers plaintiffs'
objections to the one-day delay and the shipping of the
remains in TWA Flight 603 instead of TWA Flight 131.
Under the stipulation, parties agreed that no time was
fixed to complete the contract of carriage and that the
carrier may, without notice, substitute alternate carriers
or aircraft. The carrier did not assume the obligation to
carry the shipment on any specified aircraft.
xxx xxx xxx
Furthermore, contrary to the claim of plaintiffs-
appellants, the conditions of the Air Waybill are big
enough to be read and noticed. Also, the mere fact that
the cargo in question was shipped in TWA Flight 603, a
flight earlier on the same day than TWA Flight 131, did
not in any way cause or add to the one-day delay
complained of and/or the switching or mix-up of the
bodies.53
Indubitably, that private respondent can use substitute
aircraft even without notice and without the assumption
of any obligation whatsoever to carry the goods on any
specified aircraft is clearly sanctioned by the contract of
carriage as specifically provided for under the
conditions thereof.
Petitioners' invocation of the interpretative rule in the
Rules of Court that written words control printed words
in documents, 54 to bolster their assertion that the
typewritten provisions regarding the routing and flight
schedule prevail over the printed conditions, is tenuous.
Said rule may be considered only when there is
inconsistency between the written and printed words of
the contract.
As previously stated, we find no ambiguity in the
contract subject of this case that would call for the
application of said rule. In any event, the contract
has provided for such a situation by explicitly stating
that the above condition remains effective
"notwithstanding that the same (fixed time for
completion of carriage, specified aircraft, or any
particular route or schedule) may be stated on the face
hereof." While petitioners hinge private respondents'
culpability on the fact that the carrier "certifies goods
described below were received for carriage," they may
have overlooked that the statement on the face of the
airway bill properly and completely reads —
Carrier certifies goods described below were received
for carriage subject to the Conditions on the reverse
hereof the goods then being in apparent good order and
condition except as noted hereon. 55(Emphasis ours.)
Private respondents further aptly observe that the
carrier's certification regarding receipt of the goods for
carriage "was of a smaller print than the condition of the
Air Waybill, including Condition No. 5 — and thus if
plaintiffs-appellants had recognized the former, then
with more reason they were aware of the latter. 56
In the same vein, it would also be incorrect to accede to
the suggestion of petitioners that the typewritten
specifications of the flight, routes and dates of
departures and arrivals on the face of the airway bill
constitute a special contract which modifies the printed
conditions at the back thereof. We reiterate that
typewritten provisions of the contract are to be read and
understood subject to and in view of the printed
conditions, fully reconciling and giving effect to the
manifest intention of the parties to the agreement.
The oft-repeated rule regarding a carrier's liability for
delay is that in the absence of a special contract, a carrier
is not an insurer against delay in transportation of goods.
When a common carrier undertakes to convey goods, the
law implies a contract that they shall be delivered at
destination within a reasonable time, in the absence, of
any agreement as to the time of delivery. 57 But where a
carrier has made an express contract to transport and
deliver property within a specified time, it is bound to
fulfill its contract and is liable for any delay, no matter
from what cause it may have arisen. 58 This result
logically follows from the well-settled rule that where
the law creates a duty or charge, and the party is disabled
from performing it without any default in himself, and
has no remedy over, then the law will excuse him, but
where the party by his own contract creates a duty or
charge upon himself, he is bound to make it good
notwithstanding any accident or delay by inevitable
necessity because he might have provided against it by
contract. Whether or not there has been such an
undertaking on the part of the carrier to be determined
from the circumstances surrounding the case and by
application of the ordinary rules for the interpretation of
contracts.59
Echoing the findings of the trial court, the respondent
court correctly declared that —
In a similar case of delayed delivery of air cargo under a
very similar stipulation contained in the airway bill
which reads: "The carrier does not obligate itself to carry
the goods by any specified aircraft or on a specified time.
Said carrier being hereby authorized to deviate from the
route of the shipment without any liability therefor", our
Supreme Court ruled that common carriers are not
obligated by law to carry and to deliver merchandise, and
persons are not vested with the right to prompt delivery,
unless such common carriers previously assume the
obligation. Said rights and obligations are created by a
specific contract entered into by the parties (Mendoza vs.
PAL, 90 Phil. 836).
There is no showing by plaintiffs that such a special or
specific contract had been entered into between them
and the defendant airline companies.
And this special contract for prompt delivery should call
the attention of the carrier to the circumstances
surrounding the case and the approximate amount of
damages to be suffered in case of delay (See Mendoza vs.
PAL, supra). There was no such contract entered into in
the instant case.60
Also, the theory of petitioners that the specification of the
flights and dates of departure and arrivals constitute a
special contract that could prevail over the printed
stipulations at the back of the airway bill is vacuous. To
countenance such a postulate would unduly burden the
common carrier for that would have the effect of
unilaterally transforming every single bill of lading or
trip ticket into a special contract by the simple expedient
of filling it up with the particulars of the flight, trip or
voyage, and thereby imposing upon the carrier duties
and/or obligations which it may not have been ready or
willing to assume had it been timely, advised thereof.
Neither does the fact that the challenged condition No. 5
was printed at the back of the airway bill militate against
its binding effect on petitioners as parties to the contract,
for there were sufficient indications on the face of said
bill that would alert them to the presence of such
additional condition to put them on their guard. Ordinary
prudence on the part of any person entering or
contemplating to enter into a contract would prompt
even a cursory examination of any such conditions,
terms and/or stipulations.
There is a holding in most jurisdictions that the
acceptance of a bill of lading without dissent raises a
presumption that all terms therein were brought to the
knowledge of the shipper and agreed to by him, and in
the absence of fraud or mistake, he is estopped from
thereafter denying that he assented to such terms. This
rule applies with particular force where a shipper
accepts a bill of lading with full knowledge of its contents,
and acceptance under such circumstances makes it a
binding contract. In order that any presumption of assent
to a stipulation in a bill of lading limiting the liability of a
carrier may arise, it must appear that the clause
containing this exemption from liability plainly formed a
part of the contract contained in the bill of lading. A
stipulation printed on the back of a receipt or bill of
lading or on papers attached to such receipt will be quite
as effective as if printed on its face, if it is shown that the
consignor knew of its terms. Thus, where a shipper
accepts a receipt which states that its conditions are to
be found on the back, such receipt comes within the
general rule, and the shipper is held to have accepted and
to be bound by the conditions there to be found. 61
Granting arguendo that Condition No. 5 partakes of the
nature of a contract of adhesion and as such must be
construed strictly against the party who drafted the
same or gave rise to any ambiguity therein, it should be
borne in mind that a contract of adhesion may be struck
down as void and unenforceable, for being subversive of
public policy, only when the weaker party is imposed
upon in dealing with the dominant bargaining party and
is reduced to the alternative of taking it or leaving it,
completely deprived of the opportunity to bargain on
equal footing. 62However, Ong Yiu vs. Court of Appeals,
et al 63 instructs us that contracts of adhesion are not
entirely prohibited. The one who adheres to the contract
is in reality free to reject it entirely; if he adheres, be gives
his consent. Accordingly, petitioners, far from being the
weaker party in this situation, duly signified their
presumed assent to all terms of the contract through
their acceptance of the airway bill and are consequently
bound thereby. It cannot be gainsaid that petitioners'
were not without several choices as to carriers in
Chicago with its numerous airways and airliner servicing
the same.
We wish to allay petitioners' apprehension that
Condition No. 5 of the airway bill is productive of
mischief as it would validate delay in delivery, sanction
violations of contractual obligations with impunity or
put a premium on breaches of contract.
Just because we have said that condition No. 5 of the
airway bill is binding upon the parties to and fully
operative in this transaction, it does not mean, and let
this serve as fair warning to respondent carriers, that
they can at all times whimsically seek refuge from
liability in the exculpatory sanctuary of said Condition
No. 5 or arbitrarily vary routes, flights and schedules to
the prejudice of their customers. This condition only
serves to insulate the carrier from liability in those
instances when changes in routes, flights and schedules
are clearly justified by the peculiar circumstances of a
particular case, or by general transportation practices,
customs and usages, or by contingencies or emergencies
in aviation such as weather turbulence, mechanical
failure, requirements of national security and the like.
And even as it is conceded that specific routing and other
navigational arrangements for a trip, flight or voyage, or
variations therein, generally lie within the discretion of
the carrier in the absence of specific routing instructions
or directions by the shipper, it is plainly incumbent upon
the carrier to exercise its rights with due deference to the
rights, interests and convenience of its customers.
A common carrier undertaking to transport property has
the implicit duty to carry and deliver it within reasonable
time, absent any particular stipulation regarding time of
delivery, and to guard against delay. In case of any
unreasonable delay, the carrier shall be liable for
damages immediately and proximately resulting from
such neglect of duty. 64 As found by the trial court, the
delay in the delivery of the remains of Crispina Saludo,
undeniable and regrettable as it was, cannot be
attributed to the fault, negligence or malice of private
respondents,65 a conclusion concurred in by respondent
court and which we are not inclined to disturb.
We are further convinced that when TWA opted to ship
the remains of Crispina Saludo on an earlier flight, it did
so in the exercise of sound discretion and with
reasonable prudence, as shown by the explanation of its
counsel in his letter of February 19, 1977 in response to
petitioners' demand letter:
Investigation of TWA's handling of this matter reveals
that although the shipment was scheduled on TWA Flight
131 of October 27, 1976, it was actually boarded on TWA
Flight 603 of the same day, approximately 10 hours
earlier, in order to assure that the shipment would be
received in San Francisco in sufficient time for transfer
to PAL. This transfer was effected in San Francisco at
2:00 P.M. on October 27, 1976. 66
Precisely, private respondent TWA knew of the urgency
of the shipment by reason of this notation on the lower
portion of the airway bill: "All documents have been
certified. Human remains of Cristina (sic) Saludo. Please
return bag first available flight to SFO." Accordingly,
TWA took it upon itself to carry the remains of Crispina
Saludo on an earlier flight, which we emphasize it could
do under the terms of the airway bill, to make sure that
there would be enough time for loading said remains on
the transfer flight on board PAL.
III. Petitioners challenge the validity of respondent
court's finding that private respondents are not liable for
tort on account of the humiliating, arrogant and
indifferent acts of their officers and personnel. They
posit that since their mother's remains were transported
ten hours earlier than originally scheduled, there was no
reason for private respondents' personnel to disclaim
knowledge of the arrival or whereabouts of the same
other than their sheer arrogance, indifference and
extreme insensitivity to the feelings of petitioners.
Moreover, being passengers and not merely consignors
of goods, petitioners had the right to be treated with
courtesy, respect, kindness and due consideration.
In riposte, TWA claims that its employees have always
dealt politely with all clients, customers and the public in
general. PAL, on the other hand, declares that in the
performance of its obligation to the riding public, other
customers and clients, it has always acted with justice,
honesty, courtesy and good faith.
Respondent appellate court found merit in and
reproduced the trial court's refutation of this assigned
error:
About the only evidence of plaintiffs that may have
reference to the manner with which the personnel of
defendants treated the two plaintiffs at the San Francisco
Airport are the following pertinent portions of Maria
Saludo's testimony:
Q When you arrived there, what did you do, if any?
A I immediately went to the TWA counter and I inquired
about whether my mother was there or if' they knew
anything about it.
Q What was the answer?
A They said they do not know. So, we waited.
Q About what time was that when you reached San
Francisco from Chicago?
A I think 5 o'clock. Somewhere around that in the
afternoon.
Q You made inquiry it was immediately thereafter?
A Right after we got off the plane.
Q Up to what time did you stay in the airport to wait until
the TWA people could tell you the whereabouts?
A Sorry, Sir, but the TWA did not tell us anything. We
stayed there until about 9 o'clock. They have not heard
anything about it. They did not say anything.
Q Do you want to convey to the Court that from 5 up to 9
o'clock in the evening you yourself went back to the TWA
and they could not tell you where the remains of your
mother were?
A Yes sir.
Q And after nine o'clock, what did you do?
A I told my brother my Mom was supposed to be on the
Philippine Airlines flight. "Why don't" we check with PAL
instead to see if she was there?" We tried to comfort each
other. I told him anyway that was a shortest flight from
Chicago to California. We will be with our mother on this
longer flight. So, we checked with the PAL.
Q What did you find?
A We learned, Yes, my Mom would be on the flight.
Q Who was that brother?
A Saturnino Saludo.
Q And did you find what was your flight from San
Francisco to the Philippines?
A I do not know the number. It was the evening flight of
the Philippine Airline(s) from San Francisco to Manila.
Q You took that flight with your mother?
A We were scheduled to, Sir.
Q Now, you could not locate the remains of your mother
in San Francisco could you tell us what did you feel?
A After we were told that my mother was not there?
Q After you learned that your mother could not fly with
you from Chicago to California?
A Well, I was very upset. Of course, I wanted the
confirmation that my mother was in the West Coast. The
fliqht was about 5 hours from Chicago to California. We
waited anxiously all that time on the plane. I wanted to
be assured about my mother's remains. But there was
nothing and we could not get any assurance from anyone
about it.
Q Your feeling when you reached San Francisco and you
could not find out from the TWA the whereabouts of the
remains, what did you feel?
A Something nobody would be able to describe unless he
experiences it himself. It is a kind of panic. I think it's a
feeling you are about to go crazy. It is something I do not
want to live through again. (Inting, t.s.n., Aug. 9, 1983, pp.
14-18).
The foregoing does not show any humiliating or arrogant
manner with which the personnel of both defendants
treated the two plaintiffs. Even their alleged indifference
is not clearly established. The initial answer of the TWA
personnel at the counter that they did not know anything
about the remains, and later, their answer that they have
not heard anything about the remains, and the inability
of the TWA counter personnel to inform the two
plaintiffs of the whereabouts of the remains, cannot be
said to be total or complete indifference to the said
plaintiffs. At any rate, it is any rude or discourteous
conduct, malfeasance or neglect, the use of abusive or
insulting language calculated to humiliate and shame
passenger or had faith by or on the part of the employees
of the carrier that gives the passenger an action for
damages against the carrier (Zulueta vs. Pan American
World Airways, 43 SCRA 397; Air France vs. Carrascoso,
et al., 18 SCRA 155; Lopez, et al. vs. Pan American World
Airways, 16 SCRA 431; Northwest Airlines, Inc. vs.
Cuenca, 14 SCRA 1063), and none of the above is
obtaining in the instant case. 67
We stand by respondent court's findings on this point,
but only to the extent where it holds that the manner in
which private respondent TWA's employees dealt with
petitioners was not grossly humiliating, arrogant or
indifferent as would assume the proportions of malice or
bad faith and lay the basis for an award of the damages
claimed. It must however, be pointed out that the
lamentable actuations of respondent TWA's employees
leave much to be desired, particularly so in the face of
petitioners' grief over the death of their mother,
exacerbated by the tension and anxiety wrought by the
impasse and confusion over the failure to ascertain over
an appreciable period of time what happened to her
remains.
Airline companies are hereby sternly admonished that it
is their duty not only to cursorily instruct but to strictly
require their personnel to be more accommodating
towards customers, passengers and the general public.
After all, common carriers such as airline companies are
in the business of rendering public service, which is the
primary reason for their enfranchisement and
recognition in our law. Because the passengers in a
contract of carriage do not contract merely for
transportation, they have a right to be treated with
kindness, respect, courtesy and consideration. 68 A
contract to transport passengers is quite different in kind
and degree from any other contractual relation, and
generates a relation attended with public duty. The
operation of a common carrier is a business affected with
public interest and must be directed to serve the comfort
and convenience of passengers. 69 Passengers are
human beings with human feelings and emotions; they
should not be treated as mere numbers or statistics for
revenue.
The records reveal that petitioners, particularly Maria
and Saturnino Saludo, agonized for nearly five hours,
over the possibility of losing their mother's mortal
remains, unattended to and without any assurance from
the employees of TWA that they were doing anything
about the situation. This is not to say that petitioners
were to be regaled with extra special attention. They
were, however, entitled to the understanding and
humane consideration called for by and commensurate
with the extraordinary diligence required of common
carriers, and not the cold insensitivity to their
predicament. It is hard to believe that the airline's
counter personnel were totally helpless about the
situation. Common sense would and should have
dictated that they exert a little extra effort in making a
more extensive inquiry, by themselves or through their
superiors, rather than just shrug off the problem with a
callous and uncaring remark that they had no knowledge
about it. With all the modern communications
equipment readily available to them, which could have
easily facilitated said inquiry and which are used as a
matter of course by airline companies in their daily
operations, their apathetic stance while not legally
reprehensible is morally deplorable.
Losing a loved one, especially one's, parent, is a painful
experience. Our culture accords the tenderest human
feelings toward and in reverence to the dead. That the
remains of the deceased were subsequently delivered,
albeit belatedly, and eventually laid in her final resting
place is of little consolation. The imperviousness
displayed by the airline's personnel, even for just that
fraction of time, was especially condemnable particularly
in the hour of bereavement of the family of Crispina
Saludo, intensified by anguish due to the uncertainty of
the whereabouts of their mother's remains. Hence, it is
quite apparent that private respondents' personnel were
remiss in the observance of that genuine human concern
and professional attentiveness required and expected of
them.
The foregoing observations, however, do not appear to
be applicable or imputable to respondent PAL or its
employees. No attribution of discourtesy or indifference
has been made against PAL by petitioners and, in fact,
petitioner Maria Saludo testified that it was to PAL that
they repaired after failing to receive proper attention
from TWA. It was from PAL that they received
confirmation that their mother's remains would be on
the same flight to Manila with them.
We find the following substantiation on this particular
episode from the deposition of Alberto A. Lim, PAL's
cargo supervisor earlier adverted to, regarding their
investigation of and the action taken on learning of
petitioner's problem:
ATTY. ALBERTO C. MENDOZA:
Yes.
Mr. Lim, what exactly was your procedure adopted in
your so called investigation?
ALBERTO A. LIM:
I called the lead agent on duty at that time and requested
for a copy of airway bill, transfer manifest and other
documents concerning the shipment.
ATTY ALBERTO C. MENDOZA:
Then, what?
ALBERTO A. LIM:
They proceeded to analyze exactly where PAL failed, if
any, in forwarding the human remains of Mrs. Cristina
(sic) Saludo. And I found out that there was not (sic)
delay in shipping the remains of Mrs. Saludo to Manila.
Since we received the body from American Airlines on 28
October at 7:45 and we expedited the shipment so that it
could have been loaded on our flight leaving at 9:00 in
the evening or just barely one hour and 15 minutes prior
to the departure of the aircraft. That is so (sic) being the
case, I reported to Manila these circumstances. 70
IV. Finally, petitioners insist, as a consequence of the
delay in the shipment of their mother's remains allegedly
caused by wilful contractual breach, on their entitlement
to actual, moral and exemplary damages as well as
attorney's fees, litigation expenses, and legal interest.
The uniform decisional tenet in our jurisdiction bolds
that moral damages may be awarded for wilful or
fraudulent breach of contract 71 or when such breach is
attended by malice or bad faith. 72 However, in the
absence of strong and positive evidence of fraud, malice
or bad faith, said damages cannot be awarded.73 Neither
can there be an award of exemplary damages 74 nor of
attorney's fees 75 as an item of damages in the absence
of proof that defendant acted with malice, fraud or bad
faith.
The censurable conduct of TWA's employees cannot,
however, be said to have approximated the dimensions
of fraud, malice or bad faith. It can be said to be more of
a lethargic reaction produced and engrained in some
people by the mechanically routine nature of their work
and a racial or societal culture which stultifies what
would have been their accustomed human response to a
human need under a former and different ambience.
Nonetheless, the facts show that petitioners' right to be
treated with due courtesy in accordance with the degree
of diligence required by law to be exercised by every
common carrier was violated by TWA and this entitles
them, at least, to nominal damages from TWA alone.
Articles 2221 and 2222 of the Civil Code make it clear
that nominal damages are not intended for
indemnification of loss suffered but for the vindication or
recognition of a right violated of invaded. They are
recoverable where some injury has been done but the
amount of which the evidence fails to show, the
assessment of damages being left to the discretion of the
court according to the circumstances of the case.76 In
the exercise of our discretion, we find an award of
P40,000.00 as nominal damages in favor of, petitioners
to be a reasonable amount under the circumstances of
this case.

WHEREFORE, with the modification that an award of

P40,000.00 as and by way of nominal damages is hereby
granted in favor of petitioners to be paid by respondent
Trans World Airlines, the appealed decision is
AFFIRMED in all other respects.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.

G.R. No. L-33836 March 16, 1987
DRA. SOFIA L. PRUDENCIADO, petitioner,
vs.
ALLIANCE TRANSPORT SYSTEM, INC. and JOSE
LEYSON, et al., respondents.
PARAS, J.:
This is a petition for review on certiorari of the
decision 1 of the Court of Appeals dated May 4,1971 in
CA-G.R. No. 34832R entitled Dra. Sofia L. Prudenciado v.
Alliance Transport System, Inc. and Jose Leyson, which
modified the decision 2 of the Court of First Instance of
Rizal, Quezon City, in Civil Case No. Q-5235 reducing the
amount of moral damages from P25,000 to P2,000 and
eliminating the award of exemplary damages and
attorney's fees but granting actual damages of P2,451.27.
The decretal portion of said decision reads:
WHEREFORE, the decision appealed from is hereby
modified, ordering appellants jointly and severally to pay
plaintiff the sum of P2,451.27 for actual damages
representing the cost of the repair of the car of Plaintiff;
(2) the sum of P2,000.00 as moral damages. No
pronouncement as to costs.
The antecedent facts of this case as found by the trial
court and by the Court of Appeals are as follows:
At about 2:05 p.m. of May 11, 1960, Dra. Sofia L.
Prudenciado was driving her own Chevrolet Bel Air car
along Arroceros Street with the intention of crossing Taft
Avenue in order to turn left, to go to the Philippine
Normal College Compound where she would hold
classes. She claimed that she was driving her car at the
rate of 10 kmph; that before crossing Taft Ave. she
stopped her car and looked to the right and to the left and
not noticing any on-coming vehicle on either side she
slowly proceeded on first gear to cross the same, but
when she was almost at the center, near the island
thereof, Jose Leyson who was driving People's Taxicab
owned and operated by Alliance Transport System, Inc.,
suddenly bumped and struck Dra. Prudenciado's car,
thereby causing physical injuries in different parts of her
body, suffering more particularly brain concussion
which subjected her to several physical examinations
and to an encephalograph test while her car was
damaged to the extent of P2,451.27. The damage to the
taxicab amounted to P190.00 (Decision in Civil Case No.
Q-5235, CFI, Rizal; Record on Appeal, pp. 63-64;
Decision, CA-G.R. No. 34832-R, Rollo, pp. 37-38).
Dra. Prudenciado filed a complaint for damages at the
Court of First Instance of Rizal, Quezon City against the
Alliance Transport System and Jose Leyson docketed as
aforestated, Civil Case No. Q-5232 (Record on Appeal, pp.
2-11).
After due hearing, the Court of First Instance of Rizal,
Quezon City, found Jose Leyson guilty of negligence in the
performance of his duties as taxicab driver which is the
proximate cause of the accident in question. On the other
hand, defendant Alliance Transport System, Inc. failed to
prove to the satisfaction of the court that it had exercised
the required diligence of a good father of the family in the
selection, supervision and control of its employees
including defendant Leyson. Consequently, both
defendants were held jointly and severally liable for the
physical injuries suffered by the plaintiff Dra. Sofia L.
Prudenciado as well as for the damage to her car, in
addition to the other consequential damages prayed for.
The dispositive portion of said decision reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS
judgment is rendered, one in favor of plaintiff and against
the defendants, by ordering the said defendants, jointly
and severally, to pay the plaintiff the sum of P2,451.27
for actual damages representing the cost for the repair of
the car of plaintiff; P25,000.00 as moral damages;
P5,000.00 as exemplary damages; and the further sum of
P3,000.00 as attorney's fees, with costs against the
defendants. (Record on Appeal, pp. 71-73).
On appeal, the Court of Appeals rendered the assailed
decision on May 14, 1971 and denied petitioner's motion
for reconsideration in its resolution dated July 20, 1971.
Hence, this petition.
The petition was given due course in the resolution of
this Court dated September 6, 1971 and petitioner filed
her brief on November 10, 1971 (Rollo, p. 69) while
respondents filed their brief on January 24, 1972 (Rollo,
p. 86). Petitioner filed her Reply Brief on March 1, 1972
(Rollo, p. 96); after which the case was considered
submitted for decision on the same date (Rollo, p. 99).
In her brief, petitioner raised the following assignment of
errors:
I
THE RESPONDENT COURT OF APPEALS ERRED IN
REDUCING THE AWARD OF MORAL DAMAGES TO THE
PETITIONER FROM P25,000.00 AWARDED BY THE
COURT OF FIRST INSTANCE OF RIZAL, BRANCH V,
QUEZON CITY, TO P2,000.00 NOTWITHSTANDING THE
FACT THAT THERE WAS NO FINDING THAT THE
AWARD WAS PALPABLY AND SCANDALOUSLY
EXCESSIVE AS TO INDICATE THAT IT WAS THE RESULT
OF PASSION OR CORRUPTION ON THE PART OF THE
TRIAL COURT;
II
THE RESPONDENT COURT OF APPEALS ERRED IN
ELIMINATING THE AWARD OF EXEMPLARY DAMAGES
OF P5,000.00 NOTWITHSTANDING THE FACT THAT
THE FINDING OF THE SAID COURT ON THE EVIDENCE
AND THE LAW APPLICABLE JUSTIFIED THE AWARD OF
EXEMPLARY DAMAGES AS HELD BY THE SAID TRIAL
COURT;
III
THE COURT OF APPEALS ERRED IN FINDING THAT HER
DEMOTION IN RANK AS A PROFESSOR IN THE UNITED
STATES WAS NOT SUBSTANTIATED AND IN MAKING
THIS FINDING A BASIS FOR THE REDUCTION OF THE
AWARD OF MORAL DAMAGES, NOTWITHSTANDING
THAT IT IS ALREADY TOO FAR FETCHED AND IT
MERELY CONFIRMS THE TRUTH OF THE FACT THAT
THE ACCUSED SUFFERED LOSS OF HER USUAL
LIVELINESS; VIVACITY ACTIVITY SELF-CONFIDENCE
AND THAT SHE FEELS UNCERTAIN AND INSECURE AND
THAT SHE WAS SUBJECTED TO EXTREME FRIGHT AND
SERIOUS ANXIETY, SERIOUS APPREHENSION OF
LOSING HER LIFE OR HER SENSES OR REASON AND OF
HER PHYSICAL MOBILITY ANYTIME AND THAT SHE
SUFFERED GREAT SHOCK AND SEVERE PAINS ON HER
BACK NEAR THE LEFT SIDE OF HER SPINAL COLUMN OF
THE LUMBAR REGION;
IV
THE RESPONDENT COURT OF APPEALS ALSO ERRED IN
ELIMINATING THE AWARD OF ATTORNEY'S FEES TO
THE PETITIONERS NOTWITHSTANDING THE FACT
THAT SAID AWARD IS LEGAL AND PROPER;
V
THE RESPONDENT COURT OF APPEALS ERRED IN
ELIMINATING THE COSTS TAXED AGAINST THE
RESPONDENTS NOTWITHSTANDING THE FACT THAT
SAID COSTS ARE LEGAL AND PROPER;
VI
THE RESPONDENT COURT OF APPEALS ERRED IN
FINDING THAT THE CLAIM OF DR. SOFIA L.
PRUDENCIADO OF HER LOSS OF HER USUAL
LIVELINESS, VIVACITY ACTIVITY AND HER USUAL SELF
CONFIDENCE, SUCH THAT SHE NOW FEELS UNCERTAIN
AND INSECURE... EXTREME FRIGHT AND SERIOUS
ANXIETY, SERIOUS APPREHENSION OF LOSING HER
LIFE OR HER SENSES OR REASON; OF HER PHYSICAL
MOBILITY ANYTIME ... GREAT SHOCK AND SEVERE
PAINS ON HER BACK NEAR THE LEFT SIDE OF HER
SPINAL COLUMN IN THE LUMBAR REGION IS
UNCORROBORATED NOTWITHSTANDING THE FACT OF
THE CERTIFICATE, EXHIBIT "G" OF DR. DOMINADOR
VERGARA, OF THE VETERANS MEMORIAL HOSPITAL
AND DR. CONRADO ARAMIL, BRAIN SPECIALIST AND
THE CORROBORATING TESTIMONY OF THE LATTER
AFTER EXAMINATION AND TREATMENT OF
PETITIONER;
VII
THE RESPONDENT COURT OF APPEALS ERRED IN SO
MODIFYING THE DECISION OF THE TRIAL COURT
NOTWITHSTANDING THE FACT THAT IT HAD NO
POWER TO DO SO UNDER THE FACTS AND
CIRCUMSTANCES OF THIS CASE AS FOUND BY THE
COURT OF APPEALS;
VIII
THE RESPONDENT COURT OF APPEALS ERRED IN
MODIFYING THE DECISION OF THE TRIAL COURT
NOTWITHSTANDING THE FACT THAT THE DECISION
OF SAID TRIAL COURT IS IN ACCORDANCE WITH LAW.
The Court of Appeals and the trial court are in accord in
the finding that the accident was caused by the
negligence of the taxi driver. The bone of contention is
however in the award of damages, which crystalizes the
errors assigned into one issue, which is whether or not
the Court of Appeals is justified in modifying or changing
the grant of damages by the trial court.
It is well settled that factual findings of the Court of
Appeals are binding on the Supreme Court, but said
findings are subject to scrutiny if such are diametrically
opposed to those of the trial court (Samson v. CA, et al.
G.R. No. L-40071, January 29, 1986).
The Court of Appeals concedes that a concussion of the
brain was suffered by Dra. Prudenciado but as to how
serious was the concussion or how it had later become,
and the disastrous extent of the injuries which she
alleges to have sustained as a result of the accident, are
seriously doubted by said Appellate Court.
Specifically, said Court finds that Dra. Prudenciado's
claim (which was sustained b the trial court) that
because of aforesaid concussion, she eventually lost her
usual liveliness, vivacity activity and her usual self-
confidence, to the extent that now she feels uncertain
and insecure, not to mention a sense of extreme fright
and serious anxiety, serious apprehension of losing her
life, or her senses or reason or her physical mobility
momentarily, plus experiences of great shock and severe
pains on her back near the left side of her spinal column
in the lumbar region, was not supported by the
deposition of Dr. Conrado Aramil the list who attended
to the plaintiff from May 14 to May 26, 1960 (TSN, July
13, 1960, pp. 72-73). From said deposition, it was
gathered that Dra. Prudenciado suffered a mild
abnormality, compatible with mold concussion of the
brain (TSN, July 13, 1960, pp. 47-48); that the symptoms
of any brain concussion usually are headache, dizziness,
voting and lack of pep or alertness; and that the possible
after effects that may be produced are persistent or
irregular headaches, fluctuating dizziness. Accordingly,
Dra. Prudenciado was advised "Just to watch herself if
she would develop any alarming symptoms such as
headache, dizziness or vomitings, to have her re-checked
after several months for her to be sure." (Ibid, pp. 51-52).
It might also produce intellectual deterioration or
lessening of intelligence, and even insanity.
Dra. Prudenciado sought to establish that she had
precisely suffered are those after effects except insanity;
but the Court of Appeals ruled that her proof consisted
merely in her own uncorroborated testimony. In support
of her allegation she could not show any medical
certificate tending to prove that she was indeed
medically treated abroad for her brain ailment nor was
there any showing in the documents presented that she
was demoted to the rank of technical assistant because
the San Francisco State College does not believe in her
mental capacity any more.
Finally, her statements that she is almost completely
losing her voice, that she has a terrible headache when
her head is pressed, that she has lost her sense of taste,
that she is nervous and temperamental and that she has
lapses of memory, are belied by the deposition of Dr.
Aramil that the patient's EEG was already normal on May
26, 1960; and on cross-examination he declared that she
was clinically symtomless when she was discharged
from the hospital (TSN, July 13, 1960, pp. 75-76; 78-79).
There is no argument that moral damages include
physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate
result of defendant's wrongful act or omission (People v.
Baylon, 129 SCRA 62 [1984]).
In the same manner, it is undisputed that the trial courts
are given discretion to determine the amount of moral
damages Alcantara v. Surro, 93 Phil. 472) and that the
Court of Appeals can only modify or change the amount
awarded when they are palpably and scandalously
excessive "so as to indicate that it was the result of
passion, prejudice or corruption on the part of the trial
court (Gellada v. Warner Barnes & Co., Inc., 57 O.G. (4)
7347, 7358; Sadie v. Bachrach Motors Co., Inc., 57 O.G. (4)
636 and Adone v. Bachrach Motor Co., Inc., 57 O.G. 656).
But in more recent cases where the awards of moral and
exemplary damages are far too excessive compared to
the, actual losses sustained by the aggrieved party, this
Court ruled that they should be reduced to more
reasonable amounts.
Thus, in the case of San Andres v. Court of Appeals (116
SCRA 85 [1982]) the Supreme Court ruled that while the
amount of moral damages is a matter left largely to the
sound discretion of a court, the same when found
excessive should be reduced to more reasonable
amounts, considering the attendant facts and
circumstances. Moral damages, though incapable of
pecuniary estimation, are in the category of an award
designed to compensate the claimant for actual injury
suffered and not to impose a penalty on the wrongdoer.
In a much later case (Siguenza v. Court of Appeals, 137
SCRA 578-579 [1985]), the Supreme court, reiterating
the above ruling, reduced the awards of moral and
exemplary damages which were far too excessive
compared to the actual losses sustained by the aggrieved
parties and where the records show that the injury
suffered was not serious or gross and, therefore, out of
proportion to the amount of damages generously
awarded by the trial court.
In any case the Court held that "moral damages are
emphatically not intended to enrich a complainant at the
expense of a defendant. They are awarded only to enable
the injured party to obtain means, diversion or
amusements that will serve to alleviate the moral
suffering he has undergone, by reason of the defendants'
culpable action." The award of moral damages must be
proportionate to the suffering inflicted & B Surety &
Insurance Co., Inc. v. Intermediate Appellate Court, 129
SCRA 745 [1984] citing Grand Union Supermarket, Inc. v.
Espino, Jr., 94 SCRA 966).
Coming back to the case at bar, a careful review of the
records makes it readily apparent that the injuries
sustained by Dra. Prudenciado are not as serious or
extensive as they were claimed to be, to warrant the
damages awarded by the trial court. In fact, a closer
scrutiny of the exhibits showing a moderate damage to
the car can by no stretch of the imagination produce a
logical conclusion that such disastrous effects of the
accident sought to be established, actually took place, not
to mention the fact that such were not supported by the
medical findings presented. Unquestionably, therefore,
the damages imposed' by the lower court should be
reduced to more reasonable levels.
On the other hand, it will be observed that the reduction However, a driver running at full speed on a rainy day, on
of the damages made by the Court of Appeals is both too a slippery road in complete disregard of the hazards to
drastic and unrealistic, to pass the test of reasonableness, life and limb of other people cannot be said to be acting
which appears to be the underlying basis to justify such in anything less than gross negligence. The frequent
reduction. incidence of accidents of this nature caused by taxi
drivers indeed demands corrective measures.
While the damages sought to be recovered were not
satisfactorily established to the extent desired by the PREMISES CONSIDERED, the assailed decision of the
petitioner, it was nonetheless not disputed that an Court of Appeals is hereby MODIFIED insofar as the
accident occurred due to the fault and negligence of the award of damages is concerned; and respondents are
respondents; that Dra. Prudenciado suffered a brain ordered to jointly and severally pay the petitioner; (1)
concussion which although mild can admittedly produce the sum of P2,451.27 for actual damages representing
the effects complained of by her and that these the cost of the repair of her car; (2) the sum of
symptoms can develop after several years and can lead P15,000.00 as moral damages; (3) the sum of P5,000.00
to some, serious handicaps or predispose the patient to as exemplary damages; and (4) the sum of P3,000.00 as
other sickness (TSN, July 13, 1960, pp. 52-54). Being a attorney's fees. No pronouncement as to costs.
doctor by profession, her fears can be more real and
intense than an ordinary person. Otherwise stated, she is SO ORDERED.
undeniably a proper recipient of moral damages which
Fernan (Chairman), Alampay, Gutierrez, Jr., Padilla, Bidin
are proportionate to her suffering.
and Cortes, JJ., concur.
As to exemplary damages, Article 2231 of the Civil Code
provides:
In quasi-delicts, exemplary damages may be granted if
the defendant acted with grave negligence.
The rationale behind exemplary or corrective damages
is, as the name implies, to provide an example or
correction for the public good (Lopez, et al. v. Pan
American World Airways, 16 SCRA 431).
The findings of the trial court in the case at bar which
became the basis of the award of exemplary damages are
to the effect that it is more apparent from the facts,
conditions and circumstances obtaining in the record of
the case that respondent driver was running at high
speed after turning to the right along Taft Ave. coming
from Ayala Boulevard, considering that the traffic was
clear. Failing to notice petitioner's car, he failed to apply
his brakes and did not even swerve to the right to avoid
the collision (Record on Appeal, pp. 69-70).
The Court of Appeals conforms with aforesaid findings of
the trial court but is not prepared to accept that there
was gross negligence on the part of the driver to justify
the imposition of exemplary damages.
G.R. No. L-22415 March 30, 1966
FERNANDO LOPEZ, ET AL., plaintiffs-appellants,
vs.
PAN AMERICAN WORLD AIRWAYS, defendant-
appellant.
Ross, Selph and Carrascoso for the defendant-
appellant.
Vicente J. Francisco for the plaintiffs-appellants.
BENGZON, J.P., J.:
Plaintiffs and defendant appeal from a decision of the
Court of First Instance of Rizal. Since the value in
controversy exceeds P200,000 the appeals were taken
directly to this Court upon all questions involved (Sec.
17, par. 3[5], Judiciary Act).
Stated briefly the facts not in dispute are as follows:
Reservations for first class accommodations in Flight No.
2 of Pan American World Airways — hereinafter
otherwise called PAN-AM — from Tokyo to San
Francisco on May 24, 1960 were made with
PAN-AM on March 29, 1960, by "Your Travel Guide"
agency, specifically, by Delfin Faustino, for then Senator
Fernando Lopez, his wife Maria J. Lopez, his son-in-law
Alfredo Montelibano, Jr., and his daughter, Mrs. Alfredo
Montelibano, Jr., (Milagros Lopez Montelibano). PAN-
AM's San Francisco head office confirmed the
reservations on March 31, 1960.
First class tickets for the abovementioned flight were
subsequently issued by
PAN-AM on May 21 and 23, 1960, in favor of Senator
Lopez and his party. The total fare of P9,444 for all of
them was fully paid before the tickets were issued.
As scheduled Senator Lopez and party left Manila by
Northwest Airlines on May 24, 1960, arriving in Tokyo at
5:30 P.M. of that day. As soon as they arrived Senator
Lopez requested Minister Busuego of the Philippine
Embassy to contact PAN-AM's Tokyo office regarding
their first class accommodations for that evening's flight.
For the given reason that the first class seats therein
were all booked up, however, PAN-AM's Tokyo office
informed Minister Busuego that PAN-AM could not
accommodate Senator Lopez and party in that trip as
first class passengers. Senator Lopez thereupon gave
their first class tickets to Minister Busuego for him to
show the same to PAN-AM's Tokyo office, but the latter
firmly reiterated that there was no accommodation for
them in the first class, stating that they could not go in
that flight unless they took the tourist class therein.
Due to pressing engagements awaiting Senator Lopez
and his wife, in the United States — he had to attend a
business conference in San Francisco the next day and
she had to undergo a medical check-up in Mayo Clinic,
Rochester, Minnesota, on May 28, 1960 and needed three
days rest before that in San Francisco — Senator Lopez
and party were constrained to take PAN-AM's flight from
Tokyo to San Francisco as tourist passengers. Senator
Lopez however made it clear, as indicated in his letter to
PAN-AM's Tokyo office on that date (Exh. A), that they
did so "under protest" and without prejudice to further
action against the airline.1äwphï1.ñët
Suit for damages was thereafter filed by Senator Lopez
and party against PAN-AM on June 2, 1960 in the Court
of First Instance of Rizal. Alleging breach of contracts in
bad faith by defendant, plaintiffs asked for P500,000
actual and moral damages, P100,000 exemplary
damages, P25,000 attorney's fees plus costs. PAN-AM
filed its answer on June 22, 1960, asserting that its failure
to provide first class accommodations to plaintiffs was
due to honest error of its employees. It also interposed a
counterclaim for attorney's fees of P25,000.
Subsequently, further pleadings were filed, thus:
plaintiffs' answer to the counterclaim, on July 25, 1960;
plaintiffs' reply attached to motion for its admittance, on
December 2, 1961; defendant's supplemental answer, on
March 8, 1962; plaintiffs' reply to supplemental answer,
on March 10, 1962; and defendant's amended
supplemental answer, on July 10, 1962.
After trial — which took twenty-two (22) days ranging
from November 25, 1960 to January 5, 1963 — the Court
of First Instance rendered its decision on November 13,
1963, the dispositive portion stating:
In view of the foregoing considerations, judgment is
hereby rendered in favor of the plaintiffs and against the
defendant, which is accordingly ordered to pay the
plaintiffs the following: (a) P100,000.00 as moral
damages; (b) P20,000.00 as exemplary damages; (c)
P25,000.00 as attorney's fees, and the costs of this action.
So ordered.
Plaintiffs, however, on November 21, 1963, moved for
reconsideration of said judgment, asking that moral
damages be increased to P400,000 and that six per cent
(6%) interest per annum on the amount of the award be
granted. And defendant opposed the same. Acting
thereon the trial court issued an order on December 14,
1963, reconsidering the dispositive part of its decision to
read as follows:
In view of the foregoing considerations, judgment is
hereby rendered in favor of the plaintiffs and against the
defendant, which is accordingly ordered to pay the
plaintiffs the following: (a) P150,000.00 as moral
damages; (b) P25,000.00 as exemplary damages; with
legal interest on both from the date of the filing of the
complaint until paid; and (c) P25,000.00 as attorney's
fees; and the costs of this action.
So ordered.
It is from said judgment, as thus reconsidered, that both
parties have appealed.
Defendant, as stated, has from the start admitted that it
breached its contracts with plaintiffs to provide them
with first class accommodations in its Tokyo-San
Francisco flight of May 24, 1960. In its appeal, however,
it takes issue with the finding of the court a quo that it
acted in bad faith in the branch of said contracts.
Plaintiffs, on the other hand, raise questions on
the amount of damages awarded in their favor, seeking
that the same be increased to a total of P650,000.
Anent the issue of bad faith the records show the
respective contentions of the parties as follows.
According to plaintiffs, defendant acted in bad faith
because it deliberately refused to comply with its
contract to provide first class accommodations to
plaintiffs, out of racial prejudice against Orientals. And in
support of its contention that what was done to plaintiffs
is an oftrepeated practice of defendant, evidence was
adduced relating to two previous instances of alleged
racial discrimination by defendant against Filipinos in
favor of "white" passengers. Said previous occasions are
what allegedly happened to (1) Benito Jalbuena and (2)
Cenon S. Cervantes and his wife.
And from plaintiffs' evidence this is what allegedly
happened; Jalbuena bought a first class ticket from PAN-
AM on April 13, 1960; he confirmed it on April 15, 1960
as to the Tokyo-Hongkong flight of April 20, 1960; PAN-
AM similarly confirmed it on April 20, 1960. At the
airport he and another Oriental — Mr. Tung — were
asked to step aside while other passengers - including
"white" passengers — boarded PAN-AM's plane. Then
PAN-AM officials told them that one of them had to stay
behind. Since Mr. Tung was going all the way to London,
Jalbuena was chosen to be left behind. PAN-AM's officials
could only explain by saying there was "some mistake".
Jalbuena thereafter wrote PAN-AM to protest the
incident (Exh. B).
As to Cenon S. Cervantes it would appear that in Flight
No. 6 of PAN-AM on September 29, 1958 from Bangkok
to Hongkong, he and his wife had to take tourist class,
although they had first class tickets, which they had
previously confirmed, because their seats in first class
were given to "passengers from London."
Against the foregoing, however, defendant's evidence
would seek to establish its theory of honest mistake,
thus:
The first class reservations of Senator Lopez and party
were made on March 29, 1960 together with those of
four members of the Rufino family, for a total of eight (8)
seats, as shown in their joint reservation card (Exh. 1).
Subsequently on March 30, 1960, two other Rufinos
secured reservations and were given a separate
reservation card (Exh. 2). A new reservation card
consisting of two pages (Exhs. 3 and 4) was then made
for the original of eight passengers, namely, Senator
Lopez and party and four members of the Rufino family,
the first page (Exh. 3) referring to 2 Lopezes, 2
Montelibanos and 1 Rufino and the second page (Exh. 4)
referring to 3 Rufinos. On April 18, 1960 "Your Travel
Guide" agency cancelled the reservations of the Rufinos.
A telex message was thereupon sent on that date to PAN-
AM's head office at San Francisco by Mariano Herranz,
PAN-AM's reservations employee at its office in Escolta,
Manila. (Annex A-Acker's to Exh. 6.) In said message,
however, Herranz mistakenly cancelled all the seats that
had been reserved, that is, including those of Senator
Lopez and party.
The next day — April 1960 — Herranz discovered his
mistake, upon seeing the reservation card newly
prepared by his co-employee Pedro Asensi for Sen. Lopez
and party to the exclusion of the Rufinos (Exh. 5). It was
then that Herranz sent another telex wire to the San
Francisco head office, stating his error and asking for the
reinstatement of the four (4) first class seats reserved for
Senator Lopez and party (Annex A-Velasco's to Exh. 6).
San Francisco head office replied on April 22, 1960 that
Senator Lopez and party are waitlisted and that said
office is unable to reinstate them (Annex B-Velasco's to
Exh. 6).
Since the flight involved was still more than a month
away and confident that reinstatement would be made,
Herranz forgot the matter and told no one about it except
his co-employee, either Armando Davila or Pedro Asensi
or both of them (Tsn., 123-124, 127, Nov. 17, 1961).
Subsequently, on April 27, 1960, Armando Davila, PAN-
AM's reservations employee working in the same Escolta
office as Herranz, phoned PAN-AM's ticket sellers at its
other office in the Manila Hotel, and confirmed the
reservations of Senator Lopez and party.
PAN-AM's reservations supervisor Alberto Jose,
discovered Herranz's mistake after "Your Travel Guide"
phone on May 18, 1960 to state that Senator Lopez and
party were going to depart as scheduled. Accordingly,
Jose sent a telex wire on that date to PAN-AM's head
office at San Francisco to report the error and asked said
office to continue holding the reservations of Senator
Lopez and party (Annex B-Acker's to Exh. 6). Said
message was reiterated by Jose in his telex wire of May
19, 1960 (Annex C-Acker's to Exh. 6). San Francisco head
office replied on May 19, 1960 that it regrets being
unable to confirm Senator Lopez and party for the reason
that the flight was solidly booked (Exh. 7). Jose sent a
third telex wire on May 20, 1960 addressed to PAN-AM's
offices at San Francisco, New York (Idlewild Airport),
Tokyo and Hongkong, asking all-out assistance towards
restoring the cancelled spaces and for report of
cancellations at their end (Annex D-Acker's to Exh. 6).
San Francisco head office reiterated on May 20, 1960 that
it could not reinstate the spaces and referred Jose to the
Tokyo and Hongkong offices (Exh. 8). Also on May 20, the
Tokyo office of PAN-AM wired Jose stating it will do
everything possible (Exh. 9).
Expecting that some cancellations of bookings would be
made before the flight time, Jose decided to withhold
from Senator Lopez and party, or their agent, the
information that their reservations had been cancelled.
Armando Davila having previously confirmed Senator
Lopez and party's first class reservations to PAN-AM's
ticket sellers at its Manila Hotel office, the latter sold and
issued in their favor the corresponding first class tickets
on the 21st and 23rd of May, 1960.
From the foregoing evidence of defendant it is in effect
admitted that defendant — through its agents — first
cancelled plaintiffs, reservations by mistake and
thereafter deliberately and intentionally withheld from
plaintiffs or their travel agent the fact of said
cancellation, letting them go on believing that their first
class reservations stood valid and confirmed. In so
misleading plaintiffs into purchasing first class tickets in
the conviction that they had confirmed reservations for
the same, when in fact they had none, defendant wilfully
and knowingly placed itself into the position of having to
breach its a foresaid contracts with plaintiffs should
there be no last-minute cancellation by other passengers
before flight time, as it turned out in this case. Such
actuation of defendant may indeed have been prompted
by nothing more than the promotion of its self-interest in
holding on to Senator Lopez and party as passengers in
its flight and foreclosing on their chances to seek the
services of other airlines that may have been able to
afford them first class accommodations. All the time, in
legal contemplation such conduct already amounts to
action in bad faith. For bad faith means a breach of a
known duty through some motive of interest or ill-will
(Spiegel vs. Beacon Participations, 8 NE 2d 895, 907). As
stated in Kamm v. Flink, 113 N.J.L. 582, 175 A. 62, 99
A.L.R. 1, 7: "Self-enrichment or fraternal interest, and not
personal ill-will, may well have been the motive; but it is
malice nevertheless."
As of May 18, 1960 defendant's reservations supervisor,
Alberto Jose knew that plaintiffs' reservations had been
cancelled. As of May 20 he knew that the San Francisco
head office stated with finality that it could not reinstate
plaintiffs' cancelled reservations. And yet said
reservations supervisor made the "decision" — to use his
own, word — to withhold the information from the
plaintiffs. Said Alberto Jose in his testimony:
Q Why did you not notify them?
A Well, you see, sir, in my fifteen (15) years of service
with the air lines business my experience is that even if
the flights are solidly booked months in advance, usually
the flight departs with plenty of empty seats both on the
first class and tourist class. This is due to late cancellation
of passengers, or because passengers do not show up in
the airport, and it was our hope others come in from
another flight and, therefore, are delayed and, therefore,
missed their connections. This experience of mine,
coupled with that wire from Tokyo that they would do
everything possible prompted me to withhold the
information, but unfortunately, instead of the first class
seat that I was hoping for and which I anticipated only
the tourists class was open on which Senator and Mrs.
Lopez, Mr. and Mrs. Montelibano were accommodated.
Well, I fully realize now the gravity of my decision in not
advising Senator and Mrs. Lopez, Mr. and Mrs.
Montelibano nor their agents about the erroneous
cancellation and for which I would like them to know
that I am very sorry.
xxx xxx xxx
Q So it was not your duty to notify Sen. Lopez and parties
that their reservations had been cancelled since May 18,
1960?
A As I said before it was my duty. It was my duty but as I
said again with respect to that duty I have the power to
make a decision or use my discretion and judgment
whether I should go ahead and tell the passenger about
the cancellation. (Tsn., pp. 17-19, 28-29, March 15,
1962.)
At the time plaintiffs bought their tickets, defendant,
therefore, in breach of its known duty, made plaintiffs
believe that their reservation had not been cancelled. An
additional indication of this is the fact that upon the face
of the two tickets of record, namely, the ticket issued to
Alfredo Montelibano, Jr. on May 21, 1960 (Exh. 22) and
that issued to Mrs. Alfredo Montelibano, Jr., on May 23,
1960 (Exh. 23), the reservation status is stated as "OK".
Such willful-non-disclosure of the cancellation or
pretense that the reservations for plaintiffs stood — and
not simply the erroneous cancellation itself — is the
factor to which is attributable the breach of the resulting
contracts. And, as above-stated, in this respect defendant
clearly acted in bad faith.
As if to further emphasize its bad faith on the matter,
defendant subsequently promoted the employee who
cancelled plaintiffs' reservations and told them nothing
about it. The record shows that said employee —
Mariano Herranz — was not subjected to investigation
and suspension by defendant but instead was given a
reward in the form of an increase of salary in June of the
following year (Tsn., 86-88, Nov. 20, 1961).
At any rate, granting all the mistakes advanced by the
defendant, there would at least be negligence so gross
and reckless as to amount to malice or bad faith (Fores
vs. Miranda, L-12163, March 4, 1959; Necesito v. Paras,
L-10605-06, June 30, 1958). Firstly, notwithstanding the
entries in the reservation cards (Exhs. 1 & 3) that the
reservations cancelled are those of the Rufinos only,
Herranz made the mistake, after reading said entries, of
sending a wire cancelling all the reservations, including
those of Senator Lopez and party (Tsn., pp. 108-109, Nov.
17, 1961). Secondly, after sending a wire to San
Francisco head office on April 19, 1960 stating his error
and asking for reinstatement, Herranz simply forgot
about the matter. Notwithstanding the reply of San
Francisco head Office on April 22, 1960 that it cannot
reinstate Senator Lopez and party (Annex B-Velasco's to
Exh. 6), it was assumed and taken for granted that
reinstatement would be made. Thirdly, Armando Davila
confirmed plaintiff's reservations in a phone call on April
27, 1960 to defendant's ticket sellers, when at the time it
appeared in plaintiffs' reservation card (Exh. 5) that they
were only waitlisted passengers. Fourthly, defendant's
ticket sellers issued plaintiffs' tickets on May 21 and 23,
1960, without first checking their reservations just
before issuing said tickets. And, finally, no one among
defendant's agents notified Senator Lopez and party that
their reservations had been cancelled, a precaution that
could have averted their entering with defendant into
contracts that the latter had already placed beyond its
power to perform.
Accordingly, there being a clear admission in defendant's
evidence of facts amounting to a bad faith on its part in
regard to the breach of its contracts with plaintiffs, it
becomes unnecessary to further discuss the evidence
adduced by plaintiffs to establish defendant's bad faith.
For what is admitted in the course of the trial does not
need to be proved (Sec. 2, Rule 129, Rules of Court).
Addressing ourselves now to the question of damages, it
is well to state at the outset those rules and principles.
First, moral damages are recoverable in breach of
contracts where the defendant acted fraudulently or in
bad faith (Art. 2220, New Civil Code). Second, in addition
to moral damages, exemplary or corrective damages may
be imposed by way of example or correction for the
public good, in breach of contract where the defendant
acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner (Articles 2229, 2232, New Civil
Code). And, third, a written contract for an attorney's
services shall control the amount to be paid therefor
unless found by the court to be unconscionable or
unreasonable (Sec. 24, Rule 138, Rules of Court).
First, then, as to moral damages. As a proximate result of
defendant's breach in bad faith of its contracts with
plaintiffs, the latter suffered social humiliation, wounded
feelings, serious anxiety and mental anguish. For
plaintiffs were travelling with first class tickets issued by
defendant and yet they were given only the tourist class.
At stop-overs, they were expected to be among the first-
class passengers by those awaiting to welcome them,
only to be found among the tourist passengers. It may not
be humiliating to travel as tourist passengers; it is
humiliating to be compelled to travel as such, contrary to
what is rightfully to be expected from the contractual
undertaking.
Senator Lopez was then Senate President Pro Tempore.
International carriers like defendant know the prestige
of such an office. For the Senate is not only the Upper
Chamber of the Philippine Congress, but the nation's
treaty-ratifying body. It may also be mentioned that in
his aforesaid office Senator Lopez was in a position to
preside in impeachment cases should the Senate sit as
Impeachment Tribunal. And he was former Vice-
President of the Philippines. Senator Lopez was going to
the United States to attend a private business conference
of the Binalbagan-Isabela Sugar Company; but his
aforesaid rank and position were by no means left
behind, and in fact he had a second engagement awaiting
him in the United States: a banquet tendered by Filipino
friends in his honor as Senate President Pro
Tempore (Tsn., pp. 14-15, Nov. 25, 1960). For the moral
damages sustained by him, therefore, an award of
P100,000.00 is appropriate.
Mrs. Maria J. Lopez, as wife of Senator Lopez, shared his
prestige and therefore his humiliation. In addition she
suffered physical discomfort during the 13-hour trip,(5
hours from Tokyo to Honolulu and 8 hours from
Honolulu to San Francisco). Although Senator Lopez
stated that "she was quite well" (Tsn., p. 22, Nov. 25,
1960) — he obviously meant relatively well, since the
rest of his statement is that two months before, she was
attackedby severe flu and lost 10 pounds of weight and
that she was advised by Dr. Sison to go to the United
States as soon as possible for medical check-up and
relaxation, (Ibid). In fact, Senator Lopez stated, as shown
a few pages after in the transcript of his testimony, that
Mrs. Lopez was sick when she left the Philippines:
A. Well, my wife really felt very bad during the entire trip
from Tokyo to San Francisco. In the first place, she was
sick when we left the Philippines, and then with that
discomfort which she [experienced] or suffered during
that evening, it was her worst experience. I myself, who
was not sick, could not sleep because of the discomfort.
(Tsn., pp. 27-28, Nov. 25, 1960).
It is not hard to see that in her condition then a physical
discomfort sustained for thirteen hours may well be
considered a physical suffering. And even without regard
to the noise and trepidation inside the plane — which
defendant contends, upon the strengh of expert
testimony, to be practically the same in first class and
tourist class — the fact that the seating spaces in the
tourist class are quite narrower than in first class, there
beingsix seats to a row in the former as against four to a
row in the latter, and that in tourist class there is very
little space for reclining in view of the closer distance
between rows (Tsn., p. 24, Nov. 25, 1960), will suffice to
show that the aforesaid passenger indeed experienced
physical suffering during the trip. Added to this, of
course, was the painfull thought that she was deprived
by defendant — after having paid for and expected the
same — of the most suitable, place for her, the first class,
where evidently the best of everything would have been
given her, the best seat, service, food and treatment. Such
difference in comfort between first class and tourist class
is too obvious to be recounted, is in fact the reason for
the former's existence, and is recognized by the airline in
charging a higher fare for it and by the passengers in
paying said higher rate Accordingly, considering the
totality of her suffering and humiliation, an award to Mrs.
Maria J. Lopez of P50,000.00 for moral damages will be
reasonable.
Mr. and Mrs. Alfredo Montelibano, Jr., were travelling as
immediate members of the family of Senator Lopez. They
formed part of the Senator's party as shown also by the
reservation cards of PAN-AM. As such they likewise
shared his prestige and humiliation. Although defendant
contends that a few weeks before the flight they had
asked their reservations to be charged from first class to
tourist class — which did not materialize due to alleged
full booking in the tourist class — the same does not
mean they suffered no shared in having to take tourist
class during the flight. For by that time they had already
been made to pay for first class seats and therefore to
expect first class accommodations. As stated, it is one
thing to take the tourist class by free choice; a far
different thing to be compelled to take it notwithstanding
having paid for first class seats. Plaintiffs-appellants now
ask P37,500.00 each for the two but we note that in their
motion for reconsideration filed in the court a quo, they
were satisfied with P25,000.00 each for said persons.
(Record on Appeal, p. 102). For their social humiliation,
therefore, the award to them of P25,000.00 each is
reasonable.
The rationale behind exemplary or corrective damages
is, as the name implies, to provide an example or
correction for public good. Defendant having breached
its contracts in bad faith, the court, as stated earlier, may
award exemplary damages in addition to moral damages
(Articles 2229, 2232, New Civil Code).
In view of its nature, it should be imposed in such an
amount as to sufficiently and effectively deter similar
breach of contracts in the future by defendant or other
airlines. In this light, we find it just to award P75,000.00
as exemplary or corrective damages.
Now, as to attorney's fees, the record shows a written
contract of services executed on June 1, 1960 (Exh. F)
whereunder plaintiffs-appellants engaged the services of
their counsel — Atty. Vicente J. Francisco — and
agreedto pay the sum of P25,000.00 as attorney's fees
upon the termination of the case in the Court of First
Instance, and an additional sum of P25,000.00 in the
event the case is appealed to the Supreme Court. As said
earlier, a written contract for attorney's services shall
control the amount to be paid therefor unless found by
the court to be unconscionable or unreasonable. A
consideration of the subject matter of the present
controversy, of the professional standing of the attorney
for plaintiffs-appellants, and of the extent of the service
rendered by him, shows that said amount provided for in
the written agreement is reasonable. Said lawyer —
whose prominence in the legal profession is well known
— studied the case, prepared and filed the complaint,
conferred with witnesses, analyzed documentary
evidence, personally appeared at the trial of the case in
twenty-two days, during a period of three years,
prepared four sets of cross-interrogatories for
deposition taking, prepared several memoranda and the
motion for reconsideration, filed a joint record on appeal
with defendant, filed a brief for plaintiffs as appellants
consisting of 45 printed pages and a brief for plaintiffs as
appellees consisting of 265 printed pages. And we are
further convinced of its reasonableness because
defendant's counsel likewise valued at P50,000.00 the
proper compensation for his services rendered to
defendant in the trial court and on appeal.
In concluding, let it be stressed that the amount of
damages awarded in this appeal has been determined by
adequately considering the official, political, social, and
financial standing of the offended parties on one hand,
and the business and financial position of the offender on
the other (Domingding v. Ng, 55 O.G. 10). And further
considering the present rate of exchange and the terms
at which the amount of damages awarded would
approximately be in U.S. dollars, this Court is all the more
of the view that said award is proper and reasonable.
Wherefore, the judgment appealed from is hereby
modified so as to award in favor of plaintiffs and against
defendant, the following: (1) P200,000.00 as moral
damages, divided among plaintiffs, thus: P100,000.00 for
Senate President Pro Tempore Fernando Lopez;
P50,000.00 for his wife Maria J. Lopez; P25,000.00 for his
son-in-law Alfredo Montelibano, Jr.; and P25,000.00 for
his daughter Mrs. Alfredo Montelibano, Jr.; (2)
P75,000.00 as exemplary or corrective damages; (3)
interest at the legal rate of 6% per annum on the moral
and exemplary damages aforestated, from December 14,
1963, the date of the amended decision of the court a
quo, until said damages are fully paid; (4) P50,000.00 as
attorney's fees; and (5) the costs. Counterclaim
dismissed.So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L.,

Barrera, Regala, Makalintal, Zaldivar and Sanchez, JJ.,
concur.
Dizon, J., is on leave.